# United States Court of Appeals

f or the Fifth Circuit

____________ No. 21

- 30446

____________ Robert Parker,
Plaintiff

— Appellee ,

versus
James M. LeBlanc, Secretary of Department of Public Safety and Corrections , Defendant

— Appellant

.

______________________________ Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:18

- CV

- 1030

______________________________ Before Higginbotham , Southwick , and Willet t , Circuit Judges

. Leslie H. Southwick , Circuit Judge :
Robert Parker filed a Section 1983 civil rights suit in Louisiana state court against Louisiana Department of Public Safety and Corrections Secretary James LeBlanc . A mong other claims , Parker argues that LeBlanc violate d his constitutional rights by misclassifying him as a sex offender and thereby illegally extending his detention in prison for 337 days past his release date

. LeBlanc sought dismissal based on qualified immunity, but the district court denied the motion. On this interlocutory appeal, we A FFIRM. United States Court of Appeals

Fifth Circuit 

### FILED July 17, 2023 Lyle W. Cayce Clerk Case: 21-30446 Document: 00516823315 Page: 1 Date Filed: 07/17/2023No. 21

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2 FACTUAL AND PROCEDURAL BACKGROUND

O n December 21, 2016, Parker was arrested while on probation and placed in the Orleans Parish Prison. On March 27, 2017, a Louisiana state court sentenced Parker to two y ears of imprisonment for violating his probation but awarded him credit for the months he served in the parish prison . Three days later , the Louisiana Department of Public Safety and Corrections (“DPSC”) assumed custody of Parker. On May 4, 2017, a DPSC employee identified as “L. Cato” determined that Parker had a “ M ust S erve” date of October 9, 2017

. Parker allege s he should have been released on that date

. Sometime i n September 2017, however, DPSC employee Brenda Acklin reviewed Parker’s file, crossed out the October 9, 2017 , date, then wrote above it an acronym for “unapproved sex offender registry plan.” Under Louisiana law, the DPSC must verify the legality of sex offender s’ post

- release residence s before they

can be released from prison. See generally L A

. R EV

. S TAT

. A NN . § 15:543. During the course of his imprisonment at Richwood Correctional Center, Parker submitted several inmate request forms. In his first two request s , Parker asked to meet with Warden Ray Ha nson about his release date

. He filed two other forms in an attempt to provide the DPSC with addresses detailing where he could reside upon his release. Parker also consistently disputed that he was a sex offender. On August 24, 2018, a public defender , Aaron Zagory, wh o had previously represented Parker , emailed the reentry program manager for the DPSC probation and parole division

. Zagory’s email s t ated that he did not “believe Mr. Parker has a conviction that requires him to register as a sex offende r

. ” Zagory did note that Parker had been convicted in 1997 of indecent behavior with a juvenile and unauthorized entry into an inhabited Case: 21-30446 Document: 00516823315 Page: 2 Date Filed: 07/17/2023No. 21

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3 dwelling , but that Parker “was permitted to withdraw that plea and pleaded guilty to a single amended count of simple b urglary .” Rebecca Ikner, the reentry program director for the DPSC probation and parole division, responded that she was not involved in sex offender cases or time computation. Ikner copied her supervisor on the reply, who forwarded it to Charles Romero, the sex offender unit coordinator of the DPSC’s probation and parole office in New Orleans. Twelv e days later, on September 5, 2018, Romero acknowledged the “honest mistake in the investigation” and explained that it had been corrected. Romero stated that “Mr. Parker can be released immediately (assuming there is nothing else holding him there)” and noted that Romero had informed the DPSC that Parker was not a sex offender. Parker was held an additional five days, until September 10, 2018, when he was finally released from prison. Parker filed a civil rights suit in Louisiana state court against the DPSC, Secretary of the DPSC James LeBlanc, Ray Hanson, Brenda Acklin, “Does 1

- 10,” and ABC Insurance Companies . Parker alleged that the defendants violated his constitutional rights by detaining him past his release date . He also claimed that the defenda nts committed similar violations against other state inmates. LeBlanc and the other defendants removed the case to federal court based on federal question jurisdiction, specifically the claims Parker raised under 42 U.S.C. § 1983

. Parker filed a First Ame nded Complaint in April 2019 . Hanson moved to dismiss the claims against him based upon misjoinder. The district court denied the motion but ordered Parker “to amend the operative complaint to add specificity and cure any deficiencies therein. ” Parker t hen filed a Second Amended Complaint in November 2019

. LeBlanc, the DPSC, and Acklin filed a motion to dismiss Parker’s claims against them. LeBlanc and Acklin argued that Parker failed to state a Case: 21-30446 Document: 00516823315 Page: 3 Date Filed: 07/17/2023No. 21

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4 claim upon which relief could be granted because they were entitled to qualified immunity. The district court again granted Parker leave to amend his complaint after holding that Parker’s Second Amended Complaint lacked sufficient detail and that Parker had not adequately allege d deliberate indifference in “fail [ing] t o allege, even on information and belief, that LeBlanc was aware” of the deficiencies in the prison systems. Parker filed a Third Amended Complaint in August 2020

. In his Third Amended Complaint, Parker cited three pieces of evidence to establish LeBlanc’s knowledge of deficiencies in the way the DPSC calculated and implemented release dates: (1) testimony by DPSC employees in unrelated cases regarding problems with the over

- detention and release of inmates; (2) a 2018 newspaper opinion

- editorial by Louisiana Attorney General Jeff Landry regarding the same issue; and (3) a legislative audit report. These had also been cited in his Second Amended Complaint. In his Th ird Amended Complaint, however, Parker alleged for the first time on information and belief that Defendant LeBlanc was aware of the deficiencies in the system and the specific evidence cited in the complaint. LeBlanc again moved to dismiss under Fed. R. C iv. P. 12(b)(6), arguing that the complaint failed to cure the main deficiency identified by the district court in its previous order

— namely , the lack of a pattern of similar constitutional violations. The district court denied in part LeBlanc’s Rule 12( b)(6) motion because Parker had “adequately pled that there were sufficiently similar prior incidents in sufficient number and of which LeBlanc was aware to overcome qualified immunity at this stage.” The court found that LeBlanc could not

“ seriously disp ute (1) that the prior incidents were sufficient in number and (2) that LeBlanc did not have actual knowledge of them, particularly considering the allegations on information and belief that he knew about the Legislative Auditor’s report, Attorney General op

- ed, and state court testimony.” LeBlanc filed a timely notice of appeal. Case: 21-30446 Document: 00516823315 Page: 4 Date Filed: 07/17/2023No. 21

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5 DISCUSSION We have appellate jurisdiction under the collateral order doctrine to review a district court’s denial of a motion to dismiss on the basis of qualified immunity when th e resolution turns on an issue of law. See Orr v. Copeland , 844 F.3d 484, 490 (5th Cir. 2016); Brown v. Miller , 519 F.3d 231, 236 (5th Cir. 2008). Rule 12(b)(6) permits dismissals when a complaint fails “to state a claim upon which relief can be granted .” F ED

. R. C IV

. P. 12(b)(6). This court reviews Rule 12(b)(6) dismissals de novo , “accepting all well

- pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs.” Morris v. Livingston , 739 F.3d 740, 745 (5th Cir. 2014) ( quotation marks and citation omitted). “In an interlocutory appeal of a denial of qualified immunity, we have jurisdiction to consider only whether a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly esta blished law.” Brown , 519 F.3d at 236 (quotation marks and citation omitted). A claim has facial plausibility “where a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Morris , 739 F.3d at 745 (quotation marks and citation omitted).

“T o establish a claim under § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Prat t v. Harris C

n ty. , 822 F.3d 174, 180 (5th Cir. 2016) (quotation marks and citation omitted). The Fourteenth Amendment guarantees that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. C ONST . amend. XIV , § 1. “Our precedent establishes that a jailer has a duty to ensure that inmates are timely released from prison.” Porter v. Epps , 659 F.3d 440, 445 (5th Cir. Case: 21-30446 Document: 00516823315 Page: 5 Date Filed: 07/17/2023No. 21

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6 2011). Quite recently, and addressing the liability of this same defendant, we held that “it is with out question that holding without legal notice a prisoner for a month beyond the expiration of his sentence constitutes a denial of due process.” Crittindon v. LeBlanc , 37 F.4th 177, 188 (5th Cir. 2022)

. This analysis proceeds in two parts. First, we exa mine whether Parker has sufficiently alleged supervisory liability against LeBlanc. Second, we determine whether LeBlanc ’s alleged conduct violated a clearly established constitutional right.

I. Has Parker sufficiently alleged supervisory liability?

“ Sec tion 1983 does not create supervisory or respondeat superior liability

. ” Oliver v. Scott , 276 F.3d 736, 742 (5th Cir. 2002 )

. Nonetheless, “[s]upervisory officials may be liable under § 1983 for their failure to adopt policies if that failure causally results in a constitutional injury.” Crittindon , 37 F.4th at 186. “Liability only arises when the officials act, or fail to act, with ‘deliberate indiffere nce,’ a ‘disregard [for] a known or obvious consequence of [their] action[s].’” Id. (quoting Porter , 659 F.3d at 446 ) (alterations in original)

. “[ A ] plaintiff must show either the supervisor personally was involved in the constitutional violation or tha t there is a sufficient causal connection between the supervisor’s conduct and the constitutional violation.” Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force , 330 F.3d 681, 689 (5th Cir. 2003) (quotation marks and citation omitted).

To show a causal connection between the wrongful conduct of a supervisor and a constitutional violation, the plaintiff “ must introduce evidence that each Defendant had ‘actual or constructive notice’ that their failure to adopt policies would result in constituti onal violations. ” Crittindon , 37 F.4th at 186 (quoting Porter , 659 F.3d at 447). “A pattern of similar constitutional violations by untrained employees is ordinarily Case: 21-30446 Document: 00516823315 Page: 6 Date Filed: 07/17/2023No. 21

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7 necessary to demonstrate deliberate indifference

. ” Connick v. Thompson , 563 U.S. 51, 62 (2011) (quotation marks and citation omitted). “ W ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional r ights.” Id. As noted, Parker’s Third Amended Complaint cite d three pieces of evidence to support his allegations that LeBlanc implemented deficient polic ies evinced by a pattern of similar constitutional violations by untrained employees

. See id. They are: (1) an October 2017 legislative audit report on the Louisiana DPSC entitled “CFE Management of Offender Data: Processes for Ensuring Accuracy Department of Corrections”; (2) a 2018 editorial by Senator John Kennedy and Attorney General L andry entitled, “Criminal Justice Reform Actually Hurting Public Safety,” published in the
newspaper “ The Advocate ” ; and (3) testimony by DPSC employees admitting to rampant over

- detention in a similar suit in Louisiana state court, Chowns v. LeBlanc , La. 37th JDC 26

- 932. Parker also allege s on information and belief that Defendant LeBlanc was aware of the three items we just enumerated. LeBlanc argues that this c omplaint did not adequately allege the requisite “pattern” of constitutional violations by unt rained employees “ordinarily necessary” under Connick to establish deliberate indifference for purposes of failure to train

. See 563 U.S. at 62

. He contends that Parker’s allegations “identify issues of an entirely different kind than the one that allegedly caused Parker to spend too much time incarcerated.” Essentially, LeBlanc insists that there is a meaningful distinction between Parker’s over

detention due to his alle ged misclassification as a sex offender, as opposed to

over

- detention due to miscalculations of his sentence or his status being generally lost in the system. Case: 21-30446 Document: 00516823315 Page: 7 Date Filed: 07/17/2023No. 21

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8 The district court “decline[d] to draw the line as finely as LeBlanc advances and limit the types of problems involved solely to those instances where individuals have been misclassified as sexual offenders.” The court noted that the real problem alleged in the Legislative Audit report was the Department “ not knowing when [inmates’] proper release da te was” and that “ inmate sentences have been ‘done wrong’ ” as stated in testimony from Chowns v. LeBlanc

. We agree with the district court’s assessment.

In a similar case about over

- detention

— against the same defendant

— the plaintiff also relied on a study to show a pattern of constitutional violations and allege supervisory liability. See Crittindon , 37 F.4th at 18 6

– 8 7

. We held that “a reasonable jury could find that Defendants knew of a ‘pattern of similar constitutional violations,’ such that the ir inaction amounted to a disregard of an obvious risk .” Id

. at 187. The court there noted that LeBlanc was “in a position to adopt policies that would address this delay” and that he could not “avoid the evidence that the study exposed unlawful detentio ns of prisoners.” Id. Much of the same is true here, though unlike in Crittindon , this case is merely at the 12(b)(6) stage, rather than a motion for summary judgment. See i d. at 185. What LeBlanc may have done to comply with his supervisory obligations is not yet part of the record. Further , Parker has not had the opportunity to c onduct discovery. His complaint alleges that despite his release date being properly calculated on the jail forms, he was not released for 337 days. For some unknown reason, when his properly calculated release date arrived, he was not released despite h is numerous attempts to correct the issue. One possible reason for the over

- detention is mistakenly classifying him as a sex offender and then failing to release him even after he provided the addresses requested.
T he allegations in the complaint are that there is a “pattern of over

detention” that renders Parker’s own case “neither unique nor even Case: 21-30446 Document: 00516823315 Page: 8 Date Filed: 07/17/2023No. 21

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9 unusual

. ” T he standard for deliberate indifference requires only a “ pattern of similar constitutional violations by untrained employees,” rat her than an exact duplication. See Connick , 563 U.S. at 62 (emphasis added)

. Parker has alleged that he was detained for 337 days past his release date and has cited three pieces of evidence to support his allegations that LeBlanc was aware of the defici encies of implemented polic ies that routinely led to errors like the

one that violated his constitutional rights. See id

. On a Rule 12(b)(6) motion, we accept “all well

- pleaded facts as true and view[] those facts in the light most favorable to the plaintiffs.” Morris , 739 F.3d at 745 (quotation marks and citation omitted). A claim has facial plausibility when a plaintiff h as pled “factual content” that allows us “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quotation marks and citation omitted). We agree with Parker that his complaint sufficiently allege s the requisite “ pattern” of constitutional violations by untrained employees to establish deliberate indifference for purposes of failure to train. See Connick , 563 U.S. at 62. We therefore hold that his complaint should proceed to the next stage of litigation, i.e. , ta ilored discovery. See Carswell v. Camp , 54 F.4th 307 , 311 (5th Cir. 2022)

. I I

. Did LeBlanc allegedly violate a right that was “clearly established” at the time of the alleged misconduct? Qualified immunity involves answering two questions: (1) “ whether the officer violated a constitutional right ,” and (2) “ whether the ‘ right at issue was “ clearly established ” at the time of [the] alleged misconduct. ’” 1

_____________________
1 There is variance in this circuit ’s caselaw when articulating the second part of the analysis for qualified immunity

. An objective

- unreasonableness component , dating from some of our older caselaw, is sometimes applied to require a finding that “ the defendant’s actions were objectively unreasonable in l ight of clearly established law at the time of the Case: 21-30446 Document: 00516823315 Page: 9 Date Filed: 07/17/2023No. 21

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10 Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019) (quoting Pearson v. Callahan , 555 U.S. 223, 232 (2009) (alterations in original ) )

. To determine whether a right is “clearly established,” we “ first look [] to Supreme Court precedent and then to our own.” Crittindon , 37 F.4th at 18 6 ( quotation marks and citation omitted ). “Ultimately, the tou chstone is fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue vio lated constitutional rights.” Id. (quotation marks and citations omitted). Analyzing the first part of the test is not difficult here : t he Fourteenth Amendment guarantees that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. C ONST

. amend. XIV , § 1.

“ D etention of a prisoner thirty days beyond the expiration of his sentence in the absence of a facially valid court order or warrant constitutes a deprivation of due process.” Douthit v. Jones , 619 F.2d 527, 532 (5th Cir. 1980)

. Parker was detained 337 days past his release date. H is pleading also adequately allege d supervisory liability for LeB lanc. See infra.

The second part of the test is “ whether the right at issue was clearly established at the time of [the] alleged misconduct. ” Morrow , 917 F.3d at 874

_____________________ violation.” See Porter , 659 F.3d at 445

. That language is a vestige of older case law that predates the Supreme Court’s current test adopted in Saucier v. Katz , 533 U.S. 194 (2001), and Pearson v. Callah an , 555 U.S. 223 (2009). See, e.g ., Pfannstiel v. City of Marion , 918 F.2d 1178, 1183 (5th Cir. 1990). Another circuit has similar language in some of its precedents but rejected it: “the test for qualified immunity has only two prongs

— whether the defendant violated a constitutional right and whether the right at issue was clearly established; there is no separate ‘objective unreasonableness’ prong.” See Brown v. Lewis , 779 F.3d 40 1, 417 (6th Cir. 2015). We cannot precedentially resolve conflicting caselaw today, but we mention one of our recent decisions that also opined there is no “standalone ‘objective reasonableness’ element to the Supreme Court’s two

- pronged test for qualifie d immunity.” See Baker v. Coburn , 68 F.4th 240, 251 n.1 0 (5th Cir. 2023). Case: 21-30446 Document: 00516823315 Page: 10 Date Filed: 07/17/2023No. 21

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11 ( quotation marks and citation omitted) (alterations in original)

. LeBlanc argues that t he district court committed reversible error by not delineating between the two parts of the test for qualified immunity in its ruling or citing

a case that would have put LeBlanc on notice that his conduct violated clearly established law. As support, he cites our decision in Joseph on behalf of Estate of Joseph v. Bartlett , 981 F.3d 319 (5th Cir. 2020 ). In that case, on a motion for summary judgment, the d istrict court had denied qualified immunity to a group of police officers in a failure to intervene claim. Id. at 3 28 . We reversed, holding that the plaintiffs had not satisfied their burden to demonstrate that the law was clearly established because the plaintiffs had failed to “ identify a single case to support the argument that any reasonable officer would have known to intervene under these circumstances.” Id. at 345. We explained that “[w]ith no briefing and no district

- court analysis to review, we cannot justify a denial of qualified immunity on the grounds that clearly established law shows that every officer acted unconstitutionally in this case.” Id. at 346.
Parker counters that this case is distinguishable because , here , “[t] he law is clear t hat a jailer like LeBlanc has a duty to ensure inmates are timely released from prison,” citing Porter , 659 F.3d at 445

. We agree. U nlike the plaintiff s in Joseph , Parker identified cases in his district court briefing, as well as in his briefing to this court , that addressed the clearly

- established

- law prong of the qualified immunity analysis. In his complaint, Parker also stated that “[a]ccording to black

- letter law, jailors may not imprison inmates longer than their sentences,” and that “[r]ecent Fifth Circuit precedent recognized that ‘ There is a Clearly Established Right to Timely Release from Prison, ’ ” again citing Porter , 659 F.3d at 445. We agree that ther e is sufficient clearly established law regarding the constitutional right to a timely release from prison and that Parker has sufficiently argued a violation of the right

. Case: 21-30446 Document: 00516823315 Page: 11 Date Filed: 07/17/2023No. 21

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12 Finally, as he does with the question of supervisory liability, LeBlanc contends th at defining the clearly established right as “timely release from prison” is overbroad. We have already rejected that argument above in the supervisory liability context, and we do so here as well

. In Crittindon , we held that the defendants had “‘fair wa rning’ that their failure to address this delay would deny prisoners like Plaintiffs their immediate or near

- immediate release upon conviction” because the defenda n t s knew of the delays in prisoners’ timely releases

. 37 F.4th at 188. Parker’s Third Amended Complaint cured the deficiency of his Second Amended Complaint in that he alleged on information and belief that LeBlanc was aware of DPSC employees’ testimonies in Chowns v. LeBlanc regarding the regular pattern of

over

- detentions, and that LeBlanc was aware of Attorney General Jeff Landry’s op

- ed and the Legislative Auditor report regarding the DPSC’s problem in not knowing inmates’ proper release date. Parker’s complaint sufficiently allege s that LeBlanc violated a right that was clearly established. Construing these allegations in the light most favorable to Parker, we agree they are sufficient to support the argument that LeBlanc had “‘fair warning’ that [his] failure to address this delay would deny prisoners like [Parker] th eir immediate or near

- immediate release upon conviction.” See Crittindon , 37 F.4th at 188. We close with a reminder. This appeal is from the denial of a motion to dismiss solely on the pleadings. LaBlanc’s defense is yet to be stated. It remains to be s een what an evidentiary record will show as to LeBlanc’s efforts to deal with the widespread problems in determining and enforcing release dates.

A FFIRMED. Case: 21-30446 Document: 00516823315 Page: 12 Date Filed: 07/17/2023