     Case: 14-20710      Document: 00513097017         Page: 1    Date Filed: 06/29/2015




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

                                                                                 FILED
                                                                              June 29, 2015
                                      No. 14-20710
                                                                              Lyle W. Cayce
                                                                                   Clerk
MICHELLE HALL; DANNY HALL, Individually and as next friend of
M.S.H., a minor,

               Plaintiffs - Appellants

v.

ROBERT EMERSON ROBINSON; HARRIS COUNTY,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3474


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs-appellants,     Michelle     and     Danny      Hall    (the    “Halls”),
individually and as next friend of M.S.H., appeal the district court’s grant of
summary judgment to defendants-appellees Robert Emerson Robinson
(“Robinson”) and Harris County (the “County”) (collectively the “State”). For
the reasons explained below, we AFFIRM the judgment of the district court.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20710      Document: 00513097017         Page: 2     Date Filed: 06/29/2015


                                         No. 14-20710

                          FACTS AND PROCEEDINGS
         Fifteen-year-old minor M.S.H. was incarcerated at the Harris County
Juvenile Detention Center (the “Detention Center”) on aggravated robbery
charges from March 10, 2012, to May 25, 2012. She was housed on the fourth
floor in a unit reserved exclusively for female detainees.
         Twenty-eight-year-old Robinson, a state-certified Juvenile Supervision
Officer (“JSO”) employed in the Detention Center at the County’s Juvenile
Probation Department since 2006, was assigned to work on the fifth floor
during M.S.H.’s incarceration. Not long after M.S.H.’s arrival, Robinson began
unaccompanied visits to M.S.H.’s cell two to three times per week. He was
granted access to M.S.H.’s cell by another employee, stationed at the control
center, who triggered a mechanism that remotely controlled and unlocked cell
doors.
         During his visits, Robinson offered M.S.H. food and candy and described
sexual acts he wanted to engage in with her. Robinson touched M.S.H.’s
breasts, buttocks, and vagina on at least three occasions and wrote sexually
explicit letters to M.S.H. that were delivered by another JSO. 1 Robinson raped
M.S.H. on May 23, 2012.
         On August 1, 2012, JSO Ruthie Coleman-Lister found and turned in a
packet containing several sexually explicit letters addressed to Robinson from
M.S.H. 2     Unit   Supervisor      Purvis    Hunt     delivered     the    envelope     to
Superintendent Aaron Bearsley, who immediately contacted M.S.H.’s mother,
notified the Houston Police Department and the Texas Juvenile Justice


         JSO Derrick Coon delivered sexually explicit letters on Robinson’s behalf. JSO Coon
         1

also made inappropriate sexual comments and advances toward M.S.H. when he delivered
Robinson’s letters.
       2 JSO Lister previously made JSO Sonya Ray aware of the improprieties she observed

between Robinson and M.S.H. Neither JSO reported Robinson’s misconduct while M.S.H.
was in custody.
                                                2
    Case: 14-20710     Document: 00513097017       Page: 3   Date Filed: 06/29/2015


                                      No. 14-20710

Division,   and   temporarily     suspended      Robinson    during   an   internal
investigation. On August 7, 2012, the investigator conducting the internal
investigation concluded that Robinson’s conduct “violated the TJJD [Texas
Juvenile Justice Department] code of ethics,” and Robinson was terminated.
      According to M.S.H.’s affidavit, she reported Robinson’s advances to JSO
Jones prior to the discovery of the letters. Jones asked whether M.S.H. planned
to report the incidents and M.S.H. responded that she did not. M.S.H. had a
copy of the Detention Center’s grievance procedures but did not officially report
her concerns about Robinson. M.S.H. or her parents could have alerted the
Harris County Juvenile Board (the “Juvenile Board”) and supervisory staff of
Robinson’s behavior through the “Youth Grievance Process.”             The Youth
Grievance Process provides that “[a]ll youth shall have full access to the
grievance process and have the right to file a written grievance.” Another
policy, “Community Complaints,” states that “[a] complaint may be filed by any
youth, the youth’s parents/guardians, or their representative . . . .” Lastly, the
“Juvenile Rights” policy provides “[t]he facility shall have a written grievance
procedure with at least one level of appeal” and that “[r]esidents shall not be
subjected to abuse, exploitation or neglect . . . .”
      On December 12, 2013, Robinson was convicted of sexual assault of a
child under seventeen years of age. The Halls filed civil suit on November 28,
2012, in the Southern District of Texas. After the district court granted
Robinson’s motion for summary judgment on October 20, 2014, the Halls filed
a timely notice of appeal on November 19, 2014.
      The Halls raise two issues on appeal. First, they contend the County’s
immunity from suit was waived by the JSOs’ negligent failure to report
Robinson’s behavior. Second, the Halls assert that there is a genuine issue of
material fact concerning the County’s failure to train and supervise Robinson.

                                             3
    Case: 14-20710      Document: 00513097017   Page: 4   Date Filed: 06/29/2015


                                    No. 14-20710

                                DISCUSSION
I. Standard of Review
      The court reviews the district court’s grant of summary judgment de
novo, with all evidence construed in the light most favorable to the non-
movant. Squyres v. Heico Cos., 782 F.3d 224, 230-31 (5th Cir. 2015). Summary
judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Celotex Corp v. Catrett,
477 U.S. 317, 322 (1986). This court “resolve[s] factual controversies in favor
of the nonmoving party, but only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.” Antoine v.
First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quotation marks
omitted).
II. Failure to Report
      The district court dismissed the Halls’ state law claims under the Texas
Tort Claims Act (“TTCA”) with prejudice. The TTCA protects Texas and its
municipalities from liability for the intentional torts (including assault or
battery) of State employees. TEX. CIV. PRAC. & REM. CODE § 101.057.
Sovereign immunity also protects the State from liability for the negligence of
its officers or agents, unless there is a constitutional or statutory provision
waiving immunity. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976).
The district court correctly granted summary judgment in favor of the State.
We affirm.
      First, this court cannot reach the merits of the Halls’ negligence claim
against Harris County because the issue is raised for the first time on appeal.
The record contains no mention of the negligent behavior of the JSOs until the
Halls’ Brief on appeal. In response to the State’s motion for summary
judgment, the Halls claimed that County employees acted deliberately in not

                                          4
    Case: 14-20710    Document: 00513097017      Page: 5   Date Filed: 06/29/2015


                                     No. 14-20710

reporting Robinson’s behavior. As a general rule, this court declines to address
contentions not made before the district court absent some extraordinary
circumstance. French v. Allstate Indem. Co., 637 F.3d 571, 582-833 (5th Cir.
2011).
      Second, even if the negligence claim were raised, the Halls’ failure-to-
report claim does not meet the requirement for a waiver of governmental
immunity. The TTCA waives the State’s immunity in a limited number of
circumstances, one of which is “personal injury and death so caused by a
condition or use of tangible personal or real property. . . .” Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) (quoting TEX.
CIV. PRAC. & REM. CODE § 101.021). In their response to the motion for
summary judgment, the Halls asserted that summary judgment was improper
because there was a genuine issue of material fact as to whether the
unmonitored video surveillance system and open access to M.S.H.’s cell were
proximate causes of M.S.H.’s injuries. The Halls did not provide summary
judgment evidence on appeal to show that M.S.H.’s injuries were proximately
caused by the condition or use of tangible personal or real property.
Additionally, a “guard’s sexual assault is the type of intervening intentional
act contemplated and referred to in the case law as an example of when
sovereign immunity is not waived.” Bonham v. Tex. Dep’t of Crim. Justice, 101
S.W.3d 153, 158-59 (Tex. App. –Austin 2003, no pet.) (holding that while the
layout of the prison “was part of the context” of a sexual assault, it was an
“intervening” condition that made the “intentional act possible.”).
      Lastly, as the district court noted, the Halls alleged assault, battery, and
intentional infliction of emotional distress claims were against Robinson, not
the County. A signed Order issued on July 29, 2013, dismissed the Halls’ claims
against Robinson in his official capacity. The Halls’ amended complaint alleged

                                           5
    Case: 14-20710    Document: 00513097017    Page: 6     Date Filed: 06/29/2015


                                   No. 14-20710

assault, battery, and intentional infliction of emotional distress against
Robinson, but there is no evidence in the record to suggest that Robinson was
ever served with summons and a copy of the amended complaint. The affidavits
of service show that defendants Thomas D. Brooks and the County received
copies of the Halls’ amended complaint, but Robinson did not. As such, the
claims against Robinson in his personal capacity are susceptible of dismissal
without prejudice. See Fed. R. Civ. P. 4(m). Even looking at the record in the
light most favorable to the Halls, there is a lack of evidence to show that
governmental immunity would have been waived had the Halls properly
asserted a claim of negligence against the State.
      On appeal, the Halls rely heavily on Downey v. Denton County to
demonstrate that sovereign immunity may be waived when an employee’s
antecedent negligence was the proximate cause of injury. 119 F.3d 381, 387-90
(5th Cir. 1997). In Downey, the court found that government immunity was
waived because the female employee’s negligence in leaving a female inmate
and male guard in a locked room unattended for almost two hours, with a
disconnected voice-activated security device, was the proximate cause that
allowed the male guard to sexually assault the female inmate. Id. at 389.
      The TTCA claims in Downey were specifically directed at the female
employee’s negligence in failing to supervise and not the male guard’s
intentional torts, which would have been barred by sovereign immunity. Id. at
388. The negligence claim against the county in Downey also involved the
condition of tangible property (the dysfunctional voice-activated security
device) such that sovereign immunity was waived. Id. at 388-90. The case at
hand is legally and factually distinguishable from Downey because the Halls
did not raise the issue of County employees’ negligence.


                                          6
    Case: 14-20710     Document: 00513097017     Page: 7   Date Filed: 06/29/2015


                                      No. 14-20710

III. Failure to Train and Supervise
      The district court dismissed the Halls’ 42 U.S.C. § 1983 claims against
Harris County with prejudice. It held that:
      the fact that one JSO had been accused of sexual abuse in the five
      years prior to Robinson’s rape of M.S.H. is not proof of a pattern or
      widespread practice of JSOs having improper relationships with
      or committing sexual abuse of detainees within the Detention
      Center. It follows that Plaintiffs have failed to raise a genuine
      issue of material fact that the County or the Juvenile Board was
      deliberately indifferent to the proper training and supervision of
      JSOs employed in the Detention Center during Robinson’s
      employment and prior to the commission of his crime against
      M.S.H.

      Based on this view of the uncontested evidence, the district court held
that the County was entitled to summary judgment. We affirm for the same
reason.
      Section 1983 demands a high standard of proof before imposing
municipal liability. See Synder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998);
see also City of Canton v. Harris, 489 U.S. 378, 396 (1989) (O’Connor, J.,
concurring) (“Where a §1983 plaintiff can establish that the facts available to
city policymakers put them on actual or constructive notice that the particular
omission is substantially certain to result in the violation of the constitutional
rights of their citizens, [§ 1983 is] satisfied.”) A municipality may not be held
liable under § 1983 on a theory of respondeat superior. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). A municipality may be held liable under §1983
if the plaintiff evinces a constitutional tort caused by action taken “pursuant
to official municipal policy.” Id. at 691. In other words, a municipality may be
held liable under § 1983 when the municipality actually causes a constitutional
violation through execution of an official policy or custom. Id. at 694-95.


                                           7
     Case: 14-20710       Document: 00513097017          Page: 8     Date Filed: 06/29/2015


                                           No. 14-20710

       The Fifth Circuit, in order to satisfy Monell, requires proof of “(1) an
official policy (or custom), of which (2) a policy maker can be charged with
actual or constructive knowledge, and (3) a constitutional violation whose
‘moving force’ is that policy (or custom).” Pineda v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001)). 3 To establish the existence of a widespread custom, of
which the County policymaker knew or should have known, the plaintiff must
show more than a single constitutional violation. Piotrowski, 237 F.3d at 581.
In this case, the Juvenile Board must have had actual or constructive
knowledge of the custom.
       The Halls assert that the “custom” of JSOs violating official policies and
procedures provides enough evidence to show that the inadequacy of JSO
training or supervision was “obvious and obviously likely to result in a
constitutional violation.” Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003)
(quotation marks omitted). The Halls frame the idea of custom narrowly within
the confines of M.S.H.’s thirty-seven day stay in the Detention Center. In
contrast, the State questions whether seventeen reported incidents of JSO
misconduct (only one specifically involving sexual misconduct between a JSO
and inmate) filed over a five year period constitutes custom. We agree with the
State that the Halls have failed both to demonstrate a widespread history of
JSO misconduct and that the Juvenile Board had actual or constructive
knowledge of Robinson and the other JSOs’ behavior.


       3  An official policy is “[a] policy statement, ordinance, regulation or decision that is
officially adopted and promulgated by the municipality’s law-making officials or by an official
to whom the lawmakers have delegated policy-making authority.” Webster v. City of Houston,
735 F.2d 838, 841 (5th Cir. 1984) (en banc)). An official policy may also stem from a custom
created by a “persistent, widespread practice of city officials or employees, which, although
not authorized by officially adopted and promulgated policy is so common and well settled” it
fairly represents “municipal policy.” Id.
                                                  8
     Case: 14-20710       Document: 00513097017         Page: 9    Date Filed: 06/29/2015


                                          No. 14-20710

       It is clear from the record that the Halls’ claim falls short of
demonstrating municipal liability. The Halls construe the failure of JSOs to
report alleged and perceived misconduct between JSO Robinson and M.S.H. as
a series of events that allowed Robinson to “groom” and eventually rape
M.S.H. 4 The Halls ultimately contend that these failures amount to Harris
County’s deliberate indifference of M.S.H.’s constitutional rights. The record
suggests otherwise.
       Summary judgment evidence indicates M.S.H. did not take advantage of
the grievance procedures in place that would have timely signaled to the
Juvenile Board a need for change in M.S.H.’s situation and the JSOs’ behavior.
While not dispositive, it is relevant that the Halls do not address the Youth
Grievance Process and how it is consistent with deliberate indifference on
appeal. Instead, the Halls argue the County’s failure to train and supervise
Detention Center employees demonstrates their deliberate disregard of
County policies, which in turn permitted Robinson to sexually assault M.S.H.
       The Halls do not point to specific deficiencies in Harris County’s training
or supervision policies or an insufficiency in Robinson’s training. In general,
the Department has a “zero tolerance policy regarding any incidents of sexual
abuse,” which mandates that employees shall not “maintain or give the
appearance of maintaining an inappropriate relationship with a juvenile
residing in a facility.” Robinson, specifically, received state certification and
training in compliance with TJJD standards. The Texas Juvenile Probation
Commission certified Robinson as a Juvenile Detention Officer in 2006, which

       4 The Halls claim on appeal that the district court failed to consider the “persistent
failure of multiple Harris County Juvenile Justice Center (“HCJJC”) employees to adhere to
Harris County policies and procedures with respect to 1) the reporting of
sexual/inappropriate contact; 2) the allowance of inappropriate contact between Robinson
and M.S.H.; and 3) the failure to enforce existing Harris County policies and procedures that
would have prevented Robinson’s sexual assault of M.S.H.”
                                                 9
   Case: 14-20710    Document: 00513097017     Page: 10   Date Filed: 06/29/2015


                                    No. 14-20710

required he complete 40 hours of training. The Commission renewed his
certification as a Juvenile Supervision officer once he finished 86.50 hours of
training. Topics covered in these trainings include: juvenile rights, safety and
security, abuse, and exploitation and neglect. Robinson received training
regarding juvenile rights on eight separate occasions from 2006 to 2012. He
signed a copy of the Code of Ethics, which specifies employees may not
“maintain an inappropriate relationship with juveniles assigned to their
caseload, supervised by the juvenile probation department, or coming under
the supervision of the juvenile court.” The Halls do not criticize Robinson’s
training or the rules, policies, and procedures implemented by the Juvenile
Board concerning the treatment of juveniles in the Juvenile Probation
Department’s custody.
      Overall, the Halls have not alleged that the failure of JSOs to report
inappropriate behavior between a male JSO and female inmate is so common
and well-known to the Juvenile Board, that it constitutes a custom that fairly
represents official policy. Specifically, the Halls have not demonstrated that
these instances of misconduct among JSOs amount to a widespread custom
that should have signaled to the Juvenile Board a need for additional training
and supervision. Peterson v. City of Fort Worth, 588 F.3d 838, 850-51 (5th Cir.
2009) (“where prior incidents are used to prove a pattern,” there must be proof
of numerous similar incidents that occurred frequently and/or over a long
period of time and not just a single instance). The Halls have also failed to
demonstrate the alleged custom was the “moving force” that drove Robinson to
rape M.S.H. Finally, the Halls have not provided sufficient evidence to show
that the Juvenile Board was deliberately indifferent to the training and
supervision of JSOs. Consequently, there is no genuine issue of material fact
and the district court’s grant of summary judgment stands.

                                         10
   Case: 14-20710   Document: 00513097017   Page: 11   Date Filed: 06/29/2015


                                 No. 14-20710

                            CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.




                                      11
