Revised May 3, 2000
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 98-50264
____________
RICHARD CONNER; CHRIS CONNER;
Plaintiffs - Appellants,
versus
TRAVIS COUNTY; ET AL,
Defendants
TRAVIS COUNTY; TERRY KEEL, Sheriff; FRED McAFEE, Travis
County Sheriff’s Deputy;
Defendants - Appellees
____________
No. 98-50895
____________
RICHARD CONNER; CHRIS CONNER;
Plaintiffs - Appellees
versus
TRAVIS COUNTY,
Defendant - Appellant.
Appeals from the United States District Court
for the Western District of Texas
May 2, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Richard and Christine Conner appeal the district court’s grant of judgment as a matter of law
in favor of Travis County (“the County”) and Travis County Sheriff Terry Keel. The County
Attorney’s Office (“CA’s Office”), which represented the County and Keel, cross-appeals the court’s
imposition of sanctions against it. We affirm in part and reverse in part.
I
Richard Conner was arrested on an outstanding warrant for a bad check when he attempted
to renew his driver’s license at the Department of Public Safety (“DPS”). He was held by a DPS
deputy until officials from the County Sheriff’s Department arrived and brought him to the County’s
Central Booking Facility (“CBF”). There, Deputy Sheriff Fred McAfee, who completed intake on
Mr. Conner, filled out a medical sheet on Mr. Conner. Mr. Conner told McAfee he had suffered a
stroke one month before and that he needed to take medication for his stroke; Mr. Conner was
supposed to take the medication every morning and had not yet taken that morning’s dose. McAfee
flagged Mr. Conner’s file and placed it in the nurse’s box for him to receive attention.
Mr. Conner alleges that he asked McAfee and several others at CBF to be allowed to take his
medication, telling them about his condition and that it was worsening. Instead of giving him his
medication, they allegedly called him a drunk and told him to stop faking his symptoms. Mr. Conner,
who was allowed to make telephone calls throughout this time, eventually telephoned his doctor, who
ascertained that Mr. Conner’s condition was worsening and arranged to have an ambulance take him
to the hospital for emergency treatment. Although he ultimately received treatment, he alleges that
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the delay in obtaining it caused him permanent damage.
The Conners subsequently filed this lawsuit, proceeding to trial against the County, Keel, and
McAfee. On the day before the trial finished, the court granted Travis County’s and Keel’s motions
for judgment as a matter of law on the Conners’ claims against them for failure to train under 42
U.S.C. § 1983.
The jury ruled in favor of McAfee. The Conners moved for a new trial and both sides moved
for attorney fees. The district court denied all the motions except for the Conners’ motion for
attorney fees: the court imposed sanctions of $5,575 against the CA’s Office to cover the Conners’
appellate attorney fees for an earlier interlocutory appeal the CA’s Office had filed. The Conners now
appeal the court’s ruling on the motions for judgment as a matter of law. The CA’s Office cross-
appeals the imposition of sanctions.
II
Federal Rule of Civil Procedure 50(a) allows a court to grant judgment as a matter of law
when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue.” Fed. R. Civ. P. 50(a). We review a grant of
judgment as a matter of law de novo, applying the same standard the court below applied.
See McCoy v. Hernandez, 203 F.3d 371, 374 (5th Cir. 2000). We will affirm if “the facts and
inferences point so strongly and overwhelmingly in favor of the moving party [that] no reasonable
jurors could have arrived at a contrary verdict.” Id.
Counties and supervisors are not liable for co nstitutional violations committed by county
employees unless those violations result directly from a municipal custom or policy. See City of
Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412, __ (1989); Breaux
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v. City of Garland, 205 F.3d 150, 161 (5th Cir. 2000). The Conners premise their claim on a failure
by the County and Keel to train CBF staff to handle a medical condition like Mr. Conner’s. To
succeed on their failure to train claim, the Conners must show three things: “(1) the training or hiring
procedures of the municipality's policymaker were inadequate, (2) the municipality's policymaker was
deliberately indifferent in adopting the hiring or training policy, and (3) the inadequate hiring or
training policy directly caused t he plaintiff's injury.” Baker v. Putnal, 75 F.3d 190, 200 (5th Cir.
1996). The second showing, deliberate indifference, is at issue here.
Deliberate indifference is more than mere negligence. See Rhyne v. Henderson County, 973
F.2d 386, 392 (5th Cir. 1992) (“While the municipal policy-maker's failure to adopt a precaution can
be the basis for § 1983 liability, such omission must amount to an intentional choice, not merely an
unintentionally negligent oversight.”); see also Doe v. Taylor Independent Sch. Dist., 15 F.3d 443,
453 n.7 (5th Cir. 1994) (distinguishing “deliberate indifference” from “gross negligence” by noting that
“the former is a ‘heightened degree of negligence,’ [whereas] the latter is a ‘lesser form of intent’”)
(quoting Germany v. Vance, 868 F.2d 9, 18 n. 10 (1st Cir.1989)). The Conners must show that, “in
light of the duties assigned to specific officers or employees, the need for more or different training
is obvious, and the inadequacy so likely to result in violations of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”
City of Canton, 489 U.S. at 390, 109 S. Ct. at 1205, 103 L. Ed. 2d at __, quoted in Benavides v.
County of Wilson, 955 F.2d 968, 972 (5th Cir. 1992).
The Conners concede that County policy required qualified medical staff to be available to
treat detainees presenting both emergency and non-emergency conditions. They also concede that
County policy required staff to obtain immediate medical treatment for detainees presenting
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emergency conditions and less immediate treatment for non-emergency conditions. Additionally, they
concede that CBF staff had training in first aid and CPR. Finally, they do not dispute several facts:
Mr. Conner did not present emergency symptoms on arrival or indicate that he was experiencing an
emergency; he was still speaking and walking around when he began to complain of symptoms; and
he was in the CBF without immediate medical treatment for at most an hour. The Conners premise
their failure to train claim on the fact that the County did not train CBF officials to recognize
emergency conditions as they developed or to understand the significance of the symptoms and
condition which Mr. Conner presented. Their argument is essentially that jail officials should have
been trained to recognize that—in spite of Mr. Conner’s apparent non-emergency condition—Mr.
Conner required immediate medical attention because of his stroke history, his need for medication,
and his subsequent symptoms.
The Conners did not attempt to prove that the County’s failure to train its staff in
distinguishing between emergency and non-emergency conditions was deliberately indifferent by
showing that prior incidents gave the County or Keel notice of the need for specific training. Instead,
they rely on the single episode with Mr. Conner and on their expert’s statements about the need for
more training. We have previously noted the difficulty plaintiffs face in attempting to show deliberate
indifference on the basis of a single incident. See Gabriel v. City of Plano, 202 F.3d 741, 745 (5th
Cir. 2000) (“We have consistently rejected application of the single incident exception and have noted
that ‘proof of a single violent incident ordinarily is insufficient to hold a municipality liable for
inadequate training.’”) (quoting Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)). This
difficulty is necessarily heightened for the Conners because of the type of case they bring. We can
reasonably expect—if the need for training in this area was “so obvious” and the failure to train was
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“so likely to result in the violation of constitutional rights”—that the Connors woul d be able to
identify other instances of harm arising from the failure to train. The fact that they did not do so
undercuts their deliberate indifference claim.
Additionally, the Conners did not provide any general evidence about stroke conditions. For
example, they did not show stroke incident rates in the general or detainee population from which a
jury could infer a need for specific training. Nor did they provide detailed evidence about the
consequences (aside from the alleged consequences in this case) of not providing immediate treatment
when a person exhibits stroke symptoms or misses their daily medication for four or five hours.
Finally, their evidence regarding professional and regulatory standards in jails at best only tenuously
supports an argument that the County’s training fell below these standards.1
Instead, the Conners’ showing of a need to train was premised on the testimony of their expert
witness, who claimed, without citing underlying dat a, that detainees with stroke symptoms would
present themselves so frequently that County staff should be trained to recognize them. By itself this
is unpersuasive. We have previously noted that plaintiffs generally cannot show deliberate
indifference through the opinion of only a single expert, see Snyder, 142 F.3d at 799 (“Furthermore,
we have emphasized that, when seeking to prove a municipality's malevolent motive, plaintiffs must
1
Although the Conners’ expert suggested that the County’s training did not comply with the Texas
Jail Standards, he did not testify that the Standards specify what training must be given on recognizing emergency
conditions. He only stated that: “the standards specify that inmates will receive . . . emergency medical care, that they
will be screened medically when they are first brought into the jail, and that the screening will be accompanied by a
medical person or by a trained officer, and that if there are any emergencies in the process, that they will be referred
immediately to the medical department for review.” On cross-examination, he stated that, based on his reading of the
Texas Jail Standards, “I would assume that if they are going to do medical screening, then they are either going to be
medical personnel or trained officers.”
On cross-examination, the expert was also unable to identify any portion of the American Corrections
Association Standards or the National Commission on Correctional Health Care Standards which “set[s] out the degree
of medical training officers must have in order to do intake screening.”
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introduce more evidence than merely the opinion of an expert witness.”); Stokes v. Bullins, 844 F.2d
269, 275 (5th Cir. 1988) (“[A]n expert’s opinion should not be alone sufficient to establish
constitutional ‘fault’ by a municipality in a case of alleged omissions, where no facts support the
inference that the town’s motives were contrary to constitutional standards.”), and this witness’s
testimony was little more than his opinion.
Aside from their expert, the Conners presented no evidence that the County or Keel should
have known of a risk of harm arising from slowly-diagnosed stroke symptoms, let alone that this risk
showed deliberate indifference because it was “so obvious” that the failure to offer specific stroke
training was “so likely to result in the violation of constitutional rights.” City of Canton, 489 U.S.
at 390, 109 S. Ct. at 1205, 103 L. Ed. 2d at __. Thus, they failed to show deliberate indifference and
judgment as a matter of law against them was appropriate.2 In this regard this case is similar to
Benavides, where jail guards took no action when a detainee hit his head in jail and lay on the floor
paralyzed for eighteen hours requesting hospitalization; the jail guards allegedly thought the detainee
was faking his condition. See Benavides, 955 F.2d at 970-71. The detainee and his wife sued,
arguing, inter alia, that the County and Sheriff were deliberately indifferent for not giving more
medical training to the jail guards. See id. at 970. The district court granted summary judgment to
the defendants and we affirmed, noting, as here, that the guards were trained in “the basic medical
training required by Texas law” and that the plaintiffs submitted no evidence of inadequacy other than
their allegations and the testimony of an expert which was properly disregarded. See id. In the case
2
The Conners argue that the district court’s grant of judgment as a matter of law to the County and
Keel is inconsistent with its earlier denial (affirmed by us on appeal) of their motion for summary judgment. This
position lacks merit. Although we have observed that the standards for determining whether summary judgment
should be granted are the same as those for determining when judgment as a matter of law is appropriate, see Rhodes
v. Guiberson Oil Tools, 75 F.3d 989, 993 n.4 (5th Cir. 1996), the summary judgment motion addressed immunity
issues. Additionally, the motion was based on different evidence than ultimately was presented at trial.
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before us, of course, the district court did not exclude the expert’s testimony, but, as noted above,
the testimony of a single expert is generally inadequate to show deliberate indifference. See Snyder,
142 F.3d at 799 (finding no deliberate indifference, in spite of an expert’s testimony to the contrary,
when “[t]here was no evidence of a pattern or practice of constitutional violations committed by
overstressed New Orleans officers” and “[t]here was no evidence showing that the city was aware
of the supposedly high stress levels in the NOPD or knew that the absence of a stress management
program was likely to endanger the constitutional rights of its citizens.”); Stokes, 844 F.2d at 275.
III
The CA’s Office cross-appeals the imposition of sanctions against it. Before trial, the CA’s
Office moved for summary judgment on various immunity grounds. The court denied the motion and
the CA’s Office filed an interlocutory appeal, which caused the district court to stay the trial and
which apparently left the court with a vacancy in its trial calender. Before staying the trial, the court
warned the CA’s Office that the appeal lacked merit. After the trial, the court sanctioned the CA’s
Office for the appeal by awarding the Conners $5,575 for their appellate attorney fees. Although the
court noted the important policy reasons allowing government employees to bring immediate appeals
on immunity issues, see, e.g., Behrens v. Pelletier, 516 U.S. 299, 305-08, 116 S. Ct. 834, 838-39,
133 L. Ed. 2d 773, __ (1996) (noting the policy rationale for allowing direct appeals of qualified
immunity issues, and finding that no rule prohibited a defendant from appealing the denial of qualified
immunity twice in a single case, at both the motion to dismiss stage and the summary judgment
stage), it found that “the County’s practice of promiscuously asserting unmeritorious qualified-
immunity arguments in dilatory interlocutory appeals is a wrong to be punished.”
The court imposed sanctions under 28 U.S.C. § 1927 and under its inherent powers. See 28
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U.S.C. § 1927 (allowing sanctions against “[a]ny attorney . . . who so multiplies the proceedings in
any case unreasonably and vexatiously”); Chambers v. NASCO, Inc., 501 U.S. 32, 35-51, 111 S. Ct.
2123, 2128-36, 115 L. Ed. 2d 27, __ (1991) (recognizing that a district court has inherent powers
to sanction a party by awarding the other side at torney fees and related expenses). A court can
sanction under § 1927 when there is “evidence of bad faith, improper motive, or reckless disregard
of the duty owed to the court.” Edwards v. General Motors Corp., 153 F.3d 242, 246 (5th Cir.
1998). A court may use its inherent powers to sanction an attorney who acts in bad faith. See Kipps
v. Caillier, 197 F.3d 765, 770 (5th Cir. 1999). Invocation of either sanctioning power is the exception
rather than rule, see Kipps, 197 F.3d at 770 (“[T]he threshold for the imposition of such sanctions
is high.”); Edwards, 153 F.3d at 246 (“Because of the punitive nature of § 1927 sanctions, and in
order not to chill legitimate advocacy, the provision must be strictly construed.”), although we review
the exercise of either for an abuse of discretion, see Walker v. City of Bogalusa, 168 F.3d 237, 240
(5th Cir. 1999); Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). “A district court
abuses its discretion if it awards sanctions based on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” Walker, 168 F.3d at 240 (quotations omitted).
We first consider whether the district court erred by awarding sanctions because it found that
the interlocutory appeal was meritless. In Chambers, the Supreme Court rejected a per se rule
barring a court from sanctioning parties for conduct they take outside its courtroom: “[a]s long as
a party receives an appropriate hearing . . . the party may be sanctioned for abuses of process
occurring beyond the courtroom, such as disobeying the court’s orders.” Chambers, 501 U.S. at 57,
111 S. Ct. at 2139, 115 L. Ed. 2d at __. Applying that rule to the case before it, the Court found that
the district court properly sanctioned a party “who attempt[ed] to gain the FCC’s permission to build
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a new transmission tower . . . in direct contravention of the District Court’s orders to maintain the
status quo pending the outcome of the litigation.”3 Id.
We limited Chambers’s reach in Matter of Case, 937 F.2d 1014 (5th Cir. 1991), where we
held that a bankruptcy court erred in sanctioning a party for bad-faith conduct which occurred in a
separate state court proceeding. Id. at 1023. We distinguished Chambers by stating:
The state court proceeding in the instant case is completely collateral to the
proceedings in bankruptcy court. The conduct of the parties in the state action cannot
be said to affect the exercise of the judicial authority of the bankruptcy court or limit
the bankruptcy court's power to control the behavior of parties and attorneys in the
litigation before it. Inherent power must arise from the litigation before that court.
Although the substantive issue in the state court proceeding is the same, the conduct
of the parties in that suit is unconnected to the present action.
Id. at 1023-24.
Case does not directly preclude the district court’s sanction award here, as the sanctions
directly arose from litigation before the court. Nevertheless, the sanct ions do not fit within the
example of permissible sanctions which Chambers provided: actions taken in another forum “in
direct contravention of the District Court’s orders.” Chambers, 501 U.S. at 57, 111 S. Ct. at 2139,
115 L. Ed. 2d at __; see also CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791, 793 (5th Cir.
1993) (distinguishing Case from Chambers and noting that the filing in Chambers “not only directly
violated the district court’s order to maintain the status quo pending the outcome of the litigation but
also, if successful, would have eviscerated the court’s ability to enforce specific performance if it so
ordered”).
3
The County Attorney’s Office attempts to distinguish Chambers by noting that in Chambers the
appellate court first determined that the appeal was frivolous and sanctionable. See Chambers, 501 U.S. at 40, 111
S. Ct. at 2130, 115 L. Ed. 2d at __. This distinction was not relevant to the Court’s conclusion that a “party may be
sanctioned for abuses of process occurring beyond the courtroom.” Id. at 57, 111 S. Ct. at 2139, 115 L. Ed. 2d at __.
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Our sister circuits disagree as to whether a district court can sanction a party for filing an
interlocutory appeal which lacks merit. The Ninth Circuit reads Chambers more broadly than we do.
Compare Western Sys., Inc. v. Ulloa, 958 F.2d 864, 873 (9th Cir. 1992) (citing Chambers and
allowing a court to sanction litigants for proceedings in a Guam court) with Matter of Case, 937 F.2d
at 1023-24 (striking down a bankrupt cy’s courts sanctions against a party for acts in state court).
By contrast, other circuits have held—even post-Chambers—that district courts cannot generally
sanction parties for appeals. See In re Villa West Associates, 146 F.3d 798, 808 (10th Cir. 1998)
(“[T]he determination of the right to sanctions . . . for conduct during an appeal is reserved to the
appellate court, although it may allow the trial court to fix the amount of the fees and costs.”)
(quoting Morris by Rector v. Peterson, 871 F.2d 948, 951 (10th Cir.1989)) (alteration in original);
Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926, 935 (2d Cir. 1992) (“In any event, it is
improper for a district court to impose sanctions for appeals taken to this Court.”). We are persuaded
by precedent and the policies underlying a court’s ability to sanction that the latter approach is the
better one.
The purpose of a court’s sanctioning power is to enable it to ensure its own proper
functioning. See Chambers, 501 U.S. at 43, 111 S. Ct. at 2132, 115 L. Ed. 2d at __ (“It has long
been understood that [c]ertain implied powers must necessarily result to our Courts of justice from
the nature of their institution, powers which cannot be dispensed with in a Court, because they are
necessary to the exercise of all others.”) (quotations omitted and alteration in original); United States
v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, 948 F.2d 1338, 1345 (2d Cir. 1991) (“The purpose of [§ 1927] is ‘to deter unnecessary
delays in litigation.’”) (quoting H.R. CONF. REP. NO. 1234, 96TH CONG., 2D SESS. 8, reprinted in
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1980 U.S.C.C.A.N. 2716, 2782). Although the court below felt that its ability to manage its docket
was impinged by the CA’s Office’s appeal, it possessed means other than sanctions of efficiently
managing its docket.4 Given these other means, the court’s interest in using sanctions to ensure its
proper functioning was clearly outweighed by the reasons arguing against imposing sanctions for an
interlocutory appeal.
Most notably, of course, the appellate court is generally better qualified to determine whether
an appeal lacks merit. This finds expression in the Federal Rule of Appellate Procedure allowing only
“a court of appeals” to impose “just damages and single or double costs to the appellee” in a frivolous
appeal. Fed. R. App. P. 38; cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406-07, 110 S. Ct.
2447, 2461-62, 110 L. Ed. 2d 359, __ (1990) (citing Fed. R. App. P. 38 and the sanctions it allows
in support of the Court’s reading that Fed. R. Civ. P. 11 only allows sanctions for “expenses . . . at
the trial level” and not for the costs of defending an appeal).
Additionally, there is the strong policy the district court itself noted of allowing interlocutory
appeals of qualified immunity rulings. See Behrens, 516 U.S. at 305-08, 116 S. Ct. at 838-39, 133
L. Ed. 2d at __. The Supreme Court has previously noted how this policy outweighs the need to
prevent dilatory tactics by defendants, particularly given other options that remain open for
preventing delay. See id. at 310-11, 116 S. Ct. at 840-41, 133 L. Ed. 2d at __.
Finally, allowing parties to obtain sanctions from the district court for a frivolous interlocutory
appeal would allow a party to raise the sanctions issue before the district court when, as here, it did
not raise that issue before the appellate court. This might in turn discourage otherwise meritorious
appeals. Cf. Cooter & Gell, 496 U.S. at 408, 110 S. Ct. at 2462, 110 L. Ed. 2d at __ (“Limiting Rule
4
Most notably, of course, the court could have set an earlier motion cutoff date.
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11's scope [to expenses incurred at trial but excluding appellate expenses] accords with the policy of
not discouraging meritorious appeals.”). Given that we can sanction an appellant for a frivolous
appeal sua sponte, see Fed. R. App. P. 38 (allowing us to enter sanctions after notice), no benefit
accrues from allowing district courts to apply sanctions separately solely because of a frivolous
appeal.5
Having determined that sanctions on the basis of a frivolous appeal are improper, we must
consider whether the district court had any other reason for imposing sanctions. The court identified
two additional reasons. First, the court noted the CA’s Office’s history of filing meritless appeals.
However, just as it was improper for the court to determine the merits of the instant appeal, so was
it inappropriate for the court to consider the merits of other appeals absent an imposition of sanctions
by us in those appeals.
Second, the court found that the CA’s Office unduly delayed filing its appeal. Although
dilatory conduct evincing bad faith might justify sanctions, we do not find support for the district
court’s finding of undue delay in the record. The CA’s Office filed its motion for summary judgment
before the motion cut-off date, and it filed its interlocutory appeal within two days of the district’s
court ruling. Although the CA’s Office could have filed its motion earlier, the fact that it filed the
motion within the time allowed by the court and then promptly appealed does not support a finding
that it unduly delayed.6 Additionally, even if the CA’s Office had unduly delayed in filing the appeal,
5
We only hold that a district court may not sanction based on its determination that an appeal is
frivolous. A district court can still calculate sanctions if we determine that an appeal is frivolous and remand to the
district court to award justifiable damages, costs, or fees. See, e.g., Olympia Co., Inc. v. Celotex Corp., 771 F.2d 888,
894 (5th Cir. 1985) (granting the appellee’s request for appellate expenses in light of the frivolity of the appeal, but
remanding for the district court to determine the amount incurred on the appeal).
6
The court also suggested the CA’s Office’s has previously used appeals as a delay tactic by filing
“similarly meritless interlocutory appeals just prior to trial.” Even if it was proper for the court to look to conduct
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the appropriate remedy would be to sanction it according to what occurred before the district court,
not by awarding the appellee’s appellate attorney fees.
In sum, the district court relied on an erroneous view of the law in sanctioning the CA’s Office
for a meritless appeal, and it lacked evidence to find that the CA’s Office unduly delayed.
Accordingly, we find that it abused its discretion in imposing sanctions.7 Cf. Walker, 168 F.3d at 240.
IV
We AFFIRM the district court’s grant of judgment as a matter of law to the County and Keel.
We REVERSE the court’s award of sanctions to the Conners.
which did not occur before it as a means of evaluating the conduct which did occur before it, cf. Travelers Ins. Co. v.
St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1418 (5th Cir. 1994) (affirming sanctions where the district court
mentioned collateral bankruptcy proceedings in its sanctions order; the district court did not sanction the party for those
proceedings, but rather, “[t]he references to those proceedings contributed to the district court’s implicit determination
that the 60(b)(6) motion [before it] was in bad faith, or undertaken with an improper motive”), the court still had
insufficient evidence of delay in the case before it to justify sanctions.
7
Because we reverse the sanctions award on this grounds, we do not reach the CA’s Office’s
alternative arguments that we should reverse because it was given insufficient notice about sanctions or because § 1927
applies only to individual attorneys and not to offices.
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