     Case: 09-10837     Document: 00511595420         Page: 1     Date Filed: 09/07/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 7, 2011

                                      No. 09-10837                         Lyle W. Cayce
                                                                                Clerk

THE ESTATE OF WILBERT LEE HENSON, deceased; BARBARA KAY
HENSON REED, Individually and on behalf of The Estate of Wilbert Lee
Henson; IWILLER G HENSON HENDRIX; WILMA LYNN HENSON;
SHELISHA RICHARDSON,

                                                  Plaintifs - Appellees
v.

SHERIFF THOMAS J. CALLAHAN, in his Official and Individual Capacity,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:06-CV-44


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges..
LESLIE H. SOUTHWICK, Circuit Judge:*
        The family of Wilbert Henson brought suit under 42 U.S.C. § 1983. They
claimed that constitutional violations by Sheriff Thomas J. Callahan and his
employees caused Henson’s death while Henson was in pretrial detention.
Sheriff Callahan’s motion for summary judgment based on qualified immunity
was denied. We REVERSE.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 09-10837    Document: 00511595420    Page: 2   Date Filed: 09/07/2011



                                 No. 09-10837

                    FACTUAL AND PROCEDURAL HISTORY
      On Tuesday, November 23, 2004, Henson was arrested in Wichita County,
Texas, on a bond forfeiture warrant for driving with a suspended license. He
was taken to the Wichita County Jail. When he was booked, Henson complained
he was having trouble breathing. He told a nurse on duty that he had chronic
obstructive pulmonary disease and emphysema, and that he recently had been
treated for pneumonia. Henson also said that he had been prescribed an
antibiotic and an inhaler but had not filled the prescriptions.
      The nurse gave Henson an antibiotic and an albuterol inhaler. She also
scheduled him for a doctor’s call the next morning. That night, though, Henson
was transferred from the downtown jail to the annex facility several miles away.
When the same nurse learned of the transfer, she placed Henson on the next
doctor’s call at the annex. That typically would have been one day later, but
because that was Thanksgiving Day, no doctor’s call was held.
      At the annex, Henson’s health declined. He had difficulty breathing, and
other inmates requested medical treatment for him. Henson was visited once
by a nurse; detention officers also telephoned nurses for medical advice. He was
given several albuterol breathing treatments. Henson was moved to the medical
isolation cell and observed by detention officers regularly, but his health
continued to deteriorate. He was never taken to the hospital or seen by a doctor.
      On November 29, detention officers checked on Henson in his cell and
found him short of breath and unable to walk or stand. Henson said, “I’m done.
I’m not gonna make it.” Shortly thereafter, Henson stopped breathing. Officers
administered CPR until an ambulance arrived. Henson died at the hospital.
The Tarrant County Medical Examiner reported the cause of death as chronic
obstructive pulmonary disease.
      Henson’s relatives filed suit on March 27, 2006. Relevant to this appeal
are three of the individual defendants they identified. The first is Kaye Krajca,

                                       2
   Case: 09-10837    Document: 00511595420       Page: 3    Date Filed: 09/07/2011



                                   No. 09-10837

a nurse who had treated Henson at the jail and annex, who was sued in her
individual capacity under Section 1983, among several state law claims. The
district court found a genuine issue about whether Krajca displayed deliberate
indifference to Henson’s constitutional right to adequate medical care. On
appeal, we granted Krajca qualified immunity, finding her actions indicative of
negligence, gross negligence, or malpractice, but not rising to the level of
deliberate indifference to Henson’s rights. See Henson v. Krajca, No. 09-10881,
2011 WL __ (5th Cir. Aug. __, 2011) (unpublished).
      Henson’s relatives also sued Daniel Bolin, the doctor Wichita County
contracted with to provide medical services at both jail facilities. The district
court dismissed the claim that Dr. Bolin had directly violated Henson’s
constitutional rights. Dr. Bolin had never treated Henson, nor had he been
notified of Henson’s serious medical needs.
      The court, though, identified disputed material facts about whether Dr.
Bolin was liable under Section 1983 for his failure to supervise the nurses.
There were also disputed facts regarding whether Dr. Bolin had maintained a
custom of fear and intimidation that discouraged his staff from sending seriously
ill inmates to the hospital. This distinct theory of Section 1983 supervisory
liability applies to officials who implement, adopt, or maintain a custom or policy
that is “so deficient that the policy itself is a repudiation of constitutional rights
and is the moving force of the constitutional violation.” Cozzo v. Tangipahoa
Parish Council-President Gov’t, 279 F.3d 273, 289 (5th Cir. 2002) (quotation
marks and citation omitted). Dr. Bolin’s appeal to this court was dismissed for
want of prosecution; he remains a defendant in the district court.
      Sheriff Callahan was sued in his individual and official capacities under
Section 1983.     Like Krajca and Dr. Bolin, violations of the Fourth and
Fourteenth Amendments were alleged, and damages were also sought under
Texas’s wrongful death and survivorship statutes. The district court resolved

                                          3
   Case: 09-10837    Document: 00511595420      Page: 4    Date Filed: 09/07/2011



                                  No. 09-10837

the claims against the Sheriff similarly to those against Dr. Bolin. The court
found a factual dispute as to whether the Sheriff failed to supervise Dr. Bolin
and the nurses at the jail, and specifically whether the Sheriff was aware of and
failed to halt Dr. Bolin’s alleged intimidation that caused nurses to avoid
sending inmates to the hospital for emergency medical care. There was also
some evidence, the district court found, that such failures caused Nurse Krajca
to avoid sending Henson to the hospital.
      Sheriff Callahan filed this interlocutory appeal of the denial of qualified
immunity, challenging both theories of supervisory liability.
                                  DISCUSSION
      Our review of a refusal to grant summary judgment on the basis of
qualified immunity is limited. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc).     We do not have jurisdiction over the district court’s
determination that there is a question of fact regarding whether a defendant
engaged in the alleged conduct. Id. We do have authority to determine “whether
the district court erred in assessing the legal significance of the conduct that the
district court deemed sufficiently supported for purposes of summary judgment.”
Id. at 348 (citations omitted). This means we do not analyze whether a factual
dispute is genuine, but only whether it is material.         Id. at 347-48.    This
materiality review is conducted de novo. Id. at 349.
      A plaintiff in a Section 1983 suit must show a violation of the Constitution
or federal law and establish that the violator was acting under color of state law.
Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). When qualified immunity is
raised as a defense by the state actor, there will be no liability for actions that
do “not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. (quoting Kinney, 367 F.3d at 349)
(quotation marks omitted).



                                         4
   Case: 09-10837    Document: 00511595420      Page: 5    Date Filed: 09/07/2011



                                  No. 09-10837

      Therefore, when a defendant pleads qualified immunity, the burden shifts
to the plaintiff to negate the defense by showing (1) that the official violated a
constitutional right, and if so, (2) that the right was “clearly established” at the
time of the relevant official conduct. Pearson v. Callahan, 555 U.S. 223, 232
(2009) (citation omitted).
      The district court denied Sheriff Callahan qualified immunity. An order
denying qualified immunity is immediately appealable. Bazan ex rel. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001).
      To survive a defendant’s motion for summary judgment, the plaintiff must
provide evidence that would support a favorable jury verdict. Id. at 489. While
“absolute proof” is not required, the plaintiff “must offer more than mere
allegations.” Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.
2009) (quotation marks and citation omitted).          We review the summary
judgment record in the light most favorable to the non-moving party, drawing
all factual inferences in his favor. Bazan, 246 F.3d at 489.
      A.    Violation of a Clearly Established Constitutional Right
      The Henson family alleges that Sheriff Callahan violated rights secured
by the Fourteenth Amendment. That amendment requires that the “basic
human needs” of pretrial detainees be met, including medical needs. Hare v.
City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc).
      The sheriff is responsible under Section 1983 only for his own actions and
omissions. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Though
Sheriff Callahan was not directly involved in the alleged constitutional
deprivation, he still may be liable if:
      1) the sheriff failed to train or supervise the officers involved; 2)
      there is a causal connection between the alleged failure to supervise
      or train and the alleged violation of the plaintiff’s rights; and 3) the
      failure to train or supervise constituted deliberate indifference to
      the plaintiff’s constitutional rights.


                                          5
   Case: 09-10837      Document: 00511595420         Page: 6     Date Filed: 09/07/2011



                                      No. 09-10837

Thompson v. Upshur Cnty., TX, 245 F.3d 447, 459 (5th Cir. 2001) (citations
omitted).1 He may also be liable as a supervisor if he “implement[ed] a policy so
deficient that the policy itself is a repudiation of constitutional rights and is the
moving force of the constitutional violation.” Cozzo, 279 F.3d at 289 (quotation
marks and citation omitted); see Callahan, 623 F.3d at 256-57. Under this
analysis, customs or widespread practices are akin to official policies. Cozzo, 279
F.3d at 289. This law was clearly established at the time of Henson’s death.
       The Henson family also discusses the nurses’ alleged incompetence and
their possible failures to diagnose and treat Henson properly. These facts are
presented to support this theory of supervisory liability: the Sheriff allowed Dr.
Bolin’s custom or policy of nurse intimidation to persist, causing the nurses’
deficient response to Henson’s needs and ultimately Henson’s death. They are
not used separately to allege that the Sheriff’s inadequate supervision alone,
independent of Dr. Bolin’s custom, was constitutionally inadequate or causally
related to Henson’s death.
              1.     Failure to supervise
       In the 1990s, Wichita County entered a contract with Dr. Bolin which
required him to provide medical services and supervise the medical care
provided by a staff of licensed vocational nurses who worked at the jail. Dr.
Bolin still had these contractual duties in November 2004. The Henson family
alleges that this system was not meeting the medical needs of inmates because
Dr. Bolin intimidated the nurses from calling him or from sending seriously ill
inmates to the hospital. The Henson family alleges that Sheriff Callahan knew
of Dr. Bolin’s custom or widespread practice of intimidation, knew that the
nurses were not being properly supervised as a result of that custom, and did not
meaningfully respond to that problem.

       1
          The district court found no evidence to support the claim that the Sheriff could be
liable for a failure to train. The decision is not challenged on appeal.

                                             6
   Case: 09-10837      Document: 00511595420         Page: 7    Date Filed: 09/07/2011



                                     No. 09-10837

       The Sheriff argues that there is no competent evidence that he had a duty
to supervise the nurses. We disagree. The district court, in its opinion denying
the Sheriff summary judgment, several times referred to evidence supporting a
failure to supervise Dr. Bolin and the nurses. The court mentioned testimony
by the Sheriff that he did not supervise the doctor or the nurses’ provision of
medical care,2 and testimony by Dr. Bolin that he did not supervise the nurses
except while he was working alongside them at the jail. The district court
discussed evidence that the county, not Dr. Bolin, hired the nurses. The court
also relied on a Texas statute that made the sheriff the keeper of the jail and
responsible for the safety of the inmates. See Tex. Loc. Gov’t Code § 351.041(a).
       We reject the Sheriff’s argument that he cannot be held liable for failure
to supervise because he delegated all supervisory authority to Dr. Bolin.
Because the Sheriff ultimately is responsible under Texas law for the safety of
the prisoners, his delegation of supervision to the doctor could itself be a failure
to supervise.
       There also is evidence that the Sheriff took no steps to supervise the doctor
after another inmate died four months before Henson. Whether the Sheriff
failed to respond to that incident, which we describe in more detail below,
creates another fact issue of whether the Sheriff failed to supervise. Therefore,
the Henson family has presented evidence sufficient to avoid summary judgment
as to whether there was a failure to supervise.
              2.     Causation of a constitutional injury
       We now look for evidence of a causal connection between a failure to
supervise and a violation of Henson’s constitutional rights. Thompson, 245 F.3d
at 459. The Henson family claims that but for Dr. Bolin’s intimidation of the
nurses, the nurses would have sent Henson to the hospital more quickly,

       2
        Sheriff Callahan admitted that he considers himself a supervisor when the nurses are
not engaged in providing medical services.

                                             7
   Case: 09-10837      Document: 00511595420         Page: 8     Date Filed: 09/07/2011



                                      No. 09-10837

preventing his death.          The district court dismissed several defendants
supervised by the Sheriff, but retained Nurse Krajca and Dr. Bolin as persons
potentially liable under Section 1983.
       The causation prong explicitly requires an underlying constitutional
violation before holding a supervisor liable. See id. This is true for each of the
theories of supervisory liability remaining in this case. See id.; Cozzo, 279 F.3d
at 289. “It is facially evident that this test cannot be met if there is no
underlying constitutional violation.” Rios v. City of Del Rio, Tex., 444 F.3d 417,
425 (5th Cir. 2006) (citation omitted). This requirement is also incorporated into
the third prong of supervisory liability, deliberate indifference. Id. at 426-27; see
Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (“Proof of deliberate
indifference generally requires a showing of more than a single instance of the
lack of training or supervision causing a violation of constitutional rights.”
(brackets, quotation marks, and citation omitted)).
       The operative principle, then, is that a supervisor cannot be liable under
Section 1983 unless a subordinate employee has violated the plaintiff’s
constitutional rights – not just that a subordinate has acted negligently. These
“plaintiffs must show that the supervisor acted, or failed to act, with deliberate
indifference to violations of others’ constitutional rights committed by their
subordinates.” Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009) (brackets,
emphasis, quotation marks, and citation omitted); see Rios, 444 F.3d at 425-26
(collecting cases).3

       3
         In a recent decision, the Supreme Court stated that deliberate indifference could be
satisfied by the subordinate employee’s tortious conduct. “Policymakers’ continued adherence
to an approach that they know or should know has failed to prevent tortious conduct by
employees may establish the conscious disregard for the consequences of their action – the
deliberate indifference – necessary to trigger municipal liability.” Connick v. Thompson, 131
S. Ct. 1350, 1360 (2011) (quotation marks and citation omitted).
        Though the court used the word “tortious,” in context we conclude the Court meant an
employee’s commission of a constitutional tort under Section 1983. The language just one
paragraph earlier in that opinion says policymakers can be liable when “a particular omission

                                             8
   Case: 09-10837       Document: 00511595420          Page: 9     Date Filed: 09/07/2011



                                       No. 09-10837

       In Nurse Krajca’s appeal, which we also decide today, we determined her
actions to be indicative of negligence, gross negligence, or malpractice, but not
deliberate indifference. Krajca, 2011 WL __, at *__. Because Krajca did not
violate Henson’s constitutional rights, her conduct cannot serve as the predicate
for the Sheriff’s supervisory liability.
       The remaining subordinate upon which to base the Sheriff’s supervisory
liability is Dr. Bolin. Dr. Bolin was denied qualified immunity by the district
court and timely appealed here. He failed to pursue his appeal, though, and his
case returned to the district court for further proceedings. We find no evidence,
and the district court did not rest its opinion on such evidence, that the Sheriff
did or failed to do anything as to Dr. Bolin that is relevant to inmate Henson,
other than what we have discussed in this opinion regarding Nurse Krajca.
       Consequently, whatever failures of care occurred at this jail that led to
Henson’s death, none of them constitute a constitutional violation for which
Sheriff Callahan can be held liable under Section 1983.
       We do not ignore the evidence in this record supporting that another
inmate at the Wichita County jail, Jason Brown, died about four months before
Henson. Brown came to the jail with a number of health problems. While in
detention, he was vomiting blood. Nurses treated Brown, then placed him in the
medical segregation cell. He was never taken to the hospital or seen by Dr.
Bolin. In his reply brief, Sheriff Callahan states that the events leading up to
the two deaths “are entirely unrelated and that any comparison of the two cases
by this Court is unwarranted.” For purposes of resolving the issues before us,




in their training program causes city employees to violate citizens’ constitutional rights . . .
.” Id. And the underlying harm in Connick was a Brady violation, not a tort in the usual
sense of the word. Connick does not alter that Section 1983 supervisory liability arises only
for constitutional violations committed by subordinates.

                                               9
  Case: 09-10837    Document: 00511595420      Page: 10   Date Filed: 09/07/2011



                                  No. 09-10837

we will presume sufficient factual similarities to put the Sheriff on notice of
problems regarding health care in the jail.
      The difficulty, though, is there still was a need to introduce evidence that
Henson’s death was causally related to a constitutional violation by the Sheriff
in failing to correct a problem of intimidation of nurses. We have held that such
evidence was not introduced. Instead, those who the Henson family claims
contributed to the death have not been shown to have committed constitutional
violations, though they may have been negligent. We have already discussed
why that is not enough.
      Accordingly, there is no evidence that Brown’s death would have put the
Sheriff on notice of something relevant as to the Henson family’s claim, and if
so, whether the Sheriff “responded reasonably” to that notice.         Farmer v.
Brennan, 511 U.S. 825, 844 (1994). We have held that no evidence supports that
an alleged reluctance to send seriously ill inmates to the hospital contributed to
Henson’s death. Consequently, the possible existence of a pattern does not
satisfy all the evidentiary defects in this case.
      Without a showing that a subordinate employee “refused to treat [Henson],
ignored his complaints, intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious
medical needs,” there is no predicate constitutional violation upon which to base
Sheriff Callahan’s supervisory liability. Domino v. Tex. Dept. of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation marks and citations
omitted). He is entitled to qualified immunity.
      REVERSED and REMANDED for entry of judgment dismissing Sheriff
Callahan from this suit.




                                        10
  Case: 09-10837        Document: 00511595420        Page: 11    Date Filed: 09/07/2011



                                                                               09-10837

OWEN, Circuit Judge, concurring.
      I join Judge Southwick’s holding that Sheriff Thomas Callahan is entitled
to qualified immunity. With respect, however, I do not join his opinion. I agree
only that because there is no underlying constitutional violation upon which to
base supervisory liability, Callahan is entitled to qualified immunity. The
balance of Judge Southwick’s opinion is unnecessary, and I would not reach the
other issues that he considers. I also note that many of the reasons given by the
district court for concluding that Callahan could be held liable under a theory of
failing to supervise or train were subsequently rejected by our court in a related
appeal.1




      1
          See Brown v. Callahan, 623 F.3d 249 (5th Cir. 2010).

                                             11
  Case: 09-10837     Document: 00511595420      Page: 12    Date Filed: 09/07/2011



                                                                           09-10837

DENNIS, Circuit Judge, dissenting:
      I respectfully dissent. In my view, there is evidence from which a
reasonable jury could conclude that each of the three elements of supervisory
liability is satisfied, and thus that the district court’s denial of qualified
immunity to Sheriff Callahan should be affirmed. First, I would conclude, for
the reasons given by Judge Southwick, and which Judge Owen does not
attempt to dispute, that there is competent summary judgment evidence
showing that Sheriff Callahan had a duty to supervise the nurses.
      Second, I disagree with the majority’s conclusion, which is the primary
basis for its granting qualified immunity to Sheriff Callahan, that there was
no violation of Henson’s constitutional rights by either of Sheriff Callahan’s
subordinates, Dr. Bolin or Nurse Krajca. The majority’s determination that
Nurse Krajca did not violate Henson’s constitutional rights is based on its
conclusion in Henson v. Krajca, 2011 WL ___ at *___, that there are no facts
in the record from which a jury could reasonably infer that she was
deliberately indifferent to his serious medical needs. However, for the
reasons given in my dissent from that decision, I believe there is evidence
from which a jury could reasonably infer that Nurse Krajca acted with
deliberate indifference to Henson’s serious medical needs, thereby violating
his constitutional rights.
      Finally, I would conclude that there is evidence from which a
reasonable jury could find that Sheriff Callahan acted with deliberate
indifference, a proposition which the majority does not attempt to dispute.
The record in this case contains evidence that another inmate, Jason Brown,
like Henson, came to the same jail and died while in custody, about four
months before the events of this case. “During the 55 hours between Brown’s
book-in and his death, he informed the intake nurse of multiple serious
medical problems, repeatedly vomited what appeared to be blood, complained

                                         12
  Case: 09-10837       Document: 00511595420          Page: 13     Date Filed: 09/07/2011



                                                                                   09-10837

of feeling unwell, requested to be sent to the emergency room, and ultimately
was non-responsive for extended periods of time.” Brown v. Callahan, 623
F.3d 249, 252 (5th Cir. 2010). There was also evidence that “Nurse Krajca,
who oversaw . . . Brown’s treatment,” stated to a detention officer regarding
Brown, “[d]o you know what kind of ass-chewing I would get from Dr. Bolin if
I sent [Brown] to the hospital in the good health that he is in?” Id. at 254 &
n.2 (alterations in original). Brown received some treatment and then was
placed in a medical segregation cell, where he died without ever being taken
to the hospital or seen by Dr. Bolin. This information was included in a
report of an investigation into the circumstances surrounding Brown’s death,
which was signed by Sheriff Callahan.
       Thus, based on this evidence, a reasonable jury could conclude that
Sheriff Callahan was on notice, by the time of Henson’s arrival at the jail,
that there was a problem of nurses, particularly Nurse Krajca, being
reluctant to send very ill inmates to the hospital, and that his failure to
address that problem constituted deliberate indifference.1
       For these reasons, I would affirm the district court’s denial of qualified
immunity as to Sheriff Callahan.




       1
         Sheriff Callahan argues, for the first time in his reply brief, that the circumstances
surrounding the deaths of Brown and Henson “are entirely unrelated and that any comparison
of the two cases by this Court is unwarranted,” but offers no additional explanation for this
assertion, which is offered only in the context of arguing that the evidence was inadmissible
under the Federal Rules of Evidence. An argument raised for the first time in a reply brief
should not be considered. See United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir.
2006).

                                              13
