   Case: 11-41198       Document: 00511979084         Page: 1     Date Filed: 09/07/2012




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

                                                                            FILED
                                                                        September 7, 2012
                                       No. 11-41198
                                                                           Lyle W. Cayce
                                                                                Clerk



JENNIFER BUTLER,

                                                  Plaintiff-Appellant,

versus

TAMMY WEPPELMAN, in Her Official Capacity;
GILLIS HAMMETT, in His Individual and Official Capacities,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                No. 4:09-CV-402




Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Jennifer Butler appeals an order of dismissal in her 42 U.S.C. § 1983 suit.
We affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-41198

      Butler alleges that in September 2008, Denton County Sheriff’s Mental
Health Investigative Unit (“MHIU”) investigator Michael Duke interviewed her
as a proposed patient and determined that confinement was not necessary,
remanding her to the custody of a third party. Tammy Weppelman, the head of
the crisis unit of Denton County Mental Health and Mental Retardation Depart-
ment (“MHMR”), which works closely with but is separate from MHIU, contacted
Gillis Hammet, head of MHIU and a nurse for MHMR, and asked for a second
assessment. Under Hammett’s orders, a second investigator, Gary Hall, inter-
viewed Butler and came to the same conclusion as Duke: Butler did not need to
be confined, and she was remanded to the same third party.
      Butler alleges that, despite the recommendations of Duke and Hall and
Butler’s own compliance with the less-restrictive alternative, Weppelman falsely
swore a probable-cause affidavit, misrepresenting that Butler was likely to cause
serious harm to herself and was so disabled as to be unable to take care of her
own basic needs or make a rational and informed decision as to her own treat-
ment. Based on that affidavit, a judge executed a warrant for Butler’s detention;
upon receiving the warrant, Hammett ordered Deputy Kevin Bragg to appre-
hend Butler.
      Butler alleges that Bragg and Hammett had been following the case all
day and knew that Weppelman’s affidavit, on which the warrant was based, was
fraudulent. Despite Bragg’s protestations, Hammett ordered him to execute the
warrant. Butler was involuntarily committed to a mental-health facility. She
was released a few days later after a judge dismissed her case on recommenda-
tion of the assistant district attorney, who had been informed of the situation by
Bragg.
      Butler sued Weppelman, Hammett, and MHMR for violation of her Fourth
and Fourteenth Amendment rights and various state laws. Weppelman and
Hammett asserted qualified immunity and moved to dismiss under Federal

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                                       No. 11-41198

Rules of Civil Procedure 12(b)(6) and 12(c). Adopting the magistrate judge’s
recommendation, the district court dismissed all claims against MHMR and
Hammett, all state-law claims against Weppelman, and all constitutional claims
against Weppelman in her official capacity, allowing only the constitutional
claims against Weppelman in her individual capacity to proceed. Butler appeals
only the dismissal of the § 1983 claims against Hammett in both his official and
individual capacity and against Weppelman in her official capacity.1
       We review a grant of a Rule 12(b)(6) motion to dismiss de novo. Atchafa-
laya Basinkeeper v. Chutz, 682 F.3d 356, 357 (5th Cir. 2012). For the same rea-
sons given by the magistrate judge, we agree that the official-capacity claims
were properly dismissed. Butler does not sufficiently allege a policy or custom
of MHIU or MHMR that resulted in the violation of her rights; she does not point
to how Hammett or Weppelman was a policy maker. See Piotrowski v. City of
Hous., 237 F.3d 567, 578-81 (5th Cir. 2001).
       Regarding Butler’s claims against Hammett in his individual capacity, we
ultimately agree with the magistrate court that our precedent provides controll-
ing authority. In Michalik v. Hermann, 422 F.3d 252 (5th Cir. 2005), we
addressed a suit against officers involved in the procurement and execution of
a warrant that lacked probable cause because of reliance on stale investigative
information. We held that qualified immunity protected all the officers except
(1) the affiant and (2) the “officer who actually prepares the warrant application
with knowledge that a warrant would be based solely on the [faulty affidavit].”
Id. at 261. Only those officers are “in a position to see the whole picture, to

       1
        Although the order of dismissal does not itself include a determination of partial final
judgment under Federal Rule of Civil Procedure 54(b), we are satisfied that the district court
intended to enter judgment pursuant to that rule in light of the district court’s September 30,
2011, order, in which it adopted the magistrate judge’s Rule 54(b) finding and granted the
motion for entry of judgment. See Kelly v. Lee’s Old Fashioned Hamburgers, 908 F.2d 1218,
1220 (5th Cir. 1990) (per curiam) (en banc). The district court’s failure to enter a separate
Rule 54(b) determination therefore does not deprive us of appellate jurisdiction.

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                                   No. 11-41198

understand [their] responsibility, and thus fully to assess probable cause ques-
tions.” Id.
      Accordingly, we held immunity extended even to an officer who actually
executed the warrant with knowledge of its lack of probable cause because of his
involvement in the investigation, because he was not an affiant or involved in
preparing or presenting the warrant. Id. at 261-62. Butler does not allege that
Hammett either falsely swore the affidavit or prepared the warrant. Both of
those actions, according to Butler, were performed by Weppelman, who still may
be liable in this suit in her individual capacity.
      Hammett’s immunity is reinforced by Hampton v. Oktibbeha County Sher-
iff Department, 480 F.3d 358 (5th Cir. 2007), in which we held that an officer
who was involved in the investigation may have had some involvement in pro-
curing the warrant, and actually executed the warrant, was immune from suit,
because he neither prepared the warrant nor presented it to the judge. This
court also held that a supervising officer who ordered the allegedly false affidavit
prepared and the warrant procured was also not liable, because the supervising
officer did not himself violate the plaintiff’s constitutional rights by directly pre-
paring or executing the warrant. Id. at 365 (“A supervisory officer cannot be
held liable under § 1983 for the actions of subordinates on any theory of vicari-
ous liability.” (quoting Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir.
1985) (per curiam)). Similarly, Hammett cannot be held liable for ordering
Bragg to arrest Butler even if he knew that Weppelman’s affidavit was false.
      The judgment of dismissal is AFFIRMED.




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