IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41533 Summary Calendar

AQUILINO PEREZ and Maria Conseca Perez, Individually and as Next Friends of Silverio Perez, Elifonsa Perez, Maria Del Carmen Perez, Jose Perez and Maria Guadalupe Perez,

Plaintiffs-Appellees,

versus

CITY OF HARLINGEN ET AL.,

Defendants,

CITY OF HARLINGEN; JAMES JOSEPH SCHOEPNER, Individually and in his official capacity as Police Chief of the City of Harlingen Police Department; TIMOTEO FLORES, Individually and in his official capacity as a Peace Officer for the City of Harlingen Police Department; VERONICA GONZALEZ, Individually and in her official capacity as a Jailer for the City of Harlingen Police Department,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CV-075 --------------------

November 11, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41533 -2-

Aquilino Perez (“Perez”) and his wife Maria Conseca Perez

filed suit in a Texas state court in 1995 on behalf of themselves

and five of their children, alleging that Perez was injured

through the defendants’ negligence when he was a detainee at the

Harlingen City Jail. The Perezes later amended their petition,

invoking

and alleging that the defendants

violated Perez’s constitutional rights. The defendants removed

the case to the district court and, in due course, filed motions

for summary judgment. Harlingen Police Chief James Joseph

Schoepner and Veronica Gonzalez, a jailer, each asserted

qualified immunity as a defense. The district court denied all

of the motions for summary judgment, and the defendants filed a

notice of appeal. Only Gonzalez and Schoepner make arguments on

appeal. Insofar as the other defendants are appealing the denial

of summary judgment, the appeal is DISMISSED as to them.

Gonzalez and Schoepner have filed a motion requesting that

two Perez children who were not named in the original complaint

be made a part of the appeal. The district court permitted the

participation of the two children in the same order that it

denied the defendants’ motions for summary judgment.

Accordingly, we view the two children as participants to the

appeal to the extent that any of the children are parties to the

litigation. The motion is DENIED as unnecessary.

In an appeal from the denial of summary judgment, we review

the record de novo. Nerren v. Livingston Police Dep’t,

(5th Cir. 1996). Summary judgment is proper when,

viewing the evidence in the light most favorable to the No. 98-41533 -3-

nonmovant, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.

Amburgey v. Corhart Refractories Corp.,

(5th

Cir. 1992); Fed. R. Civ. P. 56(c). If the moving party meets the

initial burden of establishing that there is no genuine issue,

the burden shifts to the nonmoving party to produce evidence of a

genuine issue for trial. Celotex Corp. v. Catrett,

(1986). Because the district court gave no reasons for

denying the motions for summary judgment, we “must ‘undertake a

cumbersome review of the record to determine what facts the

district court, in the light most favorable to the nonmoving

party, likely assumed.” Coleman v. Houston Indep. Sch. Dist.,

(5th Cir. 1997) (citation omitted).

Although there is not ordinarily appellate jurisdiction to

review immediately the denial of a motion for summary judgment,

there is an exception when the motion was predicated on qualified

immunity. Mitchell v. Forsyth,

(1985).

The district court’s denial is reviewable to the extent it turned

on issues of law, not fact.

. Thus, although we lack

jurisdiction to review a district court’s determination that

there exist genuine issues of fact, we do have jurisdiction to

review a determination that the issues of fact are material.

Colston v. Barnhart,

, 284 (5th Cir.), cert. denied,

(1998). We conduct a de novo review of the

district court’s conclusions about materiality. Lemoine v. New

Horizons Ranch and Ctr., Inc.,

(5th Cir. 1999).

Whether a public official is qualifiedly immune depends on No. 98-41533 -4-

two inquiries. Harris v. Victoria Indep. Sch. Dist.,

, 223 (5th Cir. 1999). First, a defendant is entitled to

qualified immunity when a plaintiff has failed to allege the

violation of a clearly established constitutional right. Id.

Second, a defense of qualified immunity will succeed if the

defendant’s conduct was objectively reasonable at the time in

light of clearly established law. Id.

Gonzalez concedes that she had clearly established

constitutional duties not to be deliberately indifferent to

either any physical abuse committed against Perez by another

officer in her presence or to Perez’s serious medical needs. She

insists, however, that her actions were objectively reasonable in

light of these duties.

There is evidence creating a genuine issue of material fact

that Gonzalez failed to take reasonable measures to intervene to

protect Perez from physical abuse by another officer, Timoteo

Flores. Although she argues that there is no evidence that she

was even present during any abuse, Perez testified that a man and

a woman escorted him to a cell. He testified that the woman

angrily screamed and that the male officer pushed him into a

concrete wall. This testimony was partially corroborated by

another prisoner. Gonzalez herself testified that she escorted

Perez, after he was booked, to a cell. Viewing the evidence in

the light most favorable to the plaintiffs, we hold that there is

a genuine issue of material fact as to whether Gonzalez was

present during abuse of Perez.

There is also evidence that Gonzalez was present when No. 98-41533 -5-

Officer Flores picked Perez off the ground and threw him into a

cell, causing him to become unconscious. Although Gonzalez’s

version of events differs from Perez’s, we note that, even under

her telling, she was present when the officer carried Perez into

a cell. There is a genuine issue of material fact regarding

whether Gonzalez was present and failed to intervene during the

time that Officer Flores allegedly harmed Perez.

Gonzalez also argues that she acted reasonably at all times,

even though she did not obtain medical help for Perez. As noted,

there is evidence that Gonzalez was present when Flores

physically abused Perez. In addition, Gonzalez herself testified

that Perez hit his head on the wall with great force. She

testified that he did not answer after he hit his head and shook

his head from left to right when asked if he was all right.

Perez testified that he was unable to move throughout the night

and called out whenever he heard a jailer walking down the

hallway. Gonzalez testified that she made checks on the

prisoners every 30 minutes through the night. In light of all

this, we hold that there is a genuine issue of material fact as

to whether Gonzalez was deliberately indifferent to Perez’s

serious medical needs.

Chief Schoepner argues that his conduct was objectively

reasonable. He concedes that Perez’s claims of inadequate

training and supervision do state possible violations of clearly

established constitutional rights. He argues, however, that none

of his actions could have been unreasonable because there had

never been any prior complaints against Gonzalez or Flores. No. 98-41533 -6-

A police chief can be held liable under § 1983, but a

plaintiff must show a connection between the chief’s own conduct

and any constitutional violation. Baker v. Putnal,

(5th Cir. 1996). “The plaintiff must show that: (1) the

police chief failed to supervise or train the officer, (2) a

causal connection existed between the failure to supervise or

train and the violation of the plaintiff’s rights, and (3) such

failure to supervise or train amounted to gross negligence or

deliberate indifference.”

Gonzalez testified that she was hired as a jailer less than

two months before the incident with Perez occurred. Her only

training consisted of a 40-hour class on jails. The class did

not include any instruction on the handling of arrestees,

improper uses of force, or on the duty to provide care to

prisoners with serious needs. She testified that she received no

training at all from the City or Chief Schoepner. She testified

that she had never attended any meetings of the jail staff. She

testified that she had never been issued and had not read any job

description.

Accordingly, there is a genuine issue whether Chief

Schoepner failed to train and supervise Gonzalez in her duties as

a jailer. If Perez’s story is proved, Gonzalez was deliberately

indifferent to the physical abuse he received and to his serious

medical needs. Because Gonzalez received no training in these

areas, it could reasonably be determined that there was a “causal

connection” between the failure to train and any constitutional

violation. Baker,

. In addition, we believe it No. 98-41533 -7-

could reasonably be determined that Schoepner’s failure to train

Gonzalez “amounted to gross negligence or deliberate

indifference.”

See also Farmer v. Brennan,

(1994) (defining deliberate indifference as “know[ing] that

inmates face a substantial risk of serious harm and

disregard[ing] that risk by failing to take reasonable measures

to abate it”). Schoepner was not entitled to judgment as a

matter of law on this claim.

The Perezes have not alleged a similar failure to train or

supervise Officer Flores. They argue that conduct unrelated to

the use of force and documented in Flores’s personnel file

suggests that Schoepner should have more closely supervised the

officer. Even if there were some failure to train Flores in

these unrelated areas, though, the Perezes have not alleged the

required “causal connection” between Schoepner’s failure to train

in these areas and Flores’s alleged use of excessive force.

Baker,

. Because the plaintiffs have not pointed

to evidence of a genuine issue for trial, Schoepner was entitled

to judgment as a matter of law as to this claim.

Schoepner also argues that he was entitled to qualified

immunity as to the Perezes’ claim that he implemented an

unconstitutional policy or custom of tolerating the use of

excessive force. The Perezes did not rely on any express policy.

Instead, they alleged three prior incidents that, they argue,

indicate Schoepner’s tolerance of excessive force. We have

reviewed the Perezes’ allegations, and we conclude that they have

failed to allege any “persistent, widespread practice” in the No. 98-41533 -8-

police department.1 Webster v. City of Houston,

(5th Cir. 1984) (en banc). One of the incidents did not

involve the use of force on an arrestee, and, in another, the

offending officer was terminated by Schoepner.

In sum, the district court properly held that Gonzalez was

not entitled to qualified immunity from the Perezes’ claims. The

court also correctly held that Chief Schoepner was not entitled

to qualified immunity from the Perezes’ claim that he failed to

properly train and supervise Gonzalez. As to these claims, there

are genuine issues of material fact, making the district court’s

denial of summary judgment unappealable. See Colston, 146 F.3d

at 284. However, we hold that the district court erred in

denying Schoepner qualified immunity from the Perezes’ claim that

he failed to train or supervise Officer Flores. Finally, the

district court erred in holding that Schoepner was not

qualifiedly immune from any claim that he implemented an

unconstitutional policy or custom of tolerating the use of

excessive force. Accordingly, we DISMISS the appeal in part,

REVERSE in part, and REMAND for further proceedings.

MOTION DENIED; DISMISSED IN PART, REVERSED IN PART, and

REMANDED.

1 As the Perezes observe, we held in Grandstaff v. City of Borger, Tex.,

(5th Cir. 1985), that postincident conduct by a policymaker can, in an appropriate circumstance, be evidence of the policymaker’s unlawful preincident practice. There, “the subsequent acceptance of dangerous recklessness by the policymaker tend[ed] to prove his preexisting disposition and policy.”

This case is distinguishable, however. Unlike Grandstaff, even if proved, this case did not involve egregious misconduct by so many officers that a preincident policy could reasonably be inferred from the policymaker’s reaction to the incident itself.