Edward Brown v. Wilkinson County Sheriff Department, et al.

In August 2015, Edward Brown sustained serious injuries when he was

beaten by three inmates while in pretrial custody in the Wilkinson County jail

in Mississippi. Brown brought this action under 42 U.S.C. § 1983, alleging,

inter alia, that various individual and municipal Defendants violated his

Fourth and Fourteenth Amendment rights. The district court dismissed all

claims except Brown’s excessive force claim under a theory of bystander

liability against Deputy Sheriff Gloria Ashford, in her individual capacity, and

claims against numerous officers in their official capacities.

Ashford and two other officers moved for summary judgment. The

district court granted the motion,1 dismissing Brown’s claims with prejudice.

The district court held that, with respect to Ashford, Brown lacked evidence

supporting a bystander liability claim and, with respect to the officers, Brown

could not demonstrate any underlying violation of his constitutional rights.

Brown filed a motion to alter or amend the judgment pursuant to Federal Rule

of Civil Procedure 59(e), which the district court denied, noting that Brown was

attempting to relitigate claims not properly before the district court and

reiterating its reasons for denying summary judgment. Brown appealed.

Brown alleges that Ashford and Deputy Sheriff CL Thompson violated

their constitutional duty to protect him from harm at the hands of fellow

inmates and acted with deliberate indifference to his serious medical needs.

However, Brown raised these claims for the first time in his response to

Defendants’ summary judgment motion, and the district court correctly

declined to consider them. See Cutrera v. Bd. of Sup’rs of Louisiana State

* Pursuant to 5TH CIR. R. 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

CIR. R. 47.5.4.

1 Although only two of the officers moved for summary judgment, the district court

granted summary judgment in favor of all officers in their official capacities.

Case: 18-60439 Document: 00514732338 Page: 2 Date Filed: 11/21/2018

No. 18-60439

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Univ., 429 F.3d 108, 113 (5th Cir. 2005) (noting that a claim that was not raised

in the complaint but was raised only in response to a motion for summary

judgment is not properly before the court (citing Fisher v. Metropolitan Life

Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)). Because the district court did

not pass upon these issues, we decline to address them. See Luv N’ Care, Ltd.

v. Groupo Rimar, 844 F.3d 442, 451 n.8 (5th Cir. 2016) (citing Singleton v.

Wulff, 428 U.S. 106, 120 (1976)).

Brown further argues that the district court erred by granting summary

judgment and denying his Rule 59(e) motion with respect to Ashford and the

rest of the officers in their official capacities. We disagree. An officer may be

liable under § 1983 under a theory of bystander liability if she “(1) knows that

a fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.” See

Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (internal quotation marks

omitted). Brown concedes that he was harmed by three inmates and that an

officer’s mere presence, without more, does not give rise to a bystander liability

claim. Because Brown has offered insufficient summary judgment evidence

that any officer participated in the incident, or that Ashford knew of any

officer’s participation, his bystander liability claim against Ashford fails.

Having failed to demonstrate an underlying constitutional violation,

Brown’s failure-to-train-or-supervise claim against Wilkinson County, and his

claims against the officers in their official capacities, fail. See Kentucky v.

Graham, 473 U.S. 159, 165 (1985) (noting that a claim against an individual

defendant in his official capacity is the same as a claim against a municipality);

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal

liability under section 1983 requires proof of three elements: a policymaker; an

official policy; and a violation of constitutional rights whose “moving force” is

the policy or custom.”). Accordingly, we AFFIRM.

Case: 18-60439 Document: 00514732338 Page: 3 Date Filed: 11/21/2018

Affirmed