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

                                                                                  FILED
                                    No. 16-41471                              April 27, 2017
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
SYLVIA FUENTES, Individually and representative of the Estate of
Sammuel Toomey; JONATHON TOOMEY; HANNAH TOOMEY; EVERETT
TOOMEY; JOSHUA TOOMEY,

              Plaintiffs - Appellants

v.

NUECES COUNTY, TEXAS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:15-CV-327


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       After Sammuel Toomey committed suicide during his detention in the
Nueces County Jail, his wife and children, individually and as representatives
of his estate, sued Nueces County seeking relief under 42 U.S.C. § 1983. The
district court granted summary judgment for Nueces County because the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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plaintiffs had failed to establish any official county policy that was the moving
force behind any violation of Toomey’s constitutional rights. We AFFIRM.
                         I. FACTS AND PROCEEDINGS
      Sammuel Toomey was arrested by Corpus Christi police officers on
September 14, 2014, following an altercation with his neighbor that
culminated in Toomey allegedly shooting and killing three individuals.
Toomey was booked into the Nueces County Jail the following day. During his
intake processing, Toomey stated that he intended to kill himself. Accordingly,
he was placed on suicide watch, which required a jail guard to check on Toomey
in his cell at regular 30-minute intervals, but did not mandate that Toomey
wear the suicide smock required of higher risk inmates. For the duration of
his detention, Toomey was checked approximately every 30 minutes with the
exception of when he was outside of his cell.
      At approximately 6:30 p.m. on September 18, Toomey was moved from
an isolation holding cell to a cell in the 4P unit of the jail. Officer Erasmus
Gomez was the guard assigned to the 4P unit at the time Toomey was moved
there. At 9:53 p.m., Toomey was taken to the medical department for an
evaluation; he was returned to his cell at 10:10 p.m. Gomez’s last check of
Toomey occurred at 11:00 p.m., during which he observed Toomey lying on his
side on his bunk without pants on.         Officer Aldo Garza came on duty at
11:00 p.m. to replace Gomez in the 4P unit. Pursuant to jail policy on shift
changes, Gomez and Garza together completed a roll call of all inmates in the
4P unit between 11:09 and 11:20 p.m. During roll call, Garza observed Toomey
lying on his stomach appearing to be asleep and to be breathing. However,
Garza did not check Toomey’s arm band or observe his face, which Garza later
admitted was a violation of jail policy. Garza returned to Toomey’s cell at
11:30 p.m. to release Toomey for his daily allotted hour outside his cell. Garza
found Toomey in a different position than that he had been in during roll call;
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Toomey had his pants tied around his neck and was unresponsive. Jail guards
and medical staff attempted to revive Toomey, after which he was transported
to a hospital and pronounced dead at 12:19 a.m. on September 19. The cause
of death was later determined to be mechanical asphyxiation. The Nueces
County Sheriff’s Office subsequently conducted an internal investigation into
Toomey’s suicide and found that “no violations of customs, regulations, or
policies . . . contributed to [Toomey’s] death.”
       Toomey’s wife and children, individually and as representatives of his
estate (collectively, the Toomey Estate), filed suit against Nueces County 1
under 42 U.S.C. § 1983 on July 31, 2015, for damages relating to Toomey’s
death. 2 Its amended complaint alleged that Nueces County was liable for the
constitutional violations committed by its officers because the officers’ actions
were undertaken pursuant to Nueces County’s customs, policies, and
procedures. 3 Nueces County moved for summary judgment, which the district
court granted on the basis that the Toomey Estate had failed satisfy the
requirements for municipal liability established in Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978). The Toomey
Estate timely appeals.




       1  The Toomey Estate later moved to amend its complaint to name two Nueces County
sheriff’s deputies as defendants. The district court denied this motion, and the Toomey
Estate does not appeal this order.
        2 The Toomey Estate also named as defendants five John and Jane Doe Nueces County

Sheriff’s Department officers, the City of Corpus Christi, two named Corpus Christi police
officers, and five John and Jane Doe Corpus Christi police officers. The Toomey Estate later
dismissed its claims against Corpus Christi and its police officers pursuant to a settlement
agreement. And after the district court granted summary judgment, the Toomey Estate
moved to dismiss the five John and Jane Doe Nueces County Sheriff’s Department officers,
which the district court granted. Accordingly, the only remaining defendant is Nueces
County.
        3 The amended complaint also raised claims of failure to train and deliberate

indifference against Nueces County, but the Toomey Estate’s arguments on appeal are
limited to those stemming from Nueces County customs, policies, and procedures.
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                        II. MUNICIPAL LIABILITY
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In making this determination, we view the evidence in the light most
favorable to the nonmoving party. Rogers, 755 F.3d at 350.
      The Toomey Estate argues on appeal that Nueces County is liable for the
misconduct of its employees in violating Toomey’s constitutional rights. A
municipality, such as Nueces County, is subject to suit under § 1983 “only for
acts directly attributable to it ‘through some official action or imprimatur.’”
Valle v. City of Hous., 613 F.3d 536, 541 (5th Cir. 2010) (quoting Piotrowski v.
City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)); see Monell, 436 U.S. at 691
(“[T]he language of § 1983 . . . compels the conclusion that Congress did not
intend municipalities to be held liable unless action pursuant to official
municipal policy of some nature caused a constitutional tort.”). Accordingly, to
establish municipal liability under § 1983, a plaintiff must prove three
elements: “(1) an official policy (or custom), of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a constitutional
violation whose ‘moving force’ is that policy or custom.” Valle, 613 F.3d at 541–
42 (quoting Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002)). The
first prong, an official policy or custom, can be proved in two ways. “First, a
plaintiff may point to a policy statement formally announced by an official
policymaker.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th Cir.
2010). Alternatively, a plaintiff can offer evidence of a “persistent widespread
practice of [county] officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well settled as to
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constitute a custom that fairly represents municipal policy.”         Id. at 169
(quoting Webster v. City of Hous., 745 F.2d 838, 841 (5th Cir. 1984) (en banc));
see also id. (“A customary policy consists of actions that have occurred for so
long and with such frequency that the course of conduct demonstrates the
governing body’s knowledge and acceptance of the disputed conduct.”). Such
“[a] pattern is tantamount to official policy.” Peterson v. City of Fort Worth,
588 F.3d 838, 850 (5th Cir. 2009). The Toomey Estate relies on this second
method.
        The district court terminated its analysis at the first prong of the
municipal liability analysis, concluding that the Toomey Estate failed to show
a persistent, widespread custom or practice of unconstitutional conduct by
Nueces County employees. The Toomey Estate challenges this conclusion on
appeal, arguing that it demonstrated a custom by Nueces County officials “to
encourage the use of lackadaisical procedures when supervising inmates and
creating a situation of inability for officers to complete what they must to
ensure the protection and safety of inmates in their care.” In support of this
assertion, the Toomey Estate relies upon, as it did in the district court, three
prior inmate suicides in the Nueces County Jail occurring in 1995, 1999, and
2008.
        When a plaintiff relies on prior incidents to prove a county policy, the
prior incidents “must have occurred for so long or so frequently that the course
of conduct warrants the attribution to the governing body of knowledge that
the objectionable conduct is the expected, accepted practice of [county]
employees.” Peterson, 588 F.3d at 850 (quoting Webster, 735 F.2d at 842). In
other words, “a plaintiff must demonstrate ‘a pattern of abuses that transcends
the error made in a single case.’” Id. at 850–51 (quoting Piotrowski, 237 F.3d
at 582 (citations omitted)). “A pattern requires similarity and specificity;
‘[p]rior indications cannot simply be for any and all bad or unwise acts, but
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rather must point to the specific violation in question.’” Id. at 851 (alteration
in original) (quoting Estate of Davis ex rel. McCully v. City of North Richland
Hills, 406 F.3d 375, 383 (5th Cir. 2005)).       In addition to similarity and
specificity, a pattern must be comprised of “sufficiently numerous prior
incidents” rather than merely “isolated instances.” McConney v. City of Hous.,
863 F.2d 1180, 1184 (5th Cir. 1989).
      The three prior incidents that the Toomey Estate relies upon fail to
satisfy these requirements for a pattern. First, these incidents lack similarity
to the specific violation in Toomey’s case: failure to conduct proper face-to-face
observation of an inmate on suicide watch. On a general level, each of these
three incidents did involve a failure on the part of jail staff to follow jail
procedures regarding inmate checks. However, as the district court noted,
these incidents materially differ from Toomey’s case in whether the inmate
was a known suicide risk, the manner in which jail guards deviated from jail
procedures, and the extent to which the violators were later disciplined. Only
one of these incidents involved an inmate unequivocally under suicide watch
at the time of the suicide. And all three incidents involved an improper gap
between inmate checks by the guards, whereas there was no gap in Toomey’s
checks. These incidents thus lack the type of specific similarity to the violation
in Toomey’s case that is required to demonstrate a pattern.
      Further, the district court did not err in concluding that four incidents
of inmate suicide—lacking in common characteristics—over a 20-year span
were not sufficiently numerous to constitute a pattern. Although there is no
rigid rule regarding numerosity, we have previously held that 27 prior
incidents of excessive force over a three-year period, Peterson, 588 F.3d at 850–
52, and 11 incidents offering “equivocal evidence” of unconstitutional searches
over a three-year period, Pineda, 291 F.3d at 329, were not sufficiently
numerous to constitute a pattern. The Toomey Estate also fails to offer any
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evidence showing that four inmate suicides in a 20-year span is a high rate
compared to other jails of similar size. Cf. Hinojosa v. Butler, 547 F.3d 285,
296 (5th Cir. 2008) (concluding that data provided by plaintiff to show a
pattern of police misconduct “beg more questions than they answer,” including
whether the number of complaints filed against San Antonio police “is high
relative to other metropolitan police departments”). Contrary to an ongoing
pattern of misconduct, the record indicates, as the district court noted, an
increasing effort on the part of Nueces County to ensure inmate checks are
performed properly. For instance, in the years preceding Toomey’s suicide, the
Nueces County Jail installed an electronic wand system that tracked whether
and when guards conducted checks of each inmate’s cell, and this system was
properly utilized during Toomey’s detention. In short, the three prior incidents
of inmate suicide upon which the Toomey Estate relies, while certainly tragic,
are neither sufficiently similar nor sufficiently numerous to constitute a
widespread and persistent practice of Nueces County. 4
       As an alternative to showing a pattern, the Toomey Estate cites
Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), for the assertion that
a single violation can constitute the basis for finding an official custom or policy
when there is a failure to discipline those involved in the violation. They claim
that because Nueces County failed to find a policy violation that contributed to
Toomey’s suicide, to discipline any guards, or to change its policies in the wake
of the incident, it has ratified the guards’ violations of Toomey’s rights. In




       4  The Toomey Estate also relies on its allegation that the Nueces County Jail
consistently maintained a 72:1 inmate to guard ratio, in excess of the 48:1 maximum ratio
set by the Texas Jail Standards. See 37 Tex. Admin. Code § 275.4. In support of its allegation
that this was a longstanding practice, the Toomey Estate points only to anecdotal deposition
testimony given in 2001 relating to an incident that occurred in 1995. Thus for the same
reasons as the three prior incidents of inmate suicide, this ratio evidence also fails to meet
the requirements to demonstrate a pattern.
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Grandstaff, six City of Borger police officers (the entire night shift of the City’s
police department) were in pursuit of someone suspected of a minor traffic
violation. Id. at 165. During their pursuit, the officers mistook an innocent
bystander, who was driving a slow-moving truck, for the suspect and “poured
their gunfire at the truck” “without awaiting any hostile act or sound,”
ultimately killing the bystander. Id. at 165, 168. We upheld the jury’s finding
that the City of Borger was liable even though there was no evidence of prior
similar incidents by its police force, because the conduct of both the officers
during the incident and the City policymakers in the wake of the incident
(including not disciplining or discharging any of the involved officers) was
sufficient to infer ratification by City policymakers of the officers’ reckless
disregard for human life and a de facto policy of such. Id. at 171–72. We
explained that the policymakers’ failure to react “to so gross an abuse of the
use of deadly weapons” was sufficient to show an official policy of condoning
such abuses. Id. at 171. However, this case is different in kind and degree
from the “extreme factual situation[],” Barkley v. Dillard Dep’t Stores, Inc., 277
F. App’x 406, 413 (5th Cir. 2008), reflected in Grandstaff. Unlike Grandstaff,
this case does not involve the collective conduct of many individuals and
multiple bad acts but rather the failure of one individual to conduct a single
inmate check in the proper manner. Nor is the guard’s single act of misconduct
at issue here as “incompetent and catastrophic [a] performance” as that of the
officers in Grandstaff, 767 F.2d at 171, “particularly given the absence of
evidence suggesting a culture of [misconduct]” at the Nueces County Jail,
Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998). And the internal
investigation’s conclusion that no violations contributed to Toomey’s death
does not mean that Nueces County ratified its officer’s violation; it simply
indicates that any violation that did occur did not contribute to Toomey’s death.
See DeShay v. Bastrop Indep. Sch. Dist., 180 F.3d 262, 1999 WL 274606, at *1
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(5th Cir. 1999) (unpublished) (concluding that an investigation’s “procedural
mistakes . . . do[] not support an inference that the staff acted with dangerous
recklessness because they feared no authoritative retribution or recognized
that the policymaking authority in fact condoned such recklessness”). Further,
the Toomey Estate does not cite evidence in the record indicating that no
disciplinary action was taken; it simply cites the portion of the internal
investigative report concluding that no violations contributed to Toomey’s
death. In short, this case does not present the sort of extreme factual situation
warranting an inference that Nueces County ratified any violation by its
officers.
      The Toomey Estate has failed to meet its burden of showing there is a
genuine dispute of material fact regarding the first element of municipal
liability: an official Nueces County policy or custom. Accordingly, the district
court did not err in granting summary judgment against the Toomey Estate’s
§ 1983 claim.
                             III. CONCLUSION
      The judgment of the district court is AFFIRMED.




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