     Case: 16-20003   Document: 00514049251     Page: 1   Date Filed: 06/26/2017




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

                                                                           FILED
                                                                        June 26, 2017
                                 No. 16-20003
                                                                        Lyle W. Cayce
                                                                             Clerk
MARIE A. HICKS-FIELDS, individually and as representative of the estate
of Norman F. Hicks, Sr., Deceased; EVANGELINE E. CAMPBELL,
individually and as representative of the estate of Norman F. Hicks, Sr.,
Deceased; JASON HICKS, individually and as representative of the estate of
Norman F. Hicks, Sr., Deceased; NORMAN F. HICKS, JR., individually and
as representative of the estate of Norman F. Hicks, Sr., Deceased,

             Plaintiffs - Appellants

v.

HARRIS COUNTY, TEXAS,

             Defendant - Appellee




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


Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      While being temporarily segregated in an attorney visitation booth,
Norman F. Hicks, Sr., punched Harris County Detention Officer Christopher
Pool in the face, prompting a responsive punch from Pool. As Hicks fell down,
he struck his head on a concrete ledge in the booth. There were two other
officers on the scene, one of whom looked through a window in the door and
saw Hicks starting to lift himself off the ground. They left Hicks there, who
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                                 No. 16-20003

some fifteen minutes later was found without respiration or a pulse. Jail clinic
staff were summoned to render aid, and while Hicks recovered a pulse, he
slipped into a coma from which he did not recover. His survivors appeal
summary judgment regarding any liability of the county for the officers’
actions. We affirm.
                                       I.
      Norman F. Hicks, Sr., was arrested in Oklahoma and extradited to
Texas, where he was booked into the Harris County Jail. Jail staff knew Hicks
had a history of schizophrenia, and Harris County detention officers requested
multiple psychiatric evaluations based on Hicks’ behavior. Nine days after his
arrival, Hicks was involved in an altercation with another inmate and was
placed in an attorney booth as a temporary holding cell, a common practice at
the jail. After more than two hours, Harris County Corrections Officers Joseph
Jameson, Christopher Taylor, and Christopher Pool noticed that Hicks had
urinated and defecated in the booth and transferred him to a different booth.
      On observing Hicks—now in the new booth—raise a plastic chair above
his head, Jameson asked Hicks to push out the chair and Hicks’ shoes, which
Hicks did. He also threw out his shirt, soiled with feces, which struck Pool in
the chest and hands. Accounts differ as to what happened next. Jameson says
that Pool stepped into the booth to place Hicks’ shirt inside. Taylor says that
Pool caught the shirt, yelled a profanity, and threw the shirt back into the
booth. According to both accounts, 72 year-old Hicks punched Pool in the
mouth. The 23 year-old corrections officer responded with a counter-punch to
Hicks’ face. As Hicks fell backwards into the booth, his head struck a concrete
ledge. Jameson then closed the booth door.
      Taylor stated that he looked through the window, saw no blood on Hicks
or anywhere in the booth, and saw Hicks pushing himself up and shaking his


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head. Jail protocol required that inmates receive medical attention following a
use-of-force incident, but no assistance was summoned until Sergeant Steven
Wichkoski came by to check on Hicks fifteen minutes later. Finding Hicks lying
motionless on the floor, he called for prison clinic staff. Exhibiting no
respiration nor pulse, Hicks was transferred to Ben Taub hospital where he
recovered a pulse and survived in a coma until life support was terminated six
days later. An autopsy determined that the manner of death was homicide and
the cause of death was “[c]omplications of cardiac arrest due to atherosclerotic
and hypertensive cardiovascular disease following blunt head trauma with
nasal bone fracture.”
                                              II.
      Plaintiffs, as heirs of Hicks, brought this suit against Harris County,
Pool, and other unnamed deputies in the Harris County State District Court.
Plaintiffs’ original petition appeared to assert claims under the Texas Tort
Claims Act, the Texas Wrongful Death Act, and for “negligent implementation
of the policy on securing mentally ill criminal offenders.” Four months later,
Plaintiffs filed a first amended petition, alleging a cause of action for assault
against the individual defendants, restating the claims under the Texas Tort
Claims Act and the Texas Wrongful Death Act against Harris County, and
containing new claims under 42 U.S.C. § 1983 for violations of the Fifth and
Fourteenth Amendment rights to due process of law and for “failure to properly
supervise and train its Deputies.” Defendants timely removed the case to the
federal district court, where it was referred to a magistrate judge.
      Fourteen months later, Plaintiffs voluntarily dismissed the unnamed
deputies without prejudice and sought leave to file a second amended petition.
On March 12, 2014, the court denied the motion for want of good cause. 1 On


      1   See FED. R. CIV. P. 16(b)(4).
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February 27, 2015, Defendant Harris County moved for dismissal under Rule
12(b)(6), judgment on the pleadings, and summary judgment on the basis of
governmental immunity, the lack of an official policy or custom, and a lack of
facts demonstrating specific inadequacies in Harris County’s policies or
customs. On April 10, 2015, Plaintiffs moved to dismiss their claims against
Pool with prejudice, which the court granted. In their response to Harris
County’s motions, Plaintiffs again asked for leave to amend the complaint. On
May 19, 2015, the court again denied leave, stating:
      Discovery concluded months ago. The dispositive and
      nondispositive motions deadline has passed. The court denied a
      motion for leave to amend filed by Plaintiffs in February 2014
      because Plaintiffs failed to demonstrate good cause as required by
      Federal Rule of Civil Procedure 16. Plaintiffs’ pending motion does
      nothing to prompt the court to change its ruling.

      On November 23, 2015, a magistrate judge entered a memorandum and
recommendation to the district court recommending a grant of summary
judgment for Harris County. On December 30, 2015, the district court,
adopting the memorandum and recommendation, granted summary judgment
and entered final judgment for Harris County. Plaintiffs timely appealed.
                                            III.
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court, 2 and a district court’s
evidentiary rulings for abuse of discretion. 3 Summary judgment is appropriate
where there is no genuine dispute of material fact and the movant is entitled
to judgment as a matter of law. 4 On summary judgment, a court must view the




      2 Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
      3 Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir. 1993).
      4 FED. R. CIV. P. 56(a).


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evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor. 5
                                               IV.
       Only claims against Harris County are before us. Harris County, as a
municipality, may not be held liable under § 1983 on a basis of vicarious
liability. 6 Municipalities may be liable where “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.” 7
       “As is well established, every Monell claim requires ‘an underlying
constitutional violation.’” 8 The district court found that there are questions of
fact as to whether underlying constitutional violations occurred. However, in
order to survive summary judgment, Plaintiffs must demonstrate that a
question for trial remains as to whether “action pursuant to official municipal
policy caused their injury.” 9 Put differently, “[t]o establish municipal liability
under § 1983, a plaintiff must show that (1) an official policy (2) promulgated
by the municipal policymaker (3) was the moving force behind the violation of
a constitutional right.” 10
       “Official municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent




       5  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
       6  Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Kitchen v. Dall. Cty.,
759 F.3d 468, 476 (5th Cir. 2014).
        7 Monell, 436 U.S. at 690.
        8 Kitchen, 759 F.3d at 483 (quoting Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir.

2013)).
        9 Connick v. Thompson, 563 U.S. 51, 60 (2011) (citations omitted) (internal quotation

marks omitted).
        10 Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (citing Piotrowski

v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)).
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and widespread as to practically have the force of law.” 11 Plaintiffs here rely
on the third category, attempting to prove official policy through practice.
Plaintiffs must therefore demonstrate that there existed “[a] persistent,
widespread practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy.” 12
Plaintiffs must also establish “[a]ctual or constructive knowledge of such
custom” by the municipality or the official who had policymaking authority. 13
In this circuit:
      Actual knowledge may be shown by such means as discussions at
      council meetings or receipt of written information. Constructive
      knowledge may be attributed to the governing body on the ground
      that it would have known of the violations if it had properly
      exercised its responsibilities, as, for example, where the violations
      were so persistent and widespread that they were the subject of
      prolonged public discussion or of a high degree of publicity. 14

      Plaintiffs’ only evidence of this alleged custom consists of the events
surrounding Hicks’ death, Pool’s employee history, and a report regarding
conditions in the jail prepared by the United States Department of Justice.
Harris County urges us not to consider the DOJ report, arguing that the
district court erred in admitting it into evidence; that while the report falls
within the public record exception to the hearsay ban, the report is not relevant
and is untrustworthy because it was prepared in anticipation of litigation.
Plaintiffs counter that the district court erred in determining that the DOJ
report is admissible only to show notice rather than as evidence of an




      11 Connick, 563 U.S. at 61 (citations omitted).
      12 Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984).
      13 Id.
      14 Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984).


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underlying pattern of unconstitutional behavior. 15 Without directly responding
to Harris County’s evidentiary objections, the district court held that the report
was admissible to show that “Harris County [was] on notice of a possible
pattern of potentially unconstitutional acts at the time preceding the
investigation.” However, because the report was issued two years before Hicks’
death, the district court also ruled that the report was irrelevant to showing a
pattern of unconstitutional behavior at that time.
       Whether the DOJ report should have been admitted for purposes other
than establishing notice under Monell is a close question. We afford the district
court broad discretion in its evidentiary rulings on relevance. 16 Still, the bar is
low—evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” 17 Reports of this type may
make it at least marginally more likely that patterns of unconstitutional
conduct occurred. Hicks’ death two years later could lead to the reasonable
inference that those patterns—for example, a pattern of unconstitutional
excessive force—had not abated. 18
       We also recognize the Seventh Circuit’s holding in Daniel that these
reports, prepared pursuant to the statutory duty of the Department under the
Civil Rights of Institutionalized Persons Act, are not untrustworthy as
documents prepared in anticipation of litigation. 19 “The mere fact that ‘the
Attorney General may initiate a lawsuit’ against the Jail if a resolution is not
otherwise reached to address its unconstitutional conditions does not mean

       15 See Shepherd v. Dall. Cty., 591 F.3d 445, 456-58 (5th Cir. 2009).
       16 United States v. Young, 655 F.2d 624, 626 (5th Cir. 1981).
       17 Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 425 (5th Cir. 2006)

(paraphrasing FED. R. EVID. 401).
       18 See Shepherd, 591 F.3d at 456-58 (affirming the district court’s admission of a DOJ

report into evidence as not unfairly prejudicial under Rule 403).
       19 Daniel v. Cook Cty., 833 F.3d 728, 740-41 (7th Cir. 2016); see also 42 U.S.C. § 1997.


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that the preliminary investigation was conducted as anticipatory fact-finding
for a potential lawsuit. If the law were otherwise, many official investigative
findings would be inadmissible.” 20 As our sister circuit found, reports of this
type may be especially relevant in Monell claims, where the plaintiff is
burdened with demonstrating a systemic failing—“exactly what the
Department of Justice experts were looking for.” 21
       But ultimately we need not decide this issue today. 22 For even if the
report is some admissible evidence relevant to Plaintiffs’ Monell claim, more is
required: that evidence must be sufficient to demonstrate that a question for
trial remains as to whether there existed a “persistent, widespread practice of
city officials or employees” that “is so common and well settled as to constitute
a custom that fairly represents municipal policy.” 23 A successful showing of
such a pattern “requires similarity and specificity; ‘[p]rior indications cannot
simply be for any and all “bad” or unwise acts, but rather must point to the
specific violation in question.’” 24 “While the specificity required should not be
exaggerated, our cases require that the prior acts be fairly similar to what
ultimately transpired . . . .” 25




       20  Daniel, 833 F.3d at 741.
       21  Id. at 742. We note that our discussion is limited to the DOJ report’s relevance and
its possible untrustworthiness as a document prepared in anticipation of litigation.
Depending on the nature of the report at issue and the specific circumstances of a particular
case, such a report might not withstand scrutiny under other evidentiary rules.
        22 “This court reviews a district court’s exclusion of expert testimony for abuse of

discretion. But even when this court finds an abuse of discretion, it will not reverse the
district court’s ruling unless it affected the [complaining] party’s ‘substantial rights.’” Moench
v. Marquette Transp. Co. Gulf-Inland, L.L.C., 838 F.3d 586, 594 (5th Cir. 2016) (citations
omitted). Even if erroneous, the partial admission of the DOJ report was harmless to both
parties.
        23 Webster, 735 F.2d at 841.
        24 Peterson, 588 F.3d at 850 (quoting Estate of Davis ex rel. McCully v. City of N.

Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).
        25 Estate of Davis, 406 F.3d at 383.


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      Assuming without deciding that the able district court abused its
discretion under Rule 401 in admitting the DOJ report for a limited purpose,
Plaintiffs’ evidence is insufficient to clear the high bar of Monell liability at
this summary judgment stage. As an initial matter, many of the constitutional
deficiencies discussed in the report are not on all-fours with those complained
of by Plaintiffs, such as issues related to medical care for inmates with chronic
conditions, medical record-keeping, overcrowding, and sanitation. Two
subsections of the DOJ report are on point and relevant to Plaintiffs’
constitutional claims in a broad sense, detailing allegedly inadequate mental
health care and allegedly excessive uses of force. The report helpfully provides
examples of these broad themes to illustrate with greater specificity the
unconstitutional patterns identified by DOJ experts. However, these specific
examples do not resemble—with sufficient similarity—the constitutional
violations alleged by Plaintiffs so as to establish the required pattern of that
unconstitutional conduct. The scant additional evidence offered by Plaintiffs—
such as Pool’s employee history—fails to cure these deficiencies and render the
evidence as a whole sufficient. Plaintiffs’ allegations also must be viewed
against the backdrop of a major jail facility that, at the time of DOJ’s
investigation, housed 9,400 detainees, approximately 2,000 of which were
receiving some form of psychotropic medication.
      In sum, even with the DOJ report, Plaintiffs have not met their
evidentiary burden of showing a genuine dispute of material fact as to the
existence of a “persistent, widespread practice of city officials or employees,
which, although not authorized by officially adopted and promulgated policy,
is so common and well settled as to constitute a custom that fairly represents
municipal policy.” 26 Quite simply, under our precedent, Plaintiffs have not


      26   Webster, 735 F.2d at 841.
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produced sufficient evidence 27 of similar acts 28 to move to trial. To hold that
this evidence is sufficient to establish an official policy of Harris County “would
be effectively to hold the [County] liable on the theory of respondeat superior,
which is expressly prohibited by Monell.” 29
                                               V.
       Plaintiffs also appeal the district court’s grant of summary judgment on
the failure-to-train claims. “In limited circumstances, a local government’s
decision not to train certain employees about their legal duty to avoid violating
citizens’ rights may rise to the level of an official government policy for
purposes of § 1983.” 30 We have held that:
       [T]o 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].” 31

In assessing whether a training policy and procedure is inadequate, we look to
whether the program “enable[s] officers to respond properly to the usual and
recurring situations with which they must deal.” 32 Plaintiffs must demonstrate



       27  See Peterson, 588 F.3d at 850 (“Where prior incidents are used to prove a pattern,
they ‘must have occurred for so long or so frequently that the course of conduct warrants the
attribution to the governing body of knowledge that the objectionable conduct is the expected,
accepted practice of city employees.’” (quoting Webster, 735 F.2d at 842)).
        28 See Peterson, 588 F.3d at 851 (“A pattern requires similarity and specificity; ‘[p]rior

indications cannot simply be for any and all “bad” or unwise acts, but rather must point to
the specific violation in question.’” (quoting Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).
        29 Peterson, 588 F.3d at 852.
        30 Connick, 563 U.S. at 61.
        31 Kitchen, 759 F.3d at 484 (quoting Sanders-Burns v. City of Plano, 594 F.3d 366, 381

(5th Cir. 2010)); accord Benavides v. Cty. Of Wilson, 955 F.2d 968, 972 (5th Cir. 1992) (citing
City of Canton v. Harris, 489 U.S. 378 (1989)).
        32 Benavides, 955 F.2d at 973 (quoting City of Canton, 489 U.S. at 391) (internal

quotation marks omitted).
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that the highly predictable consequence of not training is that the asserted
injury would occur. 33 While it may in theory be possible to establish the
inadequacy of a training program with a single incident, 34 “adequately trained
officers occasionally make mistakes; the fact that they do says little about the
training program or the legal basis for holding the city liable.” 35
      Plaintiffs allege several training shortcomings, two of which come closer
to stating a viable claim: (1) that officers were not properly trained in the use-
of-force and (2) that officers were not properly trained in the rendition of
medical aid. Again, Plaintiffs primarily rely on the DOJ report as evidence of
training deficiencies. But the allegations of the DOJ report are here weak
evidence, at best, of a failure to train. Regarding excessive force, the
Department’s criticisms largely center on improper training regarding
restraining prisoners and cell extraction techniques, neither of which are
directly at issue here. As for medical aid training, Plaintiffs cite to page twenty-
three of the report, which states that “[t]he Jail should increase staff training
to ensure that staff is prepared to implement emergency procedures and
operate emergency equipment [in] the event of an emergency.” The quoted
language is from a section labeled “Sanitation and Life Safety” and appears to
address training in the use of fire safety equipment. Plaintiffs have failed to
produce competent summary judgment evidence of Harris County’s failure to
train regarding responses to assaults by inmates and medical aid following a
response incident.




      33   Peterson, 588 F.3d at 849.
      34   Cardenas v. Lee Cty., 569 F. App’x 252, 257-58 (5th Cir. 2014) (unpublished)
(quoting City of Canton, 489 U.S. at 390). The example the Court gave in City of Canton was
a police force arming officers but failing to train them in the use of deadly force.
        35 City of Canton, 489 U.S. at 391.


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                                     VI.
      Plaintiffs argue in the alternative that the magistrate judge abused her
discretion by not granting leave to amend because Plaintiffs’ current counsel
was not the counsel of record when the initial pleadings were filed. In denying
leave to amend, the court found that “although Plaintiffs had retained new
counsel of record, the counsel entered appearances well before the pleading
amendment deadline of December 6, 2013.” Plaintiffs argue that they did not
delay in seeking leave to amend in bad faith, but good faith is not here good
cause. The magistrate judge did not abuse her discretion in denying leave to
amend after the amendment deadline.
                                     ****
      We affirm the grant of summary judgment rejecting all claims against
Harris County.




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