Morgan v. Hubert, No. 08-30388 (5th. Cir. 7/1/2009)
| Decision Date | 01 July 2009 |
| Docket Number | No. 08-30388.,08-30388. |
| Parties | RONNIE L. MORGAN, JR., Plaintiff-Appellee, v. CORNEL HUBERT, Warden, Elayn Hunt Correctional Center, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Louisiana. USDC No. 2:06-cv-5700.
Before: HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
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Defendant Cornel Hubert, warden of the Elayn Hunt Correctional Center (EHCC) in Louisiana, appeals the district court's denial of qualified immunity for his alleged involvement in the transfer of inmates from prisons affected by Hurricane Katrina. Ronnie Morgan, a prisoner transferred to EHCC from Orleans Parish Prison (OPP), asserts violations of the Eighth Amendment for injuries allegedly sustained there when he, a prisoner in protective custody, was placed with the general prison population. Hubert moved to dismiss Morgan's complaint under Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified immunity, but the district court denied the motion as to Hubert's individual capacity. We vacate and remand for discovery limited to the issue of qualified immunity.
Morgan filed suit under 42 U.S.C. § 1983 against, among others, Warden Hubert, in his individual and official capacities, and alleged violations of the Eighth Amendment. In his original complaint, Morgan alleged that Hubert "developed and pursued policies and customs that created the substantial risk of bodily harm to [Morgan] and other inmates, and which evidence a deliberate and gross failure to supervise his subordinates." Morgan further alleged that Hubert (1) failed to provide safety for OPP prisoners in protective custody, as well as adequate food, housing and medical care; (2) failed to train his staff in matters of inmate safety; (3) failed to train his staff to determine what remedial action was necessary after an attack to prevent future assaults; and (4) failed to provide medical care and protection to inmates after they were attacked.
Hubert moved to dismiss on the basis of qualified immunity. The magistrate judge heard argument and ordered Morgan to amend his complaint or file a reply in response to the defense of qualified immunity. He filed both, alleging in his amended complaint that Hubert, as the policymaker for EHCC, knew or should have known that transfers from OPP would include prisoners in protective custody, and that such prisoners would need to be segregated from the general prison population for their safety. Morgan claimed that Hubert had or should have had procedures and policies in place to segregate these protective custody prisoners, and should have taken steps to ensure that the policies were followed respecting the prisoners from OPP. Morgan alleged that Hubert's failure to take the necessary steps created a substantial risk of harm to Morgan and caused his injuries. Alternatively, Morgan alleged that Hubert's failure to have policies in place for the segregation of protective custody inmates created a substantial risk of harm and caused Morgan's injuries. Morgan emphasized that these allegations described acts of Hubert personally, and that he failed personally either to have the policies in place or to ensure that his staff was adequately trained in them.
After considering Morgan's amended complaint and reply, the magistrate judge recommended that Hubert's motion be granted as to his official capacity (because Hubert in this capacity is not a person under § 1983, a point Morgan conceded), but denied as to his individual capacity. The judge found that Morgan adequately alleged violation of a constitutional right and that, if the facts in the complaint were accepted as true, Hubert acted unreasonably and was not entitled to qualified immunity. Hubert objected. The district court denied Hubert's motion as to his individual capacity, agreeing with the magistrate judge that Morgan had alleged facts that, if true, established the violation of a clear constitutional right and that Hubert's failure to act reasonably created a substantial risk to Morgan of which Hubert was deliberately indifferent. Hubert appealed.
As this appeal is interlocutory, predicated on the denial of a motion to dismiss on the basis of qualified immunity, we take the facts alleged in Morgan's complaint as true. Morgan is a federal prisoner under the jurisdiction of the United States Federal Bureau of Prisons. He was housed at OPP pursuant to a contract between the U.S. Department of Justice and the Orleans Parish Criminal Sheriff's Office. OPP is run by Orleans Parish Criminal Sheriff Marlin Gusman, another defendant in this case (though not a party to this appeal). For reasons not clear from the record, Morgan was in protective custody at OPP.
Following Hurricane Katrina's landfall on August 29, 2005, OPP lost power, and the inmates did not have food, water, medical care, or working toilets. The prisoners, including Morgan, were transported on September 1 2005, to EHCC and placed in a large field surrounded by guards with thousands of other prisoners. Upon arriving at EHCC, Morgan and other prisoners in protective custody informed the guard of their status and requested that they not be placed with the general prison population. One protective custody prisoner told the guard that he saw his enemies in the field. The guard told them not to disclose their status; Morgan told the guard that their clothing was marked with the word "Federal." The other prisoners gathered at the gates in anticipation of the arrival of the protective custody prisoners and called out to each other to draw attention to that fact.
Despite the protestations of Morgan and the other prisoners, the guard placed them in the field with the general prison population. Within minutes one prisoner in protective custody was beaten and stabbed. When he sought help from the guards, they allegedly shot at him, perhaps with a bean bag gun. Other such inmates were also attacked. About thirty minutes after arriving, Morgan too was beaten and stabbed in his head and neck. Like the other prisoner, Morgan also sought help from the guards. The guards allegedly rebuffed Morgan too, responding with laughter; he was forced him to spend the night on the field with his attackers, wandering about in blood-soaked clothing and too terrified to sleep. The following day, he was transported to another prison facility. The complaint alleges that while at EHCC, he did not receive medical care or protection, despite having requested both from the guards.
We have jurisdiction to hear an interlocutory appeal from an order denying qualified immunity to the extent it turns on a question of law. Behrens v. Pelletier, 516 U.S. 299, 311 (1996).
An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions . . . .
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). To the extent this appeal turns on questions of fact, we lack jurisdiction to hear it.
We review the district court's denial of qualified immunity de novo. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005). We apply the heightened pleading standard announced in Schultea v. Wood, in which we observed that a district court may, after assessing a complaint under the normal Federal Rule of Civil Procedure 8 standard, require the plaintiff to file a reply under Rule 7 tailored directly at the defendant's assertion of qualified immunity. 47 F.3d 1427, 1433—34 (5th Cir. 1995). We did not ground any such requirement in Rule 9(b), but nevertheless required a plaintiff to plead more than conclusions. Id. at 1434. Specifically, we reasoned that "a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants." Id. at 1432 (emphasis added). "Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs' injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
The parties disagree regarding the substantive standard governing a Rule 12(b)(6) motion to dismiss. Hubert argues for the standard announced by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), while Morgan recites the test given by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (). The Supreme Court recently settled the dispute by applying the Twombly standard—that a complaint must state a claim that is "plausible on its face"—to all civil cases. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50, 1953 (2009); see also Twombly, 550 U.S. at 570. "This standard `simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary claims or elements." In re So. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
We must decide, under Schultea's heightened pleading standard, if Morgan has pleaded sufficient facts to state a claim against Hubert. In doing so, we must examine the contours of qualified immunity, the governing standards of which are clear:
First, a court must decide whether a plaintiff's allegation, if true, establishes a violation of a clearly established right. Without an established right, qualified immunity is granted. Second, if the plaintiff has alleged a violation, the court must decide whether the conduct was objectively reasonable in light of...
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