Atteberry v. Nocona General Hosp

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2005

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________

No. 04-11330
_____________________

SELDEN ATTEBERRY, Individually and as Representative of the
Estate of Barbara Atteberry; STACY ATTEBERRY; INDIA
ATTEBERRY, Individually, And As Next Friend of Lydia Diane
Weatherread (a/k/a Lydia Chapmon), a Minor Child; CECILIA
NMI MORGAN, Individually and as Representative of the Estate
of Donna Sue Curnutte; CHARLEY CURNUTTE; CHARLEY B CURNUTTE;
KATHY WEAVER, As Representative of the Estate of William J
Griffin and as Attorney-in-Fact for Ellawean Griffin

Plaintiffs - Appellees

v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11387

SHIRLEY JEANETTE HOLDER, Individually and as Independent
Executor of and Heir to the Estate of Jimmy Ray Holder

Plaintiff - Appellee
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11388

DOIS WAYNE JACKSON, Individually and as Representative of
the Estate of Everett Ethridge Jackson; YVONNE W JACKSON

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11390

BILLIE J HUGGINS, Individually and as Representative and
Temporary Administrator of the Estate of Dorothy Jean
Vanderburg; ESTATE OF DOROTHY JEAN VANDERBURG

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11391

CAROL JEAN JAMES

Plaintiff - Appellee
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________

2
 Consolidated with 04-11392

BETTY MILLER, Individually and as Executrix of the Estate of
Alma Dixon, Deceased; ELAINE CURTISS; DAVID DIXON; RICK
DIXON; REENE MCCAFFERY; GLADYS BOURGE

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants-Appellants
_________________________________________________________________
Consolidated with 04-11394

HARRY DON REID, Administrator of the Estate of Donnelly
Reid, Deceased

Plaintiff - Appellee
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11395

BARBARA GAY NICHOLS RECTOR, Individually and as Legal
Representative and Administrator of the Estate of J T
Nichols; CLIFFORD NICHOLS, Individually and as Heir to the
Estate of J T Nichols; MICHAEL NICHOLS, Individually and as
Heir to the Estate of J T Nichols

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11396

3
 HAROLD GENE VANDERBURG, Individually and as Heir of the
Estate of Dorothy Jean Vanderburg; ESTATE OF DOROTHY JEAN
VANDERBURG

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants
_________________________________________________________________
Consolidated with 04-11397

CHARLES WILLIAMS, Individually and as Representative of the
Estate of John Walter Williams; RICHARD WILLIAMS,
Individually and as Representative to the Estate of John
Walter Williams; DALLAS WILLIAMS, Individually and as
Representative of the Estate of John Walter Williams

Plaintiffs - Appellees
v.

NOCONA GENERAL HOSPITAL; ET AL

Defendants

CHARLES R NORRIS; BARBARA JEAN PERRY

Defendants - Appellants

_______________________________________________________________

Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit
Judges.

KING, Chief Judge:

4
 In this consolidated interlocutory appeal, defendants-

appellants Charles R. Norris and Barbara Jean Perry challenge the

district court’s denial of their motions to dismiss. For the

reasons stated below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The plaintiffs-appellees (the “Plaintiffs”) in this

consolidated appeal are relatives or representatives of eleven

deceased patients and one surviving minor patient (collectively,

the “patients”) at Nocona General Hospital (“Nocona” or the

“Hospital”), a small hospital in Nocona, Texas. The Plaintiffs

allege that Vickie Jackson (“Nurse Jackson”), a nurse at the

Hospital, willfully deprived the patients of life and liberty

interests by injecting them with a paralytic drug named

Mivacron.1 The Plaintiffs claim that Nurse Jackson repeatedly

stole Mivacron from hospital crash carts2 and used it to kill as

many as twenty-two patients between November 2000 and February

2001.

1
The relevant alleged timeline is attached in an
Appendix to this opinion.
2
A crash cart can be defined as “[a] movable collection
of emergency equipment and supplies meant to be readily available
for resuscitative effort. It includes medication as well as the
equipment for defibrillation, intubation, intravenous medication,
and passage of central lines.” Stedman’s Medical Dictionary 422
(27th ed. 2000).

5
 Defendant-appellant Charles R. Norris (“Norris”) is alleged

to have been the Hospital Administrator at Nocona during the

relevant time period, with general administrative and supervisory

authority over the hospital staff and policymaking authority over

drug storage and medical care. Defendant-appellant Barbara Jean

Perry (“Perry”) is alleged to have been the Director of Nursing

at Nocona during the relevant time period, with supervisory and

training authority over Nurse Jackson.

B. Procedural Background

In January and February of 2003, the Plaintiffs filed suits

in the Northern District of Texas against Nurse Jackson, the

Hospital, Norris, Perry, and eleven other defendants. The

Plaintiffs claimed Nurse Jackson’s actions deprived the patients

of their substantive due process rights to life and liberty. See

U.S. CONST. amend. XIV; see also Doe v. Taylor Indep. Sch. Dist.,

15 F.3d 443, 450-51 (5th Cir. 1994) (en banc) (recognizing the

due process “right to be free of state-occasioned damage to a

person’s bodily integrity”) (internal citation omitted). The

Plaintiffs claimed that the Hospital, Norris, Perry, and the

other defendants were liable for these constitutional violations

based on their conscious or deliberate indifference to the

activities of Nurse Jackson, the disappearing Mivacron from the

crash carts, and the ever-increasing number of unexplained

deaths.

6
 Beginning in April of 2003, multiple defendants (including

Norris and Perry) filed motions to dismiss under FED. R. CIV. P.

12(b)(6), attacking the sufficiency of the Plaintiffs’ pleadings

and asserting the defense of qualified immunity. After

consolidating the cases and sending them to a magistrate judge

for pretrial management, the district court denied the

defendants’ motions to dismiss, adopting the magistrate judge’s

conclusion that the Plaintiffs had stated a § 1983 claim against

some defendants, including Norris and Perry.3 The district court

also declined to resolve the defendants’ respective rights to

qualified immunity, adopting the magistrate judge’s

recommendation that a “[d]etermination of the Qualified Immunity

of these defendants should abide” the resolution of factual

issues “upon completion of discovery, summary judgment or trial.”

Atteberry v. Nocona Gen. Hosp., No. 7:03-CV-034-R, at 21-22 (N.D.

Tex. Sep. 8, 2004) (mem.).

Defendants Norris and Perry appeal the denial of their

12(b)(6) motions to dismiss.4 We hold that the district court

3
Adopting the magistrate judge’s recommendations in
their entirety, the district court dismissed all of the
Plaintiffs’ state-law negligence claims for filing in state
court. The district court also dismissed the Plaintiffs’ § 1983
claims with respect to some of the original defendants.
4
In June of 2005 these appeals were consolidated, and a
prior unpublished opinion affirming the district court’s decision
with respect to one individual appeal was withdrawn in order to
permit the consolidated appeals to be considered simultaneously.
See Jackson v. Nocona Gen. Hosp., 132 Fed. Appx. 540 (5th Cir.
May 31, 2005).

7
correctly concluded that qualified immunity will not protect the

conduct alleged in the pleadings in this case, and we affirm the

district court’s denial of Norris’s and Perry’s 12(b)(6) motions

to dismiss on the basis of qualified immunity.

II. APPELLATE JURISDICTION AND STANDARD OF REVIEW

“[A]n order denying qualified immunity, to the extent it

turns on an ‘issue of law,’ is immediately appealable.” Behrens

v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985)). Our jurisdiction in this

context extends to interlocutory appeals taken from both denials

of motions to dismiss and denials of motions for summary

judgment. See Behrens, 516 U.S. at 307 (stating that “an order

rejecting the defense of qualified immunity at either the

dismissal stage or the summary judgment stage is a ‘final’

judgment subject to immediate appeal”). Specifically, the denial

of a motion for dismissal on qualified immunity grounds falls

into that

“small class” of district court decisions that, though
short of final judgment, are immediately appealable
because they “finally determine claims of right
separable from, and collateral to, rights asserted in
the action, too important to be denied review and too
independent of the cause itself to require that
appellate consideration be deferred until the whole
case is adjudicated.”

Behrens, 516 U.S. at 305 (quoting Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949)).

8
 When reviewing a denial of qualified immunity on an

interlocutory appeal, we are restricted to determinations “of

question[s] of law” and “legal issues,” and we do not consider

“the correctness of the plaintiff’s version of the facts.”

Mitchell, 472 U.S. at 528. The “‘essentially legal [immunity]

question,’” which we treat as an entitlement “distinct from the

merits” of the case, is appealable only “‘to the extent that it

turns on an issue of law . . . .’” Behrens, 516 U.S. at 306

(quoting Mitchell, 472 U.S. at 526, 530) (omission in Behrens).

Only these issues of law qualify as appealable “final decisions”

before a final judgment. See id.

We review “the district court’s refusal to dismiss [the

complaint] on the basis of qualified immunity de novo.”

Wilkerson v. Sadler, 329 F.3d 431, 434 (5th Cir. 2003) (emphasis

omitted); see also Morin v. Caire, 77 F.3d 116, 119-20 (5th Cir.

1996) (stating, in a similar qualified immunity context, that a

district court’s ruling on a motion to dismiss is subject to de

novo review). In applying this standard, we accept “all well-

pleaded facts as true, viewing them in the light most favorable

to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th

Cir. 1999) (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d

1395, 1401 (5th Cir. 1996)). Dismissal is inappropriate “unless

the plaintiff would not be entitled to relief under any set of

facts or any possible theory that he could prove consistent with

9
the allegations in the complaint.” Jones, 188 F.3d at 324

(citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).

Some of the Plaintiffs argue that this court lacks

jurisdiction over this appeal, citing Smith v. Brenoettsy, 158

F.3d 908 (5th Cir. 1998). In Smith, we addressed an appeal of

the district court’s denial of a summary judgment motion

asserting qualified immunity. See Smith, 158 F.3d at 911-13.

These Plaintiffs claim that in Smith, this court concluded it

lacked interlocutory jurisdiction because each of the grounds for

appeal raised factual questions rather than legal questions. Id.

Based on this characterization of Smith, these Plaintiffs contend

that we lack jurisdiction over this appeal because Norris and

Perry raise arguments related to their awareness of certain facts

at the time of the patients’ deaths.

These Plaintiffs are mistaken in both their argument and

their characterization of Smith. The resolution of the legal

questions appropriate to an interlocutory appeal involving

qualified immunity will necessarily entail some mention of the

related factual allegations in the complaints. See Mitchell, 472

U.S. at 528-29. Jurisdiction over an interlocutory appeal from a

denial of a summary judgment motion failed in Smith because the

Smith appellant did not raise sufficient legal issues separable

from the facts or the ultimate merits of the case.5 See Smith,

5
In fact, the appellant in Smith simply presented
disputed facts without reference to any substantive legal

10
158 F.3d at 912-13 (concluding that “none of the separable legal

issues identified by [the appellant] are sufficient for us to

grant summary judgment in his favor”). Unavoidable references to

the underlying facts of a case do not spoil our jurisdiction over

a properly composed interlocutory appeal.

III. DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff must

first show a violation of the Constitution or of federal law, and

then show that the violation was committed by someone acting

under color of state law. See, e.g., West v. Atkins, 487 U.S.

42, 48-50 (1988); Piotrowski v. City of Houston, 51 F.3d 512, 515

(5th Cir. 1995). The district court adopted the magistrate

judge’s recommendation that the Plaintiffs sufficiently alleged

that the hospital was a state governmental entity, that Nurse

Jackson was a state actor, and that she had committed a

constitutional violation while acting under color of law. The

district court also adopted the magistrate judge’s recommendation

that the Plaintiffs pleaded facts sufficient to impose liability

on Norris and Perry.

analysis or authority. See Smith, 158 F.3d at 912-913 (stating
that “[the appellant] provides no legal support for this [first]
argument” and “[the appellant] presents no authority to support
his [second] argument”). The substantive legal arguments
provided by Norris and Perry in this appeal, although ultimately
unsuccessful, are different in kind from those described in
Smith.

11
 A qualified immunity defense “serves to shield a government

official from civil liability for damages based upon the

performance of discretionary functions if the official’s acts

were objectively reasonable in light of then clearly established

law.” Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir.

2001); see also Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir.

2004) (en banc) (discussing the important goals served by the

qualified immunity doctrine). “When a defendant invokes

qualified immunity, the burden is on the plaintiff to demonstrate

the inapplicability of the defense.” McClendon v. City of

Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per

curiam).

To discharge this burden, a plaintiff must satisfy a two-

prong test. First, he must claim that the defendants committed a

constitutional violation under current law. See, e.g., Wilson v.

Layne, 526 U.S. 603, 609 (1999); Palmer v. Johnson, 193 F.3d 346,

351 (5th Cir. 1999). Second, he must claim that the defendants’

actions were objectively unreasonable in light of the law that

was clearly established at the time of the actions complained of.

See id. This bifurcated legal standard is designed both to

promote clearer standards for official conduct and to spare

defendants unwarranted liability and court costs. See Wilson,

526 U.S. at 609.

Norris and Perry contend that dismissal is appropriate

because the Plaintiffs have failed each prong of the test.

12
First, Norris and Perry claim that the Plaintiffs failed to

allege a constitutional violation because they have not

sufficiently alleged that either official acted with deliberate

indifference to the patients’ constitutional rights as determined

by current law. Second, Norris and Perry claim that the

Plaintiffs have not sufficiently alleged that either official

acted objectively unreasonably in light of the law that was

clearly established at the time of the alleged murders. Prudence

suggests that these qualified immunity claims should be addressed

separately for Norris and Perry.6 See Jacobs v. W. Feliciana

Sheriff’s Dept., 228 F.3d 388, 395 (5th Cir. 2000).

A. Constitutional Violation

At issue in this appeal is whether the Plaintiffs

sufficiently alleged that Norris and Perry may be held liable for

Nurse Jackson’s alleged violation of the patients’ constitutional

rights. See Hernandez v. Tex. Dep’t of Protective & Regulatory

6
The district court sufficiently analyzed the
Plaintiffs’ allegations with respect to both Norris and Perry.
Specifically, the district court adopted the magistrate judge’s
recommendation that the Plaintiffs sufficiently alleged that
Norris had “general administrative and supervisory duties with
respect to the hospital staff, including Nurse Jackson, and
policy making duties and authority with respect to the drug cart,
training of nurse employees, and the administration of medical
care to patients at the Hospital.” Atteberry v. Nocona Gen.
Hosp., No. 7:03-CV-034-R, at 18 (N.D. Tex. Sep. 8, 2004) (mem.).
With respect to Perry, the district court adopted the magistrate
judge’s recommendation that the Plaintiffs “adequately alleged
[her] to be a potential ‘state actor’ having a sufficient alleged
policy making control over Nurse Jackson and her actions.” Id.
at 19-20.

13
Servs., 380 F.3d 872, 880 (5th Cir. 2004) (determining, as an

initial matter in a similar appeal, whether the alleged

deprivation of constitutional rights could be ascribed to social

workers in supervisory roles); Doe v. Rains County Indep. Sch.

Dist., 66 F.3d 1402, 1406-07 (5th Cir. 1995) (outlining a three-

step approach for “drawing the circle of liability” in a similar

appeal and attempting to determine whether the alleged

deprivation of constitutional rights could be ascribed to school

officials in supervisory roles); Taylor, 15 F.3d at 452

(determining, as an initial matter in a similar appeal, whether

supervisory school officials were liable for alleged breaches of

constitutional rights committed by subordinate employees).

Specifically, this court must determine whether the allegations

of the complaints support supervisory liability on the part of

Norris and Perry when their subordinate, Nurse Jackson, violated

the patients’ constitutional rights. See, e.g., Rains County

Indep. Sch. Dist., 66 F.3d at 1406-07; Taylor, 15 F.3d at 452-54;

Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976).

Ordinarily, supervisors may not be held vicariously liable

for constitutional violations committed by subordinate employees.

See, e.g., Taylor, 15 F.3d at 452. However, supervisors may be

liable for constitutional violations committed by subordinate

employees when supervisors act, or fail to act, with deliberate

indifference to violations of others’ constitutional rights

committed by their subordinates. See, e.g., City of Canton v.

14
Harris, 489 U.S. 378, 386-90, 389, 387 (1989) (concluding that

there are limited circumstances, which must rise to the level of

“deliberate indifference” to constitutional rights, “in which an

allegation of a ‘failure to train’ can be the basis for liability

under § 1983”); Alton v. Tex. A&M Univ., 168 F.3d 196, 200 (5th

Cir. 1999) (noting, in a discussion of Taylor, “that a

supervisory official may be liable under § 1983 if that official

demonstrates a deliberate indifference to a plaintiff’s

constitutionally protected rights”); Taylor, 15 F.3d at 452-56,

454 (adopting a deliberate indifference standard to assess

whether “[a] supervisory school official can be held personally

liable for a subordinate’s violation” of the constitutional

rights of others); Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d

745, 753-60, 757 (5th Cir. 1993) (adopting the deliberate

indifference standard in a similar appeal, and stating that

sister circuits have “uniformly interpreted Canton’s ‘deliberate

indifference’ requirement . . . to apply to all cases involving

facially constitutional policies”).

Deliberate indifference in this context “describes a state

of mind more blameworthy than negligence.” Farmer v. Brennan,

511 U.S. 825, 835 (1994) (citing Estelle v. Gamble, 429 U.S. 97,

104 (1976)). Rather, “acting or failing to act with deliberate

indifference to a substantial risk of serious harm . . . is the

equivalent of recklessly disregarding that risk.” Farmer, 511

U.S. at 836. Relying on Farmer, this court has reiterated the

15
deliberate indifference standard in a variety of contexts. See,

e.g., Hernandez, 380 F.3d at 880 (stating that “[t]o act with

deliberate indifference, a state actor must consciously disregard

a known and excessive risk to the victim’s health and safety”);

Alton, 168 F.3d at 201 (stating that the deliberate indifference

standard is whether “the officials’ conduct reflected a conscious

disregard for the risk that students would suffer bodily injuries

of constitutional dimensions at the hands of student cadet

leaders”); Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.

1998) (stating that a plaintiff “must show that the defendants

(1) were aware of facts from which an inference of an excessive

risk to the [plaintiff’s] health or safety could be drawn and (2)

that they actually drew an inference that such potential for harm

existed”).

Accordingly, to prevail against either Norris or Perry, the

Plaintiffs must allege, inter alia, that Norris or Perry, as the

case may be, had subjective knowledge of a serious risk of harm

to the patients. The test for deliberate indifference is

subjective, rather than objective, in nature because “an

official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation,

cannot under our cases be condemned as the infliction of

punishment.” Farmer, 511 U.S. at 838; see also Hernandez, 380

F.3d at 880; Palmer, 193 F.3d at 352. Following the Supreme

Court’s clear direction, we “may infer the existence of this

16
subjective state of mind from the fact that the risk of harm is

obvious.” Hernandez, 380 F.3d at 881 (quoting Hope v. Pelzer,

536 U.S. 730, 738 (2002)) (emphasis in Hernandez).

Norris and Perry contend the allegations provided by the

Plaintiffs show only that Mivacron was missing from the crash

carts and that the Hospital’s death rate was considerably higher

than over the same period of the previous year. They argue that

these alleged facts, even though we must accept them as true, do

not demonstrate that Norris and Perry had the subjective

knowledge and intent required to establish deliberate

indifference. Determining whether Norris and Perry actually

inferred that the patients were at risk is a question of fact

beyond the scope of this appeal. See Smith, 158 F.3d at 913

(stating that whether a defendant actually drew an inference of

risk from underlying facts is a fact question, which is not

reviewable on interlocutory appeal).

We observe, however, that the case before us “is not a case

in which a plaintiff seeks to impugn an otherwise legitimate

official action by casting bare accusations of malice, bad faith,

and retaliatory animus.” Kinney, 367 F.3d at 374. Contrary to

Norris’s and Perry’s assertions, the Plaintiffs’ pleadings

specify the dates when Mivacron disappeared from the crash cart

and the dates when various patients died, and they continue to

allege that the defendants were aware of these incidents. See

Appendix, infra (providing a detailed timeline of the Plaintiffs’

17
allegations). The Plaintiffs do not, with any specificity,

allege how Norris and Perry came to know of these facts, but

their pleadings are sufficiently detailed on this score to

survive a motion to dismiss.

In addition, Norris and Perry argue that the Plaintiffs’

allegations do not establish deliberate indifference because the

alleged conduct did not constitute a conscious disregard of a

known risk to patient safety. Norris and Perry point out that

their actions, as stated in the complaint, show that they

initiated a good-faith--albeit ineffective--response, which is

generally not sufficient to show deliberate indifference. See

Lefall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531-32 (5th Cir.

1994) (citing Taylor, 15 F.3d at 456 & n.12). According to the

Plaintiffs’ allegations, however, all of these actions occurred

well after the defendants knew: (1) that Mivacron was found

missing approximately ten different times; (2) that the drug had

been wrongfully administered to Nocona patients; and (3) that the

death rate at Nocona was at least double the death rate from the

same two-month period from the preceding year.7 These

7
Norris and Perry attempt to phrase the complaints’
allegations to concede that the defendants did not have actual
knowledge of facts from which they could infer a risk of serious
harm until early February 2001. In fact, the complaints make no
such concession, but instead state that, by early February 2001,
the defendants had connected the deaths to Nurse Jackson
specifically.

18
allegations suffice to establish a conscious disregard of a known

and excessive risk of serious harm.

In sum, the Plaintiffs alleged that Norris and Perry knew

both that a dangerous drug was missing and that patients were

dying at an unusually high rate. They also alleged that although

Norris and Perry should and could have investigated the deaths

and missing drugs or changed hospital policy, they did nothing

for a considerable period of time. For Rule 12(b)(6) purposes,

the requisite deliberate indifference is sufficiently alleged.

B. Objectively Unreasonable

“To be ‘clearly established’ for purposes of qualified

immunity, ‘[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing

violates that right.’” Kinney, 367 F.3d at 349-50 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In practice,

this means that “whether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful

action generally turns on the ‘objective legal reasonableness’ of

the official’s action, assessed in light of the legal rules that

were ‘clearly established’ at the time it was taken.” Anderson,

483 U.S. at 639; see also Wilson, 526 U.S. at 614. This court

has repeatedly held that objective reasonableness in a qualified

immunity context is a question of law for the court to decide,

not an issue of fact. See, e.g., Williams v. Bramer, 180 F.3d

19
699, 703 (5th Cir. 1999) (stating that “objective reasonableness

is a matter of law for the courts to decide, not a matter for the

jury”); Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir.

1998); Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir.

1994).

For a plaintiff to establish objective unreasonableness and

overcome a qualified immunity defense, he must satisfy two

inquiries. First, a plaintiff must show “the allegedly violated

constitutional rights were clearly established” at the time of

the alleged violation. Palmer v. Johnson, 193 F.3d 346, 351 (5th

Cir. 1999) (quoting Hare, 135 F.3d at 326) (emphasis omitted in

Palmer). Second, a plaintiff must demonstrate that “the conduct

of the defendants was objectively unreasonable in the light of

that then clearly established law.” Id.

With respect to the first inquiry, Norris and Perry

acknowledge that deliberately indifferent supervisors in prisons,

schools, and mental institutions have been held liable for

constitutional violations committed by subordinate employees.

See, e.g., Appellant’s (Atteberry) Br. at 17-18. But they argue

that these precedents do not clearly establish that a public

hospital official owes a constitutional duty to protect patients

from harm in similar situations. Id.

Norris and Perry are mistaken in this belief. They attempt

to define the parameters of clearly established law too narrowly.

As this court has long held, the term “clearly established” “does

20
not necessarily refer to ‘commanding precedent’ that is

‘factually on all-fours with the case at bar,’ or that holds the

‘very action in question’ unlawful.” Taylor, 15 F.3d at 454-55

(quoting Jefferson, 817 F.2d at 305 & n.1 (footnote omitted in

Taylor) and Anderson, 483 U.S. at 640). Contrary to Norris and

Perry’s general assertions, a constitutional right “is clearly

established if ‘in the light of pre-existing law the unlawfulness

[is] apparent.’” Taylor, 15 F.3d at 455 (quoting Anderson, 483

U.S. at 640) (omission in Taylor); see also Hope, 536 U.S. at

739-41; Kinney, 267 F.3d at 350. More to the point, the

unlawfulness of their alleged conduct is readily apparent from

relevant precedent in sufficiently similar situations. See,

e.g., City of Canton, 489 U.S. at 381-90, 388 (stating that “a

city can be liable under § 1983 for inadequate training of its

employees”); Brown v. Bryan County, 219 F.3d 450, 459-463, 462

(5th Cir. 2000) (stating that a county, “through its policymaker,

is culpable for purposes of § 1983 for its choice not to train

[an employee] (and not to provide proper supervision for him)”);

Bradley, 157 F.3d at 1025-26 (ruling, in a similar appeal, that a

plaintiff’s allegations were sufficient to pierce the qualified

immunity of supervisory prison officials based on months of filed

complaints about unhygienic conditions); Taylor, 15 F.3d at 452-

65 (ruling, in a similar appeal, that a plaintiff’s allegations

were sufficient to pierce the qualified immunity of supervisory

school officials who were allegedly indifferent to child

21
molestation committed by a subordinate); Sims, 537 F.2d at 831-32

(ruling, in a similar appeal, that the absence of direct

“personal participation” by police supervisors and police

disciplinary committees did not justify a 12(b)(6) motion to

dismiss).

Moreover, the Plaintiffs have alleged that Norris and Perry

failed to comply with a number of relevant state statutes,

including Chapter 133 of the Texas Administrative Code, the Texas

Pharmacy Act, the Texas Health Safety Code, and TEX. REV. CIV.

STAT. art. 4590i. The Plaintiffs argue that these alleged

violations of state statutes imposed non-discretionary duties

upon Norris and Perry, vitiating their qualified immunity defense

altogether. Qualified immunity is only available when an

official acts “within the scope of [his or her] discretionary

authority.” Brooks v. George County, 84 F.3d 157, 164-65 (5th

Cir. 1996) (quoting Cronen v. Tex. Dep’t of Human Servs., 977

F.2d 934, 939 (5th Cir. 1992)). In both the Plaintiffs’

complaint and in their briefs before this court, this argument is

tenuous. It is enough, at this point, to say that some of these

statutes may create non-discretionary duties which would vitiate

qualified immunity, and others may create duties with an element

of discretion.

Finally, Norris and Perry contend the Plaintiffs have not

shown their alleged actions were objectively unreasonable in

light of existing law, even if existing law clearly established

22
that hospital officials owed a relevant duty to protect their

patients from constitutional violations such as those allegedly

committed by Nurse Jackson. Norris and Perry assert that

objectively reasonable hospital officials “could not have known

that failing to piece together seemingly unrelated facts

concerning higher death rates and missing medication was

ultimately a violation of the Plaintiffs’ constitutional rights.”

(Appellants’ (Atteberry) Br. at 18.) Without prejudice to Norris

or Perry, we believe that the Plaintiffs’ well-pleaded facts are

sufficient to survive a motion to dismiss.

IV.CONCLUSION

For the reasons stated above, we affirm the district court’s

denial of Norris’s and Perry’s 12(b)(6) motions to dismiss.

AFFIRMED.

23
 APPENDIX 1

Timeline of Allegations

November 23: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

November 28: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

December 12: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

December 19: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

December 24: Boyd Bruce Burnett dies. It is unclear when

he was injected.

24
 Also, Barbara Atteberry is injected.

December 30: Barbara Atteberry dies at another facility.

December 31: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

January 6: Dorothy Jean Vanderburg is injected and dies.

January 7: Jimmy Ray Holder dies. It is unclear when he

was injected.

Also, Alma Dixon dies. It is unclear when

she was injected.

Also, defendants realize that Mivacron is

missing from a crash cart and replace it from

the pharmacy stock.

January 8: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

25
January 11: J.T. Nichols dies. It is unclear when he was

injected.

Also, John Walter Williams dies. It is

unclear when he was injected.

January 24: William Griffin is injected.

Also, defendants realize that Mivacron is

missing from a crash cart and replace it from

the pharmacy stock.

January 25: Defendants realize that Mivacron is missing

from a crash cart and replace it from the

pharmacy stock.

January 28: Lydia Diane Weatherread (a/k/a Lydia Chapmon)

is injected. She survives.

January 30: Defendant Pharmacist Fenoglio begins looking

for the missing Mivacron. He commences an

internal investigation of the missing

Mivacron, along with the hospital.

26
 Also, William Griffin dies.

Also, defendants realize that Mivacron is

missing from a crash cart and replace it from

the pharmacy stock.

January 31: Donna Curnutte is injected.

Early February: Defendants realize that twenty-two of the

twenty-three deaths in Nocona Hospital since

November had their origin on the night shift,

and that Jackson was on night shift duty when

most or all of these deaths occurred.

February 4: Everett Jackson dies. It is unclear when he

was injected.

February 6: Defendants notify law enforcement.

February 8: Defendant Pharmacist Fenoglio notifies the

Texas State Board of Pharmacy of the loss or

theft of at least ten vials of Mivacron

Injection.

27
February 18: Donnelly Reid is injected. He survives until

June. He dies on June 18, 2001.

As a result of this injection, Nurse Jackson

is caught.

February 19: Donna Curnutte dies.

February 20: Nurse Jackson’s employment is terminated.

28