                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      May 31, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-11388
                                      Summary Calendar



       DORIS WAYNE JACKSON, Individually and as
       Representative of the Estate of Everett Ethridge
       Jackson; VYONNE WEATHERLY,

                                                           Plaintiffs-Appellees,

                                             versus

       NOCONA GENERAL HOSPITAL; ET AL.,

                                                           Defendants,

       CHARLES R. NORRIS; BARBARA JEAN PERRY,

                                                           Defendants-Appellants.


                    Appeal from the United States District Court for
                             the Northern District of Texas
                               (USDC No. 7:03-CV-22)
           _________________________________________________________


Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       For the following reasons, we find that the district court did not err in denying

Defendants-Appellants, Charles Norris and Barbara Perry’s, motion to dismiss based

upon qualified immunity in this § 1983 action filed by the estate of Everett Jackson:

1.     A § 1983 suit for a deprivation of life falls squarely within the scope of

       constitutional protections. U.S. CONST. amend. V, XIV; see Gibbs v. Town of

       Frisco City, Alabama Police Dept., 626 F.2d 1218, 1222 n.5 (5th Cir. 1980). “[A]

       supervisory defendant is still subject to § 1983 liability when he breaches a duty

       imposed by state or local law, and this breach causes the plaintiff’s constitutional

       injury.” Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1412 (5th Cir.

       1995). In this case, the Plaintiffs present a case that Norris and Perry violated

       several common law duties and state statutes regarding their duty to control the

       drug Mivacron and to supervise Nurse Jackson. Norris and Perry are potentially

       liable under §1983, “not because [they] committed a distinct constitutional

       violation by breaching [their] duty to supervise, but because [their possible] failure

       to control [their] subordinate rendered [them] responsible for the subordinate’s

       misconduct — essentially, [they were] legal participants.” Id. at 1413.

2.     The district court correctly found evidence that both Norris and Perry were

       deliberately indifferent to Everett Jackson’s constitutional rights. See Eugene v.

       Alief Ind. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995); see also Doe v. Taylor

       Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994). First, Norris and Perry had a

       statutory duty to keep the Mivacron secure and to document its use. Second,

                                             2
    Norris and Perry took no action when the mortality rate for their hospital more

    than doubled. They did not even begin an investigation until January 31, more

    than two months after Nurse Jackson began stealing Mivacron and killing patients.

    Everett Jackson was killed four days after their investigation began. While it

    might be arguable that Norris and Perry’s conduct was tolerable in relation to the

    patients killed early in the months of November and December, the record shows

    that the conduct of the administrators allowing the death of Everett Jackson raised

    an issue of conscious indifference.

AFFIRMED.




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