     Case: 11-40253     Document: 00511788802         Page: 1     Date Filed: 03/14/2012




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

                                                                            FILED
                                                                          March 14, 2012

                                      No. 11–40253                         Lyle W. Cayce
                                                                                Clerk

CHRISTY CARTY, Individually and as Next Friend for Bryce Carty, Justice
Carty and Maddy Carty, Minors and as Representative of the Estate of
Jimmy Carty Jr, Deceased,

                                                  Plaintiff - Appellee

STATE OFFICE OF RISK MANAGEMENT,

                                                  Intervenor Plaintiff - Appellee
v.

COMMANDER ALBERT RODRIGUEZ; LIEUTENANT ERWIN BALLARTA,

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:06-CV-138


Before BARKSDALE, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        Albert Rodriguez (“Rodriguez”) and Erwin Ballarta (“Ballarta”) (together,
the “Defendants”) appeal the district court’s denial of qualified immunity. We
REVERSE and REMAND.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                            I
      This appeal arises out of the death of Jimmy Carty, Jr. (“Carty”) after he
suffered head and brain injuries in a Texas Department of Public Safety (“DPS”)
training exercise. Carty enrolled in the DPS’s training academy for state trooper
candidates in May 2005. At the time, Rodriguez was the academy’s commander;
Ballarta coordinated defense-tactics training. As part of his training, Carty
participated in a drill on arrest-and-control tactics.1 This drill amounted to a
fighting exercise in which trooper candidates were paired in hand-to-hand, toe-
to-toe contact.2 Candidates participating in the drill wore protective headgear
and boxing gloves.3
      Carty and another candidate were assigned to fight in this drill together.
Before they began to spar, two recruit counselors and a safety officer advised
Ballarta, the academy’s defensive tactics coordinator, to assign Carty a different
opponent. Carty apparently was overmatched. The recruit counselors and safety
officer cautioned Ballarta that facing the opponent to whom he was assigned
would expose Carty to increased risk of serious injury. Ballarta did not assign
Carty a new opponent. Carty and his opponent proceeded in the drill. Carty’s
opponent repeatedly struck him in the head and twice knocked him down.
Ballarta limited staff’s attempts to check on Carty throughout the match. As a
result of participating in the drill, Carty suffered severe brain trauma and died
a week later.




      1
        Plaintiff alleged that Rodriguez reinstated this drill in 1994 despite repeated
warnings of its risks.
      2
         Plaintiff has characterized this exercise as “common street fighting along with a
boxing element.”
      3
        Since 1978, at least 121 DPS recruits apparently have suffered some form of head
injury while participating in this drill.

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       Individually, as next friend for her three children, and as the
representative of her late husband’s estate, Carty’s wife Christy (“Plaintiff”) sued
Rodriguez and Ballarta in their individual and official capacities, as well as the
DPS and manufacturers of the boxing gloves and protective headgear Carty used
in the training drill. Only Plaintiff’s Fourteenth Amendment substantive due
process claim under § 1983 against Rodriguez and Ballarta in their individual
capacities remains.4
       The district court initially denied Defendants’ motion to dismiss Plaintiff’s
constitutional claim based on qualified immunity, concluding that Plaintiff’s
complaint alleged conscience-shocking conduct sufficient to support her
substantive due process claim.5 After Rodriguez and Ballarta appealed that
ruling, this court vacated the district court’s decision without addressing the
merits of Defendants’ qualified immunity defense.6

       4
        Plaintiff’s previously dismissed claims are subject to appeal upon entry of final
judgment on remand.
       5
          The district court rejected Plaintiff’s attempts to oppose qualified immunity on the
basis that the Defendants owed her husband a safe working environment or under a theory
of a special relationship or Defendants’ failure to protect Carty. The Plaintiff concedes on
appeal that these theories do not apply. We agree. See Collins v. City of Harker Heights, 503
U.S. 115, 126 (1992) (rejecting claim that the Due Process Clause imposes a duty on
government employers to provide its employees with a safe working environment); Rios v. City
of Del Rio, 444 F.3d 417, 421–22 (5th Cir. 2006) (explaining that a state is not liable for its
failure to protect, but recognizing an exception for individuals in special relationships with the
state, such as those who are incarcerated, institutionalized, or involuntarily restrained in
some way) (citing DeShaney v. Winnebago County, 489 U.S. 189 (1989)).
       6
           This court ruled that the district court abused its discretion in not addressing
Defendants’ motion for Plaintiff to file a reply under Fed. R. Civ. P. 7(a) to Defendants’
answer raising the qualified immunity defense and instructed the district court to order
Plaintiff to file such a reply. Carty v. Rodriguez, No. 06–41579, slip op. at 1–7 (5th Cir. Dec.
21, 2009) (per curiam). (On remand, Plaintiff replied under Rule 7(a) and amended her
complaint to reflect her reply’s factual allegations.) Writing separately, Judge Owen agreed
to vacate the district court’s order, but dissented from the court’s decision to remand on the
Rule 7(a) ground. Judge Owen would have rendered judgment for Defendants, reasoning: “It
is not clearly established that a state employer [training law enforcement] violates the due
process clause . . . if the training involves [a substantial risk] of bodily harm. Nor is it clearly
established law that a claim for deliberate indifference that shocks the consci[ence] can be

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       On remand, the Defendants again moved the district court to dismiss
Plaintiff’s constitutional claim on the basis of qualified immunity. The court
again denied Defendants’ motion, concluding that Plaintiff’s constitutional
pleadings were adequate and that the Defendants were not entitled to qualified
immunity. Specifically, applying the familiar two-prong test for determining
whether qualified immunity guards government officials from liability, see, e.g.,
Pearson v. Callahan, 555 U.S. 223, 232 (2009), the district court concluded that
Plaintiff “adequately pled a violation of Jimmy Carty’s constitutional right to
bodily integrity and life by defendants’ deliberate indifference,” and that such
right “was clearly established in 2005, the time of the alleged misconduct.”
Carty v. Tex. Dep’t of Pub. Safety, No. 2:06-CV-138, 2011 WL 1750680, at *7
(E.D. Tex. Feb. 22, 2011). Further, the district court found that it was clearly
established that this constitutional right may be violated where government
officials show deliberate indifference to the right.7 Id. at *8. In this interlocutory
appeal, Defendants challenge the district court’s refusal to grant them qualified
immunity.
        “[A]n order denying qualified immunity, to the extent it turns on an issue
of law, is immediately appealable.” Behrens v. Pelletier, 516 U.S. 299, 311(1996)
(internal quotation marks and citation omitted). Our jurisdiction in this context



stated when the injured party is an employee and is not in custody or the equivalent of
custody.” Id. at 9 (Owen, J., dissenting).
       7
         Because the district court found a clearly established right on these grounds, it
refused to address whether Plaintiff’s “state-created danger claim” was clearly established
under the Due Process Clause of the Fourteenth Amendment. Plaintiff claimed in its briefing
that this theory provides an alternative basis to affirm the district court’s denial of qualified
immunity; however, at oral argument, Plaintiff conceded its inapplicability. We agree that the
doctrine does not provide a basis for denying qualified immunity here. See Rivera v. Houston
Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) (“We have never recognized state-created
danger as a trigger of State affirmative duties under the Due Process clause.”).

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extends to interlocutory appeals of denials of motions to dismiss and denials of
motions for summary judgment. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
251 (5th Cir. 2005). This court reviews de novo a district court’s refusal to
dismiss based on qualified immunity. Id. at 252. We accept all well-pled facts
as true and draw all reasonable inferences in favor of the nonmoving party.
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
                                        II
      To defeat a claim of qualified immunity, a plaintiff must show: (1) the
government official violated a statutory or constitutional right; and (2) the right
was clearly established at the time of the challenged conduct. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In a recent en banc decision, Morgan v.
Swanson, 659 F.3d 359 (5th Cir. 2011), this court discussed the order in which
these steps should be addressed, and whether they must both be addressed:
            [U]ntil recently the Supreme Court required us in every
            case to address the underlying constitutional claim, so
            as to promote “the law’s elaboration from case to case.”
            [See Saucier v. Katz, 533 U.S. 194 (2001).] Then, in
            Pearson v. Callahan, [555 U.S. 223 (2009),] the Court
            retreated from this “rigid order of battle,” granting
            lower courts discretion over the order of the analysis
            and making step one optional when immunity is
            required at step two. However, the Pearson Court
            cautioned that while “the Saucier protocol should not be
            regarded as mandatory in all cases, . . . it is often
            beneficial.”

            The Supreme Court in Pearson outlined a number of
            situations where federal courts might wish to skip step
            one of the qualified-immunity analysis. These include:
            (1) “cases in which the constitutional question is so
            factbound that the decision provides little guidance for
            future cases”; (2) “when it appears that the question
            will soon be decided by a higher court”; (3) “[a]
            constitutional decision resting on an uncertain
            interpretation of state law”; (4) “[w]hen qualified

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            immunity is asserted at the pleading stage”; and “the
            precise factual basis for the plaintiff's claim or claims
            [is] hard to identify”; and (5) “circumstances in which
            the first step of the Saucier procedure may create a risk
            of bad decisionmaking.”

            Recent decisions suggest that the Supreme Court
            continues in its retreat from the old Saucier two-step
            analysis. In Camreta v. Greene, [131 S. Ct. 2020, 2032
            (2011),] using stronger language than before, the Court
            clarified that lower courts “should address only the
            immunity question” in the circumstances outlined in
            Pearson. The Camreta Court further cautioned that
            lower courts should “think hard, and then think hard
            again” before unnecessarily deciding the merits of a
            constitutional issue, and thus risk “turning small cases
            into large ones.” Id. Then, only days later, in Ashcroft
            v. al–Kidd, [131 S. Ct. 2074, 2080 (2011),] the Court
            cautioned that we should “think carefully before
            expending ‘scarce judicial resources’ to resolve difficult
            and novel questions of constitutional or statutory
            interpretation that will ‘have no effect on the outcome
            of the case.’”
Id. at 384–85 (footnotes omitted) (emphases in original).
      On appeal, Defendants contend that Plaintiff failed to show (1) a violation
of a constitutional right and (2) that the alleged constitutional right was clearly
established at the time of the incident. We address the second question first.
See id.
                                       III
      The district court found that a constitutional right was clearly established
at the time of the Defendants’ alleged misconduct, generally relying on a clearly
established constitutional right to bodily integrity and life recognized in cases
involving the sexual abuse of children. See Doe v. Rains Cnty. Indep. Sch. Dist.,
66 F.3d 1402, 1406 (5th Cir. 1995) (“‘[S]choolchildren do have a liberty interest
in their bodily integrity that is protected by the Due Process Clause of the


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Fourteenth Amendment and . . . physical sexual abuse by a school employee
violates that right.’”) (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 445
(5th Cir. 1994)). The district court further found that it was also clearly
established that a government official may violate this constitutional right by
showing deliberate indifference to it.
      Defendants dispute the district court’s holding, stressing that the case law
relied upon by the district court does not concern a workplace like the one here
and, moreover, does not put a reasonable officer on notice that planning and
conducting enforcement training exercises could violate the Due Process Clause.
Plaintiff contends that the spare text of the Due Process Clause provides the
clearly established right that the Defendants violated. Plaintiff expressly
grounds her claim upon the premises that (1) schoolchildren have a liberty
interest in their bodily integrity that is protected by the Due Process Clause and
(2) schoolchildren’s physical sexual abuse by a school employee violates that
right. Drawing on those principles, she asserts that the Defendants acted with
deliberate indifference by perpetuating the tactical drill in the face of confirmed
risk of injury.
      This court has explained that:
             To be clearly established for purposes of qualified
             immunity, the contours of the right must be sufficiently
             clear that a reasonable official would understand that
             what he is doing violates that right. The unlawfulness
             of the defendant’s actions must have been readily
             apparent from sufficiently similar situations, but it is
             not necessary that the defendant’s exact act have been
             illegal.

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (internal citations
omitted). “The central concept is that of ‘fair warning’: The law can be clearly
established ‘despite notable factual distinctions between the precedents relied
on and the cases then before the Court, so long as the prior decisions gave

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reasonable warning that the conduct then at issue violated constitutional
rights.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting
Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
      Plaintiff’s claim that the text of the Due Process Clause provides the basis
for a clearly established right here lacks merit. See Anderson v. Creighton, 483
U.S. 635, 639 (1987) (refusing to apply the “test of ‘clearly established law’ . . .
at this level of generality”).     Her arguments against qualified immunity
otherwise fail. To support her position that Defendants’ deliberately indifferent
conduct caused Carty’s death and thus violated his substantive due process right
to bodily integrity and life, Plaintiff relies principally on Fifth Circuit decisions
recognizing a student’s right to be free from physical abuse by school employees.
See, e.g., Taylor, 15 F.3d at 450–51. The court has grounded this right in the
student’s substantive due process right to bodily integrity. Id. Under the second
prong of the qualified immunity analysis, it cannot be said that this line of
authority provides clearly established law for Plaintiff’s position. These cases
are not “sufficiently similar” to the facts here to have given the Defendants “fair
warning” that their conduct violated constitutional rights. Kinney, 367 F.3d at
350. That these cases typically involved sexual abuse, and an adult intentionally
taking advantage of a child under his or her care, sufficiently demonstrates their
inadequacy for giving “reasonable warning” to the Defendants in this case. Id.
Plaintiff fails to persuade us that Defendants violated a clearly established right.
                                         IV
      For the reasons above, we REVERSE and RENDER in favor of Defendants
on the remaining claim against them based on qualified immunity.                 We
REMAND for further proceedings consistent with this opinion.




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