Smith v. Packnett , 339 F. App'x 389 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 21, 2009
    No. 08-61100                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    DONNA SMITH
    Plaintiff - Appellee
    v.
    O J PACKNETT, Individually; REGINALD JACKSON, Individually
    Defendants - Appellants
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 5:07-CV-175
    Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Donna Smith filed this 
    42 U.S.C. § 1983
     action against O.J. Packnett and
    Reginald Jackson, individually and in their official capacities as Deputy Sheriff
    and Sheriff, respectively, of Wilkinson, County, Mississippi, alleging that
    Packnett arrested her without probable cause, that Packnett used excessive force
    to effectuate arrest, and that Jackson failed to adequately train or supervise
    Packnett.     The district court denied Packnett’s and Jackson’s motions for
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    No. 08-61100
    summary judgment based on qualified immunity, and Packnett and Jackson
    filed a timely interlocutory appeal. For reasons we explain, however, we lack
    jurisdiction to review the district court’s denials. Accordingly, we dismiss the
    appeal.
    I.
    The underlying facts of this appeal are as follows.
    On August 9, 2007, members of the Wilkinson County Democratic
    Executive Committee convened at the county courthouse to count absentee
    ballots purportedly cast in a primary election held two days prior. Smith’s
    husband, Kirk Smith, was a candidate for supervisor in that election, and Smith
    was present to observe committee members count the absentee ballots. During
    a pause in the count, Smith asked for permission to speak. When committee
    members failed to recognize her, she proceeded to express her concerns with the
    count and the election process.
    By all accounts, Smith’s speech caused some disturbance in the
    courthouse. By Smith’s account, at that point Packnett grabbed her forcefully
    and instructed her to stop speaking. By Packnett’s account, Packnett first
    warned Smith that if she did not stop speaking, he would have to arrest her;
    when she did not, he effectuated a formal arrest.
    Smith alleges that even though she did not resist arrest, Packnett
    forcefully grabbed her, spun her around, tightly handcuffed her, and twisted her
    arms behind her back; in the process she alleges he slammed her into a row of
    chairs and into door jambs. She claims that she suffered injury to her right
    shoulder and neck.
    Although Jackson was not present at the scene, Smith seeks to hold him
    liable for Packnett’s alleged abuses on the basis that Jackson, Packnett’s
    supervisor, failed to adequately train Packnett on the use of force. In support
    of that claim, Smith pointed to a recent opinion in a case involving Packnett and
    2
    No. 08-61100
    Jackson in which it was alleged that Packnett used excessive force in four prior
    arrests. See Ellis v. Packnett, No. 5:06-CV-33, 
    2007 WL 2688540
    , at *10 (S.D.
    Miss. Sept. 10, 2007).
    Asserting qualified immunity, Packnett and Jackson moved for summary
    judgment on all claims against them in their individual capacities. The district
    court denied those motions on the basis that there exist genuine issues of
    material fact as to whether Packnett unlawfully arrested Smith, whether
    Packnett used excessive force to effectuate arrest, and whether Jackson failed
    to train or supervise Packnett. Packnett and Jackson appeal.
    II.
    “Before reaching the merits of this case, we must first satisfy ourselves
    that the appeal is properly before us.” Goodman v. Harris Co., 
    443 F.3d 464
    , 467
    (5th Cir. 2006) (quoting Steadman v. Texas Rangers, 
    179 F.3d 360
    , 365 (5th
    Cir.1999)). This court’s jurisdiction is generally limited to the review of a district
    court’s final orders, qualified interlocutory orders, and collateral orders. 
    28 U.S.C. §§ 1291
    , 1292; Goodman, 
    443 F.3d at 467
    . The denial of a motion for
    summary judgment typically is not a final, appealable order. A denial of a
    motion for summary judgment based on qualified immunity, however, is
    immediately appealable under the collateral order doctrine when it is based on
    a conclusion of law. Mitchell v. Forsyth, 
    427 U.S. 511
    , 530 (1985); Thibodeaux
    v. Harris Co., 
    215 F.3d 540
    , 541 (5th Cir. 2000). A denial based on the presence
    of a factual dispute, on the other hand, is not immediately appealable. Johnson
    v. Jones, 
    515 U.S. 304
    , 307 (1995); Thibodeaux, 
    215 F.3d at 541
    .
    Thus, to determine whether a denial of summary judgment based on
    qualified immunity is immediately appealable, we necessarily look at the basis
    of the district court’s denial. “When a district court denies summary judgment
    on the basis that genuine issues of material fact exist, it has made two distinct
    legal conclusions: that there are ‘genuine’ issues of fact in dispute, and that these
    3
    No. 08-61100
    issues are ‘material.’” Reyes v. City of Richmond, Tex., 
    287 F.3d 346
    , 350-51 (5th
    Cir. 2002). We can review a legal conclusion that issues are material, 
    id.
     (citing
    Bazan v. Hidalgo Co., 
    246 F.3d 481
    , 490 (5th Cir. 2001)), but we may not review
    a conclusion that issues of fact are genuine, 
    id.
     at 351 (citing Behrens v. Pelletier,
    
    516 U.S. 299
    , 313 (1996)). That is, we may not review a district court’s decision
    denying summary judgment on the basis that there remains a significant factual
    dispute because we would, perforce, be required to decide an issue of fact.
    Thus, to satisfy ourselves that this appeal is properly before us, for each
    of Smith’s claims we must look at the basis for the district court’s denial of
    summary judgment based on qualified immunity. As we explain below, because
    for each claim the district court found a significant factual dispute, we lack
    jurisdiction to review its denials.
    III.
    We begin with Smith’s unlawful arrest and excessive force claims against
    Packnett.
    A.
    Smith alleges that Packnett violated her constitutional right to be free of
    unlawful arrest because he arrested her without probable cause. “Probable
    cause exists when the totality of the facts and circumstances within a police
    officer’s knowledge at the moment of arrest are sufficient for a reasonable person
    to conclude that the suspect had committed or was committing an offense.” Mesa
    v. Prejean, 
    543 F.3d 264
     (5th Cir. 2008) (quoting United States v. McCowan, 
    469 F.3d 386
    , 290 (5th Cir. 2006)).
    Packnett claims he had probable cause to arrest Smith under M ISS. C ODE
    A NN. § 97-35-7(1), which provides for the arrest of persons who provoke a breach
    of the peace. That statute states:
    Whoever, with intent to provoke a breach of the peace, or under
    such circumstances as may lead to a breach of the peace, or which
    4
    No. 08-61100
    may cause or occasion a breach of the peace, fails or refuses to
    promptly comply with or obey a request, command, or order of a law
    enforcement officer, having the authority to then and there arrest
    any person . . . shall be guilty of disorderly conduct.
    First, there is the factual question whether Smith’s speech indeed
    provoked a breach of the peace that would warrant police response against her
    in the first place. Second, the cited statute authorized Packnett to arrest Smith
    only after she failed or refused to comply with an order to cease her offending
    conduct. Smith claims, however, that Packnett arrested her at the precise
    moment he grabbed her arm and simultaneously instructed her to “sit down and
    shut up or I’ll have to arrest you.” Packnett does not deny that he initially
    grabbed Smith’s arm, but instead argues that whether he did is immaterial
    because that act could not constitute an arrest. Packnett claims he “finally
    placed Smith under arrest” only after she refused to comply with his request
    that she desist.
    Contrary to Packnett’s assertion, whether he grabbed Smith’s arm at the
    same time he instructed her to desist is material to whether Packnett arrested
    Smith without probable cause. Packnett’s act of grabbing Smith’s arm arguably
    could constitute an arrest, depending on how other facts relating to the
    disturbance develop.   Although at that moment Smith may not have been
    formally under arrest, a jury could find that Smith “would have understood the
    situation to constitute a restraint on freedom of movement of the degree which
    the law associates with formal arrest.” United States v. Corral-Franco, 
    848 F.2d 536
    , 540 (5th Cir. 1988) (quoting United States v. Bengivenga, 
    845 F.2d 593
    , 596
    (5th Cir. 1988) (en banc)); see also Freeman v. Gore, 
    483 F.3d 404
    , 413 (5th Cir.
    2007).
    The district court denied summary judgment on the basis that “[t]he facts
    relating to the initial contact between Smith and Packnett remain in dispute.”
    5
    No. 08-61100
    We agree and accordingly we lack jurisdiction to review its denial of qualified
    immunity as to Smith’s unlawful arrest claim.
    B.
    Smith also alleges that Packnett used excessive force to effectuate arrest.
    An excessive force claim requires a plaintiff to show she suffered “(1) an injury
    that (2) resulted directly and only from the use of force that was excessive to the
    need and that (3) the force used was objectively unreasonable.” Ballard v.
    Burton, 
    444 F.3d 391
    , 402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 
    381 F.3d 391
    , 396 (5th Cir. 2004)).
    Smith claims that although she put up no resistance, Packnett forcefully
    grabbed her, spun her around, tightly handcuffed her, and twisted her arms
    behind her back, and that in the process he slammed her into a row of chairs and
    into door jambs. She claims that she suffered injury to her right shoulder and
    neck.
    Packnett argues that any injury Smith suffered is due solely to her “active
    and fierce resistance” to his attempts to handcuff her. In support, he points to
    video evidence that he claims disproves Smith’s allegations. The video evidence,
    however, is little more than three short and unclear video images recorded by a
    cell phone. In the first clip, Smith appears to be addressing the committee; in
    the next clip, Packnett is handcuffing Smith; the final clip captures Packnett
    escorting Smith from the courtroom. The video does not capture Packnett’s
    initial contact with Smith, and the contact it does capture is not fluid. There is
    no video evidence of what transpired in the time before and between the clips.
    Packnett also points to a portion of Smith’s own deposition testimony that
    he argues rebuts her allegations. Smith stated:
    [W]hen he tried to spin me around, I was standing right next to the
    chairs, and, you know, the chairs are bolted to the floor. And there’s
    kind of like a bar that the chairs are bolted to. And when he spun
    me around, I hit – my ankle hit the bar at the bottom. My knee hit
    6
    No. 08-61100
    the – the arm. And when that – when he kind of spun me around
    when I hit that, that’s when I kind of fell on top of the chairs. And
    I guess, since he was holding onto the handcuffs, it pulled him kind
    of half on top of me, not – you know, he didn’t totally land totally on
    top of me. It was kind of like I pulled him on top of me.
    The district court concluded that, notwithstanding Packnett’s evidence, in
    the light of Smith’s allegations “there exists a genuine issue of material fact as
    to whether a reasonable officer would have known that such actions constitute
    excessive force.” The district court thus denied summary judgment based on
    qualified immunity as to Smith’s excessive force claim because it found a
    significant fact-related dispute. We therefore do not have jurisdiction to review
    that denial.
    IV.
    Finally, we review the district court’s denial of qualified immunity to
    Sheriff Jackson, in his individual capacity, for his alleged failure to train
    Packnett.1
    1
    We note only in passing that the failure to train an employee is not itself a violation
    of the Constitution; it is instead a basis for holding an employer liable when an employee
    violates the Constitution. Our cases have held that the supervisor may be personally liable
    for the individual acts of an employee, but “only at the point when the [plaintiff] shows that
    the official, by action or inaction, demonstrates a deliberate indifference to [the victim’s]
    constitutional rights.” Doe v. Taylor Independent School District., 
    15 F.3d 443
    , 454 (5th Cir.
    1994). In this case, for instance, it is not alleged that Jackson himself violated the
    Constitution, but instead that he was deliberately indifferent to constitutional violations.
    This distinction reveals the uncomfortable fit between qualified immunity and failure
    to train claims. The standard test for qualified immunity requires, first, the allegation of a
    violation of an established constitutional right and, second, a showing that, notwithstanding
    that violation, the officer’s actions were objectively reasonable under then-clearly established
    law. Thomson v. Upshur Co., 
    245 F.3d 447
    , 456 (5th Cir. 2001). Because the failure to train
    is not itself a violation of the Constitution, the first prong of the standard qualified immunity
    analysis technically cannot be addressed. Furthermore, the second prong seems inapplicable
    because an officer, having acted with deliberate indifference, can hardly be said to have acted
    with objective reasonableness. Nevertheless, our cases have assumed, without addressing the
    incongruence, that qualified immunity mechanically applies to failure to train claims. See,
    e.g., Estate of Davis v. City of N. Richland Hills, 
    406 F.3d 375
     (5th Cir. 2005). We do not
    resolve the incompatibilities here because, as we explain in the text, we are without appellate
    7
    No. 08-61100
    Jackson was not present when Smith was arrested and Smith has not
    alleged Jackson’s personal involvement. Smith alleges instead that Jackson is
    personally and individually liable for having failed to train or supervise Packnett
    regarding the use of force and proper arrest procedures, and that those failures
    caused Packnett to violate Smith’s constitutional rights. To establish individual
    liability of a supervisor for failure to train, a plaintiff must show that “(1) the
    supervisor either failed to supervise or train the subordinate official; (2) a causal
    link exists between the failure to train or supervise and the violation of the
    plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate
    indifference.” Estate of Davis v. City of N. Richland Hills, 
    406 F.3d 375
    , 381-82
    (5th Cir. 2005).
    Smith offered evidence of five prior incidents involving Packnett that are
    similar to the incident that is the subject of this case. Those prior incidents are
    documented in a recent opinion in a case involving Packnett and Jackson in
    which it was alleged that Packnett used excessive force to arrest a mother in the
    presence of her three children during a traffic stop. See Ellis v. Packnett, No.
    5:06-CV-33, 
    2007 WL 2688540
    , at *10 (S.D. Miss. Sept. 10, 2007). On Jackson’s
    motion for summary judgment in that case on the issue of his failure to train
    Packnett, the district court observed:
    The plaintiffs have submitted evidence of prior incidents involving
    Deputy Packnett which are similar, in varying degrees, to the
    jurisdiction in this interlocutory appeal to review the denial of qualified immunity.
    Before we leave the subject, however, we will also note the coincidence that the
    elements necessary to establishing Sheriff Jackson’s personal liability for the failure to train
    are identical to the elements required to establish his official liability. We need not address
    the important question implied by this coincidence – whether a municipality’s liability is also
    determined whenever a supervisor, who is also a policymaker, is personally liable for the
    failure to train – but a later panel may be required to do so.
    8
    No. 08-61100
    incident complained of in this case. Deposition of Amy Rene Bell
    Greer; Deposition of John Roland White; Deposition of Jewell Jack
    Darden; Deposition of Emily Holliday Lewis. It is also alleged that
    Sheriff Jackson was directly notified of three of these incidents.
    Greer Depo.; White Depo.; Lewis Depo.
    Jackson concedes that there have been “some incidents” in which Packnett
    has been accused of handcuffing arrestees too tightly, citing Freeman v. Gore,
    
    483 F.3d 404
    , 417 (5th Cir. 2007) (citations omitted) (“handcuffing too tightly,
    without more, does not amount to excessive force”). Jackson denies, however,
    that those incidents were sufficient to alert him to any inadequacy in Packnett’s
    training. According to Jackson, his department “constantly” trains on the use
    of excessive force. Jackson claims that Packnett has participated specifically in
    the department’s domestic violence and homeland security training sessions,
    both of which he claims included instruction on the use of force. He also points
    to Packnett’s initial training at the Mississippi Law Enforcement Training
    Academy, and to testimony in which Packnett stated that Jackson hosts training
    sessions on arrest techniques, the use of force, and other matters every other
    month.
    The district court concluded that, notwithstanding Jackson’s evidence,
    “Smith’s evidence is sufficient to create a genuine issue of material fact as to
    whether Packnett was properly trained/properly supervised and, further,
    whether Jackson acted with deliberate indifference as to Packnett’s training
    and/or supervision,” and denied qualified immunity on that basis. We agree, and
    therefore we do not have jurisdiction to review the denial of immunity to
    Jackson.
    V.
    For the reasons we have explained, we do not have jurisdiction to review
    the district court’s denials of Packnett’s and Jackson’s motions for summary
    judgment based on qualified immunity. Accordingly, their appeal is
    9
    No. 08-61100
    DISMISSED FOR LACK OF JURISDICTION.
    10