Case: 19-30595 Document: 00515764877 Page: 1 Date Filed: 03/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 3, 2021
No. 19-30595
Lyle W. Cayce
Summary Calendar Clerk
James Thompson,
Plaintiff—Appellant,
versus
Kenneth Hedrick, Individually and as Concordia Parish Sheriff;
Deputy Sheriff Brown, Individually and as Concordia Parish Deputy
Sheriff; Deputy Sheriff Brock, Individually and as Concordia Parish
Deputy Sheriff; Deborah Cowan, Individually and as Concordia Parish
Deputy Sheriff, incorrectly named as Deborah Towan,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:17-CV-982
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-30595
James Thompson challenges the district court’s Federal Rule of Civil
Procedure 12(b)(6) dismissal of his claims filed pursuant to 42 U.S.C. § 1983
against Concordia Parish Sheriff Hedrick and Deputy Sheriffs Brown, Brock,
and Cowan. (He does not contest dismissal without prejudice of his
supplemental state-law claims.) Thompson’s claims arose from a heart
attack suffered while an inmate at the Concordia Parish, Louisiana, Work
Release Facility. His challenge fails.
Thompson claims defendants are liable in their official and individual
capacities for violating their duty under the Eighth Amendment to provide
him medical care throughout his 90-day sentence. He asserts he was released
from detention shortly after his hospitalization and stent surgery for his heart
attack—but before expiration of his sentence—on account of a cost-saving
policy of providing “cheap” medical care to inmates. Thompson maintains
the court erred: in dismissing his claims pursuant to § 1983 against Sheriff
Hedrick for the implementation of an unconstitutional policy and for failure
to train; and in concluding Deputy Sheriffs Brown and Brock were entitled
to qualified immunity.
Claims may be dismissed under Rule 12(b)(6) if plaintiff fails to allege
facts that, if accepted as true, would entitle him to relief. Fed. R. Civ. P.
12(b)(6). A Rule 12(b)(6) dismissal is reviewed de novo, “accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to . . .
plaintiff[]”. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (citation
omitted). In that regard, dismissal based on qualified immunity is reviewed
de novo. Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).
To state a claim pursuant to § 1983, plaintiff must “(1) allege a
violation of rights secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person
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No. 19-30595
acting under color of state law”. Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521,
525 (5th Cir. 1994).
As an inmate, Thompson had a clearly established Eighth
Amendment right not to be denied, by deliberate indifference, attention to
his serious medical needs. See Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th
Cir. 2006). A prison official acts with deliberate indifference only if “the
official knows of and disregards an excessive risk to inmate health or safety”.
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Thompson does not address the court’s concluding he failed to state
a claim pursuant to § 1983 against Sheriff Hedrick, in his official capacity as
a municipal policymaker, because Thompson: failed to allege he was denied
medical care on account of his early release or required any follow-up care
after his hospital discharge; had no constitutional right to free medical care;
and, upon his discharge, was free to pursue such care if necessary.
Thompson’s failure to assign error to the court’s reasons for dismissal
renders his claim inadequately briefed and, thus, waived. See Fed. R. App. P.
28(a)(8)(A); United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010) (“a
failure to brief . . . constitutes waiver”). Nevertheless, Thompson’s original
and supplemental and amending complaints reveal he did not plead facts
showing the complained-of policy had been applied in a widespread fashion
or that it caused him to be denied medical care in violation of the Eighth
Amendment. See Peña v. City of Rio Grande, 879 F.3d 613, 622 (5th Cir. 2018)
(“[P]lausibly to plead a practice so persistent and widespread as to practically
have the force of law, . . . plaintiff must do more than describe the incident
that gave rise to his injury”) (internal quotation marks and citation omitted).
Thompson similarly does not address the court’s dismissing his
failure-to-train claim against Sheriff Hedrick, in his individual capacity,
because Thompson’s complaint failed to allege with specificity how the
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training program was defective. A failure-to-train claim pursuant to § 1983
requires: a failure to train or supervise the officers involved; a causal
connection between the alleged failure to supervise or train and the claimed
violation of plaintiff’s rights; and the failure to train or supervise constituted
deliberate indifference to plaintiff’s constitutional rights. Id. at 623.
Thompson simply states the premature release of inmates to conserve
medical costs “also shows a lack of training”. His contention is abandoned
because it “does not extend beyond [a] conclusory assertion”. See Garrido-
Morato v. Gonzales, 485 F.3d 319, 321 n.1 (5th Cir. 2007).
Regarding Thompson’s qualified-immunity challenge, he must allege
a constitutional violation that was “clearly established so that the
government official would have known [he] was violating the law”. Romero
v. Brown, 937 F.3d 514, 519 (5th Cir. 2019). Thompson contends qualified
immunity should not apply to Deputy Sheriffs Brown, Brock, and Cowan
because: Thompson was illegally released from his sentence; and Deputy
Sheriff Cowan failed to obtain the correct blood pressure medication or
ensure Thompson was seen by a physician after complaints of a loss of breath,
numbness, and headache.
The facts pleaded regarding Deputy Sheriffs Brown and Brock do not
state an Eighth Amendment violation—they do not allege a wanton disregard
for any serious medical need. See Domino v. Tex. Dep’t of Crim. Just., 239
F.3d 752, 756 (5th Cir. 2001) (“Deliberate indifference is an extremely high
standard to meet.”). By failing to sufficiently allege a constitutional
deprivation, Thompson does not overcome the assertion of qualified
immunity.
Additionally, Thompson fails to mention in his opening brief that
Deputy Sheriff Cowan was dismissed from the action pursuant to Federal
Rule of Civil Procedure 41(b) on account of Thompson’s failure to effect
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No. 19-30595
proper service. Instead, for the first time in his reply brief, he contends the
court abused its discretion by dismissing Deputy Sheriff Cowan.
Thompson’s failure to raise the issue of Deputy Sheriff Cowan’s dismissal in
his opening brief renders it waived. See CenturyTel of Chatham, LLC v. Sprint
Commc’ns Co., L.P., 861 F.3d 566, 573 (5th Cir. 2017) (applying the general
rule that issues raised for the first time in a reply brief will not be considered
on appeal).
AFFIRMED.
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