Case: 22-10483 Document: 115-1 Page: 1 Date Filed: 03/20/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-10483 March 20, 2024
____________
Lyle W. Cayce
Clerk
Eric Cruz,
Plaintiff—Appellant,
versus
Officer Domingo Cervantez,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CV-4
______________________________
Before Stewart, Dennis, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
This appeal concerns an evidentiary ruling during trial and its effect
on the jury’s verdict for Officer Domingo Cervantez as to the deliberate
indifference claims brought against him by Eric Cruz pursuant to 42 U.S.C.
§ 1983. Cruz alleged violations of his constitutional rights arising out of
Cervantez’s failure to protect Cruz from his cellmate while he was a pretrial
detainee at the Lubbock County Detention Center (LCDC). At trial, the jury
agreed that Cervantez violated Cruz’s constitutional rights by showing
deliberate indifference but decided that Cervantez was nonetheless entitled
to qualified immunity because he did not act unlawfully, “in light of clearly
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established law and the information [he] possessed.” Cruz, now pro se,
contends that the district court abused its discretion in excluding evidence of
disciplinary action taken against Cervantez following the underlying
incidents. Because Cruz fails to show that any error affected his substantial
rights, we affirm.
I.
A.
According to the evidence adduced at trial, on June 13, 2015, there
were two incidents between Cruz and his cellmate Spencer Terry in their cell,
number 219: one in the late morning or around noon, and one just after 2:00
p.m. 1 Cell 219 was on the second floor of the cell block and to the right of
Cervantez’s officer station, which was on the first floor situated in the center
of the cell block.
Cruz testified that the first incident was “pretty quick” but that Terry
caused injuries to Cruz’s head and neck and that Cruz “had some noticeable
marks across [his] face . . . .” Several inmates gathered around Cruz and
Terry’s cell door to watch the altercation.
Cruz testified that afterwards, Cervantez called Cruz to his desk to
inquire about Cruz’s injuries, and Cruz, fearing for his safety, asked
Cervantez to move him to a different cell. Cruz testified that Cervantez told
him to wait until the shift change later that day. Testimony at trial, as well as
video footage of the noon altercation, suggested that there was enough
commotion in and around the cell that a reasonable officer would have taken
a closer look. However, there was conflicting evidence about precisely what
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1
Cervantez testified that the first incident “was just a little disagreement” at 10:00
a.m. Cruz testified that the first incident occurred at about noon. Video footage and a
report by Sergeant Brenda Hassell indicate that the first incident occurred just after noon.
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Cervantez could see as events unfolded, as Cervantez testified that the
stairwell in the cellblock obscured his vision into Cell 219.
Cervantez characterized the first incident as a “quick little
argument,” after which he questioned Cruz and Terry about whether
Cervantez needed to know anything. When they both responded “no,”
Cervantez considered the disagreement “squashed.” Cervantez insisted
that he was only aware of a “verbal argument” between the inmates at this
time, that Cruz told him everything was fine with his cellmate, and that Cruz
did not ask to move to a different cell. Cervantez stated that he saw no marks
on Terry or Cruz and nothing out of the ordinary during his jail security check
a few minutes after the first incident.
At about 1:30 p.m., Sergeant Brenda Hassell, Cervantez’s supervisor,
relieved Cervantez for his lunch break, at which time Cervantez did not
report any problems to her. Cervantez returned from lunch around 2:00 p.m.
and later performed a jail security check, during which he apparently did not
look into Cruz and Terry’s cell or note any disturbance.
Cruz testified that around the time Cervantez performed the security
check, as Cruz was packing his belongings in preparation for a move, Terry
attacked him by throwing hot water at him, cutting him with a “homemade
shank,” and beating him. During that altercation, which lasted about fifteen
minutes, Cervantez told the inmates through an intercom to stop
“horseplaying,” but he never went to the cell. Cervantez testified that
though the inmates occasionally were loud, he never knew there was a
“fight.” He could not recall if he used the intercom once or twice. Cervantez
testified he did not go to Cell 219 at the time because he was watching other
inmates cleaning the dayroom and did not want to turn his attention away
from them while they had cleaning supplies that could be used as weapons.
Surveillance footage shows inmates cleaning within the cell block at the time.
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Cervantez eventually called another officer, Corporal Charles
Hoffman, to break up the fight between Cruz and Terry. Cruz was sent to
receive medical treatment for his injuries, which included cuts to his neck,
head, and body. Terry sustained a cut lip. Hassell later noticed large
amounts of blood in Cruz and Terry’s cell. She asked Cervantez if anything
had happened between Cruz and Terry earlier in the day, and Cervantez
responded that “there was nothing out of the ordinary and nothing he could
think of.”
The LCDC initiated a disciplinary investigation into the inmates’
altercations, finding Cruz to have engaged in fighting. Cruz revealed that he
had been attacked by Terry. However, Cruz admitted that he did not tell
Cervantez that he and Terry had gotten into a fight during the noon
altercation.
The Lubbock County’s Sheriff’s Office (LCSO) also initiated an
investigation into Cervantez’s actions. The LCSO investigation culminated
in a disciplinary sanction (the Disciplinary Notice) that concluded that
Cervantez’s conduct constituted both “unsatisfactory performance” in
violation of § 100.37 of the LCSO’s General Orders and “dereliction of
duty” in violation of § 100.21 of the LCDC Policies and Procedures.
The Disciplinary Notice includes the following “Synopsis of Incident
and Violations”:
On 6/13/2015 Officer Cervantez was assigned to work as the
Pod Officer in 1D. At approximately 1210 Officer Cervantez
heard a disturbance in Cell 219 and observed several inmates
gathering at the door of the cell peering inside. As Officer
Cervantez watched, five inmates gathered at the door of Cell
219 and were looking intently into the cell. Officer Cervantez
used the intercom cell page to tell the inmates in Cell 219 to
calm down. Officer Cervantez did not go to the cell to see what
was happening. Officer Cervantez opened the cell door by
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utilizing the touch screen at his officer station to allow the
inmates to exit the cell.
At approximately 1450 the same two inmates were again in Cell
219. Officer Cervantez heard a commotion coming from the
cell. Officer Cervantez again failed to go to the cell to
investigate the disturbance. Officer Cervantez used the
intercom cell page to tell the inmates to settle down. When the
inmates refused to comply, Officer Cervantez still did not go to
the cell to investigate. Instead, he stayed at the officer station
and called another officer who was not in the pod to come in
and look into the situation.
The “Supervisor Comments” 2 in the Disciplinary Notice conclude that:
Officer Cervantez failed to take appropriate action to
investigate a disturbance between two inmates. Officer
Cervantez observed and heard things which should have
caused him to believe there was a reasonable chance the
inmates were involved in or could potentially be involved in a
physical altercation. By not taking action Officer Cervantez
contributed to a situation where physical harm came to both
inmates.
B.
In January 2016, Cruz filed this action against Cervantez and LCDC,
asserting various § 1983 claims. In January 2017, the district court dismissed
Cruz’s claims against LCDC. The court did not dismiss Cruz’s claim against
Cervantez for failing to protect him from harm, concluding that claim
survived preliminary screening, and instead ordered Cervantez to be served
and answer the complaint. The district court later granted summary
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2
The Disciplinary Notice notes that Hassell and a Lieutenant Flud were
Cervantez’s supervisors. The record is unclear, however, on who wrote the Disciplinary
Notice, and it does not appear Hassell signed the Disciplinary Notice.
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judgment in favor of Cervantez. Cruz v. Cervantez, No. 5:16-CV-004, 2018
WL 10151949 (N.D. Tex. Jan. 30, 2018). This court reversed and remanded,
finding that the video surveillance and Cruz’s averments that he told
Cervantez he feared Terry and requested to move cells “create[d] a fact issue
as to whether Cervantez knew that Cruz’s cellmate posed an excessive risk
of harm to Cruz and disregarded that risk.” Cruz v. Cervantez, 784 F. App’x
888, 890 (5th Cir. 2019). On remand, the district court appointed counsel
for Cruz, and the case proceeded to trial in May 2022.
Before trial, Cervantez filed a motion in limine to exclude “[a]ny
comments, testimony, or evidence that [Cervantez] was disciplined for
anything related to [the incidents] involving [Cruz] or that he violated
policies of the [LCSO] or the [LCDC] . . . .” In his motion in limine,
Cervantez argued that the Disciplinary Notice related to “negligent conduct
of [Cervantez], which might also be described as ‘inept, erroneous, or
ineffective,’ things which the Fifth Circuit has found to be incapable of
amounting to deliberate indifference.” Cervantez also argued that the
“disciplinary action related to two separate incidents that occurred in the pod,
and did not relate to an investigation into whether [Cervantez] failed to
protect [Cruz] . . . .” Cervantez contended that such evidence would force
him to introduce evidence to counter the Disciplinary Notice even though
the evidence would be of “limited relevance to a deliberate indifference
issue.” The court reserved decision until trial on whether to admit the
Disciplinary Notice.
During direct examination of Hassell, Cruz’s counsel sought to enter
the Disciplinary Notice and the “determination of [Cervantez’s] dereliction
of duty,” arguing:
[W]e believe there’s been enough testimony at this point to
show that not only were the actions of Mr. Cervantez not
merely negligent as they said is the reason to keep it out, but
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that the jury could find that it was deliberate indifference based
on the other actions that were not taken by Mr. Cervantez on
the date of the incidents in question.
The district court denied the request, stating that “[w]e’re not going down
that road . . . [;] the probative value is outweighed by unfair prejudice,
confusing to the jury. And I just don’t think we need to get into that . . . .”
Regardless, Hassell was critical of Cervantez’s actions. She testified
that based on her review of the video footage, Cervantez conducted a jail
security check shortly after the noon altercation, but “[n]ever even look[ed]
into the cell” where Cruz and Terry had just fought. Reviewing the video
during her trial testimony, Hassell and Cruz’s counsel had the following
exchange about Cervantez’s jail security check:
[Counsel]: Officer Cervantez has testified that you could kind
of turn your head and look and see what’s going on in the cell.
Is that how you’re supposed to do a jail security check?
[Hassell]: No.
[Counsel]: Is that how you would train an officer to do a jail
security check?
[Hassell]: No.
[Counsel]: How would you train an officer to do a jail security
check?
[Hassell]: You go and you have to look in all the cells, okay?
Hassell also offered her thoughts on the cell block environment at the time of
the noon altercation. She testified that “[u]sually when other inmates gather
around the cells, there’s something going on or they’re changing commissary
or something”:
[Counsel]: . . . . So something is up when all the inmates are
gathered around a cell. Is that fair?
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[Hassell]: Yes.
[Counsel]: Okay. If you’re a pod officer and you see all the
inmates gathered around a cell, what do you do?
[Hassell]: Tell them to get away from there.
[Counsel]: And if they keep going back multiple times, what
do you do?
[Hassell]: Go and check.
Though she could not specifically tell what was occurring in Cell 219 based
on the video footage, Hassell stated that the disturbance would lead a
“reasonable officer to say, ‘I need to check on [the commotion].’” Hassell
testified that Cervantez again failed to look into Cruz and Terry’s cell during
his jail security check around the 2:00 p.m. altercation. However, there was
also testimony that Hassell herself conducted a jail security check after the
noon incident, but like Cervantez, noticed nothing out of the ordinary.
After both the 2:00 p.m. altercation and Cervantez’s subsequent call
to Hoffman, Hassell inspected Cell 219. She wrote in her report, and testified
at trial, that she “informed Officer Cervantez there was too much blood in
the cell for the fight . . . to have just happened[,] and some of the blood was
already dry.” 3 Hassell stated that Cervantez did not report any incident to
her because if he had, she would have written about it in her report. She
agreed that whether there “had been a disagreement, an altercation, a fight,
an argument, anything like that in [Cell] 219” was “something as a supervisor
[she] would expect an officer to tell [her].” And she testified that
Cervantez’s reports describing the incidents were poorly written because of
_____________________
3
Hassell’s report is recorded as Defendant’s Exhibit 21. At trial, however, Cruz’s
counsel admitted it as “Plaintiff’s Exhibit 29.” The record does not show a “Plaintiff’s
Exhibit 29,” and a review of the exhibits indicates no other report from Hassell that would
be comparable.
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the lack of details, even though “a class in report writing” was offered in
“jailer school.”
Hassell opined that Cervantez did not act as a “reasonable officer,”
that the noon altercation should have been reported to her when she relieved
Cervantez at lunch because it was “something of significance that [she]
would have wanted to know,” and that both incidents should have been
reported to Hoffman so he would be aware of the situation and how the
incidents “could affect the safety and security of both Mr. Terry and Mr.
Cruz.” However, Hassell conceded that she could not “tell the jury that
Officer Cervantez knew that the inmates were fighting on the day of the
incident,” or that Cervantez “knew and disregarded a substantial risk of
harm to the Plaintiff.” Consistent with Hassell’s caveats, Cervantez offered
as defense expert former Travis County sheriff Margo Frasier, who testified
that under “the totality of the circumstances, there is no way that [she] could
say no reasonable officer would have acted like Officer Cervantez.” Frasier
concluded that Cervantez acted in a manner that a reasonable officer could
have acted.
The jury returned a verdict finding Cervantez violated Cruz’s
“constitutional rights by being deliberately indifferent in failing to protect
him from inmate Spencer Terry on June 13, 2015.” But the jury nonetheless
found Cervantez was entitled to qualified immunity because “a reasonable
officer could have believed that [Cruz] was not in unreasonable
danger . . . and that [Cervantez’s] decision not to move [Cruz] was lawful in
light of clearly established law and the information Defendant Cervantez
possessed.” The court accordingly dismissed Cruz’s claims. Cruz, by now
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pro se, timely filed various motions asserting multiple errors, 4 which the
district court denied. This appeal followed.
II.
Most of the issues Cruz raises distill to ineffective assistance of
counsel claims, which merit little mention. 5 The crux of this appeal is
whether the district court erred by excluding evidence of the investigation
into Cervantez’s actions, particularly the Disciplinary Notice, and whether
any error substantially affected Cruz’s rights. For the following reasons,
even if the district court abused its discretion in excluding the evidence, Cruz
fails to show the error substantially affected his rights because it did not
materially affect the jury’s verdict that Cervantez was entitled to qualified
immunity. 6
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4
For instance, Cruz moved for a new trial, which the district court denied. He also
moved for “Requesting Courts (sic) Ruling,” and filed a “Declaration of Inmate Filing.”
5
Cruz lodges various criticisms of his appointed counsel best summarized as
disagreements between Cruz and counsel regarding the conduct of trial. But civil litigants
are “accountable for the acts and omissions of their attorneys.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). Cruz also asserts that the district
court evinced bias against him in stating that “our jury trial system in this country, it’s the
best system in the world,” as the court thanked jurors for their service after the jury
rendered its verdict. Because Cruz fails to explain how the statement shows bias, this issue
lacks merit.
6
Our dissenting colleague raises another issue, arguing that the district court erred
by “mistakenly inject[ing] an ‘objectively unreasonable’ element into the clearly-
established-law prong of the qualified immunity analysis” and “submitting to the jury the
question of [] objective reasonableness.” Post, at 1. But Cruz did not object to the jury
instructions in the district court, and he nowhere broaches this issue on appeal. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the briefs of
pro se appellants, we also require that arguments must be briefed to be preserved.” (quoting
Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)); cf. United States v.
Sineneng-Smith, 590 U.S. —, —, 140 S. Ct. 1575, 1579 (2020) (Courts “do not, or should
not, sally forth each day looking for wrongs to right.” (quoting United States v. Samuels,
808 F.2d 1298, 1301 (8th Cir. 1987)). Even if the issue were properly before us, it fails on
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A.
Cruz alleged that Cervantez violated his Fourteenth Amendment
rights by acting with “deliberate indifference.” 7 See Hare v. City of Corinth,
74 F.3d 633, 643 (5th Cir. 1996) (en banc) (citing Farmer v. Brennan, 511 U.S.
825 (1994)). “Deliberate indifference is an extremely high standard to
meet,” and a “prison official displays deliberate indifference only if he
(1) knows that inmates face a substantial risk of serious bodily harm and
(2) disregards that risk by failing to take reasonable measures to abate it.”
Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (internal citations and
quotations omitted).
In § 1983 actions like this one, defendants may also raise the defense
of qualified immunity. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th
Cir. 2009). Federal courts conduct a two-part inquiry to determine whether
a defendant is entitled to qualified immunity. First, the court asks whether
the “alleged conduct has violated a federal right” (here, acting with
deliberate indifference in violation of the Due Process Clause), and second,
“whether the right in question was clearly established at the time of the
alleged violation, such that the officer was on notice of the unlawfulness of
_____________________
plain error review: The district court’s qualified immunity instruction was “precisely and
almost verbatim stated according to the Fifth Circuit Pattern Jury Instruction[] . . . 10.3.”
Mason v. Faul, 929 F.3d 762, 764–65 (5th Cir. 2019). Because “[t]he pattern
instruction[] . . . represent[s] an admirable summary based on Supreme Court and Fifth
Circuit precedent of the elements of a plaintiff’s claim[,] . . . [w]e find no error in the
court’s use of the pattern charge[],” id. (collecting cases), much less any “clear or
obvious” error as required on plain error review, United States v. Andaverde-Tinoco, 741
F.3d 509, 516 (5th Cir. 2013).
7
As a pretrial detainee at the time of the incidents, Cruz’s constitutional claims
arise under the Due Process Clause of the Fourteenth Amendment rather than the Eighth
Amendment. See Hare v. City of Corinth, 74 F.3d 633, 639–43 (5th Cir. 1996) (en banc).
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his [] conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc)
(internal quotation marks and citation omitted).
As for the second prong, “qualified immunity shields officials from
civil liability so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks
and citation omitted). For a right to be clearly established it must be
“sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Est. of Bonilla v. Orange County, 982
F.3d 298, 306 (5th Cir. 2020). Though this inquiry 8 is typically a question of
law for the court, and not one within the province of the jury, “in certain
circumstances where there remain disputed issues of material fact relative to
immunity, the jury, properly instructed, may decide the question.” Tucker
v. City of Shreveport, 998 F.3d 165, 172 (5th Cir. 2021) (internal citations and
quotations omitted); see Fifth Circuit Pattern Jury
Instruction (Civil) 10.3 (2020) (instructing that “[q]ualified
immunity applies if a reasonable [officer] could have believed that [his
actions] [were] lawful in light of clearly established law and the information
[the officer] possessed”).
Here, the jury found that Cervantez’s actions met the high standard
for deliberate indifference, and thus constituted a constitutional violation.
This meets prong one of the qualified immunity test. But Cruz’s case faltered
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8
We agree with Judge Dennis that this court’s precedent on qualified
immunity at times has imprecisely discussed “objective reasonableness” as though it were
a distinct consideration in analyzing the second prong of the qualified immunity analysis.
Post, at 2; see Parker v. LeBlanc, 73 F.4th 400, 406 (5th Cir. 2023); Baker v. Coburn, 68 F.4th
240, 251 n.10 (5th Cir. 2023). It is not; “[t]hat quoted standard is a ‘vestige of older caselaw
that predates the Supreme Court’s current test.’” Jimerson v. Lewis, — F.4th —, —, 2024
WL 640247, at *3–4 (5th Cir. 2024) (quoting Parker, 73 F.4th at 406 n.1).
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on prong two, as the jury found that “a reasonable officer could have believed
that [Cruz] was not in unreasonable danger.” We thus focus our analysis on
whether excluding the Disciplinary Notice from evidence affected the jury’s
verdict as to that latter finding.
B.
“We review the . . . exclusion of evidence for abuse of discretion.”
Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 508 (5th Cir. 2012) (citing
Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000)). However, “[e]rroneous
evidentiary rulings by the trial court constitute reversible error only when
those rulings have affected a party’s substantial rights.” Kelly v. Boeing
Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995) (citing Fed. R. Evid.
103). “If the court is sure, after reviewing the entire record, that the error did
not influence the jury or had but a very slight effect on its verdict,” then a
party’s substantial rights have not been affected. Id. (emphasis added)
(internal quotations and citations omitted). The party asserting error bears
the burden of proving he was prejudiced by the exclusion of the evidence.
E.g., Ratliff v. Aransas County, 948 F.3d 281, 286 (5th Cir. 2020); Moench v.
Marquette Transp. Co. Gulf-Inland, LLC, 838 F.3d 586, 594 (5th Cir. 2016).
1.
The district court excluded the Disciplinary Notice because: (1) its
risk of “unfair prejudice” outweighed its probative value, and (2) it could
have potentially confused the jury. See Fed. R. Evid. 403.
“Unfair prejudice” as used in Rule 403 does not encompass
testimony that is merely adverse to the opposing party. Virtually all evidence
is prejudicial to one party or another; otherwise, it would likely not be
relevant at all. The prejudice must be “unfair” to implicate Rule 403, and
that prejudice must “substantially outweigh” the evidence’s probative value.
Id.; Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006)
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(quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)).
The Disciplinary Notice is certainly prejudicial to Cervantez, as it is evidence
that his “unsatisfactory performance” was in derogation of LCDC policies
and procedures. But how it would be unfair to Cervantez is unclear, and it is
likewise questionable whether any unfair prejudice substantially outweighs
the evidence’s probative value. “[F]ail[ure] to follow departmental policy
makes [] actions more questionable, because it is questionable whether it is
objectively unreasonable to violate such a departmental rule.” Rice v.
ReliaStar Life Ins. Co., 770 F.3d 1122, 1133 (5th Cir. 2014). Thus, the district
court likely erred in excluding the Disciplinary Notice on this ground.
It is also unclear that this evidence would have engendered such
confusion as to run afoul of Rule 403. As Cervantez contends, his violations
of LCSO and LCDC policies and procedures and the ultimate conclusions in
the Disciplinary Notice are distinct from the qualified immunity findings the
jury was required to make during trial. But any resulting confusion could
have been ameliorated with limiting instructions to the jury. So again, the
district court likely abused its discretion in excluding the evidence on this
basis. Ultimately, though, as we next explain, the court’s excluding the
Disciplinary Notice does not rise to reversible error because it had little, if
any, effect on the jury’s finding that Cervantez was entitled to qualified
immunity.
2.
A review of the entire record shows that “the error did not influence
the jury or had but a very slight effect on its verdict,” Kelly, 61 F.3d at 361,
specifically its finding that Cervantez’s “decision not to move [Cruz] was
lawful in light of clearly established law and the information Defendant
Cervantez possessed.” Thus, Cruz’s substantial rights were not affected by
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the district court’s exclusion of the evidence. At a minimum, Cruz fails to
meet his burden to show otherwise.
First, Cruz did not offer the Disciplinary Notice to prove prong two
of the qualified immunity test. In other words, he did not argue that it was
probative of whether the law undergirding his claims was clearly established,
or more specifically, whether every reasonable officer would have known that
Cervantez’s actions violated the law. He offered it to substantiate
Cervantez’s deliberate indifference (i.e., to show prong one): During trial,
Cruz argued that the evidence showed Cervantez was “not merely negligent
as [Cervantez] said is the reason to keep it out, but that the jury could find
that it was deliberate indifference based on the other actions that were not
taken by Mr. Cervantez . . . .” Recall that the jury found for Cruz on this
point, without the Disciplinary Notice in evidence.
Next, the Disciplinary Notice is materially duplicative of Hassell’s
trial testimony, such that admitting it would have added very little. If
anything, Hassell’s testimony was more detailed than the Disciplinary
Notice. Hassell testified that inmates “at least four times” looked into Cell
219 where the fighting occurred and rather than checking the cell, Cervantez
called Hoffman to do so. Hassell described multiple ways in which Cervantez
did not act as a reasonable officer, something the Disciplinary Notice never
directly addresses. And narrating the surveillance footage, Hassell agreed
that there were “a lot of things going on [in the cell] that could leave a
reasonable officer to say, ‘I need to check on it.’” This too went
unmentioned in the Disciplinary Notice.
Hassell also testified that Cervantez’s reports regarding the incidents
were unsatisfactory, despite the jail offering “a class in report writing in jailer
school.” She then mentioned specific deficiencies in his reports. And, more
directly to the issue of qualified immunity, Hassell agreed that “[b]ased on
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everything that [she] did in [her] investigation, based on the video and based
on everything” that she discussed with counsel at trial, “Officer Cervantez
[did not] conduct[] himself as a reasonable officer in doing his jail security
checks.” The Disciplinary Notice would have added nothing of substance to
Hassell’s testimony, other than that LCSO concluded, applying an
indeterminate standard, 9 that Cervantez violated LCSO and LCDC policies
and procedures and was disciplined. Cf. Rice, 770 F.3d at 1133 (“[O]fficials
sued for constitutional violations do not lose their qualified immunity merely
because their conduct violates some statutory or administrative provision.”)
(quoting Davis v. Scherer, 468 U.S. 183, 194 (1984)); see Beltran v. City of El
Paso, 367 F.3d 299, 308 (5th Cir. 2004) (same).
On the other side of the ledger, ample evidence supported the jury’s
conclusion that “a reasonable officer could have believed that [Cruz] was not
in unreasonable danger,” such that Cervantez’s actions were “lawful in light
of clearly established law and the information [he] possessed.” Cruz stated
during the LCDC investigation into his and Terry’s conduct that he never
told Cervantez about the first altercation, but he changed his story on the
stand. Hassell testified that she could not determine whether Cervantez
“knew and disregarded a substantial risk of harm to the Plaintiff.” That is
consistent with Cervantez’s expert Frasier’s testimony that under “the
totality of the circumstances, there [was] no way that [she] could say no
reasonable officer would have acted like Officer Cervantez.” And the jury
viewed the surveillance footage from that day, in which they could see what
was occurring and how Cervantez responded. Nothing in the Disciplinary
_____________________
9
The Disciplinary Notice references both “sufficient competency” and the
“highest standard of efficiency.” While this ambiguity goes perhaps more to the bases on
which the district court relied to exclude the Disciplinary Notice under Rule 403, the fact
that the standard underpinning the investigation’s conclusions is unclear also cabins the
probative value of the evidence as to Cervantez’s qualified immunity defense.
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Notice counters this record, buttressing our confidence that any “error did
not influence the jury or had but a very slight effect on its verdict.” Kelly, 61
F.3d at 361. Thus, Cruz’s substantial rights were not affected; at the very
least, Cruz makes no showing to the contrary. Id.; see Sims v. ANR Freight
Sys., Inc., 77 F.3d 846, 849–50 (5th Cir. 1996) (declining to remand when
there was “no reasonable possibility that the outcome would be different if
the case were re-tried”).
III.
Even if the district court abused its discretion in excluding evidence
related to Cervantez’s disciplinary investigation, which culminated in the
Disciplinary Notice he was issued, Cruz fails to show that any error
prejudiced his substantial rights and was thus reversible. The other issues
raised by Cruz in this appeal lack merit. 10 Accordingly, the district court’s
evidentiary ruling and its judgment dismissing Cruz’s claims based on the
jury’s verdict are AFFIRMED.
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10
For the same reasons as discussed above the line, Cruz’s pending motion to
“take judicial notice of the fact that [the] district court once again err[ed]” is DENIED.
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James L. Dennis, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority opinion’s rejection of much of Cruz’s appeal,
including its finding that the district court’s evidentiary exclusion of the
disciplinary notice—though in error—did not impact Cruz’s substantial
rights. I write separately, however, to highlight how the district court, by
submitting to the jury the question of the objective reasonableness of
Cervantez’s behavior, mistakenly injected an “objectively unreasonable”
element into the clearly-established-law prong of the qualified immunity
analysis. See Parker v. LeBlanc, 73 F.4th 400, 406 n.1 (5th Cir. 2023) (noting
that the separate “objective unreasonable” prong is a “vestige of older
caselaw that predates the Supreme Court’s current test . . .”); see also Baker
v. Coburn, 68 F.4th 240, 251 n.10 (5th Cir. 2023) (refusing to add “a
standalone ‘objective reasonableness’ element to the Supreme Court’s two-
pronged test for qualified immunity”).
Though Cruz failed to raise this issue before the district court, the
panel should nevertheless consider the “purely legal matter” of the proper
qualified immunity standard since failure to do so would “result in a
miscarriage of justice.” Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397–98
(5th Cir. 2021) (quoting Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450,
453 (5th Cir. 2008)). Failure to consider this issue would work a “miscarriage
of justice” since, as explained below, Cruz in fact met his burden of rebutting
Cervantez’s assertion of qualified immunity and judgment should have been
entered in his favor. See id. Moreover, Cruz—who is representing himself
pro se—raises the issue of qualified immunity in his opening brief. Pro se
briefing is entitled to liberal construction, and this court “is not limited to the
particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991);
Johnson v. Quarterman, 479 F.3d 358, 359 (5th Cir. 2007) (“Briefs by pro se
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litigants are afforded liberal construction[.]”) (internal citation removed).
Because the panel should consider the purely legal question of the proper
qualified immunity standard, I write briefly to express my concern that
plaintiffs such as Cruz are being held to a higher burden than required by our
caselaw to overcome a defendant’s assertion of qualified immunity.
As we have recently clarified, “there is no standalone ‘objective
unreasonableness’ element to the Supreme Court’s two-pronged test for
qualified immunity.” Hicks v. LeBlanc, 81 F.4th 497, 503 n.14 (5th Cir. 2023)
(internal quotation omitted). To overcome Cervantez’s assertion of qualified
immunity at trial, then, Cruz only had to show that: (1) Cervantez “violated
a statutory or constitutional right; and (2) the right was ‘clearly established’
at the time of the challenged conduct.” 1 Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The record
reflects that Cruz satisfied both prongs of the correct qualified immunity test.
First, the jury found that Cervantez violated Cruz’s Fourteenth Amendment
rights by acting with deliberate indifference. Second, the district court
announced to the jury its legal conclusion that, “[i]n this case, the clearly
established law was that an inmate is entitled to protection from violence at
the hands of another inmate[.]” Because Cruz satisfied both prongs of the
qualified immunity test, judgment should have been entered in his favor.
_____________________
1
To the extent the non-binding Fifth Circuit Pattern Jury Instructions add an
“objective unreasonableness” element into the clearly-established-law prong of the
qualified immunity analysis, they do not accurately reflect the law. Obviously, then, Mason
v. Faul, 929 F.3d 762, 766 (5th Cir. 2019), is inapposite because, in that case, the at-issue
pattern jury instructions accurately reflected “Supreme Court and Fifth Circuit
precedent.” Ante, at 12 n.6 (panel majority wrongly suggesting that Mason stands for the
proposition that a challenge to jury charges always fails plain-error review when the
instructions are borrowed from the pattern jury instructions).
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The district court’s improper submission of the nonexistent question
of objective reasonableness to the jury is reviewed for plain error. Sec. & Exch.
Comm’n v. Life Partners Holdings, Inc., 854 F.3d 765, 783 (5th Cir. 2017)
(“We review unpreserved challenges in civil cases for plain error.”). Under
this standard, which is identical to plain-error review in the criminal context,
the court “must determine (1) if there was error, (2) if that error was plain,
(3) if the error affects substantial rights, and (4) whether allowing that error
to stand seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120,
1124 (5th Cir. 1997). Initially, the district court’s error here was plain because
it is “clear” or “obvious” that juries should not be made to consider
nonexistent questions of law. See id. at 1125 (“‘Plain’ is synonymous with
‘clear’ or, equivalently, ‘obvious.’”) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)).
Further, the district court’s error undoubtedly affected Cruz’s
substantial rights and impacts the “fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 736 (“The Court of Appeals should
correct a plain forfeited error affecting substantial rights if the error
‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’”) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Not only did the injection of the objective reasonableness question hold Cruz
to a higher standard than that required by the Supreme Court’s qualified
immunity test, see al-Kidd, 563 U.S. at 735, but it also impacted Cruz’s
entitlement to relief since, as explained above, Cruz otherwise overcame
Cervantez’s assertion of qualified immunity at trial, see Olano, 61 F.3d at 361. 2
_____________________
2
The panel majority quips that correcting this purely legal error in an appeal
brought by a pro se litigant runs afoul of the precept that we “do not, or should not, sally
forth each day looking for wrongs to right.” Ante, at 11 n.6 (quoting United States v.
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The panel should reverse and remand to the district court with
instructions to enter judgment in favor of Cruz and commence proceedings
to calculate Cruz’s damages. I respectfully dissent.
_____________________
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)). That quote is plucked from a case where
both parties were represented by counsel and, therefore, cannot be read to relieve courts of
their responsibility to take care that pro se litigants’ briefs are liberally construed. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
21