1 Judge of the United States Court of International Trade, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30104

MARY DIMM COZZO,

Plaintiff-Appellee,

versus

TANGIPAHOA PARISH COUNCILPRESIDENT GOVERNMENT; ET AL,

Defendants,

and

J. E. LAYRISSON, Sheriff, Tangipahoa

Parish; RONALD JOINER, Deputy Sheriff of

Tangipahoa Parish,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

January 10, 2002

Before STEWART and PARKER, Circuit Judges, and GOLDBERG, Judge. 1

CARL E. STEWART, Circuit Judge:2

The panel’s opini o n filed September 5, 2001, published at 262 F.3d 501 (5 t h Cir. 2001), is

withdrawn and the following opinion is substituted therefor.

Defendants-Ap pellants, Sheriff J. E. Layrisson (“Sheriff Layrisson” or “Layrisson”) and

Deputy Ronald Joiner (“Deputy Joiner” or “Joiner”), claim that the district court erred by denying

their motion for a judgment as a matter of law or, in the alternative, for a new trial regarding the jury

verdict in favor of Plaintiff-Appellee Mary Dimm Cozzo (“Ms. Cozzo”), finding that Joiner deprived

Ms. Cozzo of her constitutional rights and t hat Layrisson was deliberately indifferent to that

deprivation. For the reasons assigned herein, we affirm the district court in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Cozzo and Joseph Cozzo (“Mr. Cozzo”) lived in Folsom, Louisiana, on property that

belonged separately to Ms. Cozzo. The premises contained an apartment dwelling and a barn that

stored tool s and equipment. After experiencing marital discord, Mr. Cozzo, an electrician who

traveled to customers’ homes to repair appliances and electrical systems, moved out, filed for divorce,

and sought a temporary restraining order (“TRO”) to prevent Ms. Cozzo from coming to his

residence and place of business.

After Mr. Cozzo successfully secured the TRO on September 22, 1997, the Civil Department

of the Tangipahoa Parish Sheriff’s Department served the order. Captain James Peoples (“Captain

Peoples”), a department supervisor, visited the marital premises. Ms. Cozzo was at work, but Mr.

Cozzo was present and informed Captain Peoples that he worked on the property

. Upon receiving

this information and without attempting to contact the judge who signed the TRO to determine its

intended scope and application, Captain Peoples decided that the TRO required Ms. Cozzo to be

evicted from the property

. After leaving Mr. Cozzo and returning to the Sheriff’s Office, Captain2 During the interim, Ms. Cozzo lived with her daughter and incurred expenses associated with

helping build an addition to her daughter’s home.

3 Peoples informed Deputy Joiner that the TRO required Ms. Cozzo’s removal from the property and

instructed him to go await her return from work and serve the TRO accordingly.

Deputy Joiner returned to the premises that evening and served the TRO on Ms. Cozzo upon

observing her arrive from work around 10:00 p.m. He told her that, under the terms of the TRO, she

wou ld have to leave. Ms. Cozzo protested, telling him that the matrimonial premises were her

separate property

. Deputy Joiner called Captain Peoples and informed him of Ms. Cozzo’s assertion.

Still convinced, however, that the TRO required her eviction, Captain Peoples spoke with Ms. Cozzo

on the telephone and reiterated D eput y Joiner’s previous order that she leave the property. Ms.

Cozzo then called her nephew, a St. Tammany Parish Sheriff’s Deputy, and her lawyer seeking

counsel on how to handle the situation. They both advised her to cooperate with Deputy Joiner, so

she gathered her belongings and left.

The following day, Ms. Cozzo contacted her attorney again and asked him to handle the legal

proceedings regarding her eviction. A hearing was set for December 1, 1997, to determine whether

Mr. or Ms. Cozzo was the legal occupant of the house. Because of a scheduling conflict, the hearing

was delayed until February 2, 1998, but was no t ultimately held until March 2, 1998. 2 At that

hearing, Ms. Cozzo was awarded custody of the residence, and Mr. Cozzo was directed to evacuate

the premises. Moreover, the judge who signed the TRO was amazed that it had been interpreted to

require Ms. Cozzo’s eviction and stated that she should sue the Sheriff.

Ms. Cozzo sued Tangipahoa Parish (“the Parish”), Sheriff Layrisson, and Deputy Joiner under

the Fourth, Fifth, and Fourteenth Amendments to the United States Con stitution and 42 U.S.C. §3 Captain Peoples is not named as a defendant in the instant dispute.

4 See Parratt v. Taylor

, 451 U.S. 527, 101 S. Ct. 1908 (1981); Hudson v. Palmer

, 468 U.S. 517,

104 S. Ct. 3194 (1984).

4 1983, alleging that her home was purposefully and intentionally seized, t hat inadequate training

caused the violations of her constitutional rights, and that Sheriff Layrisson and Deputy Joi ner’s

co nduct was in reckless disregard for her property and constitutional rights. 3 The Parish, Sheriff

Layrisson, and Deputy Joiner filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), raising

arguments that they were en t it led t o qualified immunity and that the suit was barred by the

Parratt/Hudson 4 doctrine, which the district court denied.

After the parties filed a joint motion to dismiss the Parish, Ms. Cozzo’s case pr oceeded to

trial. The jury found that Sheriff Layrisson and Deputy Joiner had infringed her constitutional rights

and awarded her $15,000 for pain and suffering, $10,000 for economic loss, and $35,000 in punitive

damages. The district court entered judgment in accordance therewith. Sheriff Layrisson and Deputy

Joiner filed a motion for judgment as a matter of law or, in the alternative, a motion for new trial that

the district court denied. S ee Cozzo v. Parish of Tangipahoa

, No. CIV.A. 98-2728, 2000 WL 6280,

at *11 (E.D. La. Jan. 3, 2000). They now appeal.

DISCUSSION

“We review de novo the district court’s ruling on a motion for judgment as a matter of law”

but note that, in an action tried by a jury, such a motion is a challenge to the legal sufficiency of the

evidence supporting the jury’s verdict. Brown v. Bryan County, Okla.

, 219 F.3d 450, 456 (5 th Cir.

2000). As such, while we consider the evidence “drawing all reasonable inferences and resolving all

credibility determinations in the light most favorable t o t he non-moving party[,]” we nonetheless5

observe “that our standard of review with respect to a jury verdict is especially deferential.” I d.

Thus, we will reverse “‘only if no reasonable jury would have arrived at its verdict.’” Id. (quoting

Snyder v. Trepagnier , 142 F.3d 791, 795 (5 th Cir. 1998)).

I. Immunity

A. Sovereign Immunity

Layrisson and Joiner argue for the first t ime o n appeal that sheriffs and their deputies are

“arms of the state” entitled to sovereign immunit y. In the alternative, they claim that, even if they are

not properly considered arms of the state, they are still entitled to sovereign immunit y because they

were acting pursuant to state law when they executed the TRO against Ms. Cozzo.

Sovereign immunity is jurisdictional. Koehler v. United States , 153 F.3d 263, 267 (5 th Cir.

1998). Moreover, “[a] lack of subject matter jurisdiction may be raised at any time, which means we

can examine the district c o urt’s jurisdiction for the first time on appeal.” G iles v. Nylcare Health

Plans, Inc.

, 172 F.3d 332, 336 (5 th Cir. 1999). As with other questions of subject matter jurisdiction,

we review Eleventh Am

endment immunity determinations de novo. U nited States v. Tex. Tech.

Univ. , 171 F.3d 279, 288 (5 th Cir. 1999).

The Eleventh Amendment bars a state’s citizens from filing suit against the state or its

agencies in federal courts. W illiams v. Dallas Area Rapid Transit

, 242 F.3d 315, 318 (5 th Cir. 2001).

When a state agency is the named defendant, the Eleventh Amendment bars suits for both money

damages and injunctive relief unless the state has waived its immunity. See Puerto Rico Aqueduct

& Sewer Auth.

, 506 U.S. 139, 144 (1993). By statute, Louisiana has refused any such waiver of its

Eleventh Amendment sovereign immunit y regarding suits in federal courts. S ee L A

. R EV

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. A NN

.

§ 13:5106(A).6

Further mo re, Congress may only abrogate a state’s Eleventh Amendment immunity by

“unequivocally” expressing its intent to do so and by acting “pursuant to a valid exercise of power.”

Fla. Prepaid Postsecondary Educ. Expenses Bd. v. Coll. Sav. Bank

, 527 U. S. 627, 634 (1999). We

note that in enacting § 1983, Congress did “not explicitly and by clear language indicate on its face

an intent to sweep away the immunit y of the States.” Quern v. Jordan , 440 U.S. 332, 345 (1979).

As such, if Layrisson and Joiner are the alter egos of Louisiana, they are entitled to immunity from

Ms. Cozzo’s suit. See Voisin’s Oyster House, Inc. v. Guidry , 799 F.2d 183, 186 (5 th Cir. 1986).

This court uses a six factor test to determine whether “the state is the real, substantial party

in interest.” H udson v. City of New Orleans

, 174 F.3d 677, 681 (5 th Cir. 1999). The six factors are

as follows:

1. Whether the state statutes and case law view the agency as an arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned primarily with local as opposed to stat ewide

problems;

5. Whether the entity has the authority to sue and be sued in its own name; and

6. Whether the entity has the right to hold and use property.

Id. All of these factors need not be present for a defendant to be entitled to Eleventh Amendment

immunit y. I d. at 682. Indeed, the second factor is most important because a fundamental goal of the

Eleventh Amendment is to protect state treasuries. Id. (citing Delahoussaye v. City of New Iberia

,

937 F.2d 144, 147-48 (5 th Cir. 1991)). In contrast, the last two factors weigh significantly less in the

six factor balance of equities used to determine “whether the suit is in reality a suit against the state

itself.” Id. (internal quotations and citation omitted).

The first Hudson

factor does not support Layrisson’s and Joiner’s contentions that they are

entitled to sovereign immunit y. While an argument can be made that Louisiana considers sheriffs an5 See L A

. C ONST

., art. 5, § 2; Nall v. Parish of Iberville

, 542 So.2d 145, 149 n.4 (La. App. 1 st Cir.

1989)(reasoning that by placing “the provision dealing with sheriffs

. . . in article 5, § 27,” Louisiana

indicated that “the sheriff’s office was not intended to be a unit of local government”).

6 We note that the United States Supreme Court has st at ed that political subdivisions are not

protected by the Eleventh Amendment. S ee Port Auth. Trans-Hudson Corp. v. Feeny

, 495 U.S. 299,

110 S. Ct. 1868, 1877, 109 L. Ed. 2d 264 (1990).

7 arm of the state because its constitution discusses sheriffs under the judici al branch of state

government, 5 this contention is undercut by the fact that “‘Louisiana does not [act ually] view the

sheriff as a ‘state agency.’” Porche v. Saint Tammany Parish Sheriff’s Office

, 67 F. Supp. 2d 631, 634

(E.D. La. 1999)(citing L A

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. § 13:5102(A)). This fact is born out in Louisiana statutory

law, which excludes any political subdivision or any agency of a political subdivision from its

d efinition of a state agency. I d. 6 In Louisiana, “the definition of a ‘political subdivision’ includes

‘sheriff.’” I d. (citing L A

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. § 13:5102(B)); see also Rome v. Traylor

, 620 So. 2d 11 63,

1166 (La. 1993)(stating that “[a] sheriff is a parish official

, being the chief law enforcement officer

of the par ish”)(emphasis added); J ones v. Traylor

, 660 So. 2d 933, 935 n.3 (La. App. 4 th Cir.

1995)(observing that as a unit of local government au t ho rized by law to perform governmental

functions, a sheriff would be included within the definition of a political subdivision). Thus, the

Louisiana statutes and case law can fairly be read to stand for the proposition that sheriffs are political

subdivisions that are no t protected by the Eleventh Amendment. However, because at least one

Louisiana court has opined to the contrary, taking the view that sheriffs are state officers, s ee Nall

,

542 So. 2d at 149 n.4, the first Hudson factor is ambiguous in that it neither supports nor refutes

Layrisson’s and Joiner’s assertion of sovereign immunity. See Hudson

, 174 F.3d at 686 (agreeing

with the district court’s assessment that the first factor pointed in different directions and declining

“to count it either in support for, or denial of, Eleventh Amendment immunity”).8

The most important Hudso n fact o r, the source of the entity’s funding, requires a two-part

inquiry. First, we must address the state’s liability for any judgment against Sheriff Layrisson and

Deputy Joiner. Second, we consider Louisiana’s liability for the Parish Sheriff Department’s general

d ebt s and obligations. S ee id. at 687. Regarding the first prong of the source of funding inquiry,

Louisiana Revised Statute 42:1441 provides that “[t]he state of Louisiana shall not be liable for any

damage caused by a

. . . sheriff

. . . wit hin t he co urse and scope of his official duties, or damage

caused by an employee of a

. . . sheriff

. . . .” With respect to the second prong, Layrisson and Joiner

cite no case law or statutory provisions authorizing the state of Louisiana’s general funding of local

sheriff s’ o ffices. As there seems to be no such authority requiring Louisiana to provide funds for

sheriffs’offices to pay their general debts and obligations, Louisiana appears to be “fiscally isolated

from judgments against the sheriff.” P or che , 67 F. Supp. 2d at 635. Thus, the most important

Hudson factor militates against a finding that Sheriff Layrisson and Deputy Joiner are entitled to

sovereign immunity.

The third factor, degree of loc al autonomy, points to a finding of no immunity because

Louisiana sheriffs are limit ed to the territorial boundaries of their respective parishes. S ee Burge v.

Parish of Saint Tammany

, 187 F.3d 452, 469 (5 th Cir. 1999)(“Under the Louisiana Constitution and

laws, a district attorney

, like a sheriff, is virtually an autonom ous local government official.”); Porche

,

67 F. Supp. 2d at 635 (finding that Louisiana sheriffs’ degre e o f local autonomy weighed against

Eleventh Amendment immunit y); Hayes v. Parkem Indus. Serv., Inc.

, 598 So. 2d 1194, 1197 (La.

App. 3d Cir. 1992). Thus, despite enforcing state laws and performing sundry duties for Louisiana’s

benefit, sheriffs are concerned with local problems because those “duties are generally performed only9

within a given parish.” P orche

, 67 F. Supp. 2d at 635. Accordingly, the fourth H udson factor does

not favor a finding that Layrisson and Joiner are entitled to sovereign immunity.

The fift h factor cuts against Eleventh Amendment immunit y if the entity can sue or be sued.

Hudson , 174 F.3d at 691. In H udson

, “[t]he parties agreed that the Orleans Parish District

Attorney ’s office, as an entity, cannot itself sue or be sued,” but recognized that all suits must be

“brought by or against the district attorney in his official capacity.” Hudson , 174 F.3d at 691.

Observing that “the distinction between the entity and an entity’s officer sued in his official capacity

is irrelevant for purposes of [the] Eleventh Amendment inquiry[,]” this court found that the fifth

fact o r did not favor a finding of immunity. I d. This reasoning is applicable to the instant query.

Namely, although a sheriff’s office is not a legal entity capable of being sued, Louisiana sheriffs are

amenable to suit. P orche

, 67 F. Supp. 2d at 635 (“The law of Louisiana affords no legal status to the

Parish Sheriff’s Department wherein said department can sue or be sued, such status being reserved

for the Sheriff.

. . .”)(internal quotati ons and citation omitted); Ferguson v. Stevens

, 623 So. 2d 711,

714 (La. App. 4 th Cir. 1993)(reasoning that the Sheriff’s Office has consistently “been held to be a

non-entity incapable of being sued[,]” but concluding that the Sheri ff was liable in his official

capacity). As Sheriff Layrisson may be sued, though the Parish Sheriff’s Department may not, this

factor also militates against a finding of immunity.

Our review of the sixth and final Hudson factor, whether the entity has the right to hold and

to use property

, reveals that, under Louisiana law, “[e]ach parish shall provide and bear the expense

of a suitable building and requisite . . . furniture and equipment as may be needed by the sheriffs . .

. .” L A

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. § 33:4713. Notwithstanding this provision, “a sheriff . . . may purchase and

equip such real property as is necessary in the performance of his duties[,]” but “[t]he ownership of10

such real property shall be vested in the parish law enforcement district.” L A

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. §

33:1422(D). While the statutes provide for Louisiana sheriffs’ use of property, they do not similarly

contemplate the sheriffs’ holding an ownership interest in that property

. Accordingly, the last H udson

factor points to a finding that the Eleventh Amendment provides no protecti on to Louisiana sheriffs

against suit.

Because none of the Hudson factors favor Sheriff Layrisson and Deputy Joiner, we hold that

they are not entitled to sovereign immunit y against Ms. Cozzo’s claims. S ee Porche

, 67 F. Supp. 2d

at 636 (stating that “[a]n analysis of the Hudson factors leads to a determination that a sheriff in

Louisiana may not be properly characterized as an arm of the state and, therefore, the El eventh

Amendment affords a sheriff in Louisiana no protecti on against being sued” and concluding that the

sheriff was not entitled to immunity from suit).

B. Absolute Immunity

Sheriff Layrisson and Deputy Joiner also contend that they are entitled to absolute immunit y

because they were acting pursuant to their authority as officers of the court when they served Ms.

Cozzo with the TRO and evicted her from her property

. They claim that they should receive the same

immunit y as would a judge because Ms. Cozzo’s suit arises from their enforcement of a court order.

Absolute immunit

y is an affirmative defense t hat is waived if it is not pleaded. B oyd v.

Carroll

, 624 F.2d 730 , 732-33 (5 t h Cir. 1980). Although Layrisson and Joiner raised qualified

immunity as a defense to Ms. Cozzo’s claims, neither their answer nor motion to dismiss plead the

affirmative defense of absolute immunit y. Consequently, they have waived this defense, and we

therefore do not reach the merits of this argument.

C. Qualified Immunity11

Sheriff Layrisson and Deputy Joiner also argue that the district court erred by finding their

asserted defense of qualified immunit y inapplicable to the instant dispute. They maintain that they

are entitled to qualified im munit y fro m Ms. Cozzo’s claims because interpretation of the TRO to

require her eviction was clearly within Captain People’s discretionary authority. We review the denial

of qualified immunit

y de novo. B rady v. Fort Bend County , 58 F.3d 173, 174 n.1 (5 t h Cir.

1995)(citing Pierce v. Under wood , 487 U.S. 552, 558, 108 S. Ct. 2541, 2546, 101 L. Ed. 2d 490

(1988)).

“The doctrine of qualified immunit y serves to shield a government official from civil liabilit y

for damage s based upon the performance of discretionary functions. . . .” T hompson v. Upshur

County, Tex.

, 245 F.3d 447, 456 (5 th Cir. 2001). The Supreme Court has characterized the doctrine

as protecting “all but the plainly incompetent or those who kno wingly violate the law.” M alley v.

Briggs

, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271(1986). To determine whether a

defendant falls somewhere in the spectrum between the polar extremes of incompetency and knowing

violation, this court conducts a bifurcated analysis. E.g., Thompson , 245 F.3d at 457.

First, we m

ust decide whether the plaintiff alleged a violation of a clearly established

constitutional right. See Siegert v. Gilley , 500 U.S. 226, 231 (1991); Hare v. City of Corinth , 135

F.3d 320, 325 (5 th Cir. 1998). A right is “clearly established” if its contours are “sufficiently clear that

a reasonable official would understand that what he is doing violates that right.” A nde rson v.

Creighton

, 483 U.S. 635, 640, 107 S. Ct 3034, 97 L. Ed. 2d 523 (1987). Second, we must address

whether the defendant’s “conduct was objectively reasonable in light of clearly established law at the

time that the challenged conduc t occurred.” G lenn v. City of Tyler

, 242 F.3d 307, 312 (5 th Cir.

2001). “The defendant’s acts are held to be objectively reasonable unless all reasonable o fficials in7 Deliberate indifference is a standard applied to Fourteenth Amendment substantive due process

claims, not Fourth Amendment claims. Most often, the standard arises in the context of a prisoner’s

right to medical care or a state’s failure to train or supervise officers. Clearly, the Fourth Amendment

is the constitutional right at issue in this case.

12 the defendant’s circumstances would have then known that the defendant’s conduct violated the”

plaint iff’s asserted constitutional or federal statutory right. T hompson

, 245 F.3d at 457 (ci ti ng

Anderson

, 107 S. Ct. at 3040; Malley

, 106 S. Ct. at 1096)(emphasis in original). Thus, an individual

defendant’s subjective state of mind is irrelevant to the qualified immunity inquiry. I d. Because

Deputy Joiner effectively concedes on appeal that his actions violated Ms. Cozzo clearly established

Fourth Amendment rights, we are required to address only the second pro ng o f the qualified

immunity test, that is, whether Deputy Joiner’s actions were objectively reasonable.

1. Individual Liability

The dis t rict court found the statement “I don’t care what she say s–put her out,” Captain

Peoples’s response to Ms. Cozzo’s claims that the marital premises were her separate property, to

be “the embodiment of the phrase deliberate indifference.” 7 C ozzo

, 2000 WL 6280, at *10. It further

found that Deputy Joiner removed M s. Cozzo from her home under the color of law based on an

order that on its face neither states nor requires eviction. I d. Taken together with the fact that it took

Ms. Co zzo nearly half a year to regain possession of her home, the court concluded that Sheriff

Layrisson and Deputy Joiner were not entitled to the defense of qualified immunity. Id.

Our review of the record reveals that Deputy Joiner’s removal of Ms. Cozzo from her home

pursuant to the TRO was objectively unreasonable and, thus, supports the district court’s conclusion

that Deputy Joiner enjoys no qualified immunit y against Ms. Cozzo’s claims. W e observe that,

although Deputy

Jo iner attested that he never read the TRO and was only following the orders of13

Captain Pe o ples, who claimed that he read the TRO and interpreted it to require Ms. Cozzo’s

removal from her home, the record reflects that Deputy Joiner was well aware of the cause of Ms.

Cozzo’s concerns and the need for clarification. Ms. Cozzo testified that she perused the TRO and

attached papers in Deputy Joiner’s presence. Ms. Cozzo attested that, after so doing, “I showed him

on the back of the papers that they had a paper showing that my husband an d I had separated the

community property

. There was no community property, and that the house was mine.” In response,

Deputy Joiner contacted Captain Peoples, and Ms. Cozzo reiterated her position. Undaunted by her

revelation and unpersuaded to reconsider his init ial determination that the TRO required her removal

from the p ro perty, Captain Peoples callously informed Ms. Cozzo that he did not care what the

papers said and that she would have to leave her home. Upon completing his subsequent conversation

with Captain Peoples, Deputy Joiner acquiesced, stating: “‘My supervisor says it doesn’t matter what

the papers say, you still have to go.’”

Captain Peoples’s clearly stated abject disregard for and Deputy Joiner’s patently unaroused

curiosity about “what the papers say” undercut Deputy Joiner’s claim t hat he acted reasonably by

evicting Ms. Cozzo. Had he read the TRO, Deputy Joiner would have found that the term eviction

is unmistakably absent from the order. Additionally, had he taken the time to look at the attached

papers, Deputy Joiner would have noticed that Mr. Cozzo’s Petition for Divorce and Determination

of Incidental Matters contained the following statement:

Petitioner avers some of his person al belongings are located in the former

matrimonial domicile

, located at 49060 Turnpike Road, Folsom, Louisiana 70437,

which is occupi ed at the present time by the defendant, Mary Dimm Cozzo

. Petitioner avers it is necessary for this Honorable Cour t to order a deputy of

Tangipahoa Parish Sheriff’s Office, or other appropriate law enforcement officer, to

accompany him to said residence so he may obtain possession of his personal

property

.8 On direct examination, Ms. Cozzo testified as follows:

Q. At the time that th is do cument was served on you, . . . . [w]as his place of

employment at 49060 Turnpike Road?

A. No, it was not.

14 (emphasis added).

This language demonstrates that Mr. Cozzo no longer occupied the home he formerly shared

with Ms. Cozzo. Its full significance becomes clear, however, only upon reading the order granting

Mr. Cozzo’s request for a TRO, which provides in pertinent part “that a temporary restraining order

issue.

. . directed to

. . . Mary Dimm Cozzo, restraining, enjoining, and prohibiting the defendant, her

agents or assigns

. . . from communicating with the petitioner in any way, from going to his place of

residence or employment

, or accosting him in any fashion.” (emphasis added). Accordingly, Captain

Peoples’s claim that Ms. Cozzo had to be removed from her home to comply with the provision of

the TRO restraining her from going to Mr. Cozzo’s place o f residence is unpersuasive in that Mr.

Cozzo’s divorce petition indicates that only Ms. Cozzo occupied their former matrimonial domicile

at the time that he requested the TRO.

Moreover, Captain Peoples’s asserted alternative basis for interpreting the TRO to require

Ms. Cozzo’s removal from her home does no t change our conclusion that it was objectively

unreasonable to evict her. In particular, despite the property bearing no sign indicating a business,

Captain Peoples testified that he determined that Mr. Cozzo’s place of business was located at 49060

Turnpike Road, the former matrimonial domicile, because he saw some tools in the barn and Mr.

Cozzo told him the property was his place of business. We note, however, that in making this

determination Captain Peoples never even inquired of Ms. Cozzo whether Mr. Cozzo actually worked

on the property

, a claim that Ms. Cozzo denied in sworn testimony. 8 Moreover, when she talked toQ. What does Mr. Cozzo do?

A. He’s an electrician.

Q. And, so what does he do as an electrician?

A. Well, if you have problems with your lights or wiring, you would call him and he

would go out to your house and check out the problem at your house and then bill

you, and you would pay him. (emphasis added).

Q. Okay. Did he work out of your home on his business?

A. No, ma’am, it would always have been at . . . their building, their home, or

whatever they had that they wanted him to fix.

15 Captain Peoples on the telephone in an attempt to explain that the eviction was a mistake, neither Mr.

Cozzo’s place of residence or business nor the provisions of the TRO were of any concern to Captain

Peoples; he merely told her to get out. We find that Captain Peoples’s actions clearly violated Ms.

Cozzo’s Fourth Amendment right to be free from unreasonable seizures. D eputy Joiner’s subsequent

eviction of Ms. Cozzo was objectively unreasonable in light of the facts and circumstances in the case

at bar. Accordingly, we affirm the district court’s decision to deny Deputy Joiner’s qualified

immunit y claim.

2. Supervisory Liability

a. Failure to Train

We are unpersuaded, however, that the district court’s denial of Sheriff Layrisson’s qualified

immunity claim merits a similar conclusion. In denying Sheriff Layrisson’s motion for judgment as

a matter of law or, in the alternative, motion for new trial, the district court correctly observed that

liabilit y under the doctrine of respondeat superior is not cognizable in § 1983 actions. D oe v. Taylor

Indep. Sch. Dist. , 15 F.3d 443, 452 (5 th Cir. 1994)(en banc) . However,

[a] sheriff not personally involved in the acts that deprived the plaint iff of [her]

constitutional rights is liable under sectio n 1983 if: 1) the sheriff failed to train or

supervise the officers involved; 2) there is a causal connection between the alleged9 Sheriff Layrisson and Deputy Joiner contest this finding on appeal.

1 0 See L A

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. § 40:2405A(1). This statutory provision, ent it led Peace Officer

Training Requirements, provides:

Notwithstanding any other provisions of law to the contrary, any person who begins

employment as a peace o fficer in Louisiana subsequent to January 1, 1986, must

successfully complete a certified training program approved by the counc il and

successfully pass a council-approved comprehensive examination within one calendar

16 failure to supervise or train and the alleged violation of the plaintiff’s rights; and 3)

the failure to train or supervise constituted deliberate indiffe rence to the plaintiff’s

constitutional rights.

Thompson

, 245 F.3d at 459 (citations omitted). Proof of a single instance, rather than a pattern of

similar violations, normally wi ll no t sustain a plaintiff’s claim that such a lack of training or

supervision caused a violation of her constitutional rights. I d. (citing Snyder v. Trepagnier

, 142 F.3d

791, 798-99 (5 th Cir. 1998); Thompkins v. Belt

, 828 F.2d 298, 304-05 (5 th Cir. 1987)). Finally, t he

training’s inadequacy “must be obvious and obviously likely to result in a constitutional violation.”

Id. (citing City of Canton v. Harris , 489 U.S. 378, 109 S. Ct. 1197, 1205 n.10, 103 L. Ed. 2d 412

(1989)).

The district court found that Ms. Cozzo introduced “evidence that the emplo yees of the

Sheriff’s Office were improperly trained.” C ozzo

, 2000 WL 6280, at *5. 9 It determined that “a

reasonable juror could have concluded that Sheriff Layrisson, by failing to train his employees or set

any specific rules regarding actions allowed by his deputies with

. . . TROs in domestic cases, was

deliberately indifferent to unauthorized evictions.” I d. Our review of the record confirms the district

court’s former finding, but the law does not support its latter determination.

Ms. Cozzo elicited testimony from David Kent (“Kent”), her training expert, regarding the

general training requirements for Louisiana peace officers. 1 0 He informed the jury that the state-year from the date of initial employment. Any person who fails to comply with this

re quirement shall be prohibited from exercising the authority of a peace officer;

however, such persons shall not be prohibited from performing administrative duties.

11 See discussion infra Part III.B.

17 required peace officer training consisted of an eight-week, 320-hour course. He further attested that,

upon completion of this course, officers receive a basic certificate of general police knowledge and

instruction. Counsel for Ms. Cozzo then introduced evidence of Deputy Joiner’s training records,

which documented his completion of various training programs, but did not contai n the

aforementioned peace officer training certificate.

Captain Peoples further confirmed the validity of this documentation by testifying that, to his

knowledge, Deput y Joiner had not completed the basic peace officer training course, but asserted

that, as a civil deputy, he believed that Joiner was exempt from these training requirements. Joiner

articulated the same belief during his testimony. On cross-examination, Kent nonetheless maintained

that Louisiana law required Deputy Joiner to complete peace officer training and that, since his

training records indicated that he had not done so, Deputy Joiner’s training did not comport with the

state’s requirements. Thus, Sheriff Layrisson and Deputy Joiner failed to adduce evidence at trial

unequivocally demonstrating that the proffered training provisions were inapplicable to Deput y

Joiner. 11

Based on the evidence before it , t herefore, the jury could have found that Ms. Cozzo

established the first prong needed to demonstrate supervisory liabilit y under the failure to train theory.

We also find that the jury could have inferred a causal connection between this lack of training and

Deputy Joiner’s eviction of Ms. Cozzo. But we part company with the district court on the issue of18

whether the proffered evidence of Sheriff Layrisson’s alleged failure to train ultimately demonstrated

a deliberate indifference to Ms. Cozzo’s right not to be unconstitutionally deprived of her property

.

In particular, Ms. Cozzo’s eviction pursuant to Captain Peoples’s interpretation of the TRO

is unprecedented in t he Sheriff Department’s history. As such, it implicates the “single incident

exception” for establishing failure to train liabilit y. S ee Gabriel v. City of Plano

, 202 F.3d 741, 745

(5 th Cir. 2000)(citing Bd. Of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 405, 117

S. Ct. 1382, 137 L. Ed. 2 d 626 (1997)). Prevailing under this exception “requires proof of the

possibility of recurring situations that present an obvious potential for violation of constitutional

rights and the need for additional or different . . . training.” I d. We note, however, that this court

has often rejected application of the single incident exception. Conner v. Travis County , 209 F.3d

794, 797 (5 th Cir. 2000); Gabriel

, 202 F.3d at 745; McClendon v. City of Columbia

, No. 00-60256,

2001 WL 776813, at * 8 (5 th Cir. July 26, 2001)(observing, however, that in Brown v. Bryan County,

Okla.

, 219 F.3d 450 (5 th C ir. 2000), t his court found the county liable under the single incident

exception when it “failed to provide any training or supervision for a young, inexperienced officer

with a record of recklessness[,]” but also noting that “there is a difference between a complete failure

to train , as in Bryan , and a failure to train in one limited area” )(emphasis added).

Although we agree with the district court that the testimony of Ms. Cozzo’s expert witness,

st at ing that Joiner never attended Louisiana’s 320-hour peace officer training course, pro vided

evidence sufficient for the jury to infer that Sheriff Layriso n failed to train Deputy Joiner, we

emphasize that proffering this testimony did not end Ms. Cozzo’s evidentiary burden. Even taking

the evidence in the light most favorable to the jury’s verdict that Sheriff Layrisson’s failure to train

Deputy Joiner actually caused Ms. Cozzo’s injury, Ms. Cozzo still bore the onus to prove that this19

failure to train constituted deliberate indifference to her right not to be unconstitutionally dispossessed

of her property

. Kent’s testimony alone is, however, insufficient to meet this burden. S ee Conner

,

2 09 F.3d at 798 (stating that plaintiffs generally cannot show deliberate indifference through the

opinion of only a single expert).

Moreover, Captain Peoples’s attestation that, in nineteen years of working for the Sheriff’s

Department, he had received and was aware of no citizens’ complaints against any employee

regarding the manner in which orders are served cuts against Ms. Cozzo’s failure to train supervisory

liabilit y claim. Specifically, the elapsing of almost two decades without any such complaint being

lodged suggests that the inadequate tra ining was not “obvious and obviously likely to result in a

constitutional violation.” I d. ; see also C onner , 209 F.3d at 797 (reasoning that “if the need for

training . . . was ‘so o bvious’ and the failure to train was ‘so likely to result in the violation of

constitutional rights[,]’.

. . Connors would be able to identify other instances of harm arising from the

failure to train”). Ms. Cozzo pointed to no other evictions based on TROs or any such similar events

in the Sheriff Department ’s hist ory and therefore neglected to proffer proof of the possibility of

recurring situations that present an obvious potential for violation of constitutional rights and the need

for additional or different training. As such, Ms. Cozzo adduced evidence legally insufficient to

support the jury’s finding of deliberate indifference. Accordingly, this case does not fit within the

single incident exception, and Sheriff Layrisson has persuasively argued that the district court erred

in concluding that Ms. Cozzo demonstrated failure to train supervisory liability.

b. Official Policy

Supervisory liabilit

y may additionally exist “without overt personal p art icipation in the

offensive act if supervisory o fficials implement a policy so deficient that the policy it self is a20

r epudiation of constitutional rights and is the moving force of the constitutional violation.”

Thompkins , 828 F.2d at 304 (internal quotations and citations omitted). An official policy is:

1. A policy statement, ordinance, regulation, or decision that is o fficially adopted

and promulgated by the [government entity]

. . . or by an official to whom the

[entity] ha[s] delegated policy-making authority; or

2. A persistent, widespread pra ct ice o f . . . officials or employees, which,

although not authorized by o fficially adopted and pro mulgated policy, is so

common and well settled as to constitute a custom that fairly represents [the

entity’s] policy.

Johnson v. Moore

, 958 F.2d 92, 94 (5 th Cir. 1992). A plaintiff may also establish a custom or policy

based on an isolated decision made in the context of a particular situation if the decision was made

by an authorized policymaker in whom final authority rested regarding the action ordered. City of

Saint Louis v. Praprotnik

, 485 U.S. 112, 124-25, 108 S. Ct. 915, 924-25, 99 L. Ed. 2d 107 (1988);

Bennett v. Pippin , 74 F.3d 578, 586 (5 th Cir. 1996).

The district court concluded that Sheriff Layr isso n maintained a policy that deprived Ms.

Cozzo of her constitutional rights. C ozzo

, 2000 WL 6280, at *10. The court stated that Sheri ff

Layrisson’s practice and policy was to grant his employees or supervisors power to interpret a TRO

compelli ng o ne spouse to stay away from the other spouse’s residence or place of employment as

requiring eviction of the spouse upon whom the TRO is served rather than to authorize employees

and supervisors to serve the order and simply allow the protected spouse to follow appropriate legal

procedures should the restrained spouse violate the TRO. I d. In the court’s reasoned estimation, the

Sheriff’s Department also perpetuated a practice, effectuated through Captain Peoples, to forsake the

advice of an order’s signatory judge about its intended scope and to ignore the protestati ons of late1 2 Thus, Ms. Cozzo’s abilit y to demonstrate a custom or policy based on Captain Peoples’s isolated

decision to evict her is foreclosed. S ee Bennett

, 74 F.3d at 586 (stating that “a single decision may

create

. . . liabilit

y if that decision were made b y a final policymaker responsible for that

activity”)(internal quotations and citations omitted)(emphasis in original).

21 night evictees despite the relevance of their statements regarding the inappropriateness of the eviction.

Id.

Our review of the record does not comport with the district court’s conclusions. While it is

replete with evidence regarding the specific incident of Ms. Cozzo’s eviction, the record contains

scant proof regarding a policy st at ement , ordinance, regulation, or decision that Sheriff Layrisson

o fficially adopted and promulgated regarding the service of TROs. It is also devoid of evidence that

Sheriff Layrisson delegated any policy-making authority to Captain Peoples. 12 Indeed, we note that

Sheriff Layrisson did not testify at all during trial.

Moreover, as we previously observed, the evidence demonstrates that Ms. Cozzo’s eviction,

pursuant to a TRO that did not explicitly authorize such action, is an unprecedented event in the last

twenty years of the Sheriff’s Department’s history. Thus, Ms. Cozzo failed to establish the existence

of a persistent, widespread practice of the Department’s o fficials or employees, which, although not

authorized by an

o fficially adopted and promulgated policy, is nonetheless so common and well

settled as to constitute a custom that fai rly represent s department policy. Having failed to

demonstrate the existence of an official policy, the evidence simply did not substantiate a finding that

Sheriff Layrisson implemented a policy so deficient that it was a repudiation of Ms. Cozzo’s

constitutional rights and was the moving force of the unconstitutional dispossession of property that

she suffered. Accordingly, we hold that the district court erred in concluding that Sheriff Layrisson

does not enjoy qualified immunity against Ms. Cozzo’s claims.22

II. Parratt/Hudson

Doctrine

Sheriff Layrisson and Deputy Joiner contend that Ms. Cozzo’s allegations were based on a

violation of her procedural due process rights and that she presented no substantive claims. As such,

they argue t hat the district court erred in declining to dismiss this case under the P arratt/Hudson

doctrine. They also argue that state law provides an adequate remedy for wrongful eviction. S ee

L A

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. art. 3608.

The “ Parratt/Hudson doctrine dictates that a state actor’s random and unauthorized

deprivation of a plaint iff’s property does not result in a violation of procedural due process rights if

the state provides an adequate post-deprivation remedy.” M yers v. Klevenhagen

, 97 F.3d 91, 94 (5 th

Cir. 1996)(internal quotati ons and citation omitted). We emphasize that only alleged violations of

procedural due process may be negated by the Parratt/Hudson doctrine. D avis v. Bayless

, 70 F.3d

367, 375 (5 th Cir. 1995). Accordingly, violations of substantive due process rights do not fall within

the doctrine’s limitations. Al-Ra’id v. Ingle , 69 F.3d 28, 32 n.2 (5 th Cir. 1995).

The district court found that Ms. Cozzo complained neither of the procedures surrounding

Mr. Cozzo’s acquisition of the TRO nor of the attendant review procedures. C ozzo

, 2000 WL 6280,

at *11. It concluded inst ead t hat Ms. Cozzo’s complaint was that the Sheriff’s Department’s

interpretation of the TRO to require eviction, and its subsequent action thereon, deprived her of her

substantive due process right to possess her home. I d. As such, the court held that “[Ms.] Cozzo’s

claim is a substantive due process violation and is not negated by the Parratt/Hudson doctrine.” I d.

The district court’s application of the Parratt/Hudson doctrine presents a question of law that

we r eview de novo. A lexander v. Ieyoub

, 62 F.3d 709, 712 (5 th Cir. 1995). In light of the

circumstances underlying this case, we find that the court accurately opined that Ms. Cozzo raised23

a claim regarding her substantive rights. See United States v. James Daniel Good Real Prop. , 510

U.S. 43, 77, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993)(“The sanctity of the home recognized by this

Court’s cases is founded on a concern with governmental intrusion into the owner’s possessory or

privacy interests–the do main of the Fourth Amendment.”)(internal quotations and citations

omitted)(emphasis in original); Freeman v. City of Dallas , 242 F.3d 642, 656 (5 th Cir. 2001)(citing

the Court’s reasoning that “a seizure of property occurs when there is some meaningful interference

with an individual’s possessory interests in that property ” and stating that “[w]e fail to see how being

unceremoniously dispossessed of one’s home in the manner alleged to have occur red here can be

viewed as anything but a seizure invoking th e protection of the Fourth Amendment”)(internal

quotati ons and citations omitted). Accordingly, we find no error in the district court’s decision

declining to dismiss Ms. Cozzo’s case pursuant to Parratt/Hudson

. See Davis , 70 F.3d 367 at 375

(concluding that the plaintiff’s allegations that the defendants “effected a warrantless entry into the

. . . home and seized personal property in ostensible satisfaction of [a] debt” to be “sufficient to state

a substantive due process claim under the Fourth Amendment”); Augustine v. Doe

, 740 F.2d 322,

325-27 (5 th Cir. 1984)(finding that the warrantless entry to arrest and subsequent seizure of plaint iff’s

dog constituted a substantive due process claim to which Parratt was inapplicable).

III. Evidentiary Rulings

A. State Court Judge’s Comments

Sheriff Layrisson and Deputy Joiner next contend that the district court erred by admitting

Ms. Cozzo’s testimony regarding the state court judge’s comment that she should “sue the sheriff.”

The judge made this statement during the hearing held to determine the use of the Cozzos’ former

matrimonial domicile. Overruling defense counsel’s object io n to the testimony as hearsay and13 The pertinent exchange from the state court hearing is as follows:

THE COURT: When you say evicted, what do you mean evicted?

MR. REED: Well the sheriff put her out.

THE COURT: Why?

MR. REED: Because he took the law in his own hands. There was no order

ordering her out of the premises.

THE COURT: Well, you need to sue the sheriff. They ’re not supposed to be

doing that kind of thing without a court order.

24 irrelevant, the district court allowed Ms. Cozz o t o reiterate dialogue from the state court hearing.

Counsel for Ms. Cozzo then introduced the actual transcript of the hearing. 13 Defense counsel again

objected, stating that the transcript was hearsay and irrelevant. Reasoning that the transcript is part

of the official record of the clerk’s office, the district court overruled defense counsel’s objection.

On appeal, Layrisson and Joiner claim that the court’s statements were not only inadmissible hearsay,

but also unduly prejudicial under Rule 403.

The district court did not address Layrisson and Joiner’s hearsay claim, but reasoned that the

admission of the transcript was proper because “[t]he state jud ge who signed the order was the

authority who could best determine the intent of the order.” C ozzo

, 2000 WL 6280, at *7. As such,

the district court concluded that “[t]he fact that the state judge clearly did not envision that the sheriff

would u se t he order t o evict the plaintiff was e xtremely relevant .” I d. (emphasis added).

Accordingly, the court found meritless Layrisson’s and Joiner’s contrary argument that the danger

of unfair prejudice outweighed this probative value. Id.25

“We review a district court’s evidentiary rulings for abuse of discretion.” U nited States v.

Cantu , 167 F.3d 198, 203 (5 th Cir. 1999). However, if we determine that the district court erred in

admitting hearsay evidence, we must additionally decide whether the admission was harmless. Id.

The district court’s conclusion that the transcript of the state court hearing was an admissible

public record is persuasive. We accordingly find no error in the court’s having admitted the hearing

transcript. See id. at 204 (opining that “certified court records are public records, thereby falling

within the public records exception to the hearsay rule”). Ms. Cozzo’s testimony does not, however,

fall so neatly within a recognized exception to the prescription against hearsay. Thus, this court must

determine whether its admission was harmless.

This query implicates the potentially prejudicial effect of Ms. Cozzo’s testimony regarding

the state judge’s declaration. See United States v. Carrillo

, 20 F.3d 617, 620 (5 th Cir. 1994). “The

mo re directly an out-of-court declaration implicates the defendant, the greater the danger o f

prejudice. Conversely, when the statement does not directly implicate the defendant, the probative

value outweighs the prejudicial effect.” Id. ; United States v. Johnston , 127 F.3d 380, 394 (5 th Cir.

1997). Because the instant out-of-court declaration specifically addressed the sheriff, it directly

implicated Layrisson. However, we agree with the district court. In light of Layrisson’s and Joiner’s

relentless contention that the TRO mandated Ms. Cozzo’s eviction, the statement’s revelation of the

TRO’s intende d scope, as contemplated by the judge that signed the order, imbued it with

overwhelming relevance that substantially outweighed any potentially unfair prejudice. Because the

“sue the sheriff” statement did not directly implicate Deputy Joiner, this r ationale is even m ore

applicable to him. Moreover, as previously discussed, evidence of the judge’s statement was properly26

before the jury via the transcript. Accordingly, the district court’s admission of Ms. Cozzo’s

testimony about statements made by the judge during the state court hearing was harmless.

B. Expert Testimony

Sheriff Layrisson and Deputy Joiner contend that, because the training standards applicable

to Louisiana peace officers exceed the scope of Kent’s expertise, the district court improperly allowed

him to testify

as an expert on the subject. They argue that he grossly misstated the training

requirements imposed by law for deputies serving court orders and other process. In support of this

argument, they point to the statutory definition of a “peace officer:”

“Peace officer” means any full-t ime employee of the state, a municipalit y, a sheriff, or

other public agency, whose permanent duties actually include the making of arrests,

the performing of searches and seizures, or the execution of criminal warrants, and

is responsible for the prevention or detection of crime or the enforcement of the penal,

traffic, or highway laws of this state, but not including any elected or appointed head

of a law enforcement department.

L A

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. § 40:2402(1)(a). Although they did not proffer this evidence at trial, Layrisson

and Joiner essentially assert on appeal that the statutory definition of a peace officer supports the trial

testimony of Peoples and Joiner that civil deputies are exempt from the state required training under

L A

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. S TAT

. A NN . § 40:2405A(1), which formed the basis of Kent’s expert testimony.

The district court concluded that “Kent was qu alified t o testify regarding . . . [LSA-R.S.

40:2405], and to the extent that the statute was marginally relevant, the admission of the testimony

was harmless.” Cozzo , 2000 WL 6280, at *7 (alteration in original). This conclusion is subject to

review for abuse of discretion. S ee United States v. Wise

, 221 F.3d 140, 148 (5 th Cir. 2000)(“[T]he

proper standard for reviewing a district court’s admission or exclusion of expert testimony is abuse

of discretion.”)(citations omitted). Moreover, the district court correctly observed that the admission27

of erroneous expert testimony is subject to harmless error analysis. S ee United States v. Griffith

, 118

F.3d 318, 323 (5 th Cir. 1997). We observe without deciding, however, that even if the admission of

Kent’s testimony was improper, any resulting error is harmless as this court has already determined

that the district court erroneously denied qualified immunit y to Sheriff Layrisson against Ms. Cozzo’s

failure to train supervisory liability claim. See supra Part I.C.2.

IV. Jury Instructions

Sheriff Layrisson and Deputy Joiner contend that the district court improperly instructed the

jury under the deliberate indifference standard, claiming that the Supreme Court rejected that standard

in County of Sacramento v. Lewis

, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). They

assert that the appropriate standard is whether the disputed official action “shocks the conscience.”

See County of Sacramento , 118 S. Ct. at 1717-18.

The distr ict co urt considered this issue and determined that C ounty of Sacramento

, which

enunciated the standard of culpability applicable to law enforcement officers who violate substantive

due process in a pursuit case, did not repudiate the deliberate indifference standard. C ozzo

, 2000 WL

6280, at *4 (citing County of Sacramento

, 118 S. Ct. at 1718-19 (“As the term deliberate indifference

implies, the standard is sensibly employed only when actual deliberation is practical.”)). The court

noted instead that the Supreme Court recognizes deliberate indifference as the appropriate standard

of culpability to sustain a

failure to train supervisory liability claim. I d. at *5 (citing C anton

, 489

U.S. at 388-89). Finding not only that “Joiner, . . . Peoples, and Layrisson had an opportunity to

deliberate to determine whether in fact eviction was called for,” but also that Ms. Cozzo specifically

requested that Joiner and Peoples reconsider their decision to evict her, the court concluded that the

jury was properly instructed as to the applicable standard of liability. Id.14 Sheriff Layrisson additionally argues on appeal that the district court misinstructed the jury as

to the applicable standard for supervisory liabilit y. Because we have held that the district co urt

erroneously denied Sheriff Layrisson qualified immunity against Ms. Cozzo’s claims, the propriety

of the supervisory liability instruction is a moot issue. We accordingly pretermit its discussion.

28 This court reviews challenges to jury instructions for abuse of discretion. U nited States v.

Huynh

, 246 F.3d 734, 738 (5 th Cir. 2001). Because of the broad discretion afforded district courts

in framing the instructions to the jury, we will find such an abuse of discretion only if the charge as

a whole is not a correct statement of the law and does not clearly instruct the jurors regarding the

legal principles applicable to the factual issues before them. I d. We agree with the district court’s

assessment that the facts surrounding Ms. Cozzo’s eviction distinctly differ from the circumstance

of pursuit in County of Sacramento and conclude that the court properly instructed the jury pursuant

to deliberate indifference standard of culpability.

Sheriff Layrisson and Deputy Joiner also contend that the district court erroneously instructed

the jury regarding the definition of two terms. They base this argument on the jury having asked the

court “[w]hat is the legally accepted definition of the word[s] ‘reside’ and ‘residence’?” The court

responded that “[t]here is no difference between the two” and asked counsel whether they had any

objections to that answer. Counsel for Layrisson and Joiner replied: “No, Your Honor.” As such,

they failed to preserve this issue for appeal, and we will only review it for plain error. See Hartsell

v. Dr. Pepper Bottling Co. of Tex.

, 207 F.3d 269, 272 (5 t h Cir. 2000). “To overturn a verdict for

plain error in the instructions, we must find an obviously incorrect statement of law that was probably

responsible for an incorrect verdict, leading to substantial injustice.” T ompkins v. Cyr

, 202 F.3d 770,

784 (5 th Cir. 2000). The aforementioned alleged inadequacy does not meet this high standard. Thus,

the district court’s instruction does not constitute reversible error. 1429

V. Damages

Finally, Sheriff Layrisson and Deputy Joiner assert that Ms. Cozzo should have been awarded

neither compensatory damages for the expenses she incurred adding a room to her daughter’s house

nor damages for her alleged pain and suffering. They claim that the renovation expenses were not

reasonably foreseeable or proximately caused by the eviction and that Ms. Cozzo failed to adduce

evidence sufficient to sustain an award for pain and suffering. Surmising that the ev idence wel l

supported the jury’s award, the distric t co urt found Layrisson’s and Joiner’s damages argument

unpersuasive and declined to set aside Ms. Cozzo’s damages award. C ozzo

, 2000 WL 6280, at *8.

This court will reverse a jury’s assessment of damages only f or clear error. P endarvis v.

Ormet Corp.

, 135 F.3d 1036, 1038 (5 th Cir. 1998). An award is clearly erroneous when “it is so large

as to shock the judicial conscience, so gross or inordinately large as to be contrary to right reason,

so exaggerated as to indicate bias, passion, prejudice, corruption, or other improper motive.” H am

Marine, Inc. v. Dresser Indus., Inc. , 72 F.3d 454, 462 (5 th Cir. 1995). When, as in the instant case,

the district court has approved the award, the balance is tipped “even more heavily against appellate

reconsideration.” Id.

The jury’s $10,000 award to Ms. Cozzo for living expenses that she incurred during the nearly

six-month interim between her eviction from and reentry to her home and its $15,000 award for pain

and suffering are not so large as to shock our judicial conscience nor are they contrary to right reason.

Moreover, the damages awarded are not so exaggerated as to indicate bias, passion, prej udi ce,

corruption, or other improper motive. Our review of the record com ports with that of the district

court. We too conclude that the $10,000 and $15,000 damages awards were not clearly erroneous.

As the district court so articulately delineated, the ju ry’s award of damages merely represents its15 Sheriff Layrisson did not contest the award of punitive damages. This court must nonetheless

reverse the $35,000 in punitive damages that the jury assessed against him exclusively, responding

to jury interrogatory # 4 that Deputy Joiner’s conduct was not so offensive as to justify a punitive

damages award, because we have held that the district court erred in denying Sheriff Lay risson

qualified immunit

y against Ms. Cozzo’s claims. See GAIA Techs., Inc. v. Recycled Prods. Corp.

, 175 F.3d 365, 373 (5 th Cir. 1999)(reversing a punitive damages award after finding that the defendant

was not liable).

30 determination of the living and displacement expenses as well as a reasonable valuation of the pain

and suffering that Ms. Cozzo experienced as a result of her unconstitutional eviction. C ozzo

, 2000

WL 6280, at *8. Therefore, this court will not set aside these awards. 15

CONCLUSION

For the forgoing reasons, we REVERSE the district court’s denial of Sheriff Layrisson’s

qualified immunit

y claim and t he punitive damages awarded against him, but AFFIRM the court’s

ruling in all other aspects.

AFFIRMED IN PART AND REVERSED IN PART.