     Case: 18-60439   Document: 00514732338   Page: 1   Date Filed: 11/21/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 18-60439
                              Summary Calendar
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                             November 21, 2018
EDWARD BROWN,
                                                                 Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellant

v.

WILKINSON COUNTY SHERIFF DEPARTMENT; REGINALD LEE
JACKSON, Individually, and in his official capacity as Wilkinson County
Sheriff; ED ALEXANDER, Individually, and in his official capacity as a
deputy of Wilkinson County Sheriff Department; C. L. THOMPSON,
Individually, and in his official capacity as a Deputy of Wilkinson County
Sheriff Department; GLORIA ASHFORD, Individually, and in her official
capacity as a Deputy of Wilkinson County Sheriff Department; WILKINSON
COUNTY BOARD OF SUPERVISORS; RICHARD L. HOLLINS; WILL
SEAL, Individually, and in his official capacity; VENTON MCNABB,
Individually, and in his official capacity; KENYON JACKSON, Individually,
and in his official capacity; JENNINGS NETTLES, Individually, and in his
official capacity; WILKINSON COUNTY, MISSISSIPPI,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 5:16-CV-124


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
     Case: 18-60439      Document: 00514732338         Page: 2    Date Filed: 11/21/2018



                                      No. 18-60439
PER CURIAM:*
       In August 2015, Edward Brown sustained serious injuries when he was
beaten by three inmates while in pretrial custody in the Wilkinson County jail
in Mississippi. Brown brought this action under 42 U.S.C. § 1983, alleging,
inter alia, that various individual and municipal Defendants violated his
Fourth and Fourteenth Amendment rights. The district court dismissed all
claims except Brown’s excessive force claim under a theory of bystander
liability against Deputy Sheriff Gloria Ashford, in her individual capacity, and
claims against numerous officers in their official capacities.
       Ashford and two other officers moved for summary judgment.                      The
district court granted the motion, 1 dismissing Brown’s claims with prejudice.
The district court held that, with respect to Ashford, Brown lacked evidence
supporting a bystander liability claim and, with respect to the officers, Brown
could not demonstrate any underlying violation of his constitutional rights.
Brown filed a motion to alter or amend the judgment pursuant to Federal Rule
of Civil Procedure 59(e), which the district court denied, noting that Brown was
attempting to relitigate claims not properly before the district court and
reiterating its reasons for denying summary judgment. Brown appealed.
       Brown alleges that Ashford and Deputy Sheriff CL Thompson violated
their constitutional duty to protect him from harm at the hands of fellow
inmates and acted with deliberate indifference to his serious medical needs.
However, Brown raised these claims for the first time in his response to
Defendants’ summary judgment motion, and the district court correctly
declined to consider them. See Cutrera v. Bd. of Sup’rs of Louisiana State


       * 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.
       1 Although only two of the officers moved for summary judgment, the district court

granted summary judgment in favor of all officers in their official capacities.
                                             2
    Case: 18-60439     Document: 00514732338     Page: 3    Date Filed: 11/21/2018



                                  No. 18-60439
Univ., 429 F.3d 108, 113 (5th Cir. 2005) (noting that a claim that was not raised
in the complaint but was raised only in response to a motion for summary
judgment is not properly before the court (citing Fisher v. Metropolitan Life
Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)). Because the district court did
not pass upon these issues, we decline to address them. See Luv N’ Care, Ltd.
v. Groupo Rimar, 844 F.3d 442, 451 n.8 (5th Cir. 2016) (citing Singleton v.
Wulff, 428 U.S. 106, 120 (1976)).
      Brown further argues that the district court erred by granting summary
judgment and denying his Rule 59(e) motion with respect to Ashford and the
rest of the officers in their official capacities. We disagree. An officer may be
liable under § 1983 under a theory of bystander liability if she “(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.” See
Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (internal quotation marks
omitted). Brown concedes that he was harmed by three inmates and that an
officer’s mere presence, without more, does not give rise to a bystander liability
claim. Because Brown has offered insufficient summary judgment evidence
that any officer participated in the incident, or that Ashford knew of any
officer’s participation, his bystander liability claim against Ashford fails.
      Having failed to demonstrate an underlying constitutional violation,
Brown’s failure-to-train-or-supervise claim against Wilkinson County, and his
claims against the officers in their official capacities, fail. See Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (noting that a claim against an individual
defendant in his official capacity is the same as a claim against a municipality);
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal
liability under section 1983 requires proof of three elements: a policymaker; an
official policy; and a violation of constitutional rights whose “moving force” is
the policy or custom.”). Accordingly, we AFFIRM.
                                        3
