United States Court of Appeals,
Fifth Circuit.
No. 93-4140.
Willie RICHARDSON, and Rose Richardson, Plaintiffs-Appellants,
v.
Bill OLDHAM, Sheriff of Harrison County, Tex., et al.,
Defendants,
Harrison County, Texas, et al., Defendants-Appellees.
Jan. 28, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
WISDOM, Circuit Judge.
Plaintiffs/appellants Willie and Rose Richardson allege that
the defendants/appellees, law enforcement officers and their
municipal employer, violated the Fourth Amendment when they
searched the Richardsons' home on May 14, 1991. The district court
granted summary judgment for the defendants after striking much of
the plaintiffs' summary judgment evidence.1 The Richardsons
appealed to this Court. We hold that (1) the plaintiffs' Notice of
Appeal was timely filed and vested this Court with jurisdiction;
(2) while some of the district court's evidentiary rulings were
erroneous, none rose to the level of harmful error; (3) the
district court correctly ruled that defendant/appellee Tommy
Harrell was entitled to qualified immunity; and (4) the district
court correctly held that the plaintiffs/appellants had produced
insufficient evidence of a municipal custom or policy to survive
1
Richardson v. Oldham, 811 F.Supp. 1186 (E.D.Tex.1992).
summary judgment for the remaining defendants. We AFFIRM.
I.
A. The Parties
Willie and Rose Richardson are an African-American couple in
their mid-fifties. At all times relevant to this case, they
resided in Harrison County, Texas, at one of four houses located at
Route 3, Box 628 off a then-unnamed dirt road which has since been
christened Frierson. All four houses shared the address "Route 3,
Box 628". To distinguish each house from its neighbors, each house
bore an identifying letter of the alphabet, "A" through "D", but
those letters were not visible from the road.
Harrison County Sheriff Bill Oldham's name still appears in
the style of this case, but he is no longer a party to this
litigation. The Richardsons' claims against Oldham were dismissed
with prejudice on July 9, 1992.2
Defendant/appellee Harrison County employed the two other
defendants/appellees remaining in this case. Defendant/appellee
Tommy Harrell was a law enforcement employee of the County at the
time this lawsuit began; he has since died and the Richardsons
have substituted his estate. Harrell is sued in his official and
individual capacities. Defendant/appellee Rick Berry was the
Harrison County District Attorney and Harrell's superior at the
time this lawsuit arose. Berry is sued only in his official
capacity.
B. The Investigation
In 1991, Harrell conducted a narcotics investigation which led
2
2 Rec. 409-11.
him to suspect that someone who lived on the Richardsons' street
was selling marijuana. Harrell presented a county judge with an
affidavit of a confidential informant. The affidavit described a
purported marijuana sale by an African-American female whose
description does not fit any party to this case.3
Based on the affidavit, Harrell obtained a search warrant to
search a house identified as "Route 3, Box 628" and described as "a
single family residence of wood frame construction.... being a
light colored (off white) colored structure having double entry
front doors".4 Neither the warrant nor the affidavit itself
specified which letter of the alphabet, "A" through "D", identified
the house to be searched. Two of the four houses at Route 3, Box
628 fit the description given in the informant's affidavit: the
Richardsons' home and another house located across the street.
C. The Search and its Aftermath
Between 11:00 p.m. and midnight on May 14, 1991, Harrell and
some Harrison County Sheriff's deputies broke down the front door
of the Richardsons' home and burst in. The Richardsons were asleep
in their bedroom at the time. Harrell and his men roused the
Richardsons from bed and proceeded to search their home for one to
two hours. The search caused the Richardsons great distress and
embarrassment. Some deputies watched Mrs. Richardson use the
bathroom, and the stress of the search so upset Mr. Richardson that
3
The informant's affidavit described a meeting with a female
who was shorter, weighed fifty to sixty pounds less, was lighter
in complexion, and had a different hair color and style from Rose
Richardson, the only black female involved in this case.
4
2 Rec. 400.
he had to lie down.
Plainly, the defendants searched the wrong house. They
recovered no marijuana or other contraband from the search of the
Richardsons' home. They made no arrests and no prosecutions
resulted from the search. The following month, Harrison County
officers searched another of the four homes located at Route 3, Box
628. This time they apparently picked the correct house, found
some marijuana, and made an arrest.
D. The Lawsuit
Had their consequences been less serious, the events just
described might have provided a fitting script for a Keystone Kops
comedy. Instead, the defendants soon found themselves facing the
Richardsons' lawsuit under 42 U.S.C. § 1983 charging them with
assorted constitutional violations in obtaining the warrant and
searching the Richardsons' home. The district court, after
striking parts of several affidavits submitted by the Richardsons,
granted summary judgment for all defendants. We review the
district court's evidentiary rulings for abuse of discretion and
its granting of summary judgment de novo, taking the evidence in
the light most favorable to the Richardsons.
II.
Before proceeding to the merits we must satisfy ourselves of
our jurisdiction to decide this case. The appellees contend that
we lack jurisdiction over defendants Berry and Harrison County.
The appellants have not discussed the jurisdictional question and
were unprepared at oral argument to respond to the appellees'
position. We hold that we have jurisdiction over all three
defendants.
Fed.R.App.P. 4(a)(1) requires that notices of appeal to this
Court be filed within thirty days of the entry of judgment in the
district court. That thirty-day clock is tolled, however, during
the pendency of certain motions under Fed.R.Civ.P. 59. One such
Rule 59 motion is the motion to alter or amend a judgment,5 of
which one variety is the "motion for reconsideration".6 The filing
of a motion for reconsideration has two effects: First, any notice
of appeal is a nullity if it is filed before the district court
rules on the motion for reconsideration,7 and second, the
thirty-day clock for filing a notice of appeal to this Court does
not begin to run until the district court rules on the motion for
reconsideration.8
The district court entered summary judgment in favor of all
the defendants in this case on December 16, 1992. On December 28,
1992, the Richardsons filed a timely motion for reconsideration of
the district court's judgment as to defendant Tommy Harrell.9 The
5
Fed.R.Civ.P. 59(e).
6
See, e.g., Charles L.M. v. Northeast Indep. Sch. Dist., 884
F.2d 869, 870 (5th Cir.1989); Benson v. Bearb, 807 F.2d 1228,
1229 (5th Cir.1987) (per curiam).
7
"A notice of appeal filed before the disposition of any of
the above motions [including Rule 59 motions] shall have no
effect". Fed.R.App. P. 4(a)(4); see, e.g., Treuter v. Kaufman
County, Tex., 864 F.2d 1139, 1142 (5th Cir.1989).
8
Fed.R.App. P. 4(a)(4); see, e.g., Harrell v. Dixon Bay
Transp. Co., 718 F.2d 123, 126-27 (5th Cir.1983).
9
Although served 12 calendar days after the entry of
judgment, this motion was nonetheless served within the ten days
required by Fed.R.Civ.P. 59(e), because of the requirement of
Fed.R.Civ.P. 6(a) that intervening weekends be excluded from the
calculation. Because the motion was served within ten days, we
district court denied their motion on January 15, 1993. The
Richardsons did not file a motion for reconsideration of the
district court's judgment as to defendants Berry or Harrison
County. The Richardsons filed their notice of appeal to this Court
on February 5, 1993—within thirty days after the denial of their
motion for reconsideration, but more than thirty days after the
entry of judgment on December 28, 1992.
Berry and Harrison County contend that because they were not
named in the Richardsons' motion for reconsideration the thirty-day
clock for taking an appeal was never tolled as to them, and
therefore this Court lacks jurisdiction over the Richardsons'
appeal of the summary judgment in Berry and Harrison County's
favor. We disagree.
As noted above, a timely motion for reconsideration vitiates
any notice of appeal filed while the motion for reconsideration is
still pending in the district court. While their motion for
reconsideration as to Harrell was pending, the Richardsons could
not have appealed the district court's ruling as to Berry and
Harrison county to this Court. The appellees ask us to conclude
that the Richardsons waived their right to appeal the district
court's adverse rulings as to Berry and Harrison County by failing
to include Berry and Harrison County in their motion for
reconsideration. We decline to do so. Filing a Rule 59 motion is
will treat it as a motion under Rule 59. See Goodman v. Lee, 988
F.2d 619, 622-23 (5th Cir.1993) (per curiam). We note for
counsel's benefit, however, that the newly revised Fed.R.Civ.P.
59(e) requires filing, not merely serving, the motion within ten
days. See 150 F.R.D. 399.
not a prerequisite to taking an appeal,10 as the appellees would
have us hold.
The rule we state today is a simple one and is consistent with
our Court's precedents even though none of them stated it
explicitly. We hold that a timely Rule 59(e) motion for
reconsideration of a judgment as to one defendant tolls the
thirty-day clock for taking an appeal not only as to that
defendant, but also as to all other defendants whose liability was
determined in the judgment the plaintiff's Rule 59(e) motion seeks
to amend.11 Accordingly, the Richardsons' Rule 59(e) motion as to
Harrell tolled the appeal clock not only as to Harrell, but also as
to Berry and Harrison County. Therefore, their appeal as to all
three defendants was timely filed, and we have jurisdiction to hear
it.
III.
We turn next to the district court's evidentiary rulings. The
district court's summary judgment for the defendants was based on
a summary judgment record from which much of the plaintiffs'
evidence had been excluded. Our review of the district court's
evidentiary rulings has persuaded us that errors were committed,
but none were of such magnitude as to have affected the substantial
10
See 6A James W. Moore & Jo D. Lucas, Moore's Federal
Practice ¶ 59.14 (2d ed. 1993).
11
We have previously held, without explicit discussion of
the matter, that a plaintiff's motion for reconsideration as to
one defendant tolled the appeals clock even as to defendants not
named in the motion. See, e.g., Willie v. Continental Oil Co.,
784 F.2d 706 (5th Cir.1986) (en banc), dismissing appeal of 746
F.2d 1041 (5th Cir.1984); Howell v. Marmpegaso Compania Naviera,
S.A., 566 F.2d 992 (5th Cir.1978) (per curiam).
rights of the plaintiffs, and the errors were therefore harmless.12
A. Willie and Rose Richardson's Affidavit
The district court struck two portions of the plaintiffs'
affidavit. First, the statement that "Tommy Harrell used
unreasonable methods to search their home" was struck as making a
legal conclusion.13 "Mere conclusory allegations are not competent
summary judgment evidence,"14 and the district court was within its
discretion to strike them from the Richardsons' affidavit.
Second, the statement that "[b]ased on information and
belief, in June 1991, a neighbor's home on their road was searched
by Tommy Harrell where marijuana was found" was struck as not based
on personal knowledge and therefore failing the requirements of
Fed.R.Civ.P. 56(e).15 While the non-movant's affidavits should not
be held to as strict a standard as those of the movant for summary
judgment,16 we find no abuse of the district court's discretion in
12
Fed.R.Civ.P. 61. "[T]he erroneous admission or exclusion
of an affidavit that does not meet the Rule 56(e) standard does
not require reversal of a summary judgment if the error is
harmless". 10A Charles A. Wright, Arthur R. Miller & Mary K.
Kane, Federal Practice and Procedure § 2738, at 468-69 (2d ed.
1983).
13
811 F.Supp. at 1196.
14
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), reh'g
denied, 961 F.2d 215 (5th Cir.), cert. denied, 506 U.S. ----, 113
S.Ct. 82, 121 L.Ed.2d 46 (1992); see also Hanchey v. Energas
Co., 925 F.2d 96, 97 (5th Cir.1990).
15
811 F.Supp. at 1196.
16
"[T]he papers of a party opposing summary judgment are
usually held to a less exacting standard than those of the moving
party.... In previous cases we have accepted evidence from the
party opposing summary judgment despite its failure to meet the
technical requirements of Rule 56(e)". Lodge Hall Music, Inc. v.
Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.1987)
(citations omitted). Accord 10A Wright, Miller & Kane § 2738, at
striking the above quoted statement from the plaintiffs' affidavit.
B. Willie James Jones's Affidavit
The district court struck two parts of Willie James Jones's
affidavit. First, Jones's assertion that Harrell searched his
house without a warrant in the "spring/summer ... of 1991" was
struck as insufficiently specific.17 Fed.R.Civ.P. 56(e) requires
that affidavits opposing a summary judgment be specific; the
district court did not abuse its discretion in striking the quoted
portion of Jones's affidavit.
Second, the following assertion, which appeared verbatim in
four other affidavits,18 was struck as not based on Jones's personal
knowledge: "Appearers, due to knowledge in the community, believes
that Tommy Harrell uses illegal searches in a misguided effort to
discourage illegal drug activity".19 The district court's ruling
would be well taken if Jones was asserting that Harrell actually
used illegal searches, but Jones's affidavit merely states that
Jones believed Harrell's tactics were unlawful. Still, any error
in striking that portion of the affidavit was harmless, because
Jones's statement of his belief that Harrell used illegal tactics
had no probative force to prove that Harrell actually did so.
C. Rick Turner's Affidavit
The district court struck the affidavit of Rick Turner, the
484-86.
17
811 F.Supp. at 1196-97.
18
The same language appeared in the affidavits of Paul
Gatson, John Johnson, Odell Beckham, Sr., and Rosa Washington.
19
Id. at 1197.
plaintiffs' expert witness, in its entirety because it was not
based on specific facts.20 Turner described his purported
investigation of alleged prior constitutional violations by
Harrell, without indicating whose rights were violated or how. No
manifest error is evident.21
D. Paul Gatson's Affidavit
The district court struck two parts of Gatson's affidavit.
First, the district court struck the same opinion language that
appeared in Willie James Jones's affidavit, discussed in section
III.B of this opinion. Second, Gatson stated that his residence
was searched without a warrant and that he was not arrested or
charged with any crime as a result of the search. The district
court struck that statement because public records showed that the
search of Gatson's home had in fact been conducted under a warrant
and he had in fact been convicted of possession of a controlled
substance as a result of the search.22
Credibility determinations have no place in summary judgment
proceedings.23 The district court chose to believe the defendants'
evidence over the plaintiffs' and that was error. The non-movants'
summary judgment evidence must be taken as true.24 We conclude,
20
811 F.Supp. at 1197.
21
Washington v. Armstrong World Indus., Inc., 839 F.2d 1121,
1123 (5th Cir.1988).
22
811 F.Supp. at 1197.
23
See Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th
Cir.1993); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d
291, 294 (5th Cir.1987).
24
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
however, that the district court's error in striking this part of
Gatson's affidavit was harmless.
E. John Johnson's Affidavit
The two portions of Johnson's affidavit the district court
struck were substantially identical with the portions stricken from
Jones's affidavit, discussed in section III.B.
F. Bessie Wright's Affidavit25
The district court struck Bessie Wright's affidavit because
it had been notarized by plaintiffs' counsel who, the district
court said, was ineligible to serve as a notary because of a
financial interest in the outcome of the lawsuit.26 The only
authority the district court cited for that unusual proposition,
however, was a Texas state case that plainly does not enunciate the
rule the district court applied.27
The district court erred in striking Wright's affidavit. The
question whether an affidavit is competent summary judgment
evidence begins and ends with the requirements of Fed.R.Civ.P.
25
The district court's opinion, 811 F.Supp. at 1198, refers
to this affiant as "Betsy Wright". We have corrected the
spelling of Ms. Wright's name to that provided by the appellants.
26
811 F.Supp. at 1198.
27
Chambers v. Terrell, 639 S.W.2d 451 (Tex.1982) (per
curiam).
We are not to be understood as approving the holding of
the Court of Appeals that the affidavit ... was void
because the attorney who acted as the notary to take
the affidavits had a "strong financial and beneficial
interest." Among other things, no financial interest
appears in the record. The point is reserved.
Id. at 452 (emphasis added).
56(e). Regardless of what the rule is in Texas state courts, the
district court may not hold the plaintiffs to it. An affidavit is
not incompetent summary judgment evidence merely because
plaintiffs' counsel notarized it. Weighing all the circumstances,
we hold that the district court's error in striking Wright's
affidavit was harmless.
G. Odell Beckham, Sr.'s Affidavits
The district court struck two portions of Beckham's first
affidavit which were substantially identical to the portions
stricken from Jones's,28 previously discussed.
The district court struck Beckham's second affidavit in its
entirety because it was notarized by plaintiffs' counsel. As in
the case of Wright's affidavit, the district court's error in
striking Beckham's affidavit was harmless.
H. Debra Geary and Alan Geary's Affidavits
The district court struck both affidavits in their entirety
because they did not state facts with the specificity required by
Fed.R.Civ.P. 56(e). We find no abuse of the district court's
discretion.
I. Rosa Washington's Affidavit
The district court struck two portions of Washington's
affidavit which were substantially identical to the portions
stricken from Jones's.29 Our analysis of the admissibility of
Jones's affidavit applies.
Having concluded that the district court committed only
28
811 F.Supp. at 1198.
29
811 F.Supp. at 1198.
harmless error in its evidentiary rulings, we proceed at last to
the merits of the plaintiffs' claim.
IV.
A. The "Heightened Pleading" Issue
The district court based its decision, in part, on the
Richardsons' failure to meet the "heightened pleading" standard
this Court established in Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit30 and Elliott v. Perez.31 The
Supreme Court reversed our Leatherman decision and held that no
heightened pleading standard may be required of plaintiffs' § 1983
claims against municipalities.32 The Supreme Court's Leatherman
holding disposes of the heightened pleading question as against
defendants Berry and Harrison County. Defendant Harrell, however,
presents us with the question Leatherman expressly reserved, namely
whether a heightened pleading standard is still permissible when
the plaintiff sues not a municipality but an individual government
official.33
We decide this case without reaching the "heightened pleading"
question as to individual government officials. Rather, we
conclude only that the Richardsons have not met their summary
30
954 F.2d 1054 (5th Cir.1992), rev'd, 507 U.S. ----, 113
S.Ct. 1160, 122 L.Ed.2d 517 (1993).
31
751 F.2d 1472, 1479 (5th Cir.1985).
32
Leatherman, 507 U.S. at ----, 113 S.Ct. at 1163, 122
L.Ed.2d at 524.
33
"We thus have no occasion to consider whether our
qualified immunity jurisprudence would require a heightened
pleading in cases involving individual government officials".
Leatherman, 507 U.S. at ----, 113 S.Ct. at 1162, 122 L.Ed.2d at
523.
judgment burden of raising a genuine dispute as to any question of
material fact. A case will inevitably arise that will force us to
assess the impact of the Supreme Court's Leatherman reasoning on
our Elliott v. Perez precedent, but this is not that case.
B. Defendant Harrell and the "Qualified Immunity" Question
The Richardsons have sued Harrell in his individual capacity.
"Qualified immunity cloaks a police officer from personal liability
for discretionary acts which do not violate well-established law".34
Harrell has qualified immunity if his actions "could reasonably
have been thought consistent with the rights [he is] alleged to
have violated".35
We conclude that the district court was correct in holding
that the Richardsons have not overcome Harrell's qualified
immunity. The Richardsons have met the threshold requirement of
alleging a violation of a constitutional right.36 They have not
succeeded, however, in showing that Harrell could not have
reasonably believed that his search was lawful.37 To make that
showing, the plaintiffs must show that the illegality of the
challenged conduct was clearly established in factual circumstances
34
Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)), reh'g denied, 923 F.2d 851 (5th Cir.1991).
35
Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,
3038, 97 L.Ed.2d 523 (1987).
36
See Siegert v. Gilley, 500 U.S. 226, ----, 111 S.Ct. 1789,
1793, 114 L.Ed.2d 277, 284 (1991), reh'g denied, 501 U.S. ----,
111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991); Quives v. Campbell, 934
F.2d 668, 670-71 (5th Cir.1991).
37
Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40.
closely analogous to those of this case.38 The question before this
Court, then, is whether the illegality of a search based on a
warrant containing a description that fitted two adjacent houses
was so clearly established that Harrell could not reasonably have
believed his search was lawful.
The legality of a warrant is determined in light of the
information available to police officers at the time they obtained
it.39 If at that time Harrell knew or should have known that there
were two houses at Route 3, Box 628 fitting the description given
in the warrant, he would have been obligated to specify in the
warrant which house was to be searched,40 and the search in this
case would have been unlawful. At the time Harrell obtained the
warrant, it is not clear that he knew the description of the
property in the warrant fit two houses at Route 3, Box 628. Nor
will we conclude that he should have known, given that the letter
designations "A" through "D" which differentiated the houses were
38
See White v. Taylor, 959 F.2d 539, 545-56 & n. 5 (5th
Cir.1992); Karen M. Blum, Qualified Immunity: A User's Manual,
26 Ind.L.Rev. 187, 199-202 (1993).
39
Maryland v. Garrison, 480 U.S. 79, 85-86, 107 S.Ct. 1013,
1017-18, 94 L.Ed.2d 72 (1987). This case upheld the validity of
a warrant issued to search the entire third floor of an apartment
building, in the mistaken belief that only one apartment was
located on that floor. While executing the warrant, the officers
discovered that the third floor included more than one apartment.
Because the information available to them at the time the warrant
was issued suggested that only one apartment was on the third
floor, however, the Court upheld the search of the respondent's
apartment even though the warrant did not specify that his was
the apartment to be searched.
40
See id. at 85, 107 S.Ct. at 1017; United States v.
Mueller, 902 F.2d 336, 342 & n. 2 (5th Cir.1990).
not visible from the street.41 In short, Harrell's search was
lawful, so he could reasonably have believed his search was lawful,
and for that reason he is entitled to qualified immunity. We
uphold the district court's summary judgment for Harrell.
C. The Remaining Defendants and a "Municipal Policy or Custom"
A municipality is liable under § 1983 "only where the
municipality itself causes the constitutional violation at issue".42
The violation must be caused by a "municipal policy or custom"
consisting of a " "deliberate' or "conscious' choice" "by city
policymakers".43 This Court has stated that a municipal policy may
be established by a persistent pattern of conduct as well as by a
formal legal declaration.44
41
This conclusion accords with the view of a respected
commentator that warrants which "describe[ ] two or more
different places which are not owned or occupied by the same
individual" should not be "viewed as inherently in violation of
the Fourth Amendment". 2 Wayne R. LaFave, Search and Seizure §
4.5(c), at 223 (2d ed. 1987) (footnotes omitted).
42
City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct.
1197, 1203, 103 L.Ed.2d 412 (1989).
Because he is sued in his official capacity, the
"municipal custom or policy" requirement protects
defendant/appellee Rick Berry as well as Harrison County.
See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992).
43
Harris, 498 U.S. at 385, 389, 109 S.Ct. at 1202-03, 1205
(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106
S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion);
City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct.
2427, 2436-37, 85 L.Ed.2d 791 (plurality opinion), reh'g denied,
473 U.S. 925, 106 S.Ct. 16, 87 L.Ed.2d 695 (1985)).
44
In Bennett v. City of Slidell, 735 F.2d 861, 862 (5th
Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476,
87 L.Ed.2d 612 (1985), we defined "official policy" as:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality's lawmaking officers or by an official
In this case the Richardsons contend that Berry and Harrison
County had an unstated custom of failing to prevent Harrell from
committing unconstitutional acts and failing to discipline him
after he did so. The essence of their argument is that Harrell was
a "loose cannon" who was permitted to engage freely in illegal
searches and seizures without supervision.
Although we must view the evidence in the light most favorable
to the plaintiffs as the non-movants for summary judgment, we are
unable to discern in the record any evidence of a longstanding
pattern of repeated constitutional violations by Harrell, except
for the plaintiffs' conclusory assertions that such a pattern
existed. We do not find evidence in the record of even one
unconstitutional action by Harrell. Absent proof of a pattern of
constitutional violations, there is no basis for imposing liability
on Berry and Harrison County for failing to prevent them. We agree
with the district court that the Richardsons have produced
insufficient evidence of any municipal custom or policy to survive
summary judgment for the defendants.
We AFFIRM the district court's judgment.
to whom the lawmakers have delegated policy-making
authority; or
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.