     Case: 16-60749      Document: 00514136790         Page: 1    Date Filed: 08/30/2017




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

                                                                                     FILED
                                                                                 August 30, 2017
                                      No. 16-60749
                                                                                  Lyle W. Cayce
                                                                                       Clerk
SUSAN BIGGS, By and Through Conservator, Parent and Next Friend,
Harold Biggs,

              Plaintiff - Appellant

v.

EDWIN C. LEGRAND, III; PAUL A. CALLENS; JOHN DOES 1-10,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-452


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Susan Biggs appeals the district court’s grant of summary
judgment on the basis of qualified immunity in favor of Defendants Edwin C.
Legrand, III and Paul A. Callens. Because we agree with the district court’s
determination as to qualified immunity, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60749
                                     I. Background 1
        Plaintiff Susan Biggs is an individual with severe mental disabilities.
Beginning in 1995, Biggs was admitted over twenty times to various mental
hospitals across the state of Mississippi. On or about June 6, 2012, Biggs was
re-committed for the fourth time to North Mississippi State Hospital after
attacking other patients and staff at a personal care home. Defendant Paul C.
Callens is the director of this hospital.            Later that month, doctors at the
hospital made the decision to discharge Biggs to the Creation Elite Boarding
Home, a different personal care home.
        Once discharged from the hospital, Biggs’s situation deteriorated. While
at Creation Elite, Biggs claims she was sexually assaulted and did not receive
her Social Security checks in full. Biggs was unable to cook or use public
transportation, and her medication was given to and dispensed by a building
maintenance worker. Although she was initially placed in a group home, Biggs
was moved to an apartment and eventually evicted from the facility.
        Biggs subsequently lived and panhandled on the streets of Jackson,
Mississippi, until she was picked up and housed by an individual she did not
know.       Biggs left this individual’s house after two months and was
subsequently struck by a car and hospitalized. She was then moved between
hospitals and personal care homes. Biggs eventually went missing and was
discovered by her family in the Hinds County Detention Center.
        Biggs sued through Harold Biggs, her father and state-appointed
conservator.      Her complaint includes claims against Defendant Edwin C.
Legrand III, the former Director of the Mississippi Department of Mental




        1 The following facts are taken from Biggs’s complaint and a reply ordered by the
district court under Federal Rule of Civil Procedure 7(a)(7). The district court relied on these
two pleadings in granting Defendant’s motion for summary judgment.
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                                      No. 16-60749
Health, Callens, and unidentified staff at the North Mississippi State Hospital
who were responsible for the decision to discharge Biggs. Biggs alleges that
Defendants’ actions amounted to a violation of her constitutional “liberty
interests in safety, well-being, liberty, and freedom of movement, as well as
her constitutionally guaranteed rights to appropriate treatment and minimal
habitation as one who has been committed to the State.” Biggs brought these
claims under 42 U.S.C. § 1983 and also invoked the district court’s “pendant
[sic] jurisdiction . . . to hear and decide all claims arising under the
Constitution and laws of the State of Mississippi.”
       The district court initially granted a motion to dismiss the claims under
state law and against the Defendants in their official capacity based on various
theories of immunity. Legrand and Callens then filed a motion for summary
judgment for the claims against them in their individual capacity based on
qualified immunity. The district court granted summary judgment in favor of
Legrand and Callens and entered final judgment dismissing all claims with
prejudice. Biggs timely appealed. 2
                               II. Standard of Review
       Although Biggs’s notice of appeal challenges the district court’s final
judgment, she briefs only the district court’s grant of summary judgment on
the ground of qualified immunity, and we thus do not consider any other issues.
See Tex. Democratic Party v. Benkiser, 459 F.3d 582, 594 (5th Cir. 2006) (not
considering an argument because the party “effectively waived [the argument]
by failing to raise it in its opening brief”). We review the district court’s grant



       2 The record does not reveal any resolution of Biggs’s claims against the unidentified
staff by the district court. Nonetheless, Biggs’s appeal from the final judgment is properly
before this court. See Fed. Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1476
(5th Cir. 1990) (holding that a judgment does not lack finality merely because claims against
unserved defendants that have not appeared remain undisposed).
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                                  No. 16-60749
of summary judgment de novo, applying the same standard as the district
court. McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en
banc) (per curiam). Summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a). When a defendant invokes qualified immunity,
the plaintiff bears the burden to demonstrate the inapplicability of the defense.
Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012).
                                III. Discussion
      Biggs’s claims against Defendants fall roughly into one of two categories.
First, Biggs claims that Defendants’ decision to discharge her from the hospital
violated her constitutional rights to minimally adequate care and treatment as
discussed in Youngberg v. Romero, 457 U.S. 307 (1982). Second, Biggs argues
that she had a “special relationship” with Defendants such that they may also
be liable for any violations of her constitutional rights by private actors
following her discharge from the hospital under DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989).
      “[Q]ualified immunity protects government officials from civil damages
liability when their actions could reasonably have been believed to be legal.”
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). A plaintiff
seeking to overcome qualified immunity must show that (1) the official violated
a statutory or constitutional right, and (2) the right was ‘clearly established’ at
the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).          Qualified
immunity therefore protects “all but the plainly incompetent or those who
knowingly violate the law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).




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                                       No. 16-60749
       We turn directly to the issue of whether the law was clearly established
if that resolves the case. 3 “A clearly established right is one that is sufficiently
clear that every reasonable official would have understood that what he is
doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). While a case directly on
point is not required, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (citing al-Kidd, 563 U.S. at 741).
“[C]learly established law should not be defined at a high level of generality”
and must be “particularized to the facts of the case.” White v. Pauly, 137 S. Ct.
548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742 and Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
       Citing Youngberg and DeShaney, Biggs repeatedly asserts that she has
a right to minimally adequate care and treatment. A § 1983 suit is not a
medical malpractice claim nor is it a vehicle to vindicate state statutory rights
or impose general morality upon state actors. See Estelle v. Gamble, 429 U.S.
97, 106 (1976); Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005).
       However, even if we assume arguendo that Biggs has alleged a
constitutional violation, her brief is devoid of authority that would clearly


       3 Because we have discretion to decide which qualified immunity prong to consider
first, Whitley, 726 F.3d at 638, Biggs’s argument as to the proper standard of care or whether
she maintained a “special relationship” with Defendants such that Defendants violated her
constitutional rights has no effect on our determination on clearly established law. Biggs
relies on A.M. ex rel Youngers v. New Mexico Department of Health, 65 F. Supp. 3d 1206 (D.
N. M. 2014) to support her clearly established argument. A.M.is an out-of-circuit district
court opinion that postdates the events here, and we need not address it. See al-Kidd, 563
U.S. at 735 (explaining that the right must be clearly established “at the time of the
challenged conduct”); United States v. Phillips, 210 F.3d 345, 351 n.4 (5th Cir. 2000) (“We, of
course, are not bound by [other] Circuit case law.”). We also need not address the correct
standard for determining a constitutional violation under Youngberg in light of DeShaney.
See M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 843 n.4 (5th Cir. 2012) (acknowledging
the open question of whether substantive due process claims to be free from harm while in
state custody requires the State to act with “deliberate indifference that shocks the conscious”
or the professional judgment standard discussed in Youngberg).
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                                        No. 16-60749
establish any constitutional rights putting Defendants on notice that they
violated Biggs’s constitutional rights by discharging her from the hospital to a
personal care home in light of her repeated struggles with mental disabilities.
Put another way, she has not shown a clearly established constitutional right
to continued confinement in a state mental health facility. Youngberg and
DeShaney cannot clearly establish Biggs’s rights because these decisions
pronounced rights at “a high level of generality.” White, 137 S. Ct. at 552.
Biggs cites no other cases that clearly establish the law, and we are unaware
of any authoritative decision that clearly establishes the rights that Biggs
seeks to validate. See Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel Keys,
675 F.3d 849, 859 (5th Cir. 2012) (en banc) (“[n]either the Supreme Court nor
this court has ever suggested that anything less than such a total restriction
is sufficient to create a special relationship with the state, regardless of the age
or competence of the individual.”). Therefore, Biggs cannot satisfy her burden
to demonstrate that reasonable officers in Defendants’ position would have
been on notice that their actions violated her constitutional rights.                        See
Cantrell, 666 F.3d at 921. We thus conclude that the district court properly
granted summary judgment in favor of Defendants. 4
       AFFIRMED.




       4  Whether a right was clearly established for purposes of qualified immunity is a
question of law. Good v. Curtis, 601 F.3d 393, 400–01 (5th Cir. 2010). Biggs’ argument on
appeal that she is entitled to limited discovery on the issue of qualified immunity is therefore
irrelevant. See Backe v. LeBlanc, 691 F.3d 645, 648–49 (5th Cir. 2012) (explaining that a
district court does not err when it first determines whether a plaintiff’s complaint is sufficient
to overcome qualified immunity before determining whether limited discovery is
appropriate).
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