United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 3, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________
No. 04-11330 _____________________
SELDEN ATTEBERRY, Individually and as Representative of the Estate of Barbara Atteberry; STACY ATTEBERRY; INDIA ATTEBERRY, Individually, And As Next Friend of Lydia Diane Weatherread (a/k/a Lydia Chapmon), a Minor Child; CECILIA NMI MORGAN, Individually and as Representative of the Estate of Donna Sue Curnutte; CHARLEY CURNUTTE; CHARLEY B CURNUTTE; KATHY WEAVER, As Representative of the Estate of William J Griffin and as Attorney-in-Fact for Ellawean Griffin
Plaintiffs - Appellees
v.
NOCONA GENERAL HOSPITAL; ET AL
Defendants
CHARLES R NORRIS; BARBARA JEAN PERRY
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11387
SHIRLEY JEANETTE HOLDER, Individually and as Independent Executor of and Heir to the Estate of Jimmy Ray Holder
Plaintiff - Appellee v.
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11388
DOIS WAYNE JACKSON, Individually and as Representative of the Estate of Everett Ethridge Jackson; YVONNE W JACKSON
Plaintiffs - Appellees v.
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11390
BILLIE J HUGGINS, Individually and as Representative and Temporary Administrator of the Estate of Dorothy Jean Vanderburg; ESTATE OF DOROTHY JEAN VANDERBURG
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11391
CAROL JEAN JAMES
Defendants - Appellants _________________________________________________________________
2 Consolidated with 04-11392
BETTY MILLER, Individually and as Executrix of the Estate of Alma Dixon, Deceased; ELAINE CURTISS; DAVID DIXON; RICK DIXON; REENE MCCAFFERY; GLADYS BOURGE
Defendants-Appellants _________________________________________________________________ Consolidated with 04-11394
HARRY DON REID, Administrator of the Estate of Donnelly Reid, Deceased
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11395
BARBARA GAY NICHOLS RECTOR, Individually and as Legal Representative and Administrator of the Estate of J T Nichols; CLIFFORD NICHOLS, Individually and as Heir to the Estate of J T Nichols; MICHAEL NICHOLS, Individually and as Heir to the Estate of J T Nichols
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11396
3 HAROLD GENE VANDERBURG, Individually and as Heir of the Estate of Dorothy Jean Vanderburg; ESTATE OF DOROTHY JEAN VANDERBURG
Defendants - Appellants _________________________________________________________________ Consolidated with 04-11397
CHARLES WILLIAMS, Individually and as Representative of the Estate of John Walter Williams; RICHARD WILLIAMS, Individually and as Representative to the Estate of John Walter Williams; DALLAS WILLIAMS, Individually and as Representative of the Estate of John Walter Williams
Defendants - Appellants
_______________________________________________________________
Appeals from the United States District Court for the Northern District of Texas _________________________________________________________________
Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit Judges.
KING, Chief Judge:
4 In this consolidated interlocutory appeal, defendants-
appellants Charles R. Norris and Barbara Jean Perry challenge the
district court’s denial of their motions to dismiss. For the
reasons stated below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
The plaintiffs-appellees (the “Plaintiffs”) in this
consolidated appeal are relatives or representatives of eleven
deceased patients and one surviving minor patient (collectively,
the “patients”) at Nocona General Hospital (“Nocona” or the
“Hospital”), a small hospital in Nocona, Texas. The Plaintiffs
allege that Vickie Jackson (“Nurse Jackson”), a nurse at the
Hospital, willfully deprived the patients of life and liberty
interests by injecting them with a paralytic drug named
Mivacron.1 The Plaintiffs claim that Nurse Jackson repeatedly
stole Mivacron from hospital crash carts2 and used it to kill as
many as twenty-two patients between November 2000 and February
2001.
1 The relevant alleged timeline is attached in an Appendix to this opinion. 2 A crash cart can be defined as “[a] movable collection of emergency equipment and supplies meant to be readily available for resuscitative effort. It includes medication as well as the equipment for defibrillation, intubation, intravenous medication, and passage of central lines.” Stedman’s Medical Dictionary 422 (27th ed. 2000).
5 Defendant-appellant Charles R. Norris (“Norris”) is alleged
to have been the Hospital Administrator at Nocona during the
relevant time period, with general administrative and supervisory
authority over the hospital staff and policymaking authority over
drug storage and medical care. Defendant-appellant Barbara Jean
Perry (“Perry”) is alleged to have been the Director of Nursing
at Nocona during the relevant time period, with supervisory and
training authority over Nurse Jackson.
B. Procedural Background
In January and February of 2003, the Plaintiffs filed suits
in the Northern District of Texas against Nurse Jackson, the
Hospital, Norris, Perry, and eleven other defendants. The
Plaintiffs claimed Nurse Jackson’s actions deprived the patients
of their substantive due process rights to life and liberty. See
U.S. CONST. amend. XIV; see also Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 450-51 (5th Cir. 1994) (en banc) (recognizing the
due process “right to be free of state-occasioned damage to a
person’s bodily integrity”) (internal citation omitted). The
Plaintiffs claimed that the Hospital, Norris, Perry, and the
other defendants were liable for these constitutional violations
based on their conscious or deliberate indifference to the
activities of Nurse Jackson, the disappearing Mivacron from the
crash carts, and the ever-increasing number of unexplained
deaths.
6 Beginning in April of 2003, multiple defendants (including
Norris and Perry) filed motions to dismiss under FED. R. CIV. P.
12(b)(6), attacking the sufficiency of the Plaintiffs’ pleadings
and asserting the defense of qualified immunity. After
consolidating the cases and sending them to a magistrate judge
for pretrial management, the district court denied the
defendants’ motions to dismiss, adopting the magistrate judge’s
conclusion that the Plaintiffs had stated a § 1983 claim against
some defendants, including Norris and Perry.3 The district court
also declined to resolve the defendants’ respective rights to
qualified immunity, adopting the magistrate judge’s
recommendation that a “[d]etermination of the Qualified Immunity
of these defendants should abide” the resolution of factual
issues “upon completion of discovery, summary judgment or trial.”
Atteberry v. Nocona Gen. Hosp., No. 7:03-CV-034-R, at 21-22 (N.D.
Tex. Sep. 8, 2004) (mem.).
Defendants Norris and Perry appeal the denial of their
12(b)(6) motions to dismiss.4 We hold that the district court
3 Adopting the magistrate judge’s recommendations in their entirety, the district court dismissed all of the Plaintiffs’ state-law negligence claims for filing in state court. The district court also dismissed the Plaintiffs’ § 1983 claims with respect to some of the original defendants. 4 In June of 2005 these appeals were consolidated, and a prior unpublished opinion affirming the district court’s decision with respect to one individual appeal was withdrawn in order to permit the consolidated appeals to be considered simultaneously. See Jackson v. Nocona Gen. Hosp., 132 Fed. Appx. 540 (5th Cir. May 31, 2005).
7 correctly concluded that qualified immunity will not protect the
conduct alleged in the pleadings in this case, and we affirm the
district court’s denial of Norris’s and Perry’s 12(b)(6) motions
to dismiss on the basis of qualified immunity.
II. APPELLATE JURISDICTION AND STANDARD OF REVIEW
“[A]n order denying qualified immunity, to the extent it
turns on an ‘issue of law,’ is immediately appealable.” Behrens
v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)). Our jurisdiction in this
context extends to interlocutory appeals taken from both denials
of motions to dismiss and denials of motions for summary
judgment. See Behrens, 516 U.S. at 307 (stating that “an order
rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a ‘final’
judgment subject to immediate appeal”). Specifically, the denial
of a motion for dismissal on qualified immunity grounds falls
into that
“small class” of district court decisions that, though short of final judgment, are immediately appealable because they “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”
Behrens, 516 U.S. at 305 (quoting Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949)).
8 When reviewing a denial of qualified immunity on an
interlocutory appeal, we are restricted to determinations “of
question[s] of law” and “legal issues,” and we do not consider
“the correctness of the plaintiff’s version of the facts.”
Mitchell, 472 U.S. at 528. The “‘essentially legal [immunity]
question,’” which we treat as an entitlement “distinct from the
merits” of the case, is appealable only “‘to the extent that it
turns on an issue of law . . . .’” Behrens, 516 U.S. at 306
(quoting Mitchell, 472 U.S. at 526, 530) (omission in Behrens).
Only these issues of law qualify as appealable “final decisions”
before a final judgment. See id.
We review “the district court’s refusal to dismiss [the
complaint] on the basis of qualified immunity de novo.”
Wilkerson v. Sadler, 329 F.3d 431, 434 (5th Cir. 2003) (emphasis
omitted); see also Morin v. Caire, 77 F.3d 116, 119-20 (5th Cir.
1996) (stating, in a similar qualified immunity context, that a
district court’s ruling on a motion to dismiss is subject to de
novo review). In applying this standard, we accept “all well-
pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d
1395, 1401 (5th Cir. 1996)). Dismissal is inappropriate “unless
the plaintiff would not be entitled to relief under any set of
facts or any possible theory that he could prove consistent with
9 the allegations in the complaint.” Jones, 188 F.3d at 324
(citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).
Some of the Plaintiffs argue that this court lacks
jurisdiction over this appeal, citing Smith v. Brenoettsy, 158
F.3d 908 (5th Cir. 1998). In Smith, we addressed an appeal of
the district court’s denial of a summary judgment motion
asserting qualified immunity. See Smith, 158 F.3d at 911-13.
These Plaintiffs claim that in Smith, this court concluded it
lacked interlocutory jurisdiction because each of the grounds for
appeal raised factual questions rather than legal questions. Id.
Based on this characterization of Smith, these Plaintiffs contend
that we lack jurisdiction over this appeal because Norris and
Perry raise arguments related to their awareness of certain facts
at the time of the patients’ deaths.
These Plaintiffs are mistaken in both their argument and
their characterization of Smith. The resolution of the legal
questions appropriate to an interlocutory appeal involving
qualified immunity will necessarily entail some mention of the
related factual allegations in the complaints. See Mitchell, 472
U.S. at 528-29. Jurisdiction over an interlocutory appeal from a
denial of a summary judgment motion failed in Smith because the
Smith appellant did not raise sufficient legal issues separable
from the facts or the ultimate merits of the case.5 See Smith,
5 In fact, the appellant in Smith simply presented disputed facts without reference to any substantive legal
10 158 F.3d at 912-13 (concluding that “none of the separable legal
issues identified by [the appellant] are sufficient for us to
grant summary judgment in his favor”). Unavoidable references to
the underlying facts of a case do not spoil our jurisdiction over
a properly composed interlocutory appeal.
III. DISCUSSION
To state a claim under 42 U.S.C. § 1983, a plaintiff must
first show a violation of the Constitution or of federal law, and
then show that the violation was committed by someone acting
under color of state law. See, e.g., West v. Atkins, 487 U.S.
42, 48-50 (1988); Piotrowski v. City of Houston, 51 F.3d 512, 515
(5th Cir. 1995). The district court adopted the magistrate
judge’s recommendation that the Plaintiffs sufficiently alleged
that the hospital was a state governmental entity, that Nurse
Jackson was a state actor, and that she had committed a
constitutional violation while acting under color of law. The
district court also adopted the magistrate judge’s recommendation
that the Plaintiffs pleaded facts sufficient to impose liability
on Norris and Perry.
analysis or authority. See Smith, 158 F.3d at 912-913 (stating that “[the appellant] provides no legal support for this [first] argument” and “[the appellant] presents no authority to support his [second] argument”). The substantive legal arguments provided by Norris and Perry in this appeal, although ultimately unsuccessful, are different in kind from those described in Smith.
11 A qualified immunity defense “serves to shield a government
official from civil liability for damages based upon the
performance of discretionary functions if the official’s acts
were objectively reasonable in light of then clearly established
law.” Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir.
2001); see also Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir.
2004) (en banc) (discussing the important goals served by the
qualified immunity doctrine). “When a defendant invokes
qualified immunity, the burden is on the plaintiff to demonstrate
the inapplicability of the defense.” McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per
curiam).
To discharge this burden, a plaintiff must satisfy a two-
prong test. First, he must claim that the defendants committed a
constitutional violation under current law. See, e.g., Wilson v.
Layne, 526 U.S. 603, 609 (1999); Palmer v. Johnson, 193 F.3d 346,
351 (5th Cir. 1999). Second, he must claim that the defendants’
actions were objectively unreasonable in light of the law that
was clearly established at the time of the actions complained of.
See id. This bifurcated legal standard is designed both to
promote clearer standards for official conduct and to spare
defendants unwarranted liability and court costs. See Wilson,
526 U.S. at 609.
Norris and Perry contend that dismissal is appropriate
because the Plaintiffs have failed each prong of the test.
12 First, Norris and Perry claim that the Plaintiffs failed to
allege a constitutional violation because they have not
sufficiently alleged that either official acted with deliberate
indifference to the patients’ constitutional rights as determined
by current law. Second, Norris and Perry claim that the
Plaintiffs have not sufficiently alleged that either official
acted objectively unreasonably in light of the law that was
clearly established at the time of the alleged murders. Prudence
suggests that these qualified immunity claims should be addressed
separately for Norris and Perry.6 See Jacobs v. W. Feliciana
Sheriff’s Dept., 228 F.3d 388, 395 (5th Cir. 2000).
A. Constitutional Violation
At issue in this appeal is whether the Plaintiffs
sufficiently alleged that Norris and Perry may be held liable for
Nurse Jackson’s alleged violation of the patients’ constitutional
rights. See Hernandez v. Tex. Dep’t of Protective & Regulatory
6 The district court sufficiently analyzed the Plaintiffs’ allegations with respect to both Norris and Perry. Specifically, the district court adopted the magistrate judge’s recommendation that the Plaintiffs sufficiently alleged that Norris had “general administrative and supervisory duties with respect to the hospital staff, including Nurse Jackson, and policy making duties and authority with respect to the drug cart, training of nurse employees, and the administration of medical care to patients at the Hospital.” Atteberry v. Nocona Gen. Hosp., No. 7:03-CV-034-R, at 18 (N.D. Tex. Sep. 8, 2004) (mem.). With respect to Perry, the district court adopted the magistrate judge’s recommendation that the Plaintiffs “adequately alleged [her] to be a potential ‘state actor’ having a sufficient alleged policy making control over Nurse Jackson and her actions.” Id. at 19-20.
13 Servs., 380 F.3d 872, 880 (5th Cir. 2004) (determining, as an
initial matter in a similar appeal, whether the alleged
deprivation of constitutional rights could be ascribed to social
workers in supervisory roles); Doe v. Rains County Indep. Sch.
Dist., 66 F.3d 1402, 1406-07 (5th Cir. 1995) (outlining a three-
step approach for “drawing the circle of liability” in a similar
appeal and attempting to determine whether the alleged
deprivation of constitutional rights could be ascribed to school
officials in supervisory roles); Taylor, 15 F.3d at 452
(determining, as an initial matter in a similar appeal, whether
supervisory school officials were liable for alleged breaches of
constitutional rights committed by subordinate employees).
Specifically, this court must determine whether the allegations
of the complaints support supervisory liability on the part of
Norris and Perry when their subordinate, Nurse Jackson, violated
the patients’ constitutional rights. See, e.g., Rains County
Indep. Sch. Dist., 66 F.3d at 1406-07; Taylor, 15 F.3d at 452-54;
Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976).
Ordinarily, supervisors may not be held vicariously liable
for constitutional violations committed by subordinate employees.
See, e.g., Taylor, 15 F.3d at 452. However, supervisors may be
liable for constitutional violations committed by subordinate
employees when supervisors act, or fail to act, with deliberate
indifference to violations of others’ constitutional rights
committed by their subordinates. See, e.g., City of Canton v.
14 Harris, 489 U.S. 378, 386-90, 389, 387 (1989) (concluding that
there are limited circumstances, which must rise to the level of
“deliberate indifference” to constitutional rights, “in which an
allegation of a ‘failure to train’ can be the basis for liability
under § 1983”); Alton v. Tex. A&M Univ., 168 F.3d 196, 200 (5th
Cir. 1999) (noting, in a discussion of Taylor, “that a
supervisory official may be liable under § 1983 if that official
demonstrates a deliberate indifference to a plaintiff’s
constitutionally protected rights”); Taylor, 15 F.3d at 452-56,
454 (adopting a deliberate indifference standard to assess
whether “[a] supervisory school official can be held personally
liable for a subordinate’s violation” of the constitutional
rights of others); Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d
745, 753-60, 757 (5th Cir. 1993) (adopting the deliberate
indifference standard in a similar appeal, and stating that
sister circuits have “uniformly interpreted Canton’s ‘deliberate
indifference’ requirement . . . to apply to all cases involving
facially constitutional policies”).
Deliberate indifference in this context “describes a state
of mind more blameworthy than negligence.” Farmer v. Brennan,
511 U.S. 825, 835 (1994) (citing Estelle v. Gamble, 429 U.S. 97,
104 (1976)). Rather, “acting or failing to act with deliberate
indifference to a substantial risk of serious harm . . . is the
equivalent of recklessly disregarding that risk.” Farmer, 511
U.S. at 836. Relying on Farmer, this court has reiterated the
15 deliberate indifference standard in a variety of contexts. See,
e.g., Hernandez, 380 F.3d at 880 (stating that “[t]o act with
deliberate indifference, a state actor must consciously disregard
a known and excessive risk to the victim’s health and safety”);
Alton, 168 F.3d at 201 (stating that the deliberate indifference
standard is whether “the officials’ conduct reflected a conscious
disregard for the risk that students would suffer bodily injuries
of constitutional dimensions at the hands of student cadet
leaders”); Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998) (stating that a plaintiff “must show that the defendants
(1) were aware of facts from which an inference of an excessive
risk to the [plaintiff’s] health or safety could be drawn and (2)
that they actually drew an inference that such potential for harm
existed”).
Accordingly, to prevail against either Norris or Perry, the
Plaintiffs must allege, inter alia, that Norris or Perry, as the
case may be, had subjective knowledge of a serious risk of harm
to the patients. The test for deliberate indifference is
subjective, rather than objective, in nature because “an
official’s failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of
punishment.” Farmer, 511 U.S. at 838; see also Hernandez, 380
F.3d at 880; Palmer, 193 F.3d at 352. Following the Supreme
Court’s clear direction, we “may infer the existence of this
16 subjective state of mind from the fact that the risk of harm is
obvious.” Hernandez, 380 F.3d at 881 (quoting Hope v. Pelzer,
536 U.S. 730, 738 (2002)) (emphasis in Hernandez).
Norris and Perry contend the allegations provided by the
Plaintiffs show only that Mivacron was missing from the crash
carts and that the Hospital’s death rate was considerably higher
than over the same period of the previous year. They argue that
these alleged facts, even though we must accept them as true, do
not demonstrate that Norris and Perry had the subjective
knowledge and intent required to establish deliberate
indifference. Determining whether Norris and Perry actually
inferred that the patients were at risk is a question of fact
beyond the scope of this appeal. See Smith, 158 F.3d at 913
(stating that whether a defendant actually drew an inference of
risk from underlying facts is a fact question, which is not
reviewable on interlocutory appeal).
We observe, however, that the case before us “is not a case
in which a plaintiff seeks to impugn an otherwise legitimate
official action by casting bare accusations of malice, bad faith,
and retaliatory animus.” Kinney, 367 F.3d at 374. Contrary to
Norris’s and Perry’s assertions, the Plaintiffs’ pleadings
specify the dates when Mivacron disappeared from the crash cart
and the dates when various patients died, and they continue to
allege that the defendants were aware of these incidents. See
Appendix, infra (providing a detailed timeline of the Plaintiffs’
17 allegations). The Plaintiffs do not, with any specificity,
allege how Norris and Perry came to know of these facts, but
their pleadings are sufficiently detailed on this score to
survive a motion to dismiss.
In addition, Norris and Perry argue that the Plaintiffs’
allegations do not establish deliberate indifference because the
alleged conduct did not constitute a conscious disregard of a
known risk to patient safety. Norris and Perry point out that
their actions, as stated in the complaint, show that they
initiated a good-faith--albeit ineffective--response, which is
generally not sufficient to show deliberate indifference. See
Lefall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531-32 (5th Cir.
1994) (citing Taylor, 15 F.3d at 456 & n.12). According to the
Plaintiffs’ allegations, however, all of these actions occurred
well after the defendants knew: (1) that Mivacron was found
missing approximately ten different times; (2) that the drug had
been wrongfully administered to Nocona patients; and (3) that the
death rate at Nocona was at least double the death rate from the
same two-month period from the preceding year.7 These
7 Norris and Perry attempt to phrase the complaints’ allegations to concede that the defendants did not have actual knowledge of facts from which they could infer a risk of serious harm until early February 2001. In fact, the complaints make no such concession, but instead state that, by early February 2001, the defendants had connected the deaths to Nurse Jackson specifically.
18 allegations suffice to establish a conscious disregard of a known
and excessive risk of serious harm.
In sum, the Plaintiffs alleged that Norris and Perry knew
both that a dangerous drug was missing and that patients were
dying at an unusually high rate. They also alleged that although
Norris and Perry should and could have investigated the deaths
and missing drugs or changed hospital policy, they did nothing
for a considerable period of time. For Rule 12(b)(6) purposes,
the requisite deliberate indifference is sufficiently alleged.
B. Objectively Unreasonable
“To be ‘clearly established’ for purposes of qualified
immunity, ‘[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.’” Kinney, 367 F.3d at 349-50 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In practice,
this means that “whether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful
action generally turns on the ‘objective legal reasonableness’ of
the official’s action, assessed in light of the legal rules that
were ‘clearly established’ at the time it was taken.” Anderson,
483 U.S. at 639; see also Wilson, 526 U.S. at 614. This court
has repeatedly held that objective reasonableness in a qualified
immunity context is a question of law for the court to decide,
not an issue of fact. See, e.g., Williams v. Bramer, 180 F.3d
19 699, 703 (5th Cir. 1999) (stating that “objective reasonableness
is a matter of law for the courts to decide, not a matter for the
jury”); Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir.
1998); Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir.
1994).
For a plaintiff to establish objective unreasonableness and
overcome a qualified immunity defense, he must satisfy two
inquiries. First, a plaintiff must show “the allegedly violated
constitutional rights were clearly established” at the time of
the alleged violation. Palmer v. Johnson, 193 F.3d 346, 351 (5th
Cir. 1999) (quoting Hare, 135 F.3d at 326) (emphasis omitted in
Palmer). Second, a plaintiff must demonstrate that “the conduct
of the defendants was objectively unreasonable in the light of
that then clearly established law.” Id.
With respect to the first inquiry, Norris and Perry
acknowledge that deliberately indifferent supervisors in prisons,
schools, and mental institutions have been held liable for
constitutional violations committed by subordinate employees.
See, e.g., Appellant’s (Atteberry) Br. at 17-18. But they argue
that these precedents do not clearly establish that a public
hospital official owes a constitutional duty to protect patients
from harm in similar situations. Id.
Norris and Perry are mistaken in this belief. They attempt
to define the parameters of clearly established law too narrowly.
As this court has long held, the term “clearly established” “does
20 not necessarily refer to ‘commanding precedent’ that is
‘factually on all-fours with the case at bar,’ or that holds the
‘very action in question’ unlawful.” Taylor, 15 F.3d at 454-55
(quoting Jefferson, 817 F.2d at 305 & n.1 (footnote omitted in
Taylor) and Anderson, 483 U.S. at 640). Contrary to Norris and
Perry’s general assertions, a constitutional right “is clearly
established if ‘in the light of pre-existing law the unlawfulness
[is] apparent.’” Taylor, 15 F.3d at 455 (quoting Anderson, 483
U.S. at 640) (omission in Taylor); see also Hope, 536 U.S. at
739-41; Kinney, 267 F.3d at 350. More to the point, the
unlawfulness of their alleged conduct is readily apparent from
relevant precedent in sufficiently similar situations. See,
e.g., City of Canton, 489 U.S. at 381-90, 388 (stating that “a
city can be liable under § 1983 for inadequate training of its
employees”); Brown v. Bryan County, 219 F.3d 450, 459-463, 462
(5th Cir. 2000) (stating that a county, “through its policymaker,
is culpable for purposes of § 1983 for its choice not to train
[an employee] (and not to provide proper supervision for him)”);
Bradley, 157 F.3d at 1025-26 (ruling, in a similar appeal, that a
plaintiff’s allegations were sufficient to pierce the qualified
immunity of supervisory prison officials based on months of filed
complaints about unhygienic conditions); Taylor, 15 F.3d at 452-
65 (ruling, in a similar appeal, that a plaintiff’s allegations
were sufficient to pierce the qualified immunity of supervisory
school officials who were allegedly indifferent to child
21 molestation committed by a subordinate); Sims, 537 F.2d at 831-32
(ruling, in a similar appeal, that the absence of direct
“personal participation” by police supervisors and police
disciplinary committees did not justify a 12(b)(6) motion to
dismiss).
Moreover, the Plaintiffs have alleged that Norris and Perry
failed to comply with a number of relevant state statutes,
including Chapter 133 of the Texas Administrative Code, the Texas
Pharmacy Act, the Texas Health Safety Code, and TEX. REV. CIV.
STAT. art. 4590i. The Plaintiffs argue that these alleged
violations of state statutes imposed non-discretionary duties
upon Norris and Perry, vitiating their qualified immunity defense
altogether. Qualified immunity is only available when an
official acts “within the scope of [his or her] discretionary
authority.” Brooks v. George County, 84 F.3d 157, 164-65 (5th
Cir. 1996) (quoting Cronen v. Tex. Dep’t of Human Servs., 977
F.2d 934, 939 (5th Cir. 1992)). In both the Plaintiffs’
complaint and in their briefs before this court, this argument is
tenuous. It is enough, at this point, to say that some of these
statutes may create non-discretionary duties which would vitiate
qualified immunity, and others may create duties with an element
of discretion.
Finally, Norris and Perry contend the Plaintiffs have not
shown their alleged actions were objectively unreasonable in
light of existing law, even if existing law clearly established
22 that hospital officials owed a relevant duty to protect their
patients from constitutional violations such as those allegedly
committed by Nurse Jackson. Norris and Perry assert that
objectively reasonable hospital officials “could not have known
that failing to piece together seemingly unrelated facts
concerning higher death rates and missing medication was
ultimately a violation of the Plaintiffs’ constitutional rights.”
(Appellants’ (Atteberry) Br. at 18.) Without prejudice to Norris
or Perry, we believe that the Plaintiffs’ well-pleaded facts are
sufficient to survive a motion to dismiss.
IV.CONCLUSION
For the reasons stated above, we affirm the district court’s
denial of Norris’s and Perry’s 12(b)(6) motions to dismiss.
AFFIRMED.
23 APPENDIX 1
Timeline of Allegations
November 23: Defendants realize that Mivacron is missing
from a crash cart and replace it from the
pharmacy stock.
November 28: Defendants realize that Mivacron is missing
December 12: Defendants realize that Mivacron is missing
December 19: Defendants realize that Mivacron is missing
December 24: Boyd Bruce Burnett dies. It is unclear when
he was injected.
24 Also, Barbara Atteberry is injected.
December 30: Barbara Atteberry dies at another facility.
December 31: Defendants realize that Mivacron is missing
January 6: Dorothy Jean Vanderburg is injected and dies.
January 7: Jimmy Ray Holder dies. It is unclear when he
was injected.
Also, Alma Dixon dies. It is unclear when
she was injected.
Also, defendants realize that Mivacron is
missing from a crash cart and replace it from
the pharmacy stock.
January 8: Defendants realize that Mivacron is missing
25 January 11: J.T. Nichols dies. It is unclear when he was
injected.
Also, John Walter Williams dies. It is
unclear when he was injected.
January 24: William Griffin is injected.
January 25: Defendants realize that Mivacron is missing
January 28: Lydia Diane Weatherread (a/k/a Lydia Chapmon)
is injected. She survives.
January 30: Defendant Pharmacist Fenoglio begins looking
for the missing Mivacron. He commences an
internal investigation of the missing
Mivacron, along with the hospital.
26 Also, William Griffin dies.
January 31: Donna Curnutte is injected.
Early February: Defendants realize that twenty-two of the
twenty-three deaths in Nocona Hospital since
November had their origin on the night shift,
and that Jackson was on night shift duty when
most or all of these deaths occurred.
February 4: Everett Jackson dies. It is unclear when he
February 6: Defendants notify law enforcement.
February 8: Defendant Pharmacist Fenoglio notifies the
Texas State Board of Pharmacy of the loss or
theft of at least ten vials of Mivacron
Injection.
27 February 18: Donnelly Reid is injected. He survives until
June. He dies on June 18, 2001.
As a result of this injection, Nurse Jackson
is caught.
February 19: Donna Curnutte dies.
February 20: Nurse Jackson’s employment is terminated.