* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED

April 4, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-10302

Summary Calendar

OSCAR JEROME BARRETT,

Plaintiff-Appellant,

versus

JOHN D. KOCHER, ET AL.,

Defendants,

DALLAS COUNTY,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court

for the Northern District of Texas, Dallas

No. 3:01-CV-155-K

- - - - - - - - - -

Before GARZA, D E MOSS, and CLEMENT, Circuit Judges.

PER CURIAM: *

Oscar Jerome Barrett app e als the district court’s order granting the motion for summary

judgment filed by defendant-appell ee Dallas County (“County ”). Barrett’s p ro se civil rights suit

against the County, Sheriff’s Department employee John Kocher, and Sheriff Jim Bowles stems from

an episode in the County jail that occurred while Barrett was being processed after he was arrested

for a traffic violation. Barrett alleges that after asking to be placed in a single cell, Kocher became

angry and attempted to twist Barrett’s arm behind his back and to throw him to the ground. Several

additional offi cers arrived and forced Barrett to the floor. Barrett, who was wearing cuffs on his2

wrists and ankles, avers that he was com plet ely immobilized by the other officers as Kocher

repeatedly punched and kicked him. Barrett sustained swelling to his forehead and his left eye.

Barrett sued the County, and Kocher and Bowles, in their official capacity, under 42 U.S.C.

§ 1983. A governmental entity or municipality, as well as officers thereof acting in t heir o fficial

capacity, can be held liable under § 1983 only if an official policy or custom caused the deprivation

of a constitutional right. Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978) ; B rooks v. George

County, Miss.

, 84 F.3d 157, 165 (5th Cir. 1996). An official policy consists of, among other things,

a policy statement or reg ulat io n t hat is officially adopted and promulgated by the municipality’s

lawmak ing officers. S ee Williams v. Kaufman County

, 352 F.3d 994, 1013 (5th Cir. 2003). An

official policy also includes a “persistent, widespread practice of city officials or employees, which,

although not authorized by o fficially adopted or promulgated policy, is so common and well settled

as to constitute a custom that fairly represents municipal policy.” F ields v. City of S. Houston

, 922

F.2d 1183, 1191–92 (5th Cir. 1991) (internal quotation marks and citation omitted). In narrow

circumstances, even a single incident can establish an official policy “where the facts giving rise to

the violation are such that it should have bee n apparent to the policy maker that a constitutional

violation was the highly predictable consequence of a particular policy or failure to train.” Burge v.

St. Tammany Parish

, 336 F.3d 363, 373 (5th Cir. 2003), cert. denied

, 540 U.S. 1108 (2004); see also

Board of Comm’rs of Bryan County v. Brow n , 520 U.S. 397, 404–07 (1997).

In support of their summary judgment motion, the defendants submitted an affidavit of Sheriff

Bowles, who attested that he had a policy and practice that p ro hibit ed t he use of excessive force

against pretrial detainees, that such po licy was communicated to his officers during their initial

training and was reinforced in on-the-job training, and that Bowles was unaware of any deficiency

in his policy and practice. Immediately following the incident, Kocher was the subject of an Internal

Affairs investigation regarding the beating and reprimanded for his actions. Kochner resigned from

his position with the County.

In response to the defendants’ summary judgment motion, Barrett countered with an affidavit

from fellow pretrial detainee Robert James Fox, who attested that he had witnessed Barrett’s beating,3

t hat he had been beaten several times himself while a detainee at the County jail, and that he had

witnessed beatings of other inmates.

Although Fox’s affidavit was apparently intended to show that County jail officers engaged

in a widespread, persistent practice or custom of using excessive force, the district court did not err

in concluding that the affidavit was insufficient to sustain Barrett’s summary judgment burden. In the

affidavit, Fox failed to describe his injuries or identify his attackers. He failed to identify the dates

of attacks on other inmates, the names of their attackers, or the circumstances of such attacks. The

conclusory statements in Fox’s affidavit were not sufficient to qualify as “specific facts” to establish

that a material fact existed as to whether an official policy or custom led to his injuries. S ee, e.g.,

Marshall v. E. Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 324 (5th Cir. 1998) (and citations

therein); Spiller v. City of Tex. City, Police Dep’t

, 130 F.3d 162, 167 (5th Cir. 1997); see also F ED

.

R. C IV

. P. 56(e). Accordingly, we AFFIRM the order of the district court granting the defendants’

motion for summary judgment.

Barrett’s motion to supplement the record on appeal with a videotape showing his beating is

DENIED as unnecessary. The defendants do not dispute whether excessive force was used against

Barrett

. T he only issue on appeal is whether municipal liability exists for the incident. Summary

judgment was properly granted.

AFFIRMED; MOTION DENIED.