                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                          In the                                   April 25, 2003

 United States Court of AppealsCharles R. Fulbruge III
                                                                       Clerk
             for the Fifth Circuit
                     _______________

                       m 02-41137
                     Summary Calendar
                     _______________




                      DAVID AUSTIN,
    INDIVIDUALLY AND NEXT FRIEND OF “JOHN E”, A MINOR;
                     SANDRA AUSTIN,
   INDIVIDUALLY AND AS NEXT FRIEND OF “JOHN E”, A MINOR,

                                          Plaintiffs-Appellees,

                          VERSUS

                  PATRICK A. JOHNSON,
          INDIVIDUALLY AND IN OFFICIAL CAPACITY;
                     CLERAN GIPSON,
DRILL INSTRUCTOR, STAR BOOT CAMP, HARRISON COUNTY, TEXAS,

                                          Defendants-Appellants.


               _________________________

         Appeal from the United States District Court
              for the Eastern District of Texas
              _________________________
Before HIGGINBOTHAM, SMITH, and                               On June 26, 1999, the date of the camp, the
  CLEMENT, Circuit Judges.                                 Austins dropped John E off at a local high
                                                           school at 5:30 a.m. Though permitted to stay
JERRY E. SMITH, Circuit Judge:                             and observe, the Austins left, planning to re-
                                                           turn twelve hours later when the camp was
   “John E,” a minor,1 was caught stealing a               scheduled to end. In the morning, John E and
candy bar and, as punishment, was ordered to               the other children performed exercises,
attend a one-day boot camp, where he suffered              including push-ups, sit-ups, side straddle hops,
severe symptoms from heat stroke. John E’s                 and jogging. One exercise required John E to
parents sued the camp operator, Harrison                   carry a ruck sack weighing between 57 and 70
County, the camp director, and a camp work-                pounds. He complained to Johnson that the
er, alleging, inter alia, the violation of his             ruck sack straps dug into his shoulders and
Fourth, Eighth, and Fourteenth Amendment                   that he was having difficulty performing the
rights. The district court granted plaintiffs’             exercises. Johnson stated that he felt John E
partial motion for summary judgment denying                was lazy or had an attitude problem.
the defendant camp directors the defenses of
qualified and official immunity. We affirm in                 At lunch, John E drank two cups of Gator-
part, reverse in part, and remand.                         ade but did not finish his meal. During the
                                                           afternoon march, he complained to Johnson
                       I.                                  that he felt sick, but was told to continue.
   A justice of the peace found John E guilty              John E collapsed several times before he was
of taking candy from a concession stand at                 taken into the school building between 2:00
school and sentenced him to three months’                  and 4:00 p.m. The activity log kept by
probation, a $30 fine, and a one-day boot                  defendant Cleran Gipson, a drill instructor,
camp of his choosing. Sandra Austin, John                  states that John E became dehydrated and “fell
E’s mother, and David Austin, his stepfather,              out” at 3:00 p.m.2 Johnson rendered first aid,
selected the “Strength Through Academics and               but at some point, John E vomited and became
Respect,” or STAR, boot camp conducted by                  unconscious. An ambulance was called at
the Harrison County Juvenile Probation                     4:42 p.m.
Department. The Austins met with the camp
director, Sergeant Major Patrick Johnson, who                  John E suffered from serious conditions
explained that John E would be required to                 such as hyperpyrexia3 and acute rhabdomyoly-
perform physical exercises and should bring                sis4 resulting from heat stroke; he was
Gatorade. John E received a required physical              admitted to a local hospital, where his
examination at which the doctor found him                  temperature was 107.9º Fahrenheit, and later
capable of engaging “in military style training            was transferred to Children’s Hospital in
and exercise.”

                                                              2
                                                               Gipson testified that “fell out” means to be-
                                                           come unconscious.
   1
     After plaintiffs sued in 2001, John E reached
the age of majority and asserts claims in his own             3
                                                                  An exceptionally high fever.
capacity; his parents continue their claims for med-
                                                              4
ical expenses.                                                    The destruction of skeletal muscle cells.

                                                       2
Dallas, where he remained for over two                   evidence as to whether the alleged conduct
weeks, suffering from acute renal failure, acute         occurred. Pelletier, 516 U.S. at 312-13.
hepatitis, and pancreatitis. He has since made
a full recovery without permanent damage.                                       III.
                                                             Qualified immunity is “an entitlement not to
    Suing under 42 U.S.C. § 1983, plaintiffs             stand trial or face the other burdens of
contend that Johnson and Gipson inflicted                litigation.” Mitchell v. Forsyth, 472 U.S. 511,
cruel and unusual punishment and failed to               526 (1985). The initial question is whether,
summon needed medical care in violation of               “taken in the light most favorable to the party
John E’s Fourteenth and Eighth Amendment                 asserting the injury, [] the facts alleged show
rights. They also assert Texas state law claims          the officer’s conduct violated a constitutional
for negligence, gross negligence, fraud, and             right.” Saucier v. Katz, 533 U.S. 194, 201
breach of fiduciary duty.5 Plaintiffs filed a par-       (2001). We cannot pretermit whether a
tial motion for summary judgment that John-              constitutional violation is properly alleged.
son and Gipson are not entitled to the defense           Siegert v. Gilley, 500 U.S. 226, 232 (1991).
of qualified immunity and official immunity. In
turn, Johnson and Gipson filed a cross-motion                Second, even where the officer violated
for summary judgment based on the same                   constitutional rights, we ask whether “the con-
defenses. The district court considered both             tours of the constitutional right in question
motions and granted plaintiffs’ partial motion           were sufficiently clear that a reasonable officer
for summary judgment.                                    would understand that what he is doing vio-
                                                         lates that right.” Estep v. Dallas County,
                      II.                                Texas, 310 F.3d 353, 360 (5th Cir. 2002)
   The “denial of a claim of qualified                   (citation omitted). Although there does not
immunity, to the extent that it turns on an issue        have to be a case directly on point, Petta v. Ri-
of law, is an appealable ‘final decision’ within         vera, 143 F.3d 895, 899 (5th Cir. 1998), the
the meaning of 28 U.S.C. 1291                            plaintiff should seek to identify “cases of con-
notwithstanding the absence of a final                   trolling authority in [the] jurisdiction at the
judgment.” Mitchell v. Forsyth, 472 U.S. 511,            time of the incident which clearly establish the
526 (1985); see also Behrens v. Pelletier, 516           rule on which they seek to rely,” or “a
U.S. 299, 313 (1996). By granting plaintiffs’            consensus of cases of persuasive authority
motion for partial summary judgment                      such that a reasonable officer could not have
preventing defendants’ use of a qualified and            believed that his actions were lawful.” Wilson
official immunity defense, the court denied              v. Layne, 526 U.S. 603, 609 (1999). Qualified
defendants’ cross-motion for summary                     immunity protects “all but the plainly
judgment. We have jurisdiction, because the              incompetent or those who knowingly violate
court determined plaintiff’s allegations made            the law.” Wooley v. City of Baton Rouge, 211
out the violation of a clearly established               F.3d 913, 918-19 (5th Cir. 2000). An
constitutional right; the denial of qualified            official’s conduct is therefore objectively
immunity did not rest on the sufficiency of              reasonable unless “all reasonable officials
                                                         would have realized the particular challenged
                                                         conduct violated the constitutional provisions
   5
    The fraud and breach of fiduciary duty claims        sued on.” Id.
were brought only against Johnson.

                                                     3
    At summary judgment, all inferences are                 obvious case of unnecessary and wanton in-
typically drawn in favor of the nonmoving par-              fliction of pain totally without penological
ty. Reid v. State Farm Mut. Auto. Ins. Co.,                 justification.” As for the deprivation of John
784 F.2d 577, 578 (5th Cir. 1986). The court                E’s medical needs, the court summarily found
followed Saucier, which states that in a                    that, taking the facts in a light most favorable
qualified immunity determination, the facts                 to plaintiffs, “deliberate indifference to a pri-
should be construed in the light most favorable             soner’s serious medical needs constitutes the
to the party asserting the injury. 533 U.S. at              unnecessary and wanton infliction of pain.”
201 (emphasis added); Felton v. Polles, 315
F.3d 470, 477 (5th Cir. 2002). Though the                                         A.
court granted plaintiffs’ motion to deny                       State defendants do not incur Eighth
defendants use of qualified immunity, it also               Amendment liability unless “the individual was
considered, and implicitly denied, defendants’              being held in custody after criminal
cross-motion for summary judgment. Because                  conviction.” Johnson v. City of Dallas, 61
the court drew all reasonable inferences in                 F.3d 442, 444 (5th Cir. 1995) (citation
favor of plaintiffs, we will do the same,                   omitted). Defendants do not deny that John E
treating this as defendants’ motion for                     was convicted of a crime or that his one-day of
summary judgment on the basis of qualified                  boot camp served as punishment. Rather, they
immunity.                                                   contend that John E was not incarcerated,
                                                            noting that he was free to select the date and
                       IV.                                  location of his punishment, and that his parents
    Plaintiffs assert two Eighth Amendment                  could (but decli ned to) observe his
claims: that the STAR camp constituted cruel                participation.
and unusual punishment and that defendants
were deliberately indifferent to John E’s med-                  In Ingraham v. Wright, 430 U.S. 651, 669-
ical needs. The court concluded that plaintiffs             70 (1977), the Court found the Eighth
alleged a violation of both, without even de-               Amendment inapplicable to corporal
ciding whether the Eighth Amendment applies                 punishment in schools, observing that
to a one-day boot camp.6 It stated that “[t]he              schoolchildren have little need for the
use of the heavy weighted ruck sacks which                  amendment’s protection because schools are
cause pain and injury, along with the forced                open institutions where children may leave
run in the hot sun which endangers health is an             without physical restraint. A prisoner’s
                                                            incarceration, by contrast, “deprives him of the
                                                            freedom to be with family and friends and to
   6
                                                            form the other enduring attachments of normal
     Plaintiffs state that Johnson and Gipson never         life.” Id. (internal quotation marks and
raised this argument in the district court and there-
                                                            citations omitted). The Court found that the
fore are barred from arguing it on appeal. This ig-
nores the fact that the plaintiff has the burden to
                                                            Eighth Amendment is implicated once the state
rebut a qualified immunity defense “by establishing         “has secured a formal adjudication of guilt in
that the official’s allegedly wrongful conduct              accordance with due process of law.” Id. at
violated clearly established law.” Pierce v. Smith,         671.
117 F.3d 866, 871-72 (5th Cir. 1997) (quoting
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.                A judge found John E guilty, and while at
1992)).

                                                        4
STAR he was in the custody of the state fol-                 The Constitution “does not mandate
lowing a due process hearing. Though a one-              adoption of any one penological theory.”
day youth offender camp can hardly be equat-             Ewing v. California, 123 S. Ct. 1179, 1201
ed to incarceration in a penitentiary, John E            (2003) (citation omitted). In fact, a “sentence
was not free to leave; he was a prisoner.                can have a variety of justifications, such as
Campers were threatened with jail time if they           incapacitation, deterrence, retribution, or
did not comply with the physical exercise reg-           rehabilitation.” Id. The exercises apparently
imen; Gipson deposed that any camper who                 were designed so that anyone, regardless of
failed to comply was loaded into an awaiting             physical fitness level, could complete them.
van and taken to jail. All of this confirms the          Requiring youthful offenders to perform mili-
custodial nature of John E’s punishment, so              tary-styled exercises for one day is neither
we conclude that the Eighth Amendment                    cruel nor unusual; it is a deliberate policy
applies.7                                                choice to instill much-needed discipline.
                                                         Weems v. United States, 217 U.S. 349, 379
                       B.                                (1962). Jogging and carrying a weighted sack
   The court erred, however, in concluding               at a Texas high school cannot be cruel and un-
that the camp regimen violated the propor-               usual punishment one day and an accepted
tionality principle of the Eighth Amendment.             form of athletic conditioning the next.
An individual judge “must not apply his own
subjective view of what is cruel and unusual.               The Eighth Amendment proportionality
Rather, his judgment ‘should be informed by              principle applies to noncapital sentences and
objective factors to the maximum possible ex-            contains four principlesSS”the primacy of the
tent.’” Sampson v. King, 693 F.2d 556, 569               legislature, the variety of legitimate
(5th Cir. 1982) (citations omitted). Under a             penological schemes, the nature of our federal
“totality of conditions test,” conditions of con-        system, and the requirement that
finement must not impose the wanton and un-              proportionality review be guided by objective
necessary infliction of pain. Howard v. King,            factors.” Ewing, 123 S. Ct. 1186 (quoting
707 F.2d 215, 218 (5th Cir. 1983). In How-               Harmelin v. Michigan, 501 U.S. 957, 997
ard, for example, inmates stated an Eighth               (Kennedy, J., concurring)).             Strict
Amendment claim where they were forced to                proportionality between the crime and
perform hard labor fifty-six hours a week for            sentence is unnecessary. Id.
over a year.8 Id. at 220.
                                                            After concluding that the exercise regimen
                                                         constituted cruel and unusual punishment, the
   7
     We do not decide whether an individual is           district court summarily found that the
protected by the Eighth Amendment while                  punishment was disproportionate to the crime.
subjected to other “non-prison” forms of                 We disagree, emphasizing the reasonable
punishment such as community service or drug
rehabilitation.
   8                                                        8
    See also Jackson v. Cain, 864 F.2d 1235,                 (...continued)
1245-46 (5th Cir. 1989) (holding that a prison in-       previous medical condition). Though John E had
mate established an Eighth Amendment claim               seen a doctor the previous week to treat a viral
where he alleged that hard labor had aggravated a        infection, defendants were not notified of his
                                    (continued...)       condition.

                                                     5
flexibility that should be accorded local                  Cir. 2001). Viewing the evidence in a light
authorities to deal with wayward youths.                   favorable to plaintiffs, John E fell several times
Cases that have found disproportionate                     during the afternoon march and was left
sentences involve long-term imprisonment, so               behind. He was taken inside the school
the nominal punishment of a one-day boot                   sometime after 2:00 p.m., where, according to
camp cannot pass muster.9                                  Johnson and Gipson, he began vomiting. Gip-
                                                           son’s official report states that at 3:00 p.m.
                      C.                                   John E became “dehydrated and fell out.”
   Plaintiffs also contend that Johnson and                Gipson testified that the term “fell out” means
Gipson were deliberately indifferent to John               to become unconscious. An ambulance was
E’s medical needs.10 Deliberate indifference               not called, however, until 4:42 p.m.
requires that Johnson and Gipson “both knew
of and disregarded an excessive risk” to John                 Defendants do not dispute the accuracy of
E’s health or safety. Domino v. Texas Dep’t                Gipson’s log, nor its literal interpretation. Be-
of Criminal Justice, 239 F.3d 752, 755 (5th                fore 3:00 p.m., defendants’ conduct was per-
                                                           haps only negligent, but their failure to call an
                                                           ambulance for almost two hours while John E
   9
     See e.g., Solem v. Helm, 463 U.S. 277, 303            lay unconscious and vomiting rises to the level
(1983) (finding disproportionate a life sentence           of deliberate indifference. Since Estelle v.
without the possibility of parole for writing a no-        Gamble, 429 U.S. 97, 104 (1976), state
account check for $100 following several prior             officers have been on notice that deliberate
convictions); Terrebonne v. Blackburn, 624 F.2d            indifference to a prisoner’s serious medical
1363, 1371 (5th Cir. 1980) (en banc) (remanding            needs violates the Eighth Amendment.
for determination of whether a life sentence is dis-
                                                           Defendants’ contention that no case has
proportionate to the offense of drug distribution).
                                                           specifically proscribed the withholding of med-
   10
       Though it is not apparent from their fourth         ical treatment for boot camp attendees reads
amended complaint, plaintiffs bring a separate due         the right too narrowly; officers need only have
process claim under the Fourteenth Amendment,              “fair warning” that their conduct is unlawful.
contending that John E’s right to bodily integrity         Hope v. Pelzer, 536 U.S. 730, 678 (2002).
was violated. The Eighth Amendment, however,               Given the serious medical consequences of
“serves as the primary source of substantive pro-          dehydration, a reasonable person would not
tection to convicted prisoners.” Whitley v. Albers,        have waited nearly two hours to call an
475 U.S. 312, 327 (1986). Although both the                ambulance once John E became unconscious.11
Eighth and Fourteenth Amendments protect the
safety and bodily integrity of prisoners, the legal
standards are virtually identical. Berry v. City of
Muskogee, 900 F.2d 1489, 1494 n.6 (10th Cir.
                                                              11
1990). Because the Eighth Amendment, as “an ex-                    The court did not determine whether
plicit textual source of constitutional protection,”       defendants are entitled to qualified immunity on
defines the limits of government action, it controls       either plaintiffs’ Fourth Amendment or supervisory
over “the more generalized notion of substantive           liability claims, so we decline to rule. White v.
due process.” Graham v. Connor, 490 U.S. 386,              Walker, 950 F.2d 972, 977 (5th Cir. 1992). We
395 (1989) (internal quotation marks omitted). We          note, however, that the gravamen of neither claim
therefore construe plaintiffs’ complaint as raising        is apparent from plaintiffs’ brief or fourth amended
a claim under only the Eighth Amendment.                   complaint.

                                                       6
                       V.                                 they known he would be forced to jog with a
   The court denied defendants official                   weighted ruck sack; they do not deny,
immunity for negligence, gross negligence,                however, that, before the camp, Johnson met
breach of fiduciary duty, and fraud.12 Texas              with them and explained that rigorous physical
law grants official immunity to an officer who            exercise would be involved and that John E
was (1) performing discretionary duties; (2) in           should bring Gatorade.
good faith; and (3) while acting within the
scope of his authority. City of Lancaster v.                 Further, plaintiffs do not dispute signing a
Chambers, 833 S.W.2d 650, 653 (Tex. 1994).                “Prevention Bootcamp Procedures” form stat-
The good faith element is “substantially” the             ing that the camp would consist of various
same as the federal test for qualified immunity,          types of physical exercises including a march
inquiring whether “a reasonable official could            with weighted ruck sacks. The document also
have believed his or her conduct to be lawful             states that campers will perform calisthenics
in light of clearly established law and the               for up to one and one-half hours with rest
information possessed by the official at the              breaks. Sandra Austin deposed that she did
time the conduct occurred.” Id. at 656; see               not believe Johnson made any false statements
also Cantu v. Rocha 77 F.3d 795, 804 (5th                 about the program; she wishes she had asked
Cir. 1996). As with qualified immunity, sum-              more questions.
mary judgment is the appropriate vehicle for
deciding official immunity. Albright v. Dep’t                Johnson acted with “objective legal
of Human Servs., 859 S.W.2d 575, 579 & n.1                reasonableness” by meeting with the Austins,
(Tex. App.SSHouston [1st Dist.] 1993, no                  having them sign a document explaining camp
writ).                                                    procedures, and verbally explaining that John
                                                          E would be required to perform physical
   Drawing all inferences in plaintiffs’ favor,           exercises. Roe, 299 F.3d at 413. Even after
defendants’ reckless indifference to John E’s             drawing all reasonable inferences in their
medical needs precludes official immunity for             favor, plaintiffs produce no evidence of a
the negligence and gross negligence claims.               material misrepresentation by Johnson, so he is
Plaintiffs’ fraud and breach of fiduciary duty            entitled to official immunity on the fraud and
claims center on Johnson’s alleged failure to             breach of fiduciary duty claims.
“disclose all material facts regarding the risk
and dangers of the boot camp, as well as the                  The order denying qualified immunity is
physical regiment [sic] inflicted upon the chil-          REVERSED with respect to plaintiffs’
dren.” The Austins contend they would not                 constitutional claim of disproportionate
have let John E attend the STAR camp had                  punishment and state law claims for fraud and
                                                          breach of fiduciary duty, and AFFIRMED in
                                                          all other respects. The matter is REMANDED
   12
       We have jurisdiction to review the denial of
                                                          for further proceedings, as appropriate, in
official immunity, because Texas’s official               accordance with this opinion.
immunity doctrine, like the federal doctrine,
relieves state officials of the burden of suit and
liability for damages. Roe v. Tex. Dep’t of
Protective & Regulatory Servs., 299 F.3d 395, 413
(5th Cir. 2002).

                                                      7
