United States Court of Appeals

Fifth Circuit



## FILED

January 28, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-10150

c/w No. 03-10319

Summary Calendar

SHERRY BURNS BEAVERS,

Plaintiff-Appellant,

versus

JAY BROWN, Individually; ET AL.,

Defendants,

JAY BROWN, Individually;

JAY BROWN, as Sheriff of Parker County, Texas;

ROBERT ANTHONY CORRAL, Deputy Jailer of the

Sheriff Department of Parker County, Texas;

PARKER COUNTY, TEXAS,

Defendants-Appellees.

- - - - - - - - - - - - - - - -

SHERRY BURNS BEAVERS,

Plaintiff-Appellant,

versus

JAY BROWN, Individually; ET AL.,

Defendants,

ROBERT ANTHONY CORRAL, Individually;

ROBERT ANTHONY CORRAL, Deputy Jailer of the

Sheriff Department of Parker County, Texas,

Defendants-Appellees.* 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this opinion should not be published and is not precedent except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.

2 Appeals from the United States District Court

for the Northern District of Texas

(4:02-CV-336-A)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

In this 42 U.S.C. § 1983 action claiming constitutional and

state law violations, Sherry Burns Beavers appeals from both a

judgment (F ED

. R. C IV

. P. 12( b)(6)) dismissing her constitutional

claims against Sheriff Brown and Parker County and an earlier

default judgment against Deputy Corral, awarding only nominal

damages. (Notwithstanding Beavers’ premature notice of appeal, we

have jurisdiction over the judgment rendered in favor of Sheriff

Brown and Parker County. S ee Young v. Equifax Credit Info. Servs.

Inc. , 294 F.3d 631, 634 n.2 (5th Cir. 2002).)

For the default judgment against Deputy Corral, a hearing was

held concerning damages. The district court did not clearly err in

finding that the sexual relationship between Beavers, an inmate,

and Deputy Corral was consensual. C f. Theriot v. Parish of

Jefferson

, 185 F.3d 477, 490 (5th Cir. 1999), cert. denied

, 529

U.S. 1129 (2000). We need not reach the legal issue whether this3

consensual relationship violated the Constitution, because Deputy

Corral’s liability is not in dispute.

Beavers has pointed to no evidence overlooked by the district

court in det ermining she had not suffered a compensable injury;

therefore, she has not shown that the nominal damages award was

clearly erroneous. S ee Texas A&M Research Found. v. Magna Transp.,

Inc.

, 338 F.3d 394, 404 (5th Cir. 2003); Williams v. Kaufman

County

, __ F.3d __, No. 02-10500, 2003 WL 22890399, *15 (5th Cir.

9 Dec. 2003).

Beavers has also failed to demonstrate that the district

court’s refusal to award exemplary damages against Deputy Corral

was an abuse of discretion. See Sockwell v. Phelps , 20 F.3d 187,

192 ( 5th Cir. 1994). Additionally, Beavers was not

constitutionally entitled to a jury trial on the damages issue; nor

has she demonstrated that the district court abused its discretion

in denying her request. S ee F ED

. R. C IV

. P. 55(b)(2); I n re

Dierschke , 975 F.2d 181, 185 (5th Cir. 1992).

The district court acted within its di scretion in denying

Beavers’ request for attorney’s f ees, given: she produced no

evidence that any damage arose from the claimed constitutional

deprivation; and, moreover, her vi ctory produced no “public

benefit” to jus tify an award of fees in spite of receiving only

nominal damages. See H idden Oaks Ltd. v. City of Austin

, 138 F.3d

1036, 1052-53 (5th Cir. 1998); 42 U.S.C. § 1988. The district4

court also did not abuse its discretion by not ordering Beavers to

submit a F ED

. R. C IV

. P. 7 reply to the defendants’ qualified

immunity defense because the court dismissed Sheriff Brown and the

County on grounds other than qualified immunity. See Schultea v.

Wood , 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc).

Beavers’ contention that the district court erroneously

dismissed her claims against Sh eriff Brown in his individual

capacity is inadequately brie fed and is therefore waived.

E.g., Yohey v. Collins

, 985 F.2d 222, 224-25 (5th Cir. 1993).

We also reject her contention that the district court’s F ED

. R. C IV

.

P. 12(b)(6) dismissal was inappropriate. S ee Shipp v. McMahon

, 234

F.3d 907, 911 (5th Cir. 2000) ( de novo review), overruled on other

grounds by

, McClendon v. City of Columbia , 305 F.3d 314, 328 (5th

Cir. 2002), cert. denied

, 537 U.S. 1232 (2003). Beavers’ complaint

failed to identify either an unconstitutional official policy or a

custom instituted by Parker County and/or Sheriff Brown that caused

the claimed constitutional deprivation. S ee Colle v. Brazos

County, Tex

., 981 F.2d 237, 244 (5th Cir. 1993) . Moreover, her

allegations of a causal connection between Sheriff Brown’s conduct

and the claimed constitutional deprivation were purely conclusional

and were therefore insufficient to state a § 1983 claim for

municipal liability. S ee Spiller v. City of Texas City, Police

Dep’t , 130 F.3d 162, 167 (5th Cir. 1997).5

Finally, Beavers’ complaint failed to claim that Parker

County’s immunity had been waived through liability under the Texas

Tort Claims Act. See Dallas County Mental Health & Mental

Retardation v. Bossley , 968 S.W.2d 339, 341 (Tex. 1998). She has

shown no error on the part of the district court in dismissing her

state law claims on that basis.

AFFIRMED