     Case: 13-10545       Document: 00512702828         Page: 1    Date Filed: 07/17/2014




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

                                                                                 FILED
                                                                              July 17, 2014
                                      No. 13-10545
                                                                              Lyle W. Cayce
                                                                                   Clerk
DENISE KITCHEN, Individually and as Representative of the Estate of
Gregory Maurice Kitchen, Deceased,

                                                  Plaintiff - Appellant
v.

DALLAS COUNTY, TEXAS; UNKNOWN DALLAS COUNTY
CORRECTIONAL OFFICERS; ANTHONY BENSON, Dallas County
Detention Officer; DAVID GARRETT, Dallas County Detention Officer;
GREGORY MYERS, Dallas County Detention Officer; DAVID ROBERTS,
Dallas County Detention Officer; RENE GUZMAN, Dallas County Detention
Officer; TA’MON HAGGERTY, Dallas County Detention Officer; OLLIE
POLK, JR., Dallas County Detention Officer; JEREE HALL, Dallas County
Detention Officer; MARQUITA GRAY, Dallas County Detention Officer;
JEREMIAH MOSLEY, Dallas County Detention Officer,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DAVIS, ELROD, and COSTA, Circuit Judges.*
W. EUGENE DAVIS, Circuit Judge:
       Plaintiff-Appellant, the widow of Gregory Maurice Kitchen (“the
deceased”), brings several constitutional claims under 42 U.S.C. § 1983 against
Defendants-Appellees.         First, Plaintiff-Appellant claims that individual


       *Judge Costa participated by designation in the oral argument of this case as a United
States District Judge for the Southern District of Texas. Since that time he has been
appointed as a Fifth Circuit Judge.
       Case: 13-10545    Document: 00512702828         Page: 2    Date Filed: 07/17/2014



                                      No. 13-10545
Defendants-Appellees used excessive force against the deceased to extract him
from his jail cell while in pretrial detention at Dallas County Jail, which
resulted in the deceased’s asphyxiation and death. Second, Plaintiff-Appellant
claims that Defendants-Appellees acted with deliberate indifference to the
deceased’s medical needs by failing to contact Dallas County Jail’s medical
personnel prior to extracting the deceased from his jail cell. As to both of these
claims, Plaintiff-Appellant argues that the nine detention officers 1 named as
Defendants-Appellees are each liable in their individual capacities despite
their eligibility for qualified immunity.            Importantly, some of the nine
detention officers may be liable solely under the alternative theory of
bystander liability, according to Plaintiff-Appellant, as described in our
decision in Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Finally, Plaintiff-
Appellant also argues that Defendant-Appellee Dallas County is liable as a
municipality under Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 694 (1978), for failing to provide adequate training to the
detention officers.
        In the present appeal, Plaintiff-Appellant challenges the district court’s
order of April 24, 2013, which granted Defendants-Appellees’ motion for
summary judgment as to all of Plaintiff-Appellant’s claims. In that order, the
district court concluded that the record contained insufficient evidence to
create a genuine issue of material fact relating to Plaintiff-Appellant’s claims
for either excessive force or deliberate indifference to the deceased’s medical
needs.     The district court therefore had no reason to address Plaintiff-
Appellant’s arguments regarding the individual detention officers’ bystander
liability under Hale, 45 F.3d at 919. The district court also explicitly refrained


   1 Although the caption of this case does not reflect the change, Plaintiff-Appellant
voluntarily dismissed Sgt. David Roberts from this case on February 20, 2013, after
determining that Sgt. David Roberts was not present during the events relevant to this case.
                                             2
    Case: 13-10545       Document: 00512702828   Page: 3   Date Filed: 07/17/2014



                                  No. 13-10545
from addressing either the individual detention officers’ entitlement to
qualified immunity or Defendant-Appellee Dallas County’s liability under
Monell, 436 U.S. at 694.
      We now reverse and remand in part, and affirm in part. For the reasons
set forth below, the record does indeed present genuine issues of material fact
from which a jury could conclude that excessive force was used against the
deceased. On remand, therefore, the district court must consider in the first
instance whether any or all of the individual Defendants-Appellees may
proceed to trial on a theory of direct liability for use of force or, in the
alternative, on a theory of bystander liability. The district court should also
consider in the first instance whether the individual Defendants-Appellees are
entitled to qualified immunity.
      As to Plaintiff-Appellant’s claim against the individual Defendants-
Appellees for deliberate indifference to the deceased’s medical needs, however,
we conclude that the district court’s analysis was correct. As explained below
in greater detail, we affirm the district court’s grant of summary judgment on
this claim.
      Finally, we affirm summary judgment as to Defendant-Appellee Dallas
County’s municipal liability for failing to provide adequate training to the
detention officers. Plaintiff-Appellant has neither demonstrated a pattern of
constitutional violations similar to those at issue in this case, nor
demonstrated that this single incident of injury was highly predictable and
patently obvious.    Plaintiff-Appellant’s arguments as to this claim must
therefore be rejected.
                                        I.
      All of the events relevant to this case took place in January 2010, while
the deceased was in pretrial detention at Dallas County Jail. With a few
critical exceptions, most of the facts are not in dispute. Because the deceased
                                        3
    Case: 13-10545     Document: 00512702828      Page: 4   Date Filed: 07/17/2014



                                  No. 13-10545
had been observed “digging through other detainees’ personal property,” as
well as “mumbling, walking backwards, and avoiding eye contact with others,”
the deceased was placed in the facility’s West Tower for psychiatric evaluation.
During interviews with medical staff in the West Tower, the deceased urinated
on himself, cried, stated that he could hear his mother’s voice, and admitted to
having suicidal thoughts.
        Just before midnight on January 21, 2010, the deceased was observed
pacing around his jail cell and hitting his head on the cell door and walls. A
detention officer sent the deceased to a nursing station for evaluation. Shortly
after midnight, the deceased “broke free from the guards, started screaming,
and grabbed one of the nurses” before two detention officers “subdued [him] . .
. and placed him in a restraint chair where he remained from 12:25 a.m. until
at least 5:15 a.m.” Out of concern that “he was going to assault the medical
staff,” who are based mostly in the West Tower, a supervisor transferred the
deceased to the North Tower.
        The deceased was placed in a cell in the North Tower near to the cell of
an inmate named Etheridge. Both had been designated as suicidal. In the
afternoon on January 22, 2010, Etheridge attempted suicide by cutting
himself, which brought several of the detention officers on duty into
Etheridge’s cell in an effort to save Etheridge’s life.
        While the detention officers were attending to Etheridge, the deceased
began to scream obscenities and cry out for his mother. According to the
detention officers, the deceased also resumed banging his head against the
bars.     One of the detention officers, Defendant-Appellee Guzman, left
Etheridge’s jail cell, told the deceased to stop banging his head, and then
returned to attend to Etheridge. The deceased briefly stopped, according to
the detention officers, but then resumed.           A second detention officer,
Defendant-Appellee Myers, told the deceased at this time that they would call
                                         4
    Case: 13-10545    Document: 00512702828     Page: 5   Date Filed: 07/17/2014



                                 No. 13-10545
the medical staff.   Defendant-Appellee Guzman also again instructed the
deceased “to have a seat,” after which the deceased showed the detention
officers his middle finger and urinated on the floor.
      At this point, Defendants-Appellees Guzman and Myers attempted to
extract the deceased from his cell and return him to a restraint chair. They
were assisted by the other individual detention officers named in this lawsuit,
all of whom had been present in the North Tower and near the deceased’s cell
at the time. The detention officers spent “seven to eight minutes” talking to
the deceased, during which time the deceased “was not banging his head
against anything or otherwise causing harm to himself.” No attempt was yet
made by the detention officers to summon the medical staff.
      Defendant-Appellee Guzman then entered the cell, after which a violent
altercation began.    As Defendant-Appellee Guzman explained during his
deposition, the deceased “turned around abruptly and raised his hands,” after
which Defendant-Appellee Guzman then performed a “neck controlled take
down” on the deceased, which physically brought the deceased down onto the
floor. Using pepper spray, the detention officers subdued the deceased and
moved him out of the cell onto the floor of the hallway. The deceased was then
restrained in cuffs and leg-irons.
      The record contains affidavits by four inmates: John Adams, Morris
Simons, Joseph Daniels, and Jason Barcellever. According to a fair reading of
these four affidavits, the detention officers kicked, choked, and stomped on the
deceased even after he had already been restrained. The inmates also assert
in their affidavits that the detention officers used pepper spray on the deceased
multiple times after he had stopped resisting. While Defendants-Appellees
dispute the factual content of the inmates’ affidavits, they do not challenge




                                       5
       Case: 13-10545     Document: 00512702828          Page: 6     Date Filed: 07/17/2014



                                       No. 13-10545
these affidavits’ status as competent evidence on summary judgment. 2
        While still lying on the floor shortly after being restrained, the deceased
became unresponsive, stopped breathing, and died. According to the autopsy
report, the death was a homicide caused by “complications of physical restraint
including mechanical asphyxia” due to “neck restraint during struggle” and the
fact that “one officer was kneeling on the decedent’s back during restraint.”
Other     factors    included     “physiologic      stress,”    “[m]orbid     obesity     and
cardiomegaly,” and exposure to “oleoresin capsicum,” which was one of the
chemicals in the pepper spray.
        Less than nine months later, on September 10, 2010, Plaintiff-Appellant
filed her complaint in the district court alleging constitutional violations under
42 U.S.C. § 1983. On December 31, 2012, Defendants-Appellees filed their
motion for summary judgment, which the district court granted in its entirety
on April 24, 2013. The district court ruled directly on the merits of Plaintiff-
Appellant’s claims for excessive force and deliberate indifference to the
deceased’s medical needs, concluding that neither claim could be sustained
based on the evidence in the record.
        The district court therefore declined to discuss any aspect of the parties’
arguments regarding bystander liability. The district court also explicitly
refrained from making any ruling on the parties’ arguments regarding
qualified immunity or municipal liability. In a footnote, the district court
stated as follows: “Finding no underlying constitutional violation under either
an excessive force theory or an inadequate medical care theory, any analysis of
qualified immunity or municipal liability is unnecessary at this time.”


   2 During oral argument before this court, counsel for Defendants-Appellees confirmed
that no objection was ever made to these affidavits during proceedings before the district
court. Accordingly, these affidavits are eligible for this court’s consideration on appeal. See
BGHA, LLC v. City of Universal City, Tex., 340 F.3d 295, 299 (5th Cir. 2003); Donaghey v.
Ocean Drilling & Exploration Co., 974 F.2d 646, 650 n.3 (5th Cir. 1992).
                                              6
       Case: 13-10545   Document: 00512702828        Page: 7    Date Filed: 07/17/2014



                                    No. 13-10545
                                          II.
        The grant or denial of a motion for summary judgment is reviewed de
novo. 3   Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper if the record demonstrates no genuine dispute as to any
material fact, and the movant is entitled to judgment as a matter of law. 4
When considering a motion for summary judgment, both this court and the
district court construe the evidence and draw all reasonable inferences in the
light most favorable to the non-moving party. 5
        In claims brought under 42 U.S.C. § 1983, “‘government officials
performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” 6 Accordingly, when a defendant invokes the defense of qualified
immunity, the burden is on the plaintiff to demonstrate the inapplicability of
the defense. 7 Because qualified immunity constitutes an immunity from suit
rather than a mere defense to liability, adjudication of a defendant’s
entitlement to qualified immunity “should occur ‘at the earliest possible stage
in litigation.’” 8 The two-part inquiry into qualified immunity is first “whether
a constitutional right would have been violated on the facts alleged,” and
second “whether the right was clearly established” at the time of violation. 9
Courts are “permitted to exercise their sound discretion in deciding which of


   3 Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009); Burge v. Parish of St.
Tammany, 187 F.3d 452, 464 (5th Cir. 1999).
   4 Deville, 567 F.3d at 163-64; Burge, 187 F.3d at 464-65.
   5 Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004).
   6 McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
   7 See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008); Bazan ex rel. Bazan v.

Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001).
   8 McClendon, 305 F.3d at 323 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
   9 Saucier v. Katz, 533 U.S. 194, 200 (2001).

                                           7
        Case: 13-10545    Document: 00512702828          Page: 8     Date Filed: 07/17/2014



                                       No. 13-10545
the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” 10
         No liability exists under the doctrine of respondeat superior in claims
brought under 42 U.S.C. § 1983. 11 Accordingly, for a municipality to be liable
for the actions of its employees under Monell, 436 U.S. at 694, the plaintiff
must show that the municipality had adopted a policy, practice, or custom that
was the moving force behind the constitutional violation. 12
                                             III.
         We first consider the district court’s treatment of Plaintiff-Appellant’s
claim against Defendants-Appellees for use of excessive force. As we held in
Hare v. City of Corinth, Mississippi, 74 F.3d 633, 639 (5th Cir. 1996) (en banc),
“[t]he constitutional rights of a pretrial detainee . . . flow from both the
procedural and substantive due process guarantees of the Fourteenth
Amendment.” 13 However, where a pretrial detainee is allegedly the victim of
a detention officer’s use of excessive force, as explained in Valencia v. Wiggins,
981 F.2d 1440, 1446 (5th Cir. 1993), 14 such a claim is subject to the same
analysis as a convicted prisoner’s claim for use of excessive force under the
Eighth Amendment. Accordingly, as set forth in Hudson v. McMillian, 503
U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)), a
constitutional violation occurs where a detention officer uses force “‘maliciously
and sadistically for the very purpose of causing harm’” to the pretrial detainee,


   10  Pearson v. Callahan, 555 U.S. 223, 236 (2009).
   11  World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752-53 (5th
Cir. 2009).
    12 Duvall v. Dall. Cnty., Tex., 631 F.3d 203, 209 (5th Cir. 2011).
    13 See also Edwards v. Loggins, 476 F. App’x 325, 326-27 (5th Cir. 2012).
    14 See United States v. Daniels, 281 F.3d 168, 179 (5th Cir. 2002) (“[A] claim of excessive

force by a law enforcement officer is correctly examined under the same standard regardless
whether the claim arises under the Eighth Amendment or the Fourteenth Amendment.”); see
also Edwards, 476 F. App’x at 326-27; Mitchell v. Cervantes, 453 F. App’x 475, 477 (5th Cir.
2011); Noel v. Webre, 426 F. App’x 247, 249-50 (5th Cir. 2011).
                                              8
        Case: 13-10545    Document: 00512702828          Page: 9     Date Filed: 07/17/2014



                                       No. 13-10545
rather than in “‘a good faith effort to maintain or restore discipline.’” 15
                                              A.
         As the district court correctly observed, the Supreme Court’s decision in
Hudson, 503 U.S. at 7, instructs courts to consider a number of factors when
evaluating an excessive force claim. These factors include “the extent of injury
suffered,” “the need for application of force, the relationship between that need
and the amount of force used, the threat ‘reasonably perceived by the
responsible officials,’ and ‘any efforts made to temper the severity of a forceful
response.’” 16 Contrary to the district court’s conclusion, however, we find that
the affidavits submitted by the deceased’s fellow inmates do create a genuine
dispute as to material facts regarding the second, third, fourth, and fifth
Hudson factors in the present case.
         Fairly read, the four inmates’ affidavits assert that the detention officers
kicked, choked, and stomped on the deceased even after he was already
restrained, subdued, and no longer a threat. Although the detention officers
have denied taking such actions in their deposition testimony, the respective
credibility of the inmates and detention officers may not be evaluated on
summary judgment. 17 It is sufficient that a reasonable jury could believe,
based on these inmates’ potential testimony at trial, that the detention officers’
actions were motivated by a purpose to cause harm. 18 With respect to the
factors set forth in Hudson, 503 U.S. at 7, “the need for application of force”
would be greatly reduced after the deceased had already been restrained and


   15  See Daniels, 281 F.3d at 179-80 n.10; Valencia, 981 F.2d at 1446; see also Mitchell, 453
F. App’x at 477; Noel, 426 F. App’x at 249-50.
    16 Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321); Gomez v. Chandler, 163 F.3d

921, 923 (5th Cir. 1999).
    17 See Willis v. Cleco Corp., 749 F.3d 314, 325 (5th Cir. 2014); MetroplexCore, L.L.C. v.

Parsons Transp., Inc., 743 F.3d 964, 972 (5th Cir. 2014).
    18 See Hudson, 503 U.S. at 6 (citing Whitley, 475 U.S. at 320-21); Daniels, 281 F.3d at 179-

80 n.10.
                                               9
    Case: 13-10545          Document: 00512702828       Page: 10   Date Filed: 07/17/2014



                                         No. 13-10545
subdued, such that the “amount of force” described in the affidavits may have
been disproportionate to the need. Additionally, even if the detention officers
did possess an actual perception that the deceased posed a threat after he had
already been restrained and subdued, a jury might nonetheless conclude that
such a perception was unreasonable. 19 Finally, a jury might also conclude that
the detention officers failed “‘to temper the severity of [their] forceful response’”
sufficiently, given that the detention officers’ response allegedly involved
kicking, choking, and stomping. 20
         Accordingly, based on the four inmates’ affidavits, genuine disputes
remain as to material facts relating to both the timing and the degree of force
used. These genuine disputes affect a legal analysis of four of the five factors
set forth in Hudson, 503 U.S. at 7. The district court erred, therefore, when it
granted the individual Defendants-Appellees’ motion for summary judgment
in its entirety.
         Several matters remain, therefore, for the district court to address on
remand.       First, because of its erroneous conclusion as to the Defendants-
Appellees’ conduct as a whole, the district court performed no summary
judgment analysis of the Defendants-Appellees’ individual conduct to
determine which of them could individually be held liable for the use of
excessive force. On remand, the district court must perform such analysis. In
this context, we note the observation by counsel for Plaintiff-Appellant during
oral argument that the deceased’s fellow inmates were never deposed due to a
limit imposed by the district court on the number of permitted depositions,
despite the central importance of the inmates’ potential testimony.
Additionally, the inmates’ affidavits mention only Defendants-Appellees



   19   See Hudson, 503 U.S. at 7.
   20   See id. (quoting Whitley, 475 U.S. at 321).
                                                10
    Case: 13-10545        Document: 00512702828          Page: 11      Date Filed: 07/17/2014



                                        No. 13-10545
Guzman, Mosley, Myers, Garrett, Haggerty, and “2 Female Officers.” Even
these officers’ actions are described in very general terms, and the remaining
detention officers’ actions are not described at all in the affidavits. Rules 26
and 30 of the Federal Rules of Civil Procedure vest the district court with broad
discretion to tailor discovery and permit or limit depositions as it chooses. 21
The need for “additional discovery” remains “an issue [that] the district court
can consider on remand” in its discretion. 22
        Second, the district court must also “examine[] the actions of defendants
individually in the qualified immunity context” under Meadours v. Ermel, 483
F.3d 417, 421-22 (5th Cir. 2007). 23 The district court has not yet addressed
this issue, and must do so on remand. As a general matter, the applicable law
was clearly established in January 2010 and clearly encompassed the type of
behavior described in the inmates’ affidavits at the time of the events relevant
to this case. 24 Numerous judicial authorities have long provided that the use
of force against an inmate is reserved for good faith efforts to maintain or
restore discipline, rather than for the purpose of causing harm. 25 Even though
there may be “notable factual distinctions between the [relevant] precedents”
and the present case, “the prior decisions gave reasonable warning that the




   21  Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
   22  Bourgeois v. Pension Plan for Emps. of Santa Fe Int’l Corps., 215 F.3d 475, 480 n.13
(5th Cir. 2000); McCorstin v. U.S. Steel Corp., 621 F.2d 749, 755 (5th Cir. 1980); see also
Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014)
(“On remand, the district court must conduct such proceedings as it determines to be
necessary to ascertain whether a triable issue of fact exists . . . possibly including additional
discovery . . . .”).
    23 See also Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005) (“Prudence

suggests that these qualified immunity claims should be addressed separately for Norris and
Perry.”); Hernandez ex rel. Hernandez v. Texas Dep’t of Protective & Regulatory Servs., 380
F.3d 872, 883-84 (5th Cir. 2004).
    24 See Pearson, 555 U.S. at 236.
    25 See Daniels, 281 F.3d at 179-80 n.10; Valencia, 981 F.2d at 1446; see also Mitchell, 453

F. App’x at 477; Noel, 426 F. App’x at 249-50.
                                              11
    Case: 13-10545         Document: 00512702828           Page: 12     Date Filed: 07/17/2014



                                         No. 13-10545
conduct then at issue violated constitutional rights.” 26
        Indeed, courts have frequently found constitutional violations in cases
where a restrained or subdued person is subjected to the use of force. The
Third, Eleventh, and Eighth Circuits have each held that violent acts
committed against a restrained inmate may give rise to a constitutional
violation specifically under the Hudson analysis. 27 We likewise held in Bush
v. Strain, 513 F.3d 492, 502 (5th Cir. 2008), that a law enforcement officer
“should have known” that a certain degree of force was impermissible after an
arrestee had already been “restrained and subdued,” and “was not resisting
arrest or attempting to flee.” Although that decision addressed the Fourth
Amendment rather than the Fourteenth or Eighth Amendment, our analysis
in Bush, 513 F.3d at 502, is nonetheless relevant to the present case. Indeed,
as we explained in Petta v. Rivera, 143 F.3d 895, 912 (5th Cir. 1998), our
decisions have “demonstrate[d] a tendency to ‘blur’ the lines between
Fourteenth Amendment and either Fourth or Eighth Amendment excessive
force standards, depending upon the particular factual context.” 28
        Accordingly, based on the general framework set forth in Hudson, 503
U.S. at 7, the case law of our sister circuits, 29 and our related decision in Bush,




   26  See Hope v. Pelzer, 536 U.S. 730, 740 (2002) (internal citations and quotation marks
omitted); Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc).
    27 See Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (“[A]t the time of the incident in

2001, it was established that an officer may not kick or otherwise use gratuitous force against
an inmate who has been subdued.”); Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002)
(“By 1998, our precedent clearly established that government officials may not use gratuitous
force against a prisoner who has been already subdued or, as in this case, incapacitated.”);
Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1394-95 (8th Cir. 1997) (“We agree that
the law was well established that striking an unresisting inmate . . . in the head while four
other officers were restraining his limbs . . . is a violation of the Eighth Amendment[] . . . .”).
    28 See also Payne v. Parnell, 246 F. App’x 884, 889 n.4 (5th Cir. 2007) (“[A] claim of

excessive force by a law enforcement officer is analyzed under the same standard regardless
of whether it arises under the Fourth Amendment or the Eighth Amendment.”).
    29 See Giles, 571 F.3d at 326; Skrtich, 280 F.3d at 1303; Davis, 115 F.3d at 1394-95.

                                               12
    Case: 13-10545        Document: 00512702828          Page: 13     Date Filed: 07/17/2014



                                       No. 13-10545
513 F.3d at 502, we conclude that Defendants-Appellees had reasonable
warning that kicking, stomping, and choking a subdued inmate would violate
the inmate’s constitutional rights under certain circumstances. 30 On remand,
if the district court ultimately finds summary judgment evidence showing that
certain individual Defendants-Appellees committed such actions, then those
individual Defendants-Appellees cannot invoke qualified immunity during
these summary judgment proceedings. 31 As our case law requires, however,
we emphasize that “these qualified immunity claims should be addressed
separately” for each individual defendant. 32
                                              B.
        On remand, the district must also consider the question of bystander
liability for excessive use of force under Hale, 45 F.3d at 919, in the first
instance. 33 In this context, we reject Defendants-Appellees’ argument that
Plaintiff-Appellant’s claims are ineligible as a matter of law for analysis under
an alternative theory of bystander liability.                 According to Defendants-
Appellees, bystander liability cannot arise in the present case because
Plaintiff-Appellant has failed to identify the specific individual or individuals
responsible for the underlying use of excessive force. Defendants-Appellees’




   30  See Hope, 536 U.S. at 740; Kinney, 367 F.3d at 350. At the same time, we emphasize
that we do not endorse a per se rule that no force may ever be used after an inmate has been
subjected to measures of restraint—particularly if the effect of the restraint is only partial.
For example, as we observed in United States v. Sanders, 994 F.2d 200, 209 (5th Cir. 1993),
handcuffs “obviously do not impair a person’s ability to use his legs and feet, whether to walk,
run, or kick.” The extent to which measures of restraint have rendered unnecessary any
further use of force under Hudson, 503 U.S. at 7, will depend on the specific facts and
circumstances of each case.
    31 See Brumfield, 551 F.3d at 326; Bazan, 246 F.3d at 489.
    32 Atteberry, 430 F.3d at 253; see also Meadours, 483 F.3d at 421-22; Hernandez, 380 F.3d

at 883-84.
    33 See Arthur J. Gallagher & Co. v. Babcock, 339 F. App’x 384, 388-89 (5th Cir. 2009);

Spectators’ Commc’n Network Inc. v. Colonial Country Club, 253 F.3d 215, 225 (5th Cir.
2001).
                                              13
    Case: 13-10545       Document: 00512702828          Page: 14     Date Filed: 07/17/2014



                                       No. 13-10545
argument is unsupported, however, by any legal authority and is contrary to
the reasoning applied by at least three circuits.
        Bystander liability may be established where an officer “(1) knows that
a fellow officer is violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to act.” 34 In
an unpublished decision, Davis v. Cannon, 91 F. App’x 327, 329 (5th Cir. 2004),
we considered whether bystander liability had attached in a case involving a
claim for use of excessive force against an inmate under the Eighth
Amendment. In Gilbert v. French, 364 F. App’x 76, 83 (5th Cir. 2010), and
Ibarra v. Harris County Texas, 243 F. App’x 830, 835 & n.8 (5th Cir. 2007), we
likewise considered whether bystander liability had attached in cases
involving claims for use of excessive force against an arrestee under the Fourth
Amendment. Based on the close relationship described in Petta, 143 F.3d at
912-14, “between Fourteenth Amendment and either Fourth or Eighth
Amendment excessive force standards,” 35 we therefore conclude that the
theory of bystander liability is likewise applicable to claims for use of excessive
force against pretrial detainees. As a general matter, moreover, this rule
constituted clearly established law for the purposes of qualified immunity in
this case. Indeed, prior to January 2010, the rule had already been applied
consistently by district courts throughout the Fifth Circuit in cases involving
both pretrial detainees and prison inmates. 36



   34  See Whitley v. Hanna, 726 F.3d 631, 646-47 (5th Cir. 2013), cert denied, 134 S. Ct. 1935
(2014) (internal citations and quotation marks omitted).
    35 See also Payne, 246 F. App’x at 889 n.4.
    36 See Williams v. Davis, 3:09-CV-0296-B, 2009 WL 928318, at *3 (N.D. Tex. Apr. 6, 2009);

Edwards v. Mendoza, CA C-08-371, 2008 WL 5246207, at *3 (S.D. Tex. Dec. 16, 2008);
Demouchet v. Rayburn Corr. Ctr., CIV. A. 07-1694, 2008 WL 2018294, at *5 (E.D. La. May 8,
2008); Garza v. U.S. Marshals Serv., CIV.A. B-07-052, 2008 WL 501292, at *3 (S.D. Tex. Feb.
21, 2008); Ndaula v. Holliday, CV 04 0722 A, 2007 WL 1098954, at *4 (W.D. La. Mar. 20,
2007).
                                              14
    Case: 13-10545         Document: 00512702828           Page: 15     Date Filed: 07/17/2014



                                         No. 13-10545
        In the present appeal, Defendants-Appellees correctly observe that
bystander liability arises under Hale, 45 F.3d at 919, only where the plaintiff
can allege and prove “another officer’s use of excessive force.” 37 Defendants-
Appellees have pointed to no authority, however, to support their argument
that a plaintiff must identify with specificity the party responsible for the
underlying use of force.
        Indeed, the Seventh Circuit held explicitly in Sanchez v. City of Chicago,
700 F.3d 919, 926 (7th Cir. 2012), that “it is possible to hold a named defendant
liable for his failure to intervene vis-à-vis the excessive force employed by
another officer, even if the plaintiff cannot identify the officer(s) who used
excessive force on him.”               In Gaudreault v. Municipality of Salem,
Massachusetts, 923 F.2d 203, 207 & n.3 (1st Cir. 1990), the First Circuit also
indicated that bystander liability may attach even where the officer most
directly responsible for the violation of constitutional rights is never
identified. 38 The Fourth Circuit applied the same reasoning in its unpublished
decision in Smith v. Ray, 409 F. App’x 641, 649-50 (4th Cir. 2011). 39 In the
absence of any contrary authority, therefore, we also conclude that where a
detention officer knows that a fellow officer is committing a constitutional




   37  See also Whitley, 726 F.3d at 646; Elliot v. Linnell, 269 F. App’x 450, 451 (5th Cir. 2008).
   38  In Gaudreault, 923 F.2d at 207 & n.3, this claim was rejected on other grounds,
although the First Circuit has subsequently repeated that bystander liability may be
predicated on excessive use of force by an “unidentified officer.” See Torres-Rivera v. O’Neill-
Cancel, 406 F.3d 43, 52 (1st Cir. 2005) (“The plaintiff [in Gaudreault, 923 F.2d at 207 & n.3]
sued four police officers who did not actively participate in another unidentified officer’s
assault on the plaintiff under detention. . . . The court explained that ‘[a]n officer who is
present at the scene and who fails to take reasonable steps to protect the victim of another
officer’s excessive force can be held liable under section 1983 for his nonfeasance.’”).
    39 The Fourth Circuit rejected the bystander liability claim in Smith, 409 F. App’x at 649,

because the plaintiff was unable to “show that Defendants were aware of the alleged assault.”
Nonetheless, the Fourth Circuit did consider the claim on its merits and accepted “as true
the allegations by Smith that such an assault occurred at the hands of the Unknown Officer,”
which therefore provided the predicate for bystander liability. See id.
                                               15
    Case: 13-10545       Document: 00512702828          Page: 16     Date Filed: 07/17/2014



                                       No. 13-10545
violation, has a reasonable opportunity to prevent the harm, and yet chooses
not to act, 40 bystander liability may attach regardless of whether the directly
responsible officer can be specifically identified.
        In the present case, the district court’s opinion contains no summary
judgment analysis of the individual Defendants-Appellees’ bystander liability.
Although Defendants-Appellees do not contest that these detention officers
were at least present during the relevant events, such officers may or may not
have had “a reasonable opportunity to realize the excessive nature of the force
and to intervene to stop it” under Hale, 45 F.3d at 919. The district court is
therefore obliged to consider this question on remand, as well as whether any
of the individual Defendants-Appellees may invoke qualified immunity as to
this claim. 41
                                             IV.
        Plaintiff-Appellant also argues that the district court improperly
concluded that the record presented no genuine issue of material fact with
respect to the detention officers’ deliberate indifference to the deceased’s
medical needs. In Plaintiff-Appellant’s view, the detention officers violated the
en banc court’s holding in Hare, 74 F.3d at 636, 648-49, by failing to contact
the medical staff prior to extracting the deceased from his jail cell. This
argument must be rejected.
        To be actionable, the detention officers’ conduct must demonstrate
subjective awareness of a substantial risk of serious harm and a failure to take
reasonable measures to abate this risk. 42               The “deliberate indifference”



   40  See Whitley, 726 F.3d at 646-47; Hale, 45 F.3d at 919.
   41  Atteberry, 430 F.3d at 253 (explaining that “qualified immunity claims should be
addressed separately” for each individual defendant); see also Meadours, 483 F.3d at 421-22;
Hernandez, 380 F.3d at 883-84.
    42 Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001); Hare, 74 F.3d

at 636, 648-49 (analyzing Farmer v. Brennan, 511 U.S. 825 (1994)).
                                             16
    Case: 13-10545       Document: 00512702828          Page: 17     Date Filed: 07/17/2014



                                       No. 13-10545
standard, however, is not an obligation for government officials to comply with
an “optimal standard of care.” 43 Rather, it is an obligation not to disregard any
substantial health risk about which government officials are actually aware. 44
Under Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006), “[a] serious
medical need is one for which treatment has been recommended or for which
the need is so apparent that even laymen would recognize that care is
required.” Disagreements with diagnostic measures are insufficient to give
rise to a claim of deliberate indifference to medical needs. 45
        Here, Plaintiff-Appellant does not present any significant evidence that
the detention officers were deliberately indifferent to a substantial health risk.
The need for the participation of specialized staff to perform the extraction of
a mentally ill inmate from a jail cell is not “so apparent that even laymen would
recognize” this alleged medical need. 46 Nor does it appear, based on a fair
reading of the deposition testimony cited by Plaintiff-Appellant in support of
her argument regarding deliberate indifference to the deceased’s medical
needs, that such “treatment” had actually “been recommended” 47 either
individually as to the deceased or generally as to all mentally ill inmates. The
existence of such a policy has no basis in the record on summary judgment.
        In particular, Plaintiff-Appellant cites two pages of Captain Don Rowe’s
deposition testimony for the proposition that Dallas County Jail had a policy
of permitting only specially trained staff to perform the extraction of mentally
ill inmates from jail cells. As Plaintiff-Appellant observes, Captain Rowe did



   43 Easter v. Powell, 467 F.3d 459, 463-64 (5th Cir. 2006); Gobert v. Caldwell, 463 F.3d 339,
349 (5th Cir. 2006).
   44 Easter, 467 F.3d at 463-64; Gobert, 463 F.3d at 349.
   45 See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).
   46 See Gobert, 463 F.3d at 345 n.12.
   47 See id.

                                              17
    Case: 13-10545         Document: 00512702828         Page: 18    Date Filed: 07/17/2014



                                        No. 13-10545
indeed state that certain “mental health officers” receive “special training” at
Dallas County Jail and “worked hand-in-hand with doctors during the day
mainly to move mental health prisoners back and forth.” But none of Captain
Rowe’s statements can be reasonably interpreted to mean that only these
“mental health officers” were permitted to extract inmates from jail cells.
Indeed, this portion of Captain Rowe’s testimony does not even refer to the act
of extracting inmates from jail cells or indicate what special competencies the
mental health officers might possess. Later during his deposition, Captain
Rowe confirmed explicitly that no “practice” or “policy” of Dallas County Jail
would be violated if “a psychiatric patient was extracted from his cell without
the officers who extracted him seeking medical attention prior to that
extraction.”       Moreover, in view of the fact that the deceased had been
transferred to the North Tower after assaulting one of the members of the
medical staff less than twenty-four hours previously, it was understandable
that the detention officers would seek to restrain the deceased before he would
have any further contact with the medical staff.
         Accordingly, even if the detention officers did not choose the optimal
means of facilitating the deceased’s access to medical care, this is insufficient
to demonstrate deliberate indifference to the deceased’s need for such care. 48
Where an inmate can show no more than “ordinary negligence,” such lapses by
jail staff do not demonstrate “a condition so threatening as to implicate
constitutional standards.” 49          The district court was therefore correct to
conclude that no genuine issue of material fact remained with respect to
Plaintiff-Appellant’s claim for deliberate indifference to the deceased’s medical
needs. In the absence of any such underlying constitutional violation, the



   48   See Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir. 2014).
   49   See id.
                                              18
    Case: 13-10545       Document: 00512702828         Page: 19     Date Filed: 07/17/2014



                                      No. 13-10545
district court acted within its discretion to refrain from performing the second
step of the qualified immunity analysis. 50 Accordingly, summary judgment
must be affirmed as to Plaintiff-Appellant’s claim for deliberate indifference to
the deceased’s medical needs.
                                             V.
        Finally, we address Plaintiff-Appellant’s claim of municipal liability
against Defendant-Appellee Dallas County under Monell, 436 U.S. at 694. As
is well established, every Monell claim requires “an underlying constitutional
violation.” 51 It appears from the briefing and record on appeal that Plaintiff-
Appellant’s Monell claim primarily relies for its underlying constitutional
violation on her claim for deliberate indifference to the deceased’s medical
needs—a claim that we have rejected. However, because it is at least arguable
that portions of Plaintiff-Appellant’s Monell claim also relate to her claim for
excessive force, we address Plaintiff-Appellant’s Monell claim.
        Plaintiff-Appellant has framed her claim of municipal liability as a
challenge to “five actual and/or de facto policies or customs.” These five lines
of argument, however, are all addressed to a single, central issue. That is,
according to Plaintiff-Appellant, the detention officers responsible for the
death of the deceased on January 22, 2010, lacked any specialized training
relating to the extraction of inmates with mental illness from jail cells.
Although the medical personnel at Dallas County Jail had received training
that was more generally relevant to inmates’ mental health, those personnel
were located elsewhere in the facility. And even though the deceased was
mentally ill, the deceased was “disciplined” for his attack on the nurse at



   50 See Pearson, 555 U.S. at 236.
   51 See Whitley, 726 F.3d at 648 (“[I]nadequate supervision, failure to train, and policy,
practice or custom claims fail without an underlying constitutional violation.”); Doe ex rel.
Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866-67 (5th Cir. 2012).
                                             19
    Case: 13-10545       Document: 00512702828          Page: 20     Date Filed: 07/17/2014



                                       No. 13-10545
midnight on January 21, 2010, with “banishment” to the North Tower—which
was too remote for the medical personnel to extract the deceased from his cell
when needed.        Accordingly, Plaintiff-Appellant’s Monell claim essentially
challenges Defendant-Appellee Dallas County’s failure to provide the proper
training to the personnel in the North Tower.
        As Plaintiff-Appellant correctly argues, it is well established that “a
municipality’s policy of failure to train” its personnel can give rise to liability
under 42 U.S.C. § 1983. 52 In particular, to succeed on a Monell claim arising
from a municipality’s failure to adopt an adequate training policy, a plaintiff
must demonstrate that: “(1) [the municipality’s] training policy procedures
were inadequate, (2) [the municipality] was deliberately indifferent in
adopting its training policy, and (3) the inadequate training policy directly
caused [the constitutional violation].” 53            In the present case, Plaintiff-
Appellant’s claim for municipal liability fails as to the second component of this
three-part framework.
        Under the applicable case law, there are two ways in which a plaintiff
can establish a municipality’s deliberate indifference to the need for proper
training. The first and more typical approach, as we explained in Sanders-
Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010) (citations and
quotation marks omitted), is to demonstrate that a municipality had “[n]otice
of a pattern of similar violations,” which were “fairly similar to what ultimately
transpired” when the plaintiff’s own constitutional rights were violated. 54 The



   52  See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation and
internal quotation marks omitted); Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 170
(5th Cir. 2010).
    53 Sanders-Burns, 594 F.3d at 381 (citing Baker v. Putnal, 75 F.3d 190, 200 (5th Cir.

1996)).
    54 See also Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383

(5th Cir. 2005) (“While the specificity required should not be exaggerated, our cases require
                                              20
    Case: 13-10545        Document: 00512702828          Page: 21      Date Filed: 07/17/2014



                                        No. 13-10545
second approach, as the Supreme Court hypothesized in City of Canton, Ohio
v. Harris, 489 U.S. 378, 390 n.10 (1989), and analyzed further in Connick v.
Thompson, 131 S. Ct. 1350, 1360-61 (2011), is the limited exception for “single-
incident liability” in a “narrow range of circumstances” where a constitutional
violation would result as “the highly predictable consequence” of a particular
failure to train. 55 In the present case, Plaintiff-Appellant has failed to present
competent evidence that would satisfy either analysis on summary judgment.
       As to the first approach, Plaintiff-Appellant has pointed to no pattern of
constitutional violations bearing sufficient resemblance to the events
surrounding the death of the deceased.                 Instead, Plaintiff-Appellant has
submitted a report produced pursuant to 42 U.S.C. § 1997b by the Department
of Justice addressing conditions at Dallas County Jail in 2006. The cited
portions of the report do indeed indicate that, as of that date, the Dallas County
Jail did not “appropriately assess and treat inmates with mental illnesses.”
       The examples listed in the report, however, are all instances in which
mentally ill inmates suffered harm due to neglect in the course of medical
treatment. According to the report, one inmate went for more than a month
without receiving a prescribed reassessment of his suitability for certain
psychotropic medications. Another inmate was on a hunger strike for several
months without receiving any “medical evaluation regarding her nutrition and
state of hydration” until finally she had to be hospitalized. A third inmate
“suffered from a significant lack of continuity of care” after four different
members of the medical staff made conflicting diagnoses and prescribed
conflicting treatment without referring to one another’s assessments. That
inmate’s mental health “deteriorated to the point that Jail staff repeatedly


that the prior acts be fairly similar to what ultimately transpired and, in the case of excessive
use of force, that the prior act have involved injury to a third party.”).
   55 See also Brumfield, 551 F.3d at 329.

                                              21
    Case: 13-10545       Document: 00512702828         Page: 22     Date Filed: 07/17/2014



                                      No. 13-10545
observed him eating his own feces.”
        These instances of neglect reported by the Department of Justice have
too little in common with the circumstances of the present case.                     These
instances could not have provided Defendant-Appellee Dallas County with
“[n]otice of a pattern of similar violations” that would establish deliberate
indifference to the allegedly unconstitutional violence challenged by Plaintiff-
Appellant in the present case. 56 Most critically, none of the instances cited in
the report involved the extraction of mentally ill prisoners from jail cells or
even detention officers’ use of force in general. The report by the Department
of Justice, therefore, fails to describe constitutional violations that were “‘fairly
similar to what ultimately transpired’” in the present case, as our precedents
require. 57
        As for the second approach to demonstrating a municipality’s deliberate
indifference based on the failure to train, Plaintiff-Appellant has not
established the applicability of the “limited exception for single-incident
liability.” 58 As the Supreme Court explained with respect to single-incident
liability in Connick, 131 S. Ct. at 1363, “showing merely that additional
training would have been helpful in making difficult decisions does not
establish municipal liability.” On the contrary, the risk must be “so predictable
that failing to train the [municipal personnel] amounted to conscious
disregard” for the injured party’s rights. 59 But the record in this case contains
no proof, whether in the form of expert evidence or otherwise, that the
extraction of mentally ill inmates from jail cells requires specialized training. 60



   56See Sanders-Burns, 594 F.3d at 380-81; Davis, 406 F.3d at 383.
   57See Sanders-Burns, 594 F.3d at 381 (quoting Davis, 406 F.3d at 383).
  58 Brumfield, 551 F.3d at 329.
  59 See Connick, 131 S. Ct. at 1365; Bohannan v. Doe, 527 F. App’x 283, 300 (5th Cir. 2013);

Martinez v. Maverick Cnty., 507 F. App’x 446, 449 n.3 (5th Cir. 2013).
  60 See, e.g., Walker v. Upshaw, 515 F. App’x 334, 336-38 (5th Cir. 2013).

                                             22
    Case: 13-10545         Document: 00512702828         Page: 23     Date Filed: 07/17/2014



                                        No. 13-10545
There is no suggestion, for example, that any other municipality in the United
States provides such specialized training to detention officers.                   Plaintiff-
Appellant’s evidence therefore does not demonstrate the same level of
“patently obvious” risks of “recurring constitutional violations” that may occur,
as hypothesized by the Supreme Court in Canton, 489 U.S. at 390, and
Connick, 131 S. Ct. at 1361-63, in instances where a municipality sends “armed
officers into the public to capture fleeing felons without training the officers in
the constitutional limitation on the use of deadly force.” 61
         To summarize, Plaintiff-Appellant has failed to identify any pattern of
past constitutional violations similar to the events of the present case, and has
not demonstrated that the prospect of constitutional violations should have
been “highly predictable” or “patently obvious” in the present case. 62
Accordingly, Plaintiff-Appellant’s claims cannot proceed on the basis that
Defendant-Appellee Dallas County failed to provide the proper training to the
personnel located in the North Tower. Summary judgment must therefore be
affirmed as to Plaintiff-Appellant’s claims under Monell, 436 U.S. at 694.
                                              VI.
         For these reasons, we conclude that the record presents genuine issues
of material fact with respect to Plaintiff-Appellant’s claim for excessive force.
Therefore, we REVERSE and REMAND in part, so that the district court may
consider in the first instance whether any or all of the individual Defendants-
Appellees may proceed to trial on a theory of direct liability for use of force or,
in the alternative, on a theory of bystander liability. The district court should
also consider in the first instance whether any of the Defendants-Appellees are
individually entitled to qualified immunity in the present case.



   61   Connick, 131 S. Ct. at 1361-63.
   62   See id. at 1361; Bohannan, 527 F. App’x at 300; Martinez, 507 F. App’x at 449 n.3.
                                              23
   Case: 13-10545    Document: 00512702828     Page: 24   Date Filed: 07/17/2014



                                No. 13-10545
      As to Plaintiff-Appellant’s claim against the individual Defendants-
Appellees for deliberate indifference to the deceased’s medical needs, however,
we AFFIRM the judgment of the district court. We also AFFIRM summary
judgment as to Defendant-Appellee Dallas County’s municipal liability.
      REVERSED and REMANDED in part, and AFFIRMED in part.




                                      24
