IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30610

LARRY DUPREE ALDERSON,

Plaintiff–Appellant,

v.

CONCORDIA PARISH CORRECTIONAL FACILITY; WARDEN LANCE 

MOORE; GEORGE BYRNES, Chief of Security; SHEILA SPINNER, 

Administrative Assistant; CAPTAIN KELLY MOORE; CAPTAIN JACKIE 

JOHNSON; DEBRA COWAN, Administrative Assistant; LIEUTENANT 

HARVEY BRYANT,

Defendants–Appellees.

Appeal from the United States District Court 

for the Western District of Louisiana

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:

Appellant Larry Alderson, a pretrial detainee, brought this action under 

42 U.S.C. § 1983 against the Concordia Parish Correctional Facility and 

several of its department heads and employees. He alleged that the defendants 

provided him inadequate security and impermissibly delayed medical care. 

Alderson, who represented himself in forma pauperis, amended his complaint 

pursuant to the instructions of a magistrate judge. The magistrate judge then 

recommended that the complaint be dismissed with prejudice for failure to 

state a claim. The district court adopted the magistrate judge’s report and 

recommendation over Alderson’s objections. Alderson now appeals in part the 

district court’s dismissal of his amended complaint. We AFFIRM in part the 

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2017

Lyle W. Cayce

Clerk

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district court’s judgment except as to dismissal of the claims of inadequate 

medical care against Lieutenant Harvey Bryant. We REVERSE in part the 

district court’s judgment dismissing the claim that Bryant was deliberately 

indifferent to Alderson’s need for medications prescribed by the hospital 

following an incident in which Alderson was assaulted by Concordia Parish 

Correctional Facility inmates. We REMAND for further consideration both of 

this claim and of the claim that Bryant impermissibly delayed Alderson’s 

initial medical evaluation.

I.

Alderson alleges that he was brutally attacked in the Concordia Parish 

Correctional Facility (CPCF) on the morning of December 22, 2014.1 The 

attack took place in G Dorm, where Alderson, a pretrial detainee, was housed 

with Department of Correction (DOC) inmates due to a misclassification by 

Chief of Security George Byrnes and Administrative Assistant Sheila Spinner. 

Alderson’s assailants were two DOC inmates whom he did not know. They 

stabbed him and stomped on him in an attack that lasted at least three to five 

minutes. When Alderson raised concerns about his safety and his medical 

condition after the attack, Lieutenant Harvey Bryant sent him to lockdown in 

a cell with DOC inmates. It was not until after Alderson and his family made 

numerous complaints to staff that Bryant returned to the cell, took pictures of 

Alderson’s injuries using his own cell phone instead of the investigative camera 

used for documenting incidents, and then left Alderson for an hour before 

taking him to the hospital.

 

1 This statement of facts takes Alderson’s allegations as true and views them in the 

light most favorable to the plaintiff. See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). 

It is drawn from Alderson’s objections to the magistrate judge’s report and recommendations 

as well as from Alderson’s amended complaint. See Johnson v. Epps, 479 F. App’x 583, 587–

89 (5th Cir. 2012); Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1081–82 (5th Cir. 

1991).

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Alderson was prescribed antibiotics and painkillers after being

diagnosed with bruised or broken ribs and multiple puncture wounds to his 

face, head, and body. When Alderson asked Bryant for the medications that 

he had been prescribed to prevent infection and to alleviate pain, Bryant told 

him, “Man up & wait til [sic] medical staff returns from the Christmas 

holiday.”2 Alderson did not receive his medications until January 2, 2015, 

which caused him to risk infection and to suffer “a tremendous amount of pain 

for over a week.” Alderson’s amended complaint states, “My only injury during 

that time was [an] excruciating amount of pain.” Alderson also states that, 

since the events described above, he has suffered from mental instability, has 

been on psychiatric medications, and has been “in constant fear for my life from 

inmates & staff.”

The magistrate judge recommended that Alderson’s amended complaint 

be denied and dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B) and 

1915A for failure to state a claim. With respect to Alderson’s claims against 

CPCF, the magistrate judge determined that CPCF is not a juridical person 

subject to being sued. With respect to Alderson’s claims against the individual

defendants, the magistrate judge determined that Alderson did not specifically 

allege any actionable misconduct. The district court adopted the magistrate 

judge’s report and recommendation after an independent review of the record, 

including Alderson’s objections. However, the district court did not expressly 

analyze Alderson’s objections. Alderson now appeals the judgment dismissing

his claims.3

 

2 Alderson has alleged that Officer King also told him he could not get his medications 

until the holidays ended. However, Officer King is not a defendant in this case.

3 Alderson does not appeal the dismissal of his claims against CPCF. Even assuming 

arguendo that his brief could be liberally construed to appeal the dismissal of claims against 

CPCF, the district court correctly determined that CPCF is not a juridical person pursuant 

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II.

A district court’s dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A 

for failure to state a claim is reviewed de novo under the same standard applied 

to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6). Legate v. 

Livingston, 822 F.3d 207, 209–10 (5th Cir. 2016); Ruiz v. United States, 160 

F.3d 273, 275 (5th Cir. 1998). Thus, we review the district court’s dismissal 

“taking the facts alleged in the complaint as true and viewing them in the light 

most favorable to” the plaintiff. Atkinson, 623 F.3d at 280. In doing so, we 

construe pro se pleadings liberally. United States v. Riascos, 76 F.3d 93, 95 

(5th Cir. 1996). The question before us is whether the facts alleged by the 

plaintiff are sufficient to support a reasonable inference that the defendants 

are liable under § 1983. See Legate, 822 F.3d at 210.

Pretrial detainees are protected by the Due Process Clause of the 

Fourteenth Amendment. Cupit v. Jones, 835 F.2d 82, 84–85 (5th Cir. 1987). 

To succeed in a § 1983 action based on “episodic acts or omissions” in violation 

of Fourteenth Amendment rights, a pretrial detainee must show subjective 

deliberate indifference by the defendants. Hare v. City of Corinth, 74 F.3d 633, 

643 (5th Cir. 1996) (en banc).4 That is, the plaintiff must show that the official 

 

to Federal Rule of Civil Procedure 17(b) and the Louisiana law that the rule incorporates. 

See Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d. 606, 613 (E.D.La. 1998).

4 The concurring opinion suggests that our en banc court should reconsider Hare in 

light of the Supreme Court’s opinion in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). 

Because the Fifth Circuit has continued to rely on Hare and to apply a subjective standard 

post-Kingsley, this panel is bound by our rule of orderliness. See Estate of Henson v. Wichita

Cty., 795 F.3d 456 (5th Cir. 2015); see also Hyatt v. Thomas, 843 F.3d 172 (5th Cir. 2016);

Zimmerman v. Cutler, 657 F. App’x 340 (5th Cir. 2016). Moreover, the Ninth Circuit is the 

only circuit to have extended Kingsley’s objective standard to failure-to-protect claims. See 

Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Even if Kingsley did require us 

to adopt a new standard for failure-to-protect claims, this would not change the outcome of 

the case because Alderson has not stated a failure-to-protect claim by alleging that any 

specific defendant made an intentional decision with respect to the conditions of his 

confinement, that a reasonable officer in the circumstances would have appreciated the high 

degree of risk involved, and that any defendant failed to take reasonably available measures 

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knew of and disregarded a substantial risk of serious harm. Domino v. Tex.

Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). “Actions and 

decisions by officials that are merely inept, erroneous, ineffective, or negligent 

do not amount to deliberate indifference.” Alton v. Tex. A & M Univ., 168 F.3d 

196, 201 (5th Cir. 1999). To reach the level of deliberate indifference, official 

conduct must be “wanton,” which is defined to mean “reckless.” Johnson v. 

Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Under § 1983, officials are not 

vicariously liable for the conduct of those under their supervision. Mouille v. 

City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). Supervisory officials are 

accountable for their own acts of deliberate indifference and for implementing 

unconstitutional policies that causally result in injury to the plaintiff. Id.

A.

The district court correctly dismissed Alderson’s failure-to-protect claims

against Chief of Security George Byrnes, Administrative Assistant Sheila 

Spinner, Warden Lance Moore, Captain Kelly Moore, and Captain Jackie 

Johnson. When the state deprives an individual of the freedom to act on his 

own behalf, the Fourteenth Amendment imposes on the state a duty to protect 

that individual. Hare, 74 F.3d at 639. “The confinement of pretrial detainees 

indiscriminately with convicted persons is unconstitutional unless such a 

practice is reasonably related to the institution’s interest in maintaining jail 

security or physical facilities do not permit their separation.” Jones v. 

Diamond, 636 F.2d 1364, 1374 (5th Cir. 1981).

Even assuming that Alderson should not have been housed with DOC 

detainees as he alleges, we nevertheless hold that Alderson has failed to state 

a claim against Byrnes and Spinner for misclassifying him. To state a claim 

 

to abate the risks associated with housing pre-trial detainees and DOC inmates together. 

See id. at 1071 (listing elements of a failure-to-protect claim pursuant to extension of 

Kingsley).

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against Byrnes and Spinner, Alderson must allege that their misclassification 

of him was due to deliberate indifference. That is, he must allege that they

knew of and disregarded a substantial risk of serious harm. See Domino, 239 

F.3d at 755. Alderson alleged, “[T]his institution was informed that there was 

concerns for my safety.” He explained that, although he did not personally 

make his safety concerns known to anyone at CPCF prior to the attack, his 

transfer to the facility was prompted by recognition that he faced special 

danger due to the nature of the charges on which he was arrested. Alderson’s 

allegation that CPCF had knowledge of his danger is not a sufficient allegation 

that any specific defendant had knowledge of a substantial risk of serious harm

to Alderson based upon his classification. Because he has not alleged that 

Byrnes and Spinner had knowledge of such a risk, Alderson has not linked

their alleged misclassification to deliberate indifference toward that risk. 

Accordingly, Alderson has failed to state a claim based on their 

misclassification.5

Alderson has similarly failed to state a claim for supervisory liability 

against Byrnes, Spinner, Lance Moore, Kelly Moore, and Johnson. To hold any 

of these defendants liable as supervisory officials under § 1983, Alderson must 

allege either that they participated in acts that caused constitutional 

deprivation or that they implemented unconstitutional policies causally 

related to his injuries. See Mouille, 977 F.2d at 929. It is unclear whether 

Alderson seeks to rely on participation in acts that caused constitutional 

 

5 In affirming the district court’s dismissal, we do not rely on the district court’s 

observation that “the housing of convicted inmates with pretrial detainees is not per se 

unconstitutional.” Housing pretrial detainees with DOC inmates is a violation of their rights 

“unless such a practice is reasonably related to the institution’s interest in maintaining jail 

security or physical facilities do not permit their separation.” Diamond, 636 F.2d at 1374. 

Alderson has alleged a violation of the rule against housing pretrial detainees with DOC 

inmates, and nothing suggests that an exception to the rule applies.

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deprivation, implementation of unconstitutional policies, or both. We 

recognize that a plaintiff may plead these theories in the alternative and, 

accordingly, consider both possibilities. See Estate of Henson, 795 F.3d 456. 

However, Alderson has not stated a claim under either theory of liability 

because he has not identified any specific defendant as responsible for a 

specific act that caused constitutional deprivation or for a specific 

unconstitutional policy causally related to his injuries.

Alderson named the supervisory officials as defendants and alleged 

generally that they failed in their responsibilities as department heads and 

individuals otherwise positioned to ensure that he was correctly housed, to 

ensure that surveillance and security checks were adequate, to check inmates’ 

backgrounds, and to provide inmates transferred to CPCF for security reasons 

a safe and secure environment. Alderson made these allegations against the 

supervisory officials as a group, despite the magistrate judge’s instruction to 

“state what each defendant did.” He also alleged that his attack was monitored 

by two cameras, implying that “the officers assigned to these cameras” should 

have seen and stopped the attack. However, he did not identify the officers or 

allege that any of the supervisory officials were responsible for monitoring the 

cameras. Thus, Alderson failed to allege any particular defendant’s personal 

involvement in conduct that caused constitutional deprivation.

Nor has Alderson sufficiently alleged that any of the defendants 

implemented an unconstitutional policy causally related to his injury. He has 

alleged that DOC inmates and pretrial detainees wear different uniforms and 

that DOC inmates housed with pretrial detainees were ordered to change 

uniforms during a prison inspection, potentially suggesting that prison officials 

were consciously implementing and concealing a policy or practice of housing 

DOC inmates with pretrial detainees. On the other hand, the same incident 

could also be evidence that supervisory officials at the prison had 

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communicated that inmates and detainees should be housed separately and

that other prison staff were trying to conceal their violation of this policy. 

Alderson’s allegations do not show that an unconstitutional policy existed or 

that any particular defendants implemented the policy if it did exist. Thus, 

Alderson has not stated a failure-to-protect claim, and the district court’s 

dismissal should be affirmed.

B.

The district court properly dismissed Alderson’s claims of inadequate 

medical care against Administrative Assistant Sheila Spinner, Warden Lance 

Moore, and Head Nurse Debra Cowan. However, it failed to consider 

Alderson’s claim that Lieutenant Harvey Bryant impermissibly delayed the 

initial medical evaluation and improperly dismissed Alderson’s claim that 

Bryant failed to assist him in filling his prescription. To establish liability 

based on a delay in medical treatment, a plaintiff must show deliberate 

indifference to serious medical needs that resulted in substantial harm. Easter 

v. Powell, 467 F.3d 459, 464 (5th Cir. 2006). A plaintiff can show deliberate 

indifference by showing that an official “refused to treat him, ignored his 

complaints, intentionally treated him incorrectly, or engaged in any similar 

conduct that would clearly evince a wanton disregard for any serious medical 

needs.” Id. The pain suffered during a delay in treatment can constitute a 

substantial harm and form the basis for an award of damages. Id. at 464–65.

The district court determined that Alderson failed to allege facts 

supporting an inference of deliberate indifference by any of the defendants.6 

 

6 In determining that Alderson had not alleged deliberate indifference, the district 

court noted, “[Alderson] was informed that he would not be able to get the prescription 

immediately because of the Christmas Holiday, not because of wanton, reckless, or causeless 

actions by the defendants.” However, the district court did not cite any authority, nor have 

we found any authority, suggesting that the occurrence of the Christmas holiday obviates the 

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Alderson alleges that Bryant delayed his medical treatment in two ways. First,

Alderson alleges that Bryant delayed his medical treatment by placing him in 

lockdown upon learning of his condition, waiting until numerous complaints 

had been made by Alderson and his family before taking further action, and 

then leaving Alderson for another hour before taking him to the hospital. This 

is an allegation that Bryant’s initial response to Alderson’s medical needs was 

to refuse treatment and ignore his complaints, which constitutes deliberate 

indifference. Second, Alderson alleges that Bryant further delayed his 

treatment when he responded to Alderson’s request for his prescription 

medications by telling him to “[m]an up,” ignoring Alderson’s complaints and 

evincing wanton disregard for his serious medical needs. These allegations, if 

true, could support an inference of deliberate indifference on the part of 

Bryant. See id. at 464.7

The district court concluded that, even if Alderson alleged deliberate 

indifference, he failed to allege facts supporting an inference that he suffered 

substantial harm because he did not allege “a life-long handicap or permanent 

loss.” However, Fifth Circuit precedent does not limit substantial harm to lifelong handicap or permanent loss.8 Rather, our precedent allows recovery for 

pain suffered during a delay in treatment caused by deliberate indifference. 

Id. Alderson has alleged that he suffered a “tremendous amount of pain” 

 

obligation of correctional facilities’ employees to provide prescription medication for over a 

week when they have knowledge that the medication needs to be administered as prescribed. 7 Alderson has not alleged that Moore, Spinner, or Cowan engaged in any acts that 

delayed his medical treatment. Thus, dismissal of the claims against these defendants was 

correct.

8 The only Fifth Circuit decision cited by the district court in this regard is Wesson v. 

Oglesby, 910 F.2d 278 (5th Cir. 1990), in which we held that a “minor delay” in obtaining 

medical treatment for a prisoner who had swollen wrists and some bleeding did not constitute 

deliberate indifference to serious medical needs. Id. at 284. In another case, we held that a 

four-hour delay in treatment could provide grounds for § 1983 liability. Easter, 467 F.3d at 

461.

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during the delay in obtaining pain medications and risked a greater likelihood 

of infection during the delay in obtaining antibiotics. As discussed above, 

Alderson has alleged that Bryant was deliberately indifferent in failing to 

make an effort to help him obtain the medications he needed because of his 

bruised or broken ribs and risk of infection. These allegations are sufficient to 

allege that Bryant’s deliberate indifference in delaying medical treatment 

caused Alderson to suffer substantial harm. See id.9

C.

Although the district court correctly dismissed Alderson’s failure-toprotect claims and Alderson’s medically related claims against Administrative 

Assistant Sheila Spinner, Warden Lance Moore, and Head Nurse Debra 

Cowan, the dismissal should have been without prejudice. “When the 

dismissal of a pro se complaint is appropriate, it should generally be done 

without prejudice in order to allow the plaintiff an opportunity to file an 

amended complaint.” Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 

1995); see also Moawad v. Childs, 673 F.2d 850, 851 (5th Cir. 1982). However, 

a district court may dismiss with prejudice if the plaintiff has been given 

adequate opportunity to cure the inadequacies in his pleading or if the 

pleadings “demonstrate that the plaintiff has pleaded his best case.” Jacquez 

v. Procunier, 801 F.2d 789, 792–93 (5th Cir. 1986) (affirming dismissal with 

prejudice for failure to state a claim when plaintiff did not file a supplemental 

complaint but did file an extensive response to the defendants’ motion to 

dismiss, alleging facts that suggested negligence but not deliberate 

 

9 We note that it is not clear at this preliminary stage whether Bryant actually had 

authority to call in medical staff to fill the prescription or had other means of assisting 

Alderson to get the prescription filled. Nevertheless, construing Alderson’s pro se pleadings 

under “less stringent standards than formal pleadings drafted by lawyers,” we hold that 

Alderson has pleaded a plausible claim of Bryant’s liability. See, e.g., Stone v. La. Dep’t of 

Revenue, 590 F. App’x 332, 339 (5th Cir. 2014).

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indifference in a § 1983 action); see also Brewster v. Dretke, 587 F.3d 764, 768 

(5th Cir. 2009) (affirming dismissal with prejudice of § 1983 action brought by 

an inmate proceeding pro se and in forma pauperis who had no opportunity to 

amend his complaint but who was given a questionnaire to bring his claims 

into focus because inmate did not “allege what facts he would include in an 

amended complaint”). “The principal vehicles which have evolved for 

remedying inadequacy in prisoner pleadings are the Spears hearing and a 

questionnaire to bring into focus the factual and legal bases of prisoners’

claims.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

Here, the district court did not conduct a Spears hearing or give Alderson 

a questionnaire, and we are not persuaded that his opportunity to amend his 

complaint was adequate or that he has necessarily pleaded his best case.10 

Alderson’s amended complaint suggests that he understood the magistrate 

judge’s instruction as a direction not to plead his claims against CPCF and that 

he did not appreciate the specificity with which he must plead the grounds for 

each individual defendants’ liability.11 With the benefit of more specific 

allegations, Alderson may be able to state a claim. Because it is not clear that 

Alderson amended his complaint with a sufficient understanding of the 

inadequacies in his original pleading or that he has pleaded his best case, the 

general rule that dismissal should be without prejudice applies. See Rodriguez, 

66 F.3d at 97. 

 

10 We recognize that a district court is not required to use a Spears hearing or a Watson 

questionnaire prior to dismissal. See Green v. McKaskle, 788 F.2d 1116, 1120–21 (5th Cir. 

1986).

11 The magistrate judge’s instructions directed, in relevant part, that Alderson should 

“provide the names of the individuals whom he believes violated his constitutional rights, 

and . . . state what each defendant did in violation of his rights.” Alderson’s amended 

complaint provides the names of the individuals he believes violated his rights and states 

what the defendants did in violation of his rights, although it fails to state what the 

defendants did with adequate specificity, as discussed above.

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III.

For the reasons stated above, we AFFIRM the district court’s dismissal 

of all claims except those against Lieutenant Harvey Bryant. We REVERSE 

the district court’s dismissal of the claim that Bryant impermissibly delayed 

the filling of Alderson’s prescription and REMAND for further consideration 

both of this claim and of the previously unconsidered claim that Bryant 

impermissibly delayed Alderson’s initial medical evaluation.

AFFIRMED IN PART; REVERSED IN PART.

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JAMES E. GRAVES, JR., Circuit Judge, specially concurring in part:1

I write separately because the Supreme Court’s decision in Kingsley v. 

Hendrickson, 135 S.Ct. 2466 (2015), appears to call into question this court’s 

holding in Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996). In Kingsley, 

which was an excessive force case, the Supreme Court indeed said: "Whether 

that standard might suffice for liability in the case of an alleged mistreatment 

of a pretrial detainee need not be decided here; for the officers do not dispute 

that they acted purposefully or knowingly with respect to the force they used 

against Kingsley." Kingsley, 135 S.Ct. at 2472. However, that appears to be 

an acknowledgment that, even in such a case, there is no established subjective 

standard as the majority determined in Hare. Also, the analysis in Kingsley

appears to support the conclusion that an objective standard would apply in a 

failure-to-protect case. See id. at 2472-2476.

Additionally, the Supreme Court said: 

We acknowledge that our view that an objective standard is 

appropriate in the context of excessive force claims brought by 

pretrial detainees pursuant to the Fourteenth Amendment may 

raise questions about the use of a subjective standard in the 

context of excessive force claims brought by convicted prisoners. 

We are not confronted with such a claim, however, so we need not 

address that issue today.

Id. at 2476. This indicates that there are still different standards for pretrial 

detainees and DOC inmates, contrary to at least some of the language in Hare, 

74 F.3d at 650, and that, if the standards were to be commingled, it would be 

toward an objective standard as to both on at least some claims.

Further, the Ninth Circuit granted en banc rehearing in Castro v. County 

of Los Angeles, 833 F.3d 1060 (9th Cir. 2016), after a partially dissenting panel 

judge wrote separately to point out that Kingsley “calls into question our 

 

1 I dissent as to footnote four.

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precedent on the appropriate state-of-mind inquiry in failure-to-protect claims 

brought by pretrial detainees.”2 The en banc court concluded that Kingsley

applies to failure-to-protect claims and that an objective standard is 

appropriate. Castro, 833 F.3d at 1068-1073.

In Estate of Henson v. Wichita County, 795 F.3d 456 (5th Cir. 2014), 

decided just one month after Kingsley, this court did not address any 

application of Kingsley. Likewise, the two subsequent cases also cited by the 

majority did not address or distinguish Kingsley.3 Because I read Kingsley as 

the Ninth Circuit did and would revisit the deliberate indifference standard, I 

write separately.

 

2 Castro v. County of Los Angeles, 797 F.3d 654, 677 (9th Cir. 2015).

3 Hyatt v. Thomas, 843 F.3d 172 (5th Cir. 2016), and Zimmerman v. Cutler, 657 

F.App’x 340 (5th Cir. 2016).

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