     Case: 16-51410      Document: 00514463537         Page: 1    Date Filed: 05/08/2018




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

                                      No. 16-51410                              FILED
                                                                             May 8, 2018
                                                                           Lyle W. Cayce
ALEJANDRO LEAL,                                                                 Clerk

                                                 Plaintiff-Appellant

v.

RICHARD WILES, Sheriff, El Paso County, Texas; JOSE MENDIZABAL,
Officer, El Paso Sheriff’s Department; FNU SANCHEZ, Gang Intelligence
Officer, El Paso Sheriff’s Department,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CV-361


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Alejandro Leal, a pretrial detainee in the El Paso County Detention
Facility, filed this 42 U.S.C. § 1983 action pro se against Sheriff Richard Wiles
in his official capacity, Officer Jose Mendizabal in his official and individual
capacities, and Officer Carlos Sanchez in his official and individual capacities,
based on an assault that occurred while he was in their custody. Adopting 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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magistrate judge’s recommendations, the district court dismissed Leal’s claim
against Sherriff Wiles in his official capacity for failure to state a claim and
granted summary judgment in favor of Officers Mendizabal and Sanchez in
their individual capacities on the basis of qualified immunity. Finding no error,
we affirm.
                                       I.
      When Alejandro Leal arrived at the jail, two detectives advised the
booking officer, who noted as such in Leal’s jail records, that Leal was to be
kept separate from (“K-S-F”) Barrio Azteca gang members because that gang
had issued a green light, or a sanctioned hit, on Leal. Leal was placed in
administrative segregation, and the rosters, floor cards, and computer
database reflected his K-S-F status to ensure his safety.
      On May 8, 2015, Officer Jose Mendizabal asked Leal, as well as other
inmates in his cell block, if he wanted to go to recreation to which Leal
answered affirmatively. Officer Mendizabal escorted Leal and another inmate
from his cell block to the guard station where he advised the inmates to stand
while he went to retrieve other inmates for recreation. At this time, Officer
Carlos Sanchez, a gang intelligence officer, was inside the guard station.
Officer Mendizabal returned with one inmate from cell block four-thirty and
two inmates, who turned out to be Barrio Azteca gang members, from cell block
four-eighty. Officer Mendizabal then placed the inmates on the elevator and
stated Leal’s name aloud, and the two Barrio Azteca inmates began to assault
Leal. Leal suffered a laceration to his head and contusions to his head, face,
and neck.
      Pursuant to 42 U.S.C. § 1983, Leal sued Sherriff Wiles in his official
capacity, Officer Mendizabal in his official and individual capacities, and
Officer Sanchez in his official and individual capacities, alleging inadequate



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staffing, training, and supervision, violations of policies and procedures, and
deliberate indifference to his safety. Leal sought declaratory relief and
compensatory, punitive, and nominal damages.
       Defendants moved to dismiss Leal’s complaint, and the court, adopting
the magistrate judge’s report and recommendation, granted Defendants’
motion in part, dismissing, among other things, Leal’s claim against Sherriff
Wiles in his official capacity for failure to state a claim. 1 Thereafter, the parties
filed cross-motions for summary judgment, and the court, adopting the
magistrate’s report and recommendation, ruled in favor of Officers Mendizabal
and Sanchez finding that the officers were entitled to qualified immunity
because the record did not show that either officer knew of Leal’s K-S-F status
prior to the assault. Leal appeals.
                                            II.
       We begin with Leal’s argument that the court erred in dismissing his
section 1983 claim against Sherriff Wiles for failure to state a claim. This court
reviews such dismissals de novo, accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff. 2
       “Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” 3 Rather, an official not
personally involved in the acts that deprived the plaintiff of his constitutional
rights, as here, is liable under section 1983 if: “1) the [supervisor] 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


       1 The court additionally dismissed Leal’s Eighth Amendment claim because Leal was
a pretrial detainee at the time of the assault and Leal’s claims against Officers Mendizabal
and Sanchez in their official capacities. Leal does not challenge those findings on appeal.
       2 Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).
       3 Thompson v. Upshur Cty., 245 F.3d 447, 459 (5th Cir. 2001) (internal quotation

marks omitted).


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rights; and 3) the failure to train or supervise constituted deliberate
indifference to the plaintiff’s constitutional rights.” 4 “In order for ‘liability to
attach based on an “inadequate training” claim, a plaintiff must allege with
specificity how a particular training program is defective.’” 5 With respect to
the third prong, deliberate indifference generally requires “a plaintiff to
demonstrate ‘at least a pattern of similar violations’ arising from training [or
supervision] that is so clearly inadequate as to be ‘obviously likely to result in
a constitutional violation.’” 6
       Supervisory liability can also be established without direct participation
in the alleged events “if supervisory officials implement a policy so deficient
that the policy itself is a repudiation of constitutional rights and is the moving
force of the constitutional violation.” 7 An official policy is:
       1.     A policy statement, ordinance, regulation, or decision that is
              officially adopted and promulgated by the [government
              entity] or by an official to whom the [entity] ha[s] delegated
              policy-making authority; or
       2.     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 as to constitute a custom that fairly represents [the
              entity’s] policy. Actual or constructive knowledge of such
              custom must be attributable to the [entity] or to an official
              to whom that body ha[s] delegated policy-making authority. 8




       4  Cozzo v. Tangipahoa Par. Council–President Gov’t, 279 F.3d 273, 286 (5th Cir. 2002)
(quoting Thompson, 245 F.3d at 459).
        5 Zarnow v. City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010) (quoting Roberts

v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)).
        6 Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003) (quoting Thompson,

245 F.3d at 459).
        7 Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (internal quotation marks

omitted).
        8 Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam).




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As with deliberate indifference, “proof of a custom or practice requires more
than a showing of isolated acts.” 9
       The district court ruled that Leal “alleged no facts to establish that the
detention center was not adequately staffed or that the officers were not
adequately trained or supervised in May 2015, to establish the obviousness to
Sherriff Wiles that there was a risk of serious injury to any of the detainees
from the level of staffing, to establish that the officers were inadequately
trained or supervised, or to establish that any such inadequacy was the
‘moving force’ behind [Leal’s] assault.”
       Leal contends this was in error because a “major rol[e] of [his] assault
had to do with inadequate training,” as admitted by Officer Mendizabal and
Commander Marco Vargas. Additionally, Leal argues that understaffing was
the “moving force behind [his] assault,” because on “the day of [his] assault
there [were] only two officers one in the guard station and one doing the
escorts,” as Officer Mendizabal and Commander Vargas also admit. Lastly,
Leal asserts that “there is a major lack of policy and procedure to protect
inmates in protective custody,” and “there is no said policy and procedure to
protect inmates from assaults.” 10


       9 Burge, 336 F.3d at 370.
       10 Leal asserts similar arguments in his reply brief. Leal cites Saunders v. Chatham
County, Board of Commissioners, 728 F.2d 1367 (11th Cir. 1984) (per curiam) to support his
understaffing argument. In Saunders, the Eleventh Circuit affirmed a jury verdict that,
among other things, found “evidence that the jail facilities were understaffed and with
inadequate personnel to monitor inmate activity, and that the particular pod of the jail in
which plaintiff was lodged was understaffed on the occasion when he was injured.” Id. at
1368. Saunders represents the outcome that Leal seeks but does little to show that Leal’s
allegations, taken as true and viewed in the light most favorable to him, demonstrate that
Sherriff Wiles was deliberately indifferent to Leal’s constitutional rights.
       Leal additionally cites Camilo-Robles v. Hoyos for the proposition that “a supervisor .
. . may be liable under section 1983 if he formulates a policy or engages in a practice that
leads to a civil rights violation committed by another” and that “supervisory liability does not
require a showing that the supervisor had actual knowledge of the offending behavior.” 151
F.3d 1, 7 (1st Cir. 1998). The court continued, a supervisor “may be liable for the foreseeable


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       We conclude that the court did not err in dismissing Leal’s claim against
Sherriff Wiles for failure to state a claim. Leal fails to allege sufficient facts to
establish that there was such a lack of adequate staff, training, and
supervision at the time of Leal’s assault that it would be obvious to Sherriff
Wiles that there was a substantial risk to detainees. Rather, Leal’s allegations
concern a single instance in which inadequate staffing, training, and
supervision resulted in his assault. More is required for section 1983 liability
to attach. 11 The court therefore committed no error.
                                              III.
       In addition, Leal argues that the court erred in granting summary
judgment in favor of Officers Mendizabal and Sanchez. “This court reviews de
novo the district court’s resolution of legal issues on a motion for summary
judgment on the basis of qualified immunity.” 12 Summary judgment must be



consequences of such conduct if he would have known of it but for his deliberate indifference
or willful blindness.” Id. (internal quotation marks omitted). Our finding that Leal’s
allegations fail to show deliberate indifference comports with Camilo-Robles.
        Lastly, Leal cites Jett v. Dallas Independent School District to argue that a custom
does not specifically have to be authorized or ordered by a final policymaker. 491 U.S. 701,
737 (1989). This principle is not relevant to the disposition of this case.
        11 Zarnow, 614 F.3d at 170 (“[T]his Court has previously rejected attempts by plaintiffs

to present evidence of isolated violations and ascribe those violations to a failure to train.”);
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 382 (5th Cir. 2005)
(“We have stressed that a single incident is usually insufficient to demonstrate deliberate
indifference.”); Burge, 336 F.3d at 370 (“And just as proof of a custom or practice requires
more than a showing of isolated acts, 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.’” (quoting Thompson, 245 F.3d at 459)).
        We do not suggest that a single incident, as opposed to a pattern of violations, can
never suffice to demonstrate deliberate indifference. The “single-incident exception” is a
“narrow one” that “we have been reluctant to expand.” Burge, 336 F.3d at 373. “To rely on
this exception, a plaintiff must prove that the ‘highly predictable’ consequence of a failure to
train would result in the specific injury suffered, and that the failure to train represented the
‘moving force’ behind the constitutional violation.” Roberts, 397 F.3d at 295 (quoting Brown
v. Bryan Cty., 219 F.3d 450, 461 (5th Cir. 2000)). Leal does not fall within this exception.
        12 Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (internal quotation marks

omitted).


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granted “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.” 13 This
court views the facts in the light most favorable to the non-moving party and
draws all reasonable inferences in its favor. 14 “A qualified immunity defense
alters the usual summary judgment burden of proof. Once an official pleads
the defense, the burden then shifts to the plaintiff, who must rebut the defense
by establishing a genuine fact issue as to whether the official’s allegedly
wrongful conduct violated clearly established law.” 15
       The Fourteenth Amendment’s Due Process Clause protects the rights of
pretrial detainees. 16 While “prison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners,” not “every injury suffered by
one prisoner at the hands of another . . . translates into constitutional liability
for prison officials responsible for the victim’s safety.” 17 A prison official must
have a sufficiently culpable mind, and the measure of that culpability is the
standard of subjective deliberate indifference enunciated in Farmer. 18 A prison
official acts with deliberate indifference only if he subjectively “knows of and
disregards an excessive risk to inmate . . . safety.” 19 That is, “the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” 20


       13  FED. R. CIV. P. 56(a).
       14  Hanks, 853 F.3d at 743.
        15 Id. at 744 (internal quotation marks and citation omitted).
        16 Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc).
        17 Farmer v. Brennan, 511 U.S. 825, 833–34 (1994) (internal quotation marks and

citations omitted).
        18 Id. at 837; see also Hare, 74 F.3d at 648 (“Though Farmer dealt specifically with a

prison official’s duty under the Eight Amendment to provide a convicted inmate with humane
conditions of confinement, we conclude that its subjective definition of deliberate indifference
provides the appropriate standard for measuring the duty owed to pretrial detainees under
the Due Process Clause.”).
        19 Farmer, 511 U.S. at 837.
        20 Id.




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      “Deliberate indifference is an extremely high standard to meet.” 21 The
standard “requires a showing of more than negligence or even gross
negligence.” 22 Consequently, “[a]ctions and decisions by officials that are
merely inept, erroneous, ineffective, or negligent do not amount to deliberate
indifference.” 23
                                            A.
      Beginning with Officer Mendizabal, the court determined the following
from the parties’ summary judgment evidence: (1) Leal’s protected K-S-F
status and the green light were in the computer database and listed on the
recreation roster; (2) Officer Mendizabal should have checked the information
on the recreation roster concerning any K-S-F notes or green lights before
taking inmates out for recreation; (3) Officer Mendizabal failed to do so, and
was disciplined for his error; and (4) A reprimand letter indicates that Officer
Mendizabal had a recreation roster that listed Leal’s K-S-F status and the
green light, but the letter does not indicate that Officer Mendizabal read the
roster.
      The court additionally acknowledged that Officer Mendizabal was aware
of the general risk of transporting lockdown inmates together, yet noted that
he took precautions—i.e., Officer Mendizabal ensured that the inmates were
handcuffed and stood between them in the elevator. The court stressed that
Officer Mendizabal tried to stop the attack by placing himself between the
assailants and Leal. Based on this evidence, the court concluded that no
reasonable fact finder could find that Officer Mendizabal was deliberately
indifferent to Leal’s safety.



      21 Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
      22 Estate of Davis ex. rel McCully, 406 F.3d at 381.
      23 Id. (internal quotation marks omitted).




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      Leal argues that Officer Mendizabal was aware of or should have been
aware of a substantial risk of serious harm because his protected status was
noted in the computer database and recreation roster. Leal additionally points
out that Officer Mendizabal “admits to not hav[ing] checked for flags such as
keep separate from Barrio Azteca and green light Barrio Azteca” and
acknowledges that the “inmates from [four-eighty] are gangster” and “inmates
are [on] lock down for different reasons.” Leal insists that Officer Mendizabal
had a chance to draw the inference that there was a substantial risk of serious
harm and should not escape liability because he was “to[o] busy and under
pressure.”
      We conclude that Leal fails to show that Officer Mendizabal acted with
deliberate indifference. No direct evidence indicates that Officer Mendizabal
knew of Leal’s protected status prior to his assault. And the circumstantial
evidence does not meet the high standard of deliberate indifference. Though
Sherriff Wiles’s reprimand letter indicates that Officer Mendizabal had a
recreation roster that listed Leal’s K-S-F status and the green light, the record
falls silent on whether Officer Mendizabal read that recreation roster and thus
knew of Leal’s protected status prior to the assault. To be sure, Officer
Mendizabal should have checked the recreation roster; however, liability
attaches only if Officer Mendizabal knew—not merely should have known—
about the risk. 24
      This case, however, presents a closer question in light of Officer
Mendizabal’s observations that inmates are on lock down for different reasons,
including gang affiliation, and that the inmates he escorted appeared to be
gang members. Leal’s argument that Officer Mendizabal had a chance to “draw



      24 Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999); see also
Farmer, 511 U.S. at 837.


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the inference” efforts to suggest that Officer Mendizabal “refused to verify
underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist.” 25 In Farmer, the Court,
noting such evidence would not permit a prison official to escape liability,
provided examples as to what it meant by “refus[ing] to verify” or “declin[ing]
to confirm”; that is,
       when a prison official is aware of a high probability of facts
       indicating that one prisoner has planned an attack on another but
       resists opportunities to obtain final confirmation; or when a prison
       official knows that some diseases are communicable and that a
       single needle is being used to administer flu shots to prisoners but
       refuses to listen to a subordinate who he strongly suspects will
       attempt to explain the associated risk of transmitting disease. 26
       Here, the record does not indicate that Officer Mendizabal resisted an
opportunity to confirm or refused to listen to a subordinate to ultimately
disregard strong indications of a substantial risk to Leal’s safety. 27 Rather, and
as the record shows, Officer Mendizabal did not check the recreation roster
because he was in a “hurry.” This, without more, does not establish that Officer
Mendizabal knew of and disregarded a substantial risk of serious harm to
Leal. 28 Therefore, the court committed no error in granting summary judgment
in favor of Officer Mendizabal.
                                              B.
       The court, in granting summary judgment in favor of Officer Sanchez,
concluded that the evidence is undisputed that Officer Sanchez was not aware
of Leal’s K-S-F status prior to his assault. Additionally, the court observed that

       25 Farmer, 511 U.S. at 837, 843 n.8.
       26 Id. at 843 n.8.
       27 Vasquez v. Livingston, 617 F. App’x 350, 351 (5th Cir. 2015) (per curiam) (“The

existence of an objective risk to the inmate’s safety alone is insufficient to establish that a
particular defendant disregarded that risk.” (citing Farmer, 511 U.S. at 837–38)).
       28 See, e.g., Olabisiomotosho, 185 F.3d at 526, 528 (Protections under the Fourteenth

Amendment are not “triggered . . . by negligent inaction.”).


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though Officer Sanchez was part of the gang intelligence unit, he did not know
every gang member or every K-S-F status/green light; that working in the
guard station, Officer Sanchez did not see who Officer Mendizabal was
transporting to recreation; and that Officer Sanchez is not expected to
determine whether flags or conflicts exist for those being transported to
recreation.
      Leal argues that Officer Sanchez should have known of Leal’s K-S-F
status because he was in charge of operations on the fourth floor and he was a
gang intelligence officer. Leal additionally contends that Officer Sanchez had
time to warn Officer Mendizabal of Leal’s K-S-F status because Officer
Mendizabal left Leal and other inmates in front of the guard station while he
went to get other inmates for recreation.
      We conclude that the court did not err in granting summary judgment in
favor of Officer Sanchez. Leal’s arguments do not change the record before us—
that Officer Sanchez did not know Leal’s K-S-F status or the green light prior
to the assault. Thus, Officer Sanchez did not “know[] of and disregard[] an
excessive risk” to Leal’s safety. 29 Leal’s argument that Officer Sanchez violated
his constitutional rights because he should have known Leal’s status since it
was available in the computer database and other jail records also fails, as “an
official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.” 30 Accordingly, the court did not
err in granting summary judgment in favor of Officer Sanchez.




      29   Farmer, 511 U.S. at 837.
      30   Id. at 838.


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                                            IV.
       We affirm the district court’s decisions, adopting the magistrate’s
recommendations, to dismiss Sherriff Wiles for failure to state a claim and to
grant summary judgment in favor of Officers Mendizabal and Sanchez on the
basis of qualified immunity. 31




       31 Leal has also filed a motion for appointment of counsel. Because he has not shown
that the appeal presents exceptional circumstances warranting the appointment of appellate
counsel, his motion is denied. See Cooper v. Sheriff, Lubbock Cty., 929 F.2d 1078, 1084 (5th
Cir. 1991).


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