Austin, et al v. Harrison County TX, et al

United States Court of Appeals
Fifth Circuit
F I L E D
April 25, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41137
Summary Calendar
_______________
DAVID AUSTIN,
INDIVIDUALLY AND NEXT FRIEND OF “JOHN E”, A MINOR;
SANDRA AUSTIN,
INDIVIDUALLY AND AS NEXT FRIEND OF “JOHN E”, A MINOR,
Plaintiffs-Appellees,
VERSUS
PATRICK A. JOHNSON,
INDIVIDUALLY AND IN OFFICIAL CAPACITY;
CLERAN GIPSON,
DRILL INSTRUCTOR, STAR BOOT CAMP, HARRISON COUNTY, TEXAS,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
“John E,” a minor,1 was caught stealing a
candy bar and, as punishment, was ordered to
attend a one-day boot camp, where he suffered
severe symptoms from heat stroke. John E’s
parents sued the camp operator, Harrison
County, the camp director, and a camp work-
er, alleging, inter alia, the violation of his
Fourth, Eighth, and Fourteenth Amendment
rights. The district court granted plaintiffs’
partial motion for summary judgment denying
the defendant camp directors the defenses of
qualified and official immunity. We affirm in
part, reverse in part, and remand.
I.
A justice of the peace found John E guilty
of taking candy from a concession stand at
school and sentenced him to three months’
probation, a $30 fine, and a one-day boot
camp of his choosing. Sandra Austin, John
E’s mother, and David Austin, his stepfather,
selected the “Strength Through Academics and
Respect,” or STAR, boot camp conducted by
the Harrison County Juvenile Probation
Department. The Austins met with the camp
director, Sergeant Major Patrick Johnson, who
explained that John E would be required to
perform physical exercises and should bring
Gatorade. John E received a required physical
examination at which the doctor found him
capable of engaging “in military style training
and exercise.”
On June 26, 1999, the date of the camp, the
Austins dropped John E off at a local high
school at 5:30 a.m. Though permitted to stay
and observe, the Austins left, planning to re-
turn twelve hours later when the camp was
scheduled to end. In the morning, John E and
the other children performed exercises,
including push-ups, sit-ups, side straddle hops,
and jogging. One exercise required John E to
carry a ruck sack weighing between 57 and 70
pounds. He complained to Johnson that the
ruck sack straps dug into his shoulders and
that he was having difficulty performing the
exercises. Johnson stated that he felt John E
was lazy or had an attitude problem.
At lunch, John E drank two cups of Gator-
ade but did not finish his meal. During the
afternoon march, he complained to Johnson
that he felt sick, but was told to continue.
John E collapsed several times before he was
taken into the school building between 2:00
and 4:00 p.m. The activity log kept by
defendant Cleran Gipson, a drill instructor,
states that John E became dehydrated and “fell
out” at 3:00 p.m.2 Johnson rendered first aid,
but at some point, John E vomited and became
unconscious. An ambulance was called at
4:42 p.m.
John E suffered from serious conditions
such as hyperpyrexia3 and acute rhabdomyoly-
sis4 resulting from heat stroke; he was
admitted to a local hospital, where his
temperature was 107.9º Fahrenheit, and later
was transferred to Children’s Hospital in
1 After plaintiffs sued in 2001, John E reached
the age of majority and asserts claims in his own
capacity; his parents continue their claims for med-
ical expenses.
2 Gipson testified that “fell out” means to be-
come unconscious.
3 An exceptionally high fever.
4 The destruction of skeletal muscle cells.

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Dallas, where he remained for over two
weeks, suffering from acute renal failure, acute
hepatitis, and pancreatitis. He has since made
a full recovery without permanent damage.
Suing under 42 U.S.C. § 1983, plaintiffs
contend that Johnson and Gipson inflicted
cruel and unusual punishment and failed to
summon needed medical care in violation of
John E’s Fourteenth and Eighth Amendment
rights. They also assert Texas state law claims
for negligence, gross negligence, fraud, and
breach of fiduciary duty.5 Plaintiffs filed a par-
tial motion for summary judgment that John-
son and Gipson are not entitled to the defense
of qualified immunity and official immunity. In
turn, Johnson and Gipson filed a cross-motion
for summary judgment based on the same
defenses. The district court considered both
motions and granted plaintiffs’ partial motion
for summary judgment.
II.
The “denial of a claim of qualified
immunity, to the extent that it turns on an issue
of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. 1291
notwithstanding the absence of a final
judgment.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985); see also Behrens v. Pelletier, 516
U.S. 299, 313 (1996). By granting plaintiffs’
motion for partial summary judgment
preventing defendants’ use of a qualified and
official immunity defense, the court denied
defendants’ cross-motion for summary
judgment. We have jurisdiction, because the
court determined plaintiff’s allegations made
out the violation of a clearly established
constitutional right; the denial of qualified
immunity did not rest on the sufficiency of
evidence as to whether the alleged conduct
occurred. Pelletier, 516 U.S. at 312-13.
III.
Qualified immunity is “an entitlement not to
stand trial or face the other burdens of
litigation.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). The initial question is whether,
“taken in the light most favorable to the party
asserting the injury, [] the facts alleged show
the officer’s conduct violated a constitutional
right.” Saucier v. Katz, 533 U.S. 194, 201
(2001). We cannot pretermit whether a
constitutional violation is properly alleged.
Siegert v. Gilley, 500 U.S. 226, 232 (1991).
Second, even where the officer violated
constitutional rights, we ask whether “the con-
tours of the constitutional right in question
were sufficiently clear that a reasonable officer
would understand that what he is doing vio-
lates that right.” Estep v. Dallas County,
Texas, 310 F.3d 353, 360 (5th Cir. 2002)
(citation omitted). Although there does not
have to be a case directly on point, Petta v. Ri-
vera, 143 F.3d 895, 899 (5th Cir. 1998), the
plaintiff should seek to identify “cases of con-
trolling authority in [the] jurisdiction at the
time of the incident which clearly establish the
rule on which they seek to rely,” or “a
consensus of cases of persuasive authority
such that a reasonable officer could not have
believed that his actions were lawful.” Wilson
v. Layne, 526 U.S. 603, 609 (1999). Qualified
immunity protects “all but the plainly
incompetent or those who knowingly violate
the law.” Wooley v. City of Baton Rouge, 211
F.3d 913, 918-19 (5th Cir. 2000). An
official’s conduct is therefore objectively
reasonable unless “all reasonable officials
would have realized the particular challenged
conduct violated the constitutional provisions
sued on.” Id. 5 The fraud and breach of fiduciary duty claims
were brought only against Johnson.

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4
At summary judgment, all inferences are
typically drawn in favor of the nonmoving par-
ty. Reid v. State Farm Mut. Auto. Ins. Co.,
784 F.2d 577, 578 (5th Cir. 1986). The court
followed Saucier, which states that in a
qualified immunity determination, the facts
should be construed in the light most favorable
to the party asserting the injury. 533 U.S. at
201 (emphasis added); Felton v. Polles, 315
F.3d 470, 477 (5th Cir. 2002). Though the
court granted plaintiffs’ motion to deny
defendants use of qualified immunity, it also
considered, and implicitly denied, defendants’
cross-motion for summary judgment. Because
the court drew all reasonable inferences in
favor of plaintiffs, we will do the same,
treating this as defendants’ motion for
summary judgment on the basis of qualified
immunity.
IV.
Plaintiffs assert two Eighth Amendment
claims: that the STAR camp constituted cruel
and unusual punishment and that defendants
were deliberately indifferent to John E’s med-
ical needs. The court concluded that plaintiffs
alleged a violation of both, without even de-
ciding whether the Eighth Amendment applies
to a one-day boot camp.6 It stated that “[t]he
use of the heavy weighted ruck sacks which
cause pain and injury, along with the forced
run in the hot sun which endangers health is an
obvious case of unnecessary and wanton in-
fliction of pain totally without penological
justification.” As for the deprivation of John
E’s medical needs, the court summarily found
that, taking the facts in a light most favorable
to plaintiffs, “deliberate indifference to a pri-
soner’s serious medical needs constitutes the
unnecessary and wanton infliction of pain.”
A.
State defendants do not incur Eighth
Amendment liability unless “the individual was
being held in custody after criminal
conviction.” Johnson v. City of Dallas, 61
F.3d 442, 444 (5th Cir. 1995) (citation
omitted). Defendants do not deny that John E
was convicted of a crime or that his one-day of
boot camp served as punishment. Rather, they
contend that John E was not incarcerated,
noting that he was free to select the date and
location of his punishment, and that his parents
could (but decli ned to) observe his
participation.
In Ingraham v. Wright, 430 U.S. 651, 669-
70 (1977), the Court found the Eighth
Amendment inapplicable to corporal
punishment in schools, observing that
schoolchildren have little need for the
amendment’s protection because schools are
open institutions where children may leave
without physical restraint. A prisoner’s
incarceration, by contrast, “deprives him of the
freedom to be with family and friends and to
form the other enduring attachments of normal
life.” Id. (internal quotation marks and
citations omitted). The Court found that the
Eighth Amendment is implicated once the state
“has secured a formal adjudication of guilt in
accordance with due process of law.” Id. at
671.
A judge found John E guilty, and while at
6 Plaintiffs state that Johnson and Gipson never
raised this argument in the district court and there-
fore are barred from arguing it on appeal. This ig-
nores the fact that the plaintiff has the burden to
rebut a qualified immunity defense “by establishing
that the official’s allegedly wrongful conduct
violated clearly established law.” Pierce v. Smith,
117 F.3d 866, 871-72 (5th Cir. 1997) (quoting
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.
1992)).

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STAR he was in the custody of the state fol-
lowing a due process hearing. Though a one-
day youth offender camp can hardly be equat-
ed to incarceration in a penitentiary, John E
was not free to leave; he was a prisoner.
Campers were threatened with jail time if they
did not comply with the physical exercise reg-
imen; Gipson deposed that any camper who
failed to comply was loaded into an awaiting
van and taken to jail. All of this confirms the
custodial nature of John E’s punishment, so
we conclude that the Eighth Amendment
applies.7
B.
The court erred, however, in concluding
that the camp regimen violated the propor-
tionality principle of the Eighth Amendment.
An individual judge “must not apply his own
subjective view of what is cruel and unusual.
Rather, his judgment ‘should be informed by
objective factors to the maximum possible ex-
tent.’” Sampson v. King, 693 F.2d 556, 569
(5th Cir. 1982) (citations omitted). Under a
“totality of conditions test,” conditions of con-
finement must not impose the wanton and un-
necessary infliction of pain. Howard v. King,
707 F.2d 215, 218 (5th Cir. 1983). In How-
ard, for example, inmates stated an Eighth
Amendment claim where they were forced to
perform hard labor fifty-six hours a week for
over a year.8 Id. at 220.
The Constitution “does not mandate
adoption of any one penological theory.”
Ewing v. California, 123 S. Ct. 1179, 1201
(2003) (citation omitted). In fact, a “sentence
can have a variety of justifications, such as
incapacitation, deterrence, retribution, or
rehabilitation.” Id. The exercises apparently
were designed so that anyone, regardless of
physical fitness level, could complete them.
Requiring youthful offenders to perform mili-
tary-styled exercises for one day is neither
cruel nor unusual; it is a deliberate policy
choice to instill much-needed discipline.
Weems v. United States, 217 U.S. 349, 379
(1962). Jogging and carrying a weighted sack
at a Texas high school cannot be cruel and un-
usual punishment one day and an accepted
form of athletic conditioning the next.
The Eighth Amendment proportionality
principle applies to noncapital sentences and
contains four principlesSS”the primacy of the
legislature, the variety of legitimate
penological schemes, the nature of our federal
system, and the requirement that
proportionality review be guided by objective
factors.” Ewing, 123 S. Ct. 1186 (quoting
Harmelin v. Michigan, 501 U.S. 957, 997
(Kennedy, J., concurring)). Strict
proportionality between the crime and
sentence is unnecessary. Id.
After concluding that the exercise regimen
constituted cruel and unusual punishment, the
district court summarily found that the
punishment was disproportionate to the crime.
We disagree, emphasizing the reasonable
7 We do not decide whether an individual is
protected by the Eighth Amendment while
subjected to other “non-prison” forms of
punishment such as community service or drug
rehabilitation.
8 See also Jackson v. Cain, 864 F.2d 1235,
1245-46 (5th Cir. 1989) (holding that a prison in-
mate established an Eighth Amendment claim
where he alleged that hard labor had aggravated a
(continued...)
8(...continued)
previous medical condition). Though John E had
seen a doctor the previous week to treat a viral
infection, defendants were not notified of his
condition.

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flexibility that should be accorded local
authorities to deal with wayward youths.
Cases that have found disproportionate
sentences involve long-term imprisonment, so
the nominal punishment of a one-day boot
camp cannot pass muster.9
C.
Plaintiffs also contend that Johnson and
Gipson were deliberately indifferent to John
E’s medical needs.10 Deliberate indifference
requires that Johnson and Gipson “both knew
of and disregarded an excessive risk” to John
E’s health or safety. Domino v. Texas Dep’t
of Criminal Justice, 239 F.3d 752, 755 (5th
Cir. 2001). Viewing the evidence in a light
favorable to plaintiffs, John E fell several times
during the afternoon march and was left
behind. He was taken inside the school
sometime after 2:00 p.m., where, according to
Johnson and Gipson, he began vomiting. Gip-
son’s official report states that at 3:00 p.m.
John E became “dehydrated and fell out.”
Gipson testified that the term “fell out” means
to become unconscious. An ambulance was
not called, however, until 4:42 p.m.
Defendants do not dispute the accuracy of
Gipson’s log, nor its literal interpretation. Be-
fore 3:00 p.m., defendants’ conduct was per-
haps only negligent, but their failure to call an
ambulance for almost two hours while John E
lay unconscious and vomiting rises to the level
of deliberate indifference. Since Estelle v.
Gamble, 429 U.S. 97, 104 (1976), state
officers have been on notice that deliberate
indifference to a prisoner’s serious medical
needs violates the Eighth Amendment.
Defendants’ contention that no case has
specifically proscribed the withholding of med-
ical treatment for boot camp attendees reads
the right too narrowly; officers need only have
“fair warning” that their conduct is unlawful.
Hope v. Pelzer, 536 U.S. 730, 678 (2002).
Given the serious medical consequences of
dehydration, a reasonable person would not
have waited nearly two hours to call an
ambulance once John E became unconscious.11
9 See e.g., Solem v. Helm, 463 U.S. 277, 303
(1983) (finding disproportionate a life sentence
without the possibility of parole for writing a no-
account check for $100 following several prior
convictions); Terrebonne v. Blackburn, 624 F.2d
1363, 1371 (5th Cir. 1980) (en banc) (remanding
for determination of whether a life sentence is dis-
proportionate to the offense of drug distribution).
10 Though it is not apparent from their fourth
amended complaint, plaintiffs bring a separate due
process claim under the Fourteenth Amendment,
contending that John E’s right to bodily integrity
was violated. The Eighth Amendment, however,
“serves as the primary source of substantive pro-
tection to convicted prisoners.” Whitley v. Albers,
475 U.S. 312, 327 (1986). Although both the
Eighth and Fourteenth Amendments protect the
safety and bodily integrity of prisoners, the legal
standards are virtually identical. Berry v. City of
Muskogee, 900 F.2d 1489, 1494 n.6 (10th Cir.
1990). Because the Eighth Amendment, as “an ex-
plicit textual source of constitutional protection,”
defines the limits of government action, it controls
over “the more generalized notion of substantive
due process.” Graham v. Connor, 490 U.S. 386,
395 (1989) (internal quotation marks omitted). We
therefore construe plaintiffs’ complaint as raising
a claim under only the Eighth Amendment.
11 The court did not determine whether
defendants are entitled to qualified immunity on
either plaintiffs’ Fourth Amendment or supervisory
liability claims, so we decline to rule. White v.
Walker, 950 F.2d 972, 977 (5th Cir. 1992). We
note, however, that the gravamen of neither claim
is apparent from plaintiffs’ brief or fourth amended
complaint.

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V.
The court denied defendants official
immunity for negligence, gross negligence,
breach of fiduciary duty, and fraud.12 Texas
law grants official immunity to an officer who
was (1) performing discretionary duties; (2) in
good faith; and (3) while acting within the
scope of his authority. City of Lancaster v.
Chambers, 833 S.W.2d 650, 653 (Tex. 1994).
The good faith element is “substantially” the
same as the federal test for qualified immunity,
inquiring whether “a reasonable official could
have believed his or her conduct to be lawful
in light of clearly established law and the
information possessed by the official at the
time the conduct occurred.” Id. at 656; see
also Cantu v. Rocha 77 F.3d 795, 804 (5th
Cir. 1996). As with qualified immunity, sum-
mary judgment is the appropriate vehicle for
deciding official immunity. Albright v. Dep’t
of Human Servs., 859 S.W.2d 575, 579 & n.1
(Tex. App.SSHouston [1st Dist.] 1993, no
writ).
Drawing all inferences in plaintiffs’ favor,
defendants’ reckless indifference to John E’s
medical needs precludes official immunity for
the negligence and gross negligence claims.
Plaintiffs’ fraud and breach of fiduciary duty
claims center on Johnson’s alleged failure to
“disclose all material facts regarding the risk
and dangers of the boot camp, as well as the
physical regiment [sic] inflicted upon the chil-
dren.” The Austins contend they would not
have let John E attend the STAR camp had
they known he would be forced to jog with a
weighted ruck sack; they do not deny,
however, that, before the camp, Johnson met
with them and explained that rigorous physical
exercise would be involved and that John E
should bring Gatorade.
Further, plaintiffs do not dispute signing a
“Prevention Bootcamp Procedures” form stat-
ing that the camp would consist of various
types of physical exercises including a march
with weighted ruck sacks. The document also
states that campers will perform calisthenics
for up to one and one-half hours with rest
breaks. Sandra Austin deposed that she did
not believe Johnson made any false statements
about the program; she wishes she had asked
more questions.
Johnson acted with “objective legal
reasonableness” by meeting with the Austins,
having them sign a document explaining camp
procedures, and verbally explaining that John
E would be required to perform physical
exercises. Roe, 299 F.3d at 413. Even after
drawing all reasonable inferences in their
favor, plaintiffs produce no evidence of a
material misrepresentation by Johnson, so he is
entitled to official immunity on the fraud and
breach of fiduciary duty claims.
The order denying qualified immunity is
REVERSED with respect to plaintiffs’
constitutional claim of disproportionate
punishment and state law claims for fraud and
breach of fiduciary duty, and AFFIRMED in
all other respects. The matter is REMANDED
for further proceedings, as appropriate, in
accordance with this opinion.
12 We have jurisdiction to review the denial of
official immunity, because Texas’s official
immunity doctrine, like the federal doctrine,
relieves state officials of the burden of suit and
liability for damages. Roe v. Tex. Dep’t of
Protective & Regulatory Servs., 299 F.3d 395, 413
(5th Cir. 2002).

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