     Case: 15-41232      Document: 00513633283         Page: 1    Date Filed: 08/11/2016




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

                                                                                  FILED
                                      No. 15-41232                            August 11, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
JEANETTE LIVEZEY, Individually, and as Representative of the Estate of
William Howard Livezey, Jr., deceased; WILLIAM HAROLD LIVEZEY;
SUSAN IRENE DAVIS; JOHN W. LIVEZEY; SANDRA L. HARTGERS,

               Plaintiffs - Appellants

v.

THE CITY OF MALAKOFF; BILLY MITCHELL, Chief of Police for the City
of Malakoff, in his individual capacity,

               Defendants - Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:14-CV-523


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       In 2013, police officer Ernesto Fierro, who was not in uniform, pulled
over a pickup truck driven by 70-year-old William Howard Livezey, Jr. Some
witnesses described Fierro as acting extremely aggressively toward Livezey.
Livezey suffered a heart attack and died. Fierro later pled guilty to aggravated



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 15-41232
assault and official oppression. The plaintiffs brought suit, arguing the City of
Malakoff and its police chief were liable for failing to screen Fierro during
hiring, and for failing to train and supervise Fierro. The district court entered
summary judgment for the defendants on the basis of qualified immunity and
that there was no municipal liability. We AFFIRM.


               FACTUAL AND PROCEDURAL BACKGROUND
      On December 11, 2013, at 7 a.m., William Howard Livezey, Jr., was
driving his pickup truck on Texas State Highway 31 in Navarro County, Texas.
He was 70 years of age. Officer Ernesto Fierro was traveling on the same road
by motorcycle as he was returning home from work with the Malakoff Police
Department. He was off-duty and in plain clothes.
      Fierro stated he observed Livezey make “an aggressive lane change into
[his] lane,” almost striking him. Fierro then stated he observed Livezey make
several more aggressive driving maneuvers, forcing him off the highway and
onto the shoulder multiple times. Other witnesses refuted this account. One
witness stated that Fierro almost ran the witness off the road and was driving
erratically across all lanes of the highway, not letting other drivers pass.
Another witness corroborated this account, stating that “[t]he driver of the
motorcycle then got in front of [Livezey’s] truck and slowed down to
approximately 25–35 mph weaving back [and] forth and riding down the
middle of the highway not allowing the driver or any other vehicles to continue
at highway speeds.”
      Fierro and Livezey eventually pulled over. Two officers, Warren and
Lewis, arrived on the scene.      They saw Fierro acting “aggressive[ly]” and
“threatening[ly]” towards Livezey, who was standing on the side of the road in
handcuffs.    Livezey looked “bewildered,” “distraught,” and “scared.”          The
officers described Fierro’s as being “out of control,” that he was in “a fit of rage”
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                                  No. 15-41232
and acting in a manner “unbecoming of a peace officer.” Moreover, despite
repeated requests by the officers for Fierro to identify himself (as he was in
plain clothes), Fierro failed to do so. It was only after Fierro was threatened
with arrest did he tell the officers that he was an off-duty police officer. The
two officers then observed Livezey having labored breathing, turning blue, and
clutching his chest. The officers called for paramedics. Livezey later died at
the hospital. Livezey’s treating cardiologist explained that he died of a heart
attack induced by emotional and physical stress.
      Fierro has a disciplinary record as a police officer. Prior to being hired
by the Malakoff Police Department, Fierro worked for the Dallas Police
Department. He was terminated by the Dallas Police Department when he
rear-ended another vehicle, fled the scene at over 100 mph, subsequently
caused another accident, and then filed a false report. Fierro appealed, and
his punishment was reduced to a suspension. Fierro, however, voluntarily
retired as he was under investigation for other disciplinary matters. He was
then hired by the Ferris Police Department, and later terminated under
similar circumstances.     In sum, his employment history reflects repeated
disciplinary actions for vehicle accidents, violations of vehicular chase policies,
and filing of false reports. As for the events related to Livezey’s death, Fierro
was indicted on charges of aggravated assault with a deadly weapon, reckless
driving, and official oppression. Fierro accepted a plea deal and was sentenced
to nine years’ deferred adjudication, fines and court costs, and community
service. He was also required to surrender his Texas Peace Officer’s License
permanently.
      Livezey’s widow, Jeanette, and his children William, John, Susan, and
Sandra, brought suit, asserting claims against the defendants for improper
hiring, and failure to train and supervise. The parties consented to proceed
before a magistrate judge. Both parties moved for summary judgment. The
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magistrate granted the defendants’ motion in its entirety, concluding there
was no municipal liability as to the City and Police Chief Billy Mitchell was
entitled to qualified immunity. The plaintiffs appealed.


                                 DISCUSSION
      A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Melton v. Teachers Ins. & Annuity Ass’n of Am.,
114 F.3d 557, 559 (5th Cir. 1997). The plaintiffs advance four points of error,
including that the district court incorrectly granted summary judgment for the
defendants on the: 1) improper hiring claim, 2) failure to train claim, 3) failure
to supervise claim, and 4) the qualified immunity defense. The plaintiffs’
claims one through three all depend on municipal liability. Therefore, we
address that question before turning to qualified immunity.


I.    Municipal Liability
       “[M]unicipal liability under section 1983 requires proof of three
elements: a policymaker; an official policy [or custom]; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Additionally, “[t]he
policymaker must have either actual or constructive knowledge of the alleged
policy” to be held liable. Cox v. City of Dallas, 430 F.3d 734, 748−49 (5th Cir.
2005). The last element ensures causation between the policy and the alleged
violation leading to liability. Obviously, the Supreme Court has erected a high
bar to fulfilling this causation requirement. See Board of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 415 (1997).
      In Brown, Sheriff Moore of Bryan County, Oklahoma, hired Stacy Burns,
the son of his nephew, as a reserve deputy. Id. at 401. “Burns had a record of
driving infractions and had pleaded guilty to various driving-related and other
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                                  No. 15-41232
misdemeanors, including assault and battery, resisting arrest, and public
drunkenness.” Id. The plaintiffs alleged that Burns’s actions during a traffic
stop caused them injury; they sued the County under the same theory as this
case, namely, improper hiring and failure to train. Id. at 399–400. The Court
held that even if “Sheriff Moore’s assessment of Burns’[s] background was
inadequate [and] . . . . Sheriff Moore’s own testimony indicated that he did not
inquire into [Burns’s background,] . . . . this showing of an instance of
inadequate screening is not enough to establish ‘deliberate indifference.’” Id.
at 411. The Court further noted that “deliberate indifference” is only met
where “the plainly obvious consequence” of hiring would be the violation of a
person’s constitutional rights. Id. Thus, Brown made clear that only when the
defendant is deliberately indifferent, such that a constitutional violation is a
plainly obvious consequence of his decisions, will causation exist.
      Applying the deliberate indifference standard to the case before us, we
determine the plaintiffs are unable to carry this heavy burden.
      First, we address screening.       Before hiring Fierro, Chief Mitchell
reviewed Fierro’s personal history disclosure forms, requested prior
employment records, did a background investigation, and called the Dallas and
Ferris police departments. Given that Brown held that an almost complete
lack of an investigation was not enough to show deliberate indifference, Chief
Mitchell’s investigation in this case precludes a determination of deliberate
indifference. While the plaintiffs rely on Fierro’s prior disciplinary record as
an officer in Dallas and Ferris, it cannot be said it was plainly obvious that his
hiring would cause the specific constitutional violation in question. We have
held that failing to respond to a history of “bad or unwise acts” that
“demonstrate lack of judgment, crudity, and, perhaps illegalities” is not enough
for deliberate indifference.   Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005) (quotation marks omitted).
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                                   No. 15-41232
      Next, regarding failure to train, the plaintiffs must show: (1) the City’s
“training policy or procedure was inadequate”; (2) “the inadequate training
policy was a ‘moving force’ in causing a violation of the plaintiff’s rights”; and
(3) the City “was deliberately indifferent in adopting its training policy.” Valle
v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010). There is no indication
the City’s training was inadequate. Each Malakoff police officer was required
to meet state requirements established by the Texas Commission on Law
Enforcement (“TCOLE”). The plaintiffs provided no evidence or argument that
any officer hired by Malakoff, including Fierro, failed to meet these
requirements. The meeting of state standards means there can be no liability
unless the plaintiff shows “that this legal minimum of training was inadequate
. . . .” Benavides v. Cnty. of Wilson, 955 F.2d 968, 973 (5th Cir. 1992). The
plaintiffs provided no evidence, and indeed offered no argument, that the
TCOLE standards are inadequate. In any case, there is no evidence that the
City or Chief Mitchell deliberately failed to train officers or were indifferent to
the need for additional police policies and regulations.
      The plaintiffs finally argue that Chief Mitchell and the City failed to
supervise Fierro adequately. For municipal liability to rest on this ground, the
plaintiffs must show that “(1) the supervisor . . . failed to supervise . . . the
subordinate official; (2) a causal link exists between the failure to . . . supervise
and the violation of the plaintiff’s rights; and (3) the failure to . . . supervise
amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d 908, 911–
12 (5th Cir. 1998). “Proof of more than a single instance of the lack of training
or supervision causing a violation of constitutional rights is normally required
before such lack of training or supervision constitutes deliberate indifference.”
Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001).
      The plaintiffs allege that a prior traffic-stop incident involving Fierro is
enough to establish a pattern of misconduct or violations of which the City or
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Chief Mitchell were deliberately indifferent. This prior stop, though, did not
result in a complaint being filed against Fierro. Further, while the evidence of
this stop suggests that Fierro overreacted, the situation did not involve an
arrest, any physical force or reckless driving on the part of Fierro, and the
driver that was pulled over admitted that he unintentionally cut Fierro off and
was going 75 mph in a 50-mph zone. The events are dissimilar enough not to
establish a pattern of violations by Fierro. Regardless, a single prior instance
would not establish a pattern. 1
       The district court properly found no municipal liability for the City.


II.    Qualified Immunity
       “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
To establish that qualified immunity does not apply, the plaintiffs must prove
that Chief Mitchell “(1) violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” See
id. at 371. A “plaintiff has the burden to negate the assertion of qualified
immunity once properly raised.” Collier v. Montgomery, 569 F.3d 214, 217 (5th
Cir. 2009). Thus, qualified immunity in the context of this case means that the
plaintiffs must prove that no official standing in the place of Chief Mitchell
could have reasonably believed that his hiring, training, and supervision of
Fierro was lawful.



       1 The plaintiffs also argue that Fierro’s prior disciplinary record at the Dallas and
Ferris Police Departments can help establish a pattern of misconduct. As discussed in the
Facts section, however, Fierro’s prior record indicates sustained complaints for violations of
vehicular chase policies and the filing of false reports. The current case deals mainly with
unlawful arrest and excessive force. Fierro’s prior record, therefore, does not establish a
pattern of violations relevant to this case.
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                                No. 15-41232
      The plaintiffs fall short of defeating the defense of qualified immunity.
The plaintiffs rehash the same arguments made above for municipal liability.
Because we have already determined that the actions of Chief Mitchell did not
create liability, the plaintiffs fail in proving that Chief Mitchell acted
unreasonably in hiring, training, and supervising Fierro.
      AFFIRMED.




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