     Case: 11-10950   Document: 00512163207   Page: 1   Date Filed: 03/04/2013




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

                                                                FILED
                                                               March 4, 2013
                               No. 11-10950
                                                               Lyle W. Cayce
                                                                    Clerk

DONNA CLYCE, Individually, and as next friend of C.C., a minor; MARK
CLYCE, Individually, and as next friend of C.C., a minor,

                                        Plaintiffs–Appellants,

v.

HUNT COUNTY, TEXAS; HUNT COUNTY JUVENILE BOARD; JAMES A.
BROWN, Chief Juvenile Probation Officer, in his official capacity; ANTHONY
K. SEARCY, Juvenile Detention Officer; TINA R. JOBE, Juvenile Detention
Officer,

                                        Defendants–Appellees.


                       Consolidated with No. 11-11133


DONNA CLYCE, Individually, and as next friend of C.C., a minor,

                                        Plaintiff–Appellant,

v.

HUNT COUNTY TEXAS; HUNT COUNTY JUVENILE BOARD; JAMES A.
BROWN, Chief Juvenile Probation Officer, in his official capacity; ANTHONY
K. SEARCY, Juvenile Detention Officer; TINA R. JOBE, Juvenile Detention
Officer,

                                        Defendants–Appellees.
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                          No. 11-10950 cons. with 11-11133


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-351


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:*
       Donna and Mark Clyce (the Clyces) sued Hunt County, Texas, the Hunt
County Juvenile Board, and individual detention officers under 42 U.S.C. § 1983,
alleging that the defendants violated their minor son C.C.’s constitutional right
to medical care while he was detained at the Hunt County Juvenile Detention
Center (the Detention Center). The district court granted summary judgment
in favor of all defendants. The Clyces appeal only the grant of summary
judgment in favor of Hunt County and the Hunt County Juvenile Board
(collectively, Hunt County). We affirm because the Clyces have failed to present
evidence that C.C.’s injuries were caused by a Hunt County policy.
                                              I
       Thirteen-year-old C.C. had been placed on probation in Ellis County,
Texas and was admitted to the Detention Center in Hunt County on February
25, 2008 after violating the terms of his probation. Several days later, on March
4, C.C. began complaining of leg and hip pain. Detention Center staff scheduled
a March 10 appointment with a physician. In the interim, C.C. continued to
complain that he was in pain, did not eat his meals, and did not leave his room
for scheduled activities. On March 8, Donna Clyce visited C.C. at the Detention
Center, was concerned about her son’s poor physical condition, and requested
that detention officers take him to an emergency room. Detention Center staff


       *
         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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contacted the on-call probation officer in Ellis County and relayed Donna Clyce’s
concerns. According to Ellis County, the probation officer advised that the
Detention Center had permission to take C.C. to the emergency room “if he
need[ed] to go.” According to the Detention Center staff, however, the probation
officer instructed the staff not to take C.C. to the hospital unless his condition
worsened because he was already scheduled to see a physician. In any case, the
staff did not take C.C. to an emergency room. Instead, he was seen two days
later by a physician during the previously scheduled appointment, and C.C. was
diagnosed with a bruised hip, bruised ribs, a muscle pull, and an arm fracture.
It is now known that the physician failed to diagnose a life-threatening
methicillin-resistant staphylococcus aureus (MRSA) infection.
      After this appointment, C.C. returned to the Detention Center and
continued to complain of pain and to exhibit signs that he was in pain. He did
not participate in scheduled activities. His sister visited him at the Detention
Center the day after he had been seen by the physician. She was alarmed by his
physical condition and requested that he receive immediate medical attention.
Again, Detention Center staff declined to take C.C. to an emergency room.
However, the next day, on March 12, C.C. was transported out of the Detention
Center for a court hearing, and his Ellis County probation officer observed C.C.’s
physical condition. That officer diverted him to an emergency room. C.C. was
eventually diagnosed with the MRSA infection and underwent several extensive
surgeries. He now has “severe muscle wasting from his illness, complications
[a]ffecting his heart valves and will continue to have advancing arthritic
disease.”
      The Clyces filed suit, seeking damages under § 1983. The Clyces alleged
that individual detention officers violated C.C.’s Fourteenth Amendment rights
by denying him reasonable access to medical care and that Hunt County failed
to train or supervise its employees properly and “implemented a policy,

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procedure, custom and practice through which . . . employees continually ignore
detainees’ requests for medical attention.”
       The district court granted summary judgment in favor of the individual
detention officers, holding that they were entitled to qualified immunity from
suit in their individual capacities. After further discovery, the district court also
granted summary judgment in favor of Hunt County, holding that the Clyces
offered no evidence that a Hunt County policy caused C.C.’s injuries. The Clyces
appeal only the summary judgment in favor of Hunt County and do not contest
the qualified-immunity summary judgment in favor of the individual defendants.
                                                 II
       Section 1983 provides that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured.”1 A municipality may be sued under § 1983 but not under
a theory of respondeat superior.2 Rather, a municipality may only be held
accountable if the deprivation of constitutional rights “was the result of
municipal ‘custom or policy.’”3 A municipal custom or policy may be (1) a “policy
statement, ordinance, regulation or decision that is officially adopted” by either
the municipality’s lawmaking officers or a policymaker for the municipality;4 (2)
“[a] persistent, widespread practice of city officials or employees, which . . . is so
common and well settled as to constitute a custom that fairly represents



       1
           42 U.S.C. § 1983.
       2
        Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Colle v. Brazos Cnty., Tex., 981
F.2d 237, 244 (5th Cir. 1993).
       3
           City of Okla. City v. Tuttle, 471 U.S. 808, 817 (1985).
       4
           Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam).

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municipal policy”;5 or (3) in some cases, “a final decisionmaker’s adoption of a
course of action tailored to a particular situation and not intended to control
decisions in later situations.”6 The municipal custom or policy must be “the
moving force of the constitutional violation.”7
                                             A
      Municipalities may be liable under § 1983 if a “policy” of inadequate
training or supervision caused the violation of the plaintiff’s constitutional
rights.8 In order to hold a municipality liable under § 1983 for failure to train
or supervise, the plaintiff must show that (1) the municipality’s training
procedures or supervision were inadequate, (2) the municipality’s policymaker
was deliberately indifferent in adopting the training policy or in supervising the
subordinates, and (3) the inadequate training or supervision directly caused the
plaintiff’s injury.9 The Supreme Court has emphasized that “[a] municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.”10
      The district court rejected the Clyces’ failure-to-train and failure-to-
supervise claims, holding that they had made “no threshold showing that Hunt
County’s training policies and procedures were inadequate” and that they did
not introduce sufficient evidence of deliberate indifference.


      5
          Id.
      6
         Bd. of the Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 406 (1997)
(internal quotation marks omitted).
      7
          Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981) (internal quotation marks omitted).
      8
        City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989); Peterson v. City of Fort
Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009).
      9
        Conner v. Travis Cnty., 209 F.3d 794, 796 (5th Cir. 2000) (per curiam); see also
Peterson, 588 F.3d at 850; Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).
      10
           Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).

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                             No. 11-10950 cons. with 11-11133

       In opposition to summary judgment, the Clyces introduced evidence of the
progression of C.C.’s illness, the numerous requests for treatment made by C.C.
and his family members, and the Detention Center’s delay in providing such
treatment. The Clyces offered no evidence regarding the training received by
detention officers, whether it was inadequate, or whether specific additional
training should have been offered.
       Hunt County introduced evidence establishing that the Detention Center
was in compliance with all state-law requirements, including those regarding
health care and the qualifications and certification of employees, during the
relevant time periods and that the Detention Center had a number of policies
and procedures related to the provision of health care to detainees.
       This court has held that “when officers have received training required by
Texas law,” as the Hunt County officers did here, “the plaintiff must show that
the legal minimum of training was inadequate.”11 The Clyces have not offered
any such evidence and have therefore failed to make a threshold showing that
Hunt County’s training was inadequate.12
       The Clyces also failed to establish deliberate indifference as to both their
failure-to-train and failure-to-supervise claims. “Deliberate indifference is more
than mere negligence.”13 The plaintiff must show that “in light of the duties
assigned to specific officers or employees the need for more or different training
[or supervision was] so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the [municipality] can


       11
            Sanders-Burns v. City of Plano, 594 F.3d 366, 381-82 (5th Cir. 2010).
       12
          See Burge, 336 F.3d at 372 (holding that the plaintiff had offered insufficient evidence
to establish deliberate indifference in a failure-to-train claim, in part because the plaintiff did
not present evidence that the training received was inadequate or evidence of “any specific
additional training” that the employees should have received).
       13
            Conner, 209 F.3d at 796.

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reasonably be said to have been deliberately indifferent to the need” for more
training or supervision.14 “[A] showing of deliberate indifference generally
requires a showing of more than a single instance of the lack of training or
supervision causing a violation of constitutional rights.”15
       The Clyces concede that they have not offered evidence of similar
constitutional violations. They instead assert that there is a single-incident
exception that permits them to show deliberate indifference if C.C.’s injury was
a highly predictable consequence of Hunt County’s failure to train or supervise
and that the failure was the moving force behind the constitutional violation.
The Clyces fail to meet this burden. The Clyces have not introduced evidence
that the detention officers employed by Hunt County failed to receive training
or that the training was inadequate in any way.
       As to the failure-to-supervise claim, the Clyces assert that “Hunt County
did not engage an active supervisor” for the Detention Center and point to the
affidavit of James Brown (Brown), the chief juvenile probation officer for Hunt
County during the relevant period, in which Brown states that C.C.’s medical
care was handled by detention officers and that he was not personally involved
in those decisions. Brown was responsible for all of the operations of the Hunt
County Juvenile Probation Department and was charged with directing
“program design and implementation of probation and detention services.” In
light of these expansive responsibilities, the mere fact that Brown delegated day-
to-day operations, including medical care of detainees, to the employees of the
Detention Center does not by itself constitute evidence that Hunt County was


       14
         City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989); see also Estate of Davis ex
rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 380-83 (5th Cir. 2005) (applying the
Canton deliberate indifference standard to both a failure-to-train claim and a failure-to-
supervise claim).
       15
            Brumfield v. Hollins, 551 F.3d 322, 329 (5th Cir. 2008) (internal quotation marks
omitted).

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                            No. 11-10950 cons. with 11-11133

deliberately indifferent to the need for greater supervision at the Detention
Center.
                                               B
       The Clyces also claim that C.C.’s injuries were the result of Hunt County’s
policies (1) not to have a medical professional on site at the Detention Center
and (2) to delay medical treatment of detainees. To establish municipal liability
for these policies, the Clyces must show (1) the existence of an official policy or
custom, (2) of which “a policymaker [could] be charged with actual or
constructive knowledge,” and (3) that the policy or custom was the moving force
behind the constitutional violation alleged.16
       Hunt County concedes that there was no on-site medical professional at
the Detention Center. However, even assuming that the Clyces presented
evidence sufficient to establish that this was an official municipal policy, they
have failed to present evidence that the policy was the moving force behind the
alleged delay in providing medical care to C.C. To satisfy the moving-force
prong, “a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.”17 “A
plaintiff must also show that, where the official policy itself is not facially
unconstitutional, it was adopted with deliberate indifference as to its known or
obvious consequences.”18 Because the Clyces have failed to establish that the
alleged policy of not having an on-site medical provider is itself unconstitutional,




       16
        Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (internal quotation
marks omitted).
       17
            Bd. of the Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997).
       18
            James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (internal quotation marks
omitted).

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                          No. 11-10950 cons. with 11-11133
they must show not only a direct causal link but also deliberate indifference.
They have failed to meet this burden.
      As we have already noted, the Clyces’ summary judgment evidence merely
establishes the progression of C.C.’s illness. It also shows that Hunt County did,
in fact, take C.C. to a medical professional to receive care for his medical
conditions, although that physician failed to diagnose the MRSA infection. Even
viewing this evidence in the light most favorable to the Clyces, we cannot discern
a “direct causal link” between the lack of an on-site health-care professional and
C.C.’s injuries. Similarly, the evidence presented by the Clyces creates no
genuine dispute as to whether the policy “was promulgated with deliberate
indifference to the known or obvious consequences that constitutional violations
would result.”19
      The Clyces also allege that Hunt County has a policy of delaying medical
care to detainees; however, they have failed to establish that such a policy exists.
Hunt County has a number of policies related to the medical care and treatment
of detainees.       Although the alleged policy of delaying medical care is not
contained in those written policies, the Clyces argue that it nevertheless
qualifies as a “custom.” However, “[a] customary municipal policy cannot
ordinarily be inferred from [a] single constitutional violation[].”20 As the Clyces
offered no summary judgment evidence supporting the existence of this custom
except for evidence specifically related to C.C., the district court correctly
granted summary judgment in favor of the county as to this claim.
                                  *       *        *
      For the foregoing reasons, we AFFIRM the judgment of the district court.



      19
         See Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (internal
quotation marks omitted).
      20
           Id. at 581.

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