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

                                                 FILED
                                                                          August 31, 2009

                                       No. 08-50414                    Charles R. Fulbruge III
                                                                               Clerk

CARL O’NEAL, SR, Individually; GEORGIE MAE O’NEAL, Individually and
on behalf of the Estate of Carl James O’Neal, Jr, Deceased,

                                                  Plaintiffs - Appellants
v.

CITY OF SAN ANTONIO; WILLIAM MCMANUS, Chief of the San Antonio
Police Department, Individually and in his Official Capacity; OFFICER
DALE HANCOCK, Badge #0564, Individually and in His Official Capacity;
OFFICER MARK STANUSH, Badge #1378, Individually and in His Official
Capacity,

                                                  Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-725


Before JONES, Chief Judge, KING and ELROD, Circuit Judges.
PER CURIAM:*
       This case is an appeal from the district court’s grant of summary judgment
to the City of San Antonio and officers of the San Antonio Police Department




       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
                                  No. 08-50414

(S.A.P.D.) in an action brought under 42 U.S.C. § 1983 by the family and estate
of Carl James O’Neal. We affirm.
                       I. FACTS AND PROCEEDINGS
      S.A.P.D. Officers Hancock and Stanush stopped Carl James O’Neal Jr. for
a traffic violation on November 10, 2005. After they placed him in handcuffs, the
officers noticed that O’Neal had a substance in his mouth that appeared to be
crack cocaine that he was chewing. The officers attempted to force Neal to spit
out the substance but were unsuccessful. O’Neal told the officers that one of the
women in the vehicle with him had thrown a piece of crack cocaine at him and
that put it in his mouth because he was scared. Upon inspection of the vehicle,
the officers discovered a rock of crack cocaine. The officers arrested O’Neal. In
the struggle, O’Neal apparently suffered minor abrasions to his face.          The
officers transported O’Neal to the Acute Care Clinic and Crisis Center (“clinic”)
in downtown San Antonio to get medical clearance before processing him. The
officers took this action pursuant to a recent change in S.A.P.D. policy for the
medical treatment of arrestees. The new policy, implemented in 2005, allowed
police officers to transport arrestees who had minor injuries to the clinic rather
than taking them to the University Hospital.
       On the way to the clinic, O’Neal began making grunting noises. Upon
arrival at the clinic, O’Neal had difficulty exiting the patrol car and required the
assistance of the officers. O’Neal fell out of the patrol car and required further
assistance up the two flights of stairs to the clinic. As he entered the clinic,
O’Neal was screaming loudly. When the clinic staff attempted to take O’Neal’s
blood pressure, he began thrashing about. The officers and clinic staff attempted
to hold him down and eventually placed ankle irons on him and handcuffed him
to a wheelchair. The clinic staff told the officers that O’Neal could not be treated
at the clinic and needed to be taken to the University Hospital Emergency Room.
While waiting for transportation for O’Neal, Officer Hancock noticed that he did

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not seem to be breathing. The physician’s assistant approach and could not find
a pulse; EMS pronounced him dead at the scene. In 2007, after events here, the
City changed its policy on the treatment of arrestees who had ingested street
drugs. Under the new policy, officers are prohibited from taking individuals who
had ingested narcotics to the clinic.
       In the live complaint, 1 O’Neal’s family and estate sued the City of San
Antonio, William McManus, Chief of Police for the City of San Antonio, and
Officers Hancock and Stanush under 42 U.S.C. § 1983 for violations of the
Fourteenth Amendment. Pursuant to 28 U.S.C. § 636, the district court referred
all pretrial matters to the magistrate judge for disposition. All defendants moved
for summary judgment. In a thorough memorandum and recommendation, the
magistrate judge recommended dismissal of all claims.                The district court
accepted this recommendation in full and granted the defendants’ motion for
summary judgment and dismissed the lawsuit. Appellants’ sole claim on appeal
is their § 1983 claim against the City and Officers Hancock and Stanush.2
                                     II. DISCUSSION
       A.       Standard of Review
       This court reviews the district court’s grant of summary judgment de novo,
applying the same standard of review as the district court. FDIC v. Ernst &
Young, 967 F.2d 166, 169 (5th Cir. 1989). Rule 56 of the Federal Rules of Civil
Procedure “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v.


       1
           The live complaint is the third amended complaint.
       2
        Appellants do not challenge the district court’s grant of summary judgment to Chief
McManus; we will not consider this argument on appeal. United States v. Thibodeaux, 211
F.3d 910, 912 (5th Cir. 2000).

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Catrett, 477 U.S. 317, 322 (1986). We draw all inferences most favorable to the
party opposing the motion. Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577,
578 (5th Cir. 1986). However, the non-movant’s burden is not satisfied with
“some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). We review evidentiary rulings
for abuse of discretion and will “reverse a district court’s ruling only if it affects
a substantial right of a party.” Caparotta v. Entergy Corp., 168 F.3d 754, 755-56
(5th Cir. 1999).
      B.     O’Neal’s Claims Against the City
      A government entity may be held liable under 42 U.S.C. § 1983 if the
entity’s policy or custom inflicts a constitutionally cognizable injury. See Monell
v. Dep’t of Social Services, 436 U.S. 658, 694 (1978). In order to prevail on a
municipal liability claim, a plaintiff must show “(a) that the policy itself violated
federal law or authorized the deprivation of federal rights or (b) that the policy
was adopted or maintained by the municipality’s policymakers with deliberate
indifference as to its known or obvious consequences.” Johnson v. Deep E. Tex.
Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004). Simple
negligence or even heightened negligence will not support liability. See Bd. of
County Comm’rs v. Brown, 520 U.S. 397, 407 (1997).                 In addition, the
policymaker must have either actual or constructive knowledge of the alleged
policy. See Cox v. City of Dallas, Tex., 430 F.3d 734, 748 (5th Cir. 2008).
      Inadequacy of police training can serve also serve as the basis for
municipal liability under § 1983, but only if the failure to train amounts to a
deliberate indifference to the rights of individuals who come into contact with
the police. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). This court
has held that if the training of police officers meets state standards, there can
be no cause of action for a failure to train absent a showing that “this legal
minimum of training was inadequate to enable [the officers] to deal with the

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‘usual and recurring situations’ faced by jailers and peace officers.” Benavides
v. County of Wilson, 955 F.2d 968, 973 (5th Cir. 1992).
       Appellants claim that the court below abused its discretion by refusing to
consider the 2007 revisions to City’s policy for the treatment of arrestees. The
court below determined that Federal Rule of Evidence 407 barred the use of the
policy change as a subsequent remedial measure. Appellants argue on appeal
that the policy change contradicts the City’s assertion that the clinic was an
appropriate place to take O’Neal and thus may be introduced for impeachment
purposes. We find that the court below did not abuse its discretion in refusing
consider the change in policy. This Circuit has held that “the trial judge should
guard against the improper admission of evidence to prove prior negligence
under the guise of impeachment.” Hardy v. Chemetron Corp., 870 F.2d 1007,
1011 (5th Cir. 1989). We cannot say that the court below abused its discretion
in erring on the side of caution with respect to this evidence.3
       The appellants further claim that the 2005 policy change created an
“informal” policy that encouraged officers to take all detainees to the clinic,
regardless of their medical condition. However, they cite no evidence for their
position that this informal policy resulted in almost all detainees being taken to
the clinic regardless of medical status. Moreover, the appellants provide no
support for their arguments that Officers Hancock and Stanush suspected that
O’Neal was suffering or would suffer from an overdose and nevertheless
transported him to the clinic pursuant to this informal City policy. Officers
Hancock and Stanush indicated in their affidavits that O’Neal displayed no signs
of medical distress at the time of his arrest. Dr. Vincent DiMaio, the defendants’



       3
        In their brief to this court, appellants cite the policy change as evidence that the City
“recognized that it could not continue to advance a policy that resulted in the death of at least
one arrestee.” Such language insinuates that the policy change establishes the City’s
culpability.

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expert, testifed that swallowing crack cocaine is a common practice among drug
users and only rarely results in adverse reactions of a severe degree. Officer
Stanush stated in his deposition that he had seen many people chew crack
cocaine and not fall ill as a result. In their brief, appellants present only
conclusory statements that the officers “knew” ingestion of crack cocaine created
a substantial risk of overdose and death and yet transported him to the clinic in
accordance with the informal policy.         Bare allegations, without supporting
evidence, are insufficient to defeat summary judgment.                 See Howell
Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 192 (5th Cir. 1990).
      Appellants also argue that the City failed to properly train its officers to
recognize what medical issues could and could not be treated at the clinic.
Appellants reassert their claim that O’Neal was denied adequate medical
treatment because of this failure to train, but again do not cite any evidence
demonstrating that the officers’ training did not meet state standards. The
appellants also fail to present any evidence that the City’s training fell below the
constitutional minimum required under Benavides. 955 F.2d 973.
      C.    O’Neal’s Claims Against the Officers
      Qualified immunity protects a public official from liability unless a
plaintiff has shown a deprivation of a federal right and that the defendant’s
misconduct violated a “clearly established statutory or constitutional right of
which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct.
808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Individuals in the government’s custody may have a cause of action under § 1983
if their medical needs are met with deliberate indifference on the part of those
detaining them. Estelle v. Gamble, 429 U.S. 97, 103 (1976); Hare v. City of
Corinth, Miss., 74 F.3d 633, 636 (5th Cir. 1996) (en banc). To prevail in a case
involving individual or episodic acts, a plaintiff must prove the officers acted
with subjective deliberate indifference.       Hare, 74 F.3d at 636.     To prove

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subjective deliberate indifference, an arrestee must prove that the officer had
subjective knowledge of the risk of harm and the subjective intent to cause harm.
Mace v. City of Palestine, 333 F.3d 621, 625-26 (5th Cir. 2003). “Mere negligence
or a failure to act reasonably is not enough.” Id. at 626.
      Appellants argue that Offices Hancock and Stanush are not entitled to
qualified immunity. Yet they fail to provide any evidence indicating that officers
Stanush and Hancock were aware of the risk of O’Neal overdosing and ignored
that risk. As noted above, the affidavits of Officers Hancock and Stanush and
the testimony of Dr. Vincent DiMaio all indicate that the officers were unaware
of an excessive risk of an overdose. Appellants respond to this evidence with
vague assertions that the officers’ experience with crack cocaine meant that they
“knew” that O’Neal faced such a risk. Such vague assertions are insufficient to
prevail on appeal.
      Appellants also argue that the court abused its discretion in refusing to
consider the deposition testimony of Nurse O’Leary at summary judgment.
Nurse O’Leary indicated that the officers had failed to inform Medical Assistant
Castaneda that O’Neal had ingested crack cocaine. After reviewing the record,
we conclude that the court below did not abuse its discretion in refusing to
consider O’Leary’s hearsay statement. Evidence on summary judgment may be
considered to the extent it is not based on hearsay or otherwise excludable at the
time of trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).
      Appellants attempt to analogize their case to Bias v. Woods, in which the
district court found that a prison physician was not entitled to qualified
immunity. 2002 WL 1750792, *2, 4 (N.D. Tex. 2002). The plaintiff alleged that
under the physician’s supervision, he was transported 150 miles in a prison van
while in a comatose state. Id. at *3 As a result of lying in a prone position for
an extended time, the plaintiff developed necrosis in his right hip, leg and
buttocks. Id. at *3 The district court in that case determined that a reasonable

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person would have known that ordering the transport of an unconscious prisoner
150 miles to another prison unit, rather than providing immediate medical
attention, would cause a significant delay, if not complete denial of medical care.
Id. at *4. We agree with the court below that Bias is readily distinguishable
from the current case as the appellants here presented no evidence at summary
judgment that either officer knew or had reason to know that O’Neal had
suffered or was about to suffer an overdose of crack cocaine.
      Accordingly, the court below did not err in granting summary judgment.
      The decision is AFFIRMED.




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