     Case: 10-40384 Document: 00511377284 Page: 1 Date Filed: 02/09/2011




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

                                                 FILED
                                                                          February 9, 2011

                                       No. 10-40384                         Lyle W. Cayce
                                                                                 Clerk

MIGUEL HERNANDEZ, et al.

                                                   Plaintiffs-Appellees
v.

ADELAIDE HORN, et al.

                                                   Defendants-Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:09-CV-163


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellees asserted a claim under 42 U.S.C. § 1983 for damages
arising out of allegations of abuse by staff at the Corpus Christi State School.
Defendants-Appellants Adelaide Horn, Barry Waller, Denise Geredine, and Iva
Benson (“State Defendants”) — who were not directly involved in the abuse, but
were supervisors — raised qualified immunity as an affirmative defense in the
district court. The State Defendants filed a motion to dismiss and for summary
judgment, contending that the Plaintiffs-Appellees had neither pleaded a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-40384 Document: 00511377284 Page: 2 Date Filed: 02/09/2011



                                        No. 10-40384

plausible ground for relief, as required by the heightened pleading standards
announced in Ashcroft v. Iqbal,1 nor stated a claim that could overcome qualified
immunity. The district court denied the State Defendants’ motion for dismissal
and summary judgment,2 and they appealed.3
       The State Defendants have waived the only issue they raise on appeal,
viz., the unavailability of supervisory liability. “If an argument is not raised to
such a degree that the district court has an opportunity to rule on it, we will not
address it on appeal.”4 For the first time on appeal, State Defendants assert that
“[t]he Supreme Court has eliminated the doctrine of supervisory liability. . . .
Although this Circuit has not had an opportunity to confirm its case law
accordingly, other federal courts have recognized that claims for failure to
supervise and failure to train — the substance of plaintiffs’ complaint in this
case — are exactly the types of claims that Iqbal forecloses.” We can find no
argument by the State Defendants in the district court concerning the invalidity
of supervisory liability post-Iqbal.
       The State Defendants assert that they have not waived this issue on
appeal because they discussed Iqbal at length in their district court motion.
There, however, the State Defendants addressed only the holding of Iqbal
regarding pleading standards, never arguing the substantive holding of Iqbal
concerning supervisory liability. Indeed, the State Defendants appear to have
conceded in that motion that they could be liable under the standard set forth




       1
           129 S. Ct. 1937 (2009).
       2
           Hernandez v. Horn, 2010 U.S. Dist. LEXIS 37623 (S.D. Tex. Apr. 15, 2010).
       3
        Defendants may appeal a denial of qualified immunity at the summary judgment
stage under the collateral-order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
       4
           Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 214 n.21 (5th Cir. 2009).

                                               2
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                                      No. 10-40384

in Youngberg v. Romeo.5 They never contended in the district court that Iqbal
had foreclosed claims grounded in failure to supervise or failure to train.
       As the only issue that the State Defendants advanced on appeal is waived,
we must dismiss their interlocutory appeal and remand for further proceedings
in the district court. We express no view on what matters may be properly
raised there on remand.
       The ruling appealed from the district court is AFFIRMED and the case is
REMANDED.6




       5
           457 U.S. 307 (1982).
       6
         Because the State Defendants’ interlocutory appeal was grounded entirely in an issue
of law, Plaintiffs-Appellees motion to dismiss this appeal is denied.

                                             3
