United States Court of Appeals

for the Fifth Circuit

No. 20-40398

Tony Parker, 

Plaintiff—Appellee,

versus

Willis Blackwell, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 9:18-CV-225

Before Dennis, Higginson, and Costa, Circuit Judges.

James L. Dennis, Circuit Judge: 

This interlocutory appeal arises from the denial of qualified immunity 

at the motion-to-dismiss stage. Tony Parker, a detainee at the Shelby County 

Jail, filed this § 1983 action alleging that Korey McClure, a jailer at the Shelby 

County Jail, sexually assaulted him and other detainees, and that Sheriff 

Willis Blackwell violated Parker’s Fourteenth Amendment right to 

procedural and substantive due process by (1) rehiring McClure after he was 

previously fired from the Shelby County Jail for abusing detainees and (2) 

failing to properly supervise and train McClure. Sheriff Blackwell appeals 

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2022

Lyle W. Cayce

Clerk

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the district court’s denial of his motion to dismiss based on qualified 

immunity. We AFFIRM IN PART, REVERSE IN PART, and REMAND 

for further proceedings consistent with this opinion. 

I.

Because this is an appeal from a Rule 12(b)(6) motion to dismiss, we

present the factual allegations in the complaint as true and construe them in 

the light most favorable to the plaintiff. See Alexander v. Verizon Wireless 

Servs., L.L.C., 875 F.3d 243, 249 (5th Cir. 2017). Plaintiff Tony Parker was 

a pretrial detainee in the Shelby County Jail during the summer of 2017. At 

that time, Willis Blackwell was the sheriff for Shelby County, Texas, and

Korey McClure was employed as a jailer at the Shelby County Jail. 

Parker was sexually assaulted multiple times by McClure. McClure 

summoned Parker into a room at the Shelby County Jail and “approached [] 

Parker, grabbed [his] genitals, and asked [him] to engage in further sexual 

acts.” On a different day, McClure asked Parker to bring a cup of water into 

McClure’s office and, once Parker entered the office, grabbed Parker’s 

genitals. “On a number of other occasions,” McClure “would grab Plaintiff 

Parker in a tight embrace and ask that Plaintiff Parker perform sexual acts 

with Defendant[.]” McClure showed Parker sexually explicit pictures while 

Parker was in McClure’s office, and, after doing so, “approached where 

Plaintiff Parker was seated and stood extremely close to Plaintiff Parker so 

that Defendant McClure’s genitals were aligned with Plaintiff Parker’s face. 

Defendant McClure then grabbed the back of Plaintiff Parker’s head and 

pressured Plaintiff Parker’s head toward his genitals,” which Parker 

“successfully resisted.” McClure told Parker that “Parker would need to 

accept [] McClure’s sexual advances if Plaintiff Parker wanted his case to go 

well. [McClure] also demanded money in exchange for influencing the 

outcome of Plaintiff Parker’s case.” McClure was arrested on charges 

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related to sexual assault against Parker and other Shelby County Jail 

detainees. 

Based on these events, Parker filed this § 1983 action against Shelby 

County and Sheriff Blackwell in his individual capacity. The amended 

complaint alleges that the defendants1 violated Parker’s Fourteenth

Amendment right to procedural and substantive due process by rehiring and 

failing to supervise and train McClure properly. Specifically, Parker alleged 

the following: 

25. In particular, on information and belief, Plaintiff Parker was 

only one of several inmates who were abused by Defendant 

McClure while in the Shelby County jail. Defendant 

McClure’s sexual abuse of inmates was so pervasive that 

Defendant Shelby County and Defendant Blackwell’s failure to 

take actions to prevent the sexual abuse of Plaintiff Parker and 

other inmates amounts to deliberate indifference. 

26. Also, on information and belief, Defendants Shelby County 

and Sheriff Blackwell hired Defendant McClure despite 

Defendant McClure having a known history of abuse towards 

inmates under his care. Specifically, shortly before being 

rehired by Shelby County and Sheriff Blackwell, Defendant 

McClure was fired by Shelby County for abusing one or more 

inmates of the Shelby County Jail. Such prior abuse in the 

Shelby County jail created the obvious risk that he would 

violate the rights of jail inmates including by sexual assault if 

rehired as a jailer by Shelby County and yet Shelby County and 

Sheriff Blackwell took no action to address this risk. Shelby 

County and Blackwell were aware of Defendant McClure’s 

history of abusing inmates of the Shelby County jail when they 

rehired Defendant McClure. 

1 The district court granted Shelby County’s motion to dismiss; the only remaining 

defendant on appeal is Sheriff Blackwell. 

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27. Defendants Shelby County and Sheriff Blackwell breached 

their duty to provide Defendant McClure with adequate 

supervision in light of his propensity to violate the rights of 

prisoners. The grossly inadequate supervision resulted from 

and was caused by Defendants Shelby County and Sheriff 

Blackwell’s conscious disregard of and deliberate indifference 

to Plaintiff Parker’s right to be free from inmate abuse. 

. . . 

37. Defendants Shelby County and Sheriff Blackwell are also 

liable because Defendants Shelby County and Sheriff 

Blackwell’s deliberate indifference to Defendant McClure’s 

abuse of inmates; insufficient supervision; [sic] as more fully 

described above, are a proximate cause of Plaintiff Parker’s 

damages. 

Sheriff Blackwell filed a motion to dismiss Parker’s amended 

complaint, arguing, inter alia, that Parker failed to adequately plead a 

plausible claim upon which relief could be granted and that Blackwell is 

entitled to qualified immunity. After the district court’s referral of the 

motion, the magistrate judge, in his report and recommendation, 

recommended denying Blackwell’s motion to dismiss. Blackwell filed 

written objections to the magistrate judge’s report and recommendation, and 

Parker filed a response. 

On May 27, 2020, the district court entered an order overruling 

Blackwell’s objections and accepting the magistrate judge’s report and 

recommendation. The district court held that at this stage in the litigation, 

“where the plaintiff has not had access to McClure’s employment file, the 

plaintiff has pled sufficient facts to state a claim that Sheriff Blackwell was 

negligent in rehiring McClure after he had been previously fired for violating 

the constitutional rights of prisoners at the Shelby County Jail,” and that 

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Parker had also alleged sufficient facts from which the district court could 

infer a lack of supervision and that Sheriff Blackwell was liable for that failure 

to supervise. The district court found that Parker’s “allegations, if true, 

establish constitutional violations, and the constitutional rights were clearly 

established at the time of the alleged violations,” and that Blackwell was 

therefore “not entitled to qualified immunity at this stage of the litigation.” 

Finally, the district court found that Parker’s pleadings were sufficient to 

state a claim for punitive damages. Blackwell timely appealed. 

II.

On appeal, Blackwell argues that the district court erred by denying 

his motion to dismiss based on qualified immunity, with respect to both 

Parker’s claim of deliberate indifference in hiring and his claim of deliberate 

indifference in supervision and training. 

We have appellate jurisdiction over this interlocutory appeal “only to 

the extent that [the denial of qualified immunity] turns on an issue of 

law.” Burnside v. Kaelin, 773 F.3d 624, 626 n.1 (5th Cir. 2014) (quoting 

Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011)). We have no jurisdiction 

over arguments unrelated to the denial of qualified immunity or over factual 

disputes. Id. 

When considering the denial of a Rule 12(b)(6) motion, the pertinent 

inquiry is whether the plaintiff has alleged facts that raise a facially plausible 

claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put differently, a Rule 

12(b)(6) motion should be denied if the facts in the complaint, when taken as 

true, “raise a right to relief above the speculative level.” Ruiz v. Brennan, 

851 F.3d 464, 468 (5th Cir. 2017). 

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III. 

Sheriff Blackwell asserts that he is entitled to qualified immunity. A 

plaintiff seeking to defeat qualified immunity must show that (1) the official 

violated a statutory or constitutional right and (2) the right was clearly 

established at the time of the conduct. Morgan v. Swanson, 659 F.3d 359, 371

(5th Cir. 2011) (en banc); Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 

2010) (“Once a defendant invokes qualified immunity, the burden shifts to 

the plaintiff to show that the defense is not available.”). Showing that a right 

is clearly established “is difficult,” and this showing is made only when “it 

is sufficiently clear that every reasonable official would have understood that 

what he is doing violates that right.” Cunningham v. Castloo, 983 F.3d 185, 

191 (5th Cir. 2020) (internal quotation marks and citation omitted). 

Additionally, the right in question must be specifically described, and the 

Supreme Court has, on numerous occasions, directed courts “not to define 

clearly established law at a high level of generality.” Id. (internal quotation 

marks and citation omitted); see also City of Escondido, Cal., v. Emmons, 139 

S. Ct. 500, 503 (2019) (reiterating specificity principle).

One need not find a case squarely on point to show that a right was 

clearly established. Cunningham, 983 F.3d at 191. Nonetheless, precedent 

must provide that the existence of the right is not debatable. Id. The central 

inquiry “is whether the violative nature of the particular conduct is clearly 

established,” and this question must be considered under the specific 

circumstances of the case, and “not as a broad general proposition.” Id. 

(internal quotation marks and citations omitted).

The Fourteenth Amendment is the source of the substantive law that 

dictates whether Sheriff Blackwell is entitled to qualified immunity. “The 

Eighth Amendment ensures the safety of convicted prisoners while due process under the Fourteenth Amendment protects pretrial detainees.” 

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Baughman v. Hickman, 935 F.3d 302, 306 (5th Cir. 2019) (citing Hare v. City

of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc)). 

A.

“In order to establish supervisor liability for constitutional violations 

committed by subordinate employees, plaintiffs must show that the 

supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations 

of others’ constitutional rights committed by their subordinates.” Wernecke 

v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009) (alterations in original) (internal 

quotation marks omitted) (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 

245, 254 (5th Cir. 2005)). “‘[D]eliberate indifference’ to the ‘known or 

obvious consequences’ of a hiring decision can amount to a constitutional 

violation on the part of the decision maker[.]” Gros v. City of Grand Prairie, 

209 F.3d 431, 433 (5th Cir. 2000) (quoting Bd. of Cty. Comm’rs v. Brown, 520 

U.S. 397, 407 (1997)). 

Parker contends that Blackwell was deliberately indifferent to obvious 

safety risks when he rehired McClure despite “McClure having a known 

history of abuse toward inmates under his care.” Specifically, Parker alleges

that “shortly before being rehired by Shelby County and Sheriff Blackwell, 

Defendant McClure was fired by Shelby County for abusing one or more 

inmates of the Shelby County Jail,” and that “[s]uch prior abuse in the 

Shelby County [J]ail created the obvious risk that he would violate the rights 

of jail inmates including by sexual assault if rehired as a jailer . . . and Sheriff 

Blackwell took no action to address this risk.” 

When a plaintiff alleges that a supervisor inadequately considered an 

applicant’s background, “‘deliberate indifference’ exists where adequate 

scrutiny . . . would lead a reasonable supervisor to conclude that the plainly 

obvious consequences of the decision to hire would be the deprivation of a 

third party’s constitutional rights.” Gros, 209 F.3d at 433–34; see also Brown, 

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520 U.S. at 411. Accordingly, a plaintiff must show that there was “a strong 

connection between the background of the particular applicant and the 

specific violation alleged” such that “the hired officer was highly likely to 

inflict the particular type of injury suffered[.]” Gros, 209 F.3d at 434. “A 

showing of simple or even heightened negligence will not suffice.” Brown, 

520 U.S. at 407.

In Brown, the Supreme Court held that a county sheriff was not 

deliberately indifferent in hiring a police officer who had a criminal record. 

Id. at 415–16. After the officer used excessive force during an arrest, the 

arrestee brought a § 1983 claim alleging that the sheriff had failed to conduct 

an adequate review of the officer’s background when hiring him. Id. at 399–

401. The officer had previously pleaded guilty to several misdemeanors—

assault and battery, resisting arrest, and public drunkenness—arising from a 

fight during college. Id. at 413. The Court concluded that the officer’s use 

of excessive force was not “a plainly obvious consequence of the hiring 

decision.” Id. at 415. The link between the officer’s criminal record and his 

use of excessive force was too tenuous to show that the sheriff had 

disregarded a known or obvious risk of injury. Id. at 412–14.

This Court has reached similar conclusions in cases involving 

allegations of sexual assault. See Gros, 209 F.3d at 436; see also Hardeman v. 

Kerr County, 244 F. App’x 593, 596 (5th Cir. 2007) (per curiam). In Gros, 

this Court held that there was not a “strong causal connection” between an 

officer’s background and the plaintiffs’ allegations that the officer sexually, 

physically, and verbally abused them during routine traffic stops. 209 F.3d 

at 436. The officer “had never sexually assaulted, sexually harassed, falsely 

arrested, improperly searched or seized, or used excessive force against any 

third party.” Id. at 435. Qualified immunity applied because there was no 

showing that the officer was likely to perpetrate the particular type of abuse 

suffered by the plaintiff. Id. at 434–46. 

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In Hardeman, an inmate alleged that a jailer “forced her to perform 

oral sex on him, and took her into the shower area where he forcibly raped 

her.” 244 F. App’x at 595. When the county hired the jailer several months 

earlier, a record indicated that he had previously been fired by a school 

district for making “improper advances towards high school (female) 

students.” Id. at 594–95. This court noted that “[e]ven if the County had 

done a thorough job of investigating” the jailer’s background, it would have 

required “an enormous leap to connect ‘improper advances’ towards female 

students to the sexual assault[.]” Id. at 596. Consequently, there were “no 

grounds to find that the alleged rape in question was a ‘plainly obvious 

consequence’ of hiring him.” Id. 

This court’s precedents thus point to a specificity principle that 

guides the qualified immunity analysis: one’s rights can be infringed when an 

official is deliberately indifferent to a specific risk of harm posed by a hiring 

decision, such as a risk of sexual assault. Gros, 209 F.3d at 434–36; Rivera v. 

Bonner, 952 F.3d 560, 565–67 (5th Cir. 2017); Hardeman, 244 F. App’x at 

596. 

Here, the alleged connection between McClure’s prior termination 

from the Shelby County Jail for abusing detainees and the alleged abuse of 

Parker and other detainees in the Shelby County Jail is sufficient to state a 

claim for deliberate indifference in rehiring McClure.2 Adequate scrutiny of 

McClure’s background—that he was fired by Shelby County for abusing one 

2 Blackwell argues that the district court misstated the legal standard when 

overruling Blackwell’s objections to the magistrate judge’s report and recommendation. 

The district court did misstate the proper legal standard in holding that Parker met the 

elements of deliberate in difference in hiring because “Sheriff Blackwell was negligent in 

rehiring McClure after he had been previously fired for violating the constitutional rights 

of prisoners at the Shelby County Jail.” However, because this court’s review is de novo, 

the district court’s error does not prevent us from affirming its judgment on other grounds. 

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or more inmates of the Shelby County Jail—would lead a reasonable 

supervisor to conclude that the plainly obvious consequences of the decision 

to rehire him would be that he would abuse inmates again. See Gros, 209 F.3d 

at 433-34, citing Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998), cert. 

granted, 525 U.S. 1098 and cert. dismissed, 526 U.S. 1083 (1999). Indeed, his 

termination for abusing detainees at the Shelby County Jail and subsequent 

rehiring at that very same jail is the quintessential “strong connection 

between the background of the particular applicant and the specific violation 

alleged.” Gros, 209 F.3d at 434, citing Brown, 520 U.S. at 412. At this stage, 

it is enough that Parker has plausibly alleged a violation of clearly established 

rights. At summary judgment, he will have to produce evidence to support 

those allegations.3 The district court’s ruling as to this claim is therefore 

AFFIRMED.

B. 

Parker also alleges that Blackwell inadequately trained and supervised 

McClure, which constituted deliberate indifference and resulted in the 

alleged sexual assaults. Parker specifically alleges that Blackwell breached his 

duty to provide “McClure with adequate supervision in light of his 

propensity to violate the rights of prisoners. The grossly inadequate 

supervision resulted from and was caused by . . . Sheriff Blackwell’s 

conscious disregard of and deliberate indifference to Plaintiff Parker’s right 

3 We note that the cases Blackwell relies on that dismissed deliberate-indifferencein-hiring claims did so at summary judgment. See, e.g., Gros, 209 F.3d at 433; Rivera, 952 

F.3d at 563; Hardeman, 244 F. App’x at 595. He does not cite a single case dismissing such 

a claim at the Rule 12 stage, where a plaintiff’s burden is to simply allege “sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft,

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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to be free from inmate abuse” and that Blackwell’s grossly inadequate 

supervision “is a producing and proximate cause” of Parker’s injuries. 

A failure to supervise or train claim arises when the plaintiff shows 

that (1) the defendant failed to supervise or train the alleged bad actor, (2) 

there is a causal connection between the infringement of the plaintiff’s 

constitutional rights and the lack of supervision or training, and (3) the failure 

to supervise or train exhibited deliberate indifference to the plaintiff’s 

constitutional rights. Peña v. City of Rio Grande City, 879 F.3d 613, 623 (5th 

Cir. 2018). The infringement of the plaintiff’s constitutional rights must be 

an “obvious” and “highly predictable” consequence of the failure to train. 

Culbertson v. Lykos, 790 F.3d 608, 625 (5th Cir. 2015) (internal quotation 

marks and citation omitted). Additionally, relief will not typically be available 

absent a showing of a pattern of constitutional violations, as opposed to a 

single incident. Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 

273, 286 (5th Cir. 2002). 

Here, Parker’s allegations fall short. Parker’s allegations are generic 

at best, providing no specific facts that rise above the speculative level. 

Parker merely alleges that Blackwell’s supervision was “grossly inadequate,” 

that Blackwell “breached [his] duty to provide Defendant McClure with 

adequate supervision,” and that such a failure was a “producing and 

proximate cause of . . . Parker’s injuries.” Parker does not allege any facts 

regarding the lack of a training program, nor are there allegations that the 

alleged abusive conduct occurred with such frequency that Blackwell was put 

on notice that training or supervision was needed. Rather, Parker merely 

provides a formulaic recitation of the elements of a failure to train and 

supervise claim. We therefore REVERSE and REMAND for dismissal of 

this claim. 

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IV.

Sheriff Blackwell also argues that Parker’s punitive damages claim 

should be dismissed. Whether Sheriff Blackwell is liable for punitive 

damages is not part of the qualified immunity analysis, and this court does 

not have jurisdiction to consider this question in this interlocutory appeal. 

See Burnside v. Kaelin, 773 F.3d 624, 626 n.1 (5th Cir. 2014); Cunningham v. 

Castloo, 983 F.3d 185, 190 (5th Cir. 2020). 

V.

Finally, Federal Rule of Appellate Procedure 10(a) states that the 

following items constitute the record on appeal: (1) the original papers and 

exhibits filed in the district court; (2) the transcript of proceedings, if any; 

and (3) a certified copy of the docket entries prepared by the district clerk. 

Fed. R. App. P. 10(a). This court, therefore, does not consider items that 

were not considered by the district court. 

Blackwell filed a Motion to Strike Appellee’s Reference to ExtraRecord Materials, because Parker referenced two internet news stories 

related to McClure’s arrests for sexual assault of detainees at the Shelby 

County Jail in his response brief that were not part of, or referenced by, his 

amended complaint. Blackwell’s Motion to Strike is therefore GRANTED. 

VI.

Based on the foregoing, we AFFIRM IN PART and REVERSE IN 

PART, and REMAND the case for further proceedings consistent with this 

opinion. 

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