Crooks v. Thomas

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS October 27, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21091
DAVID CROOKS,
Plaintiff-Appellant,
versus
TOMMY THOMAS; GIRARD FINCH; KENNETH LARRAMORE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CV-3725)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Crooks, proceeding pro se, appeals the summary judgment
against his 42 U.S.C. § 1983 civil rights action, maintaining he
did not receive the underlying motion. Any notice inadequacies
constitute harmless error. AFFIRMED.
I.
Crooks’ complaint claimed: Defendants (sheriff and two deputy
sheriffs for Harris County, Texas) violated his civil rights by
failing to move him from a cell he shared with Hispanics; despite
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Crooks’ repeated complaints to guards that the Hispanics were
harassing him because he was the only black inmate in the cell,
Defendants refused to intervene; Crooks was severely beaten by his
Hispanic cellmates; and Defendants tried to hide the beating by
reporting it as a riot Crooks instigated.
Crooks filed this action on 30 October 2001, listing his
address as “9223 Clearway, Houston, TX, 77033 but is incarsarated
[sic] in 701 N. San Jacinto, 7K1, Houston, TX, 77002”.
Approximately three weeks later, by letter to the district court,
Crooks advised he had been “transferred to an [sic] T.D.C.
Facility, specifically Garza West. Send All Notices and letter
[sic] (ETC) to Garza West, TF, HCO2, Box 995, Beeville TX 78102”.
On 1 February 2002, the district court ordered that summonses
issue for Defendants. The summonses listed Crooks’ earlier
provided alternative address as 701 N. San Jacinto, despite the
district court’s receipt of Crooks’ change of address letter.
On 7 March 2002, Defendants filed a motion to dismiss and
served it on Crooks at the N. San Jacinto and Clearway addresses.
The service was returned not delivered from the N. San Jacinto
address; on the other hand, it appears that Crooks’ mother, Mary
Crooks, signed for receipt of the motion at the Clearway address.
(Defendants have provided the form signed by Mary Crooks only in
their record excerpts. Restated, the form is not included in the
record on appeal, as required. As discussed infra, because the
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disposition of this appeal does not turn on whether Crooks received
the motion, we need not address whether it was served on him
through his mother.)
More than five months later, not having received from Crooks
a response to the motion, the district court dismissed this action.
Although Defendants had moved to dismiss, their motion was treated
as one for summary judgment.
II.
Crooks maintains: he never received Defendants’ motion;
therefore, summary judgment was improper. As noted, we need not
address whether Crooks was served. Assuming he was not, this
failure constitutes harmless error.
As described, although Defendants filed a motion to dismiss,
the district court referred to it as one for summary judgment and
considered evidence outside the complaint (a grievance resolution
form Defendants submitted). Of course, district courts have such
authority, see FED. R. CIV. P. 12(b); but, in doing so, the court
must consider the motion under Rule 56, including application of
its notice requirement. See FED. R. CIV. P. 12(b) & 56(c); e.g.,
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir.
1990). “Whenever a motion to dismiss is treated as a motion for
summary judgment, the nonmovant is entitled to the procedural
safeguards of Rule 56.” Washington, 901 F.2d at 1284.
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Although our court enforces this notice requirement, “the
harmless error doctrine applies to lack of notice as required by
Rule 56(c)”. Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994). “When
there is no notice to the nonmovant, summary judgment will be
considered harmless if the nonmovant has no additional evidence or
if all of the nonmovant’s additional evidence is reviewed by the
appellate court and none of the evidence presents a genuine issue
of material fact.” Id. (quoting Resolution Trust Corp. v. Sharif-
Munif-Davidson Dev. Corp., 992 F.2d 1398, 1403 n.7 (5th Cir.
1993)).
Along this line, Crooks submitted the following with his
notice of appeal: statements by prisoners Esquivel and Andrews; a
sheriff’s department disciplinary committee report; a district
court order on service of process highlighted by Crooks to show
Defendants were required to serve on him a copy of every paper
submitted to the court; and a district court order stating Crooks
could proceed IFP.
Esquivel states: he witnessed racist behavior from other
Hispanics toward Crooks; the Hispanic cellmates threatened to fight
Crooks, refused to let Crooks watch television in English, and
stole Crooks’ belongings; he remembers Crooks complaining to the
Officers about the Hispanics; and the Officers knew of the
situation, but were indifferent to it.
4
Andrews states: he witnessed Crooks’ beating, including a
“gang of Hispanics jumping on [Crooks]”; it could have been
avoided; everyone knew there was a problem in Crooks’ cell over the
television; he saw Crooks talking to Officers about being moved
from that cell; and, after Crooks’ beating, the cell was changed to
house only English-as-a-Second-Language inmates.
The disciplinary committee report reflects that Crooks
reported his attack and claimed that he had complained previously
in seeking to be moved. (A handwritten note by Crooks on the
report asserts that he said more to the Officers that was not
incorporated in the report.) The report states the incident was
treated as a riot for which Crooks was sanctioned with a 20-day
loss of privileges, probated for 30 days. (Crooks asserts this
shows Defendants’ attempt to hide their conduct, because if he had
instigated a riot, his punishment would have been more severe than
probation.)
A.
The summary judgment ruling was premised on the fact that
Defendants’ conduct could not give rise to liability in their
official capacities. Such liability, pursuant to claims under §
1983, can attach only when the claimed unconstitutional conduct
implements or executes a policy or when a constitutional
deprivation results from governmental custom. Monell v. New York
Dep’t of Social Serv., 436 U.S. 658, 690-91 (1978). An isolated
5
incident is not sufficient to show such a custom. Palmer v. City
of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (holding that
official policy is either a statement officially adopted by a
municipality or a persistent widespread practice of municipality
employees which is common and well established), overruled in part
by Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993).
Three of the above-described documents submitted with Crooks’
notice of appeal relate to Defendants’ refusal to move him to a
different cell. That conduct, even if assumed to be
unconstitutional, does not reflect a policy or custom sufficient to
establish liability through Defendants’ official capacities.
B.
Defendants’ motion also claimed qualified immunity (individual
capacities). The summary judgment ruling does not address that
claim, other than to state: Defendants “could not have legally
done what [Crooks] would have preferred”; and Crooks did not claim
Defendants “instigated the assault on him or that they failed to
intervene to stop it and the riot”.
In deciding whether a defendant is entitled to such immunity,
the court first determines whether the plaintiff alleged violation
of a clearly established constitutional right. E.g., Williams v.
Bramer, 180 F.3d 699, 702 (5th Cir. 1999). If the court rules such
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a violation is alleged, it next determines whether the defendant’s
conduct was then objectively unreasonable. Id.Documents provided with Crooks’ notice of appeal are
insufficient to show violation of a clearly established
constitutional right by Defendants’ not moving him from a cell in
which he was a racial minority. Therefore, we need not address
whether Defendants’ conduct was objectively unreasonable.
III.
For the foregoing reasons, the summary judgment is
AFFIRMED.
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