Case: 20-60143     Document: 00515532458         Page: 1      Date Filed: 08/19/2020




            United States Court of Appeals
                 for the Fifth Circuit
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                                No. 20-60143                          FILED
                                                                August 19, 2020
                              Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk
 John David Lansdell,

                                                           Plaintiff—Appellant,

                                     versus

 Lee Miller, In His Individual Capacity; Lee County,
 Mississippi,

                                                       Defendants—Appellees.


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                           USDC No. 1:18-CV-65


 Before King, Smith, and Oldham, Circuit Judges.
 Per Curiam:*
        John Lansdell appeals the district court’s dismissal of his 42 U.S.C.
 § 1983 claims against Lee County, Mississippi, and Lee Miller, an officer in
 the Tupelo City Police Department.



        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                   No. 20-60143


        First, Lansdell argues that Miller committed excessive force against
 him in violation of the Fourth Amendment. Lansdell says that, even though
 he told Miller that he had a preexisting shoulder injury and asked to be
 handcuffed in front of his body, Miller refused and instead used two sets of
 handcuffs behind Lansdell’s back. On this claim, the district court
 determined that Miller was entitled to qualified immunity. To defeat a claim
 for qualified immunity, a plaintiff must show that the right he claims was
 violated “was ‘clearly established’ at the time of the violation.” Tolan v.
 Cotton, 572 U.S. 650, 656 (2014) (per curiam) (citation omitted). “The
 precedent must be clear enough that every reasonable official would interpret
 it to establish the particular rule the plaintiff seeks to apply.” District of
 Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (per curiam).
        We have held that “handcuffing too tightly, without more, does not
 amount to excessive force.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.
 2001). Lansdell cites no controlling precedent that would put every
 reasonable officer on notice as to how to arrest someone with a preexisting
 injury. Lansdell points to out-of-circuit precedent, but we can only rely on
 out-of-circuit cases as part of the clearly-established inquiry when they
 demonstrate “a robust consensus of persuasive authority.” Morgan v.
 Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quotation marks
 omitted). As the First Circuit has observed, the circuit courts “have reached
 different holdings on the constitutionality of handcuffing an allegedly injured
 arrestee behind his or her back.” Hunt v. Massi, 773 F.3d 361, 369 (1st Cir.
 2014). There is therefore no robust consensus on the issue. Accordingly, at
 the time of Lansdell’s arrest, it was not clearly established that Miller could
 not use two sets of cuffs to handcuff Lansdell behind his back.
        Second, Lansdell argues that Miller denied him adequate medical care
 for his shoulder injury in violation of the Fourteenth Amendment. To
 establish that kind of violation, a plaintiff must show that the officer “act[ed]



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                                   No. 20-60143


 with deliberate indifference to a substantial risk of serious medical harm and
 resulting injuries.” Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003).
 Deliberate indifference has a subjective component, requiring “that the
 official have subjective knowledge of the risk of harm. Mere negligence or a
 failure to act reasonably is not enough. The officer must have a subjective
 intent to cause harm.” Id. at 625–26 (citations omitted). It is undisputed that,
 shortly after arriving at the county jail, Miller offered Lansdell the
 opportunity to go to the hospital immediately. Lansdell refused. The district
 court correctly noted that the offer shows that Miller did not intend to cause
 Lansdell harm. Lansdell has therefore failed to satisfy the “extremely high
 standard” required for a finding of deliberate indifference. Cadena, 946 F.3d
 717, 728 (5th Cir. 2020); cf. Hall v. Robinson, 618 F. App’x 759, 764 (5th Cir.
 2015) (per curiam) (holding that plaintiff’s failure to take advantage of
 available procedure that would have remedied the complained-of harm
 undermined deliberate-indifference claim).
        Finally, Lansdell argues that Lee County is also liable for providing
 inadequate medical care. To establish municipal liability under § 1983, a
 plaintiff must show “(1) a policymaker; (2) an official policy; and (3) a
 violation of a constitutional right whose ‘moving force’ is the policy or
 custom.” Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (en
 banc) (citations omitted). Lansdell claims that three instances of inmate
 deaths between 2006 and 2015 in Lee County tend to show the existence of
 a policy. He provides no details as to how these three incidents are linked, or
 how they demonstrate a policy of misconduct. Without more, three
 “[i]solated violations” over the space of nine years “are not the persistent,
 often repeated constitutional violations that constitute custom and policy.”
 Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984); see Peterson v.
 City of Fort Worth, 588 F.3d 838, 851 (holding that evidence of 27 complaints
 of excessive force over a three year period did not suffice to survive summary




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                                   No. 20-60143


 judgment because “plaintiffs ha[d] failed to provide context that would show
 a pattern . . . establishing a municipal policy”).
        In the alternative, Lansdell says that his own experience at the Lee
 County jail suffices to show the existence of a municipal policy to deny
 medical treatment. Typically, however, we cannot infer the existence of a
 policy merely from the conduct of several officers during one incident. See,
 e.g., Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 281 (5th Cir.
 2015) (holding that the actions of three officers were insufficient to
 demonstrate the existence of a policy); Culbertson v. Lykos, 790 F.3d 608, 629
 (5th Cir. 2015) (refusing to infer a municipal policy of retaliation from a single
 “retaliatory campaign against” plaintiffs, “all arising from the same
 predicate events”).
        Lansdell relies on our holding in Grandstaff v. City of Borger, 767 F.2d
 161 (5th Cir. 1985), that the police department’s conduct over the course of
 one night sufficed to show an unconstitutional policy. Id. at 171–72. But the
 holding in Grandstaff arose from the extraordinary facts of that case, where
 an entire police department opened fire indiscriminately on a slow-moving
 pickup truck. Barkley v. Dillard Dep’t Stores, Inc., 277 F. App’x 406, 413 (5th
 Cir. 2008) (per curiam). We have therefore “limited” Grandstaff’s
 application “to ‘extreme factual situations.’” Barkley, 277 F. App’x at 413
 (quoting Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998)). Lansdell has
 not offered sufficient evidence that his interactions with county employees—
 one of whom offered to let him go to the hospital and another who treated
 him—present such an extreme factual situation. Cf. Westfall v. Luna, 903
 F.3d 534, 548, 551–52 (5th Cir. 2018) (refusing to infer a policy where an
 officer “body-slammed [plaintiff] to the ground” even though she was not
 resisting and distinguishing Grandstaff as “far more egregious”). Landsell’s
 evidence therefore was insufficient to show a triable issue of fact as to the
 existence of an unconstitutional municipal policy.



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                            No. 20-60143


       Affirmed.




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