IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20003

MARIE A. HICKS-FIELDS, individually and as representative of the estate 

of Norman F. Hicks, Sr., Deceased; EVANGELINE E. CAMPBELL, 

individually and as representative of the estate of Norman F. Hicks, Sr., 

Deceased; JASON HICKS, individually and as representative of the estate of

Norman F. Hicks, Sr., Deceased; NORMAN F. HICKS, JR., individually and 

as representative of the estate of Norman F. Hicks, Sr., Deceased, 

 Plaintiffs - Appellants

v.

HARRIS COUNTY, TEXAS, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

While being temporarily segregated in an attorney visitation booth, 

Norman F. Hicks, Sr., punched Harris County Detention Officer Christopher 

Pool in the face, prompting a responsive punch from Pool. As Hicks fell down,

he struck his head on a concrete ledge in the booth. There were two other 

officers on the scene, one of whom looked through a window in the door and 

saw Hicks starting to lift himself off the ground. They left Hicks there, who

United States Court of Appeals

Fifth Circuit

FILED

June 26, 2017

Lyle W. Cayce

Clerk

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No. 16-20003

2

some fifteen minutes later was found without respiration or a pulse. Jail clinic 

staff were summoned to render aid, and while Hicks recovered a pulse, he 

slipped into a coma from which he did not recover. His survivors appeal

summary judgment regarding any liability of the county for the officers’

actions. We affirm.

I.

Norman F. Hicks, Sr., was arrested in Oklahoma and extradited to 

Texas, where he was booked into the Harris County Jail. Jail staff knew Hicks 

had a history of schizophrenia, and Harris County detention officers requested 

multiple psychiatric evaluations based on Hicks’ behavior. Nine days after his 

arrival, Hicks was involved in an altercation with another inmate and was 

placed in an attorney booth as a temporary holding cell, a common practice at 

the jail. After more than two hours, Harris County Corrections Officers Joseph 

Jameson, Christopher Taylor, and Christopher Pool noticed that Hicks had 

urinated and defecated in the booth and transferred him to a different booth.

On observing Hicks—now in the new booth—raise a plastic chair above 

his head, Jameson asked Hicks to push out the chair and Hicks’ shoes, which 

Hicks did. He also threw out his shirt, soiled with feces, which struck Pool in 

the chest and hands. Accounts differ as to what happened next. Jameson says 

that Pool stepped into the booth to place Hicks’ shirt inside. Taylor says that 

Pool caught the shirt, yelled a profanity, and threw the shirt back into the 

booth. According to both accounts, 72 year-old Hicks punched Pool in the

mouth. The 23 year-old corrections officer responded with a counter-punch to 

Hicks’ face. As Hicks fell backwards into the booth, his head struck a concrete 

ledge. Jameson then closed the booth door.

Taylor stated that he looked through the window, saw no blood on Hicks 

or anywhere in the booth, and saw Hicks pushing himself up and shaking his 

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head. Jail protocol required that inmates receive medical attention following a 

use-of-force incident, but no assistance was summoned until Sergeant Steven 

Wichkoski came by to check on Hicks fifteen minutes later. Finding Hicks lying

motionless on the floor, he called for prison clinic staff. Exhibiting no

respiration nor pulse, Hicks was transferred to Ben Taub hospital where he 

recovered a pulse and survived in a coma until life support was terminated six

days later. An autopsy determined that the manner of death was homicide and 

the cause of death was “[c]omplications of cardiac arrest due to atherosclerotic 

and hypertensive cardiovascular disease following blunt head trauma with 

nasal bone fracture.”

II.

Plaintiffs, as heirs of Hicks, brought this suit against Harris County, 

Pool, and other unnamed deputies in the Harris County State District Court. 

Plaintiffs’ original petition appeared to assert claims under the Texas Tort 

Claims Act, the Texas Wrongful Death Act, and for “negligent implementation 

of the policy on securing mentally ill criminal offenders.” Four months later, 

Plaintiffs filed a first amended petition, alleging a cause of action for assault 

against the individual defendants, restating the claims under the Texas Tort 

Claims Act and the Texas Wrongful Death Act against Harris County, and 

containing new claims under 42 U.S.C. § 1983 for violations of the Fifth and 

Fourteenth Amendment rights to due process of law and for “failure to properly 

supervise and train its Deputies.” Defendants timely removed the case to the 

federal district court, where it was referred to a magistrate judge.

Fourteen months later, Plaintiffs voluntarily dismissed the unnamed 

deputies without prejudice and sought leave to file a second amended petition. 

On March 12, 2014, the court denied the motion for want of good cause.1 On 

 1 See FED. R. CIV. P. 16(b)(4).

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February 27, 2015, Defendant Harris County moved for dismissal under Rule 

12(b)(6), judgment on the pleadings, and summary judgment on the basis of 

governmental immunity, the lack of an official policy or custom, and a lack of 

facts demonstrating specific inadequacies in Harris County’s policies or 

customs. On April 10, 2015, Plaintiffs moved to dismiss their claims against 

Pool with prejudice, which the court granted. In their response to Harris 

County’s motions, Plaintiffs again asked for leave to amend the complaint. On 

May 19, 2015, the court again denied leave, stating:

Discovery concluded months ago. The dispositive and 

nondispositive motions deadline has passed. The court denied a

motion for leave to amend filed by Plaintiffs in February 2014 

because Plaintiffs failed to demonstrate good cause as required by 

Federal Rule of Civil Procedure 16. Plaintiffs’ pending motion does 

nothing to prompt the court to change its ruling.

On November 23, 2015, a magistrate judge entered a memorandum and 

recommendation to the district court recommending a grant of summary 

judgment for Harris County. On December 30, 2015, the district court,

adopting the memorandum and recommendation, granted summary judgment

and entered final judgment for Harris County. Plaintiffs timely appealed.

III.

We review a district court’s grant of summary judgment de novo, 

applying the same standard as the district court,2 and a district court’s

evidentiary rulings for abuse of discretion.3 Summary judgment is appropriate 

where there is no genuine dispute of material fact and the movant is entitled 

to judgment as a matter of law.4 On summary judgment, a court must view the 

 2 Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).

3 Johnson v. Ford Motor Co., 988 F.2d 573, 578 (5th Cir. 1993).

4 FED. R. CIV. P. 56(a).

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evidence in the light most favorable to the non-movant and draw all reasonable 

inferences in the non-movant’s favor.5

IV.

Only claims against Harris County are before us. Harris County, as a 

municipality, may not be held liable under § 1983 on a basis of vicarious 

liability.6 Municipalities may be liable where “the action that is alleged to be 

unconstitutional implements or executes a policy statement, ordinance, 

regulation, or decision officially adopted and promulgated by that body’s 

officers.”7

“As is well established, every Monell claim requires ‘an underlying 

constitutional violation.’”8 The district court found that there are questions of 

fact as to whether underlying constitutional violations occurred. However, in 

order to survive summary judgment, Plaintiffs must demonstrate that a 

question for trial remains as to whether “action pursuant to official municipal 

policy caused their injury.”9 Put differently, “[t]o establish municipal liability 

under § 1983, a plaintiff must show that (1) an official policy (2) promulgated

by the municipal policymaker (3) was the moving force behind the violation of 

a constitutional right.”10

“Official municipal policy includes the decisions of a government’s 

lawmakers, the acts of its policymaking officials, and practices so persistent 

 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

6 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Kitchen v. Dall. Cty.,

759 F.3d 468, 476 (5th Cir. 2014).

7 Monell, 436 U.S. at 690.

8 Kitchen, 759 F.3d at 483 (quoting Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 

2013)).

9 Connick v. Thompson, 563 U.S. 51, 60 (2011) (citations omitted) (internal quotation 

marks omitted). 

10 Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (citing Piotrowski 

v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)).

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and widespread as to practically have the force of law.”11 Plaintiffs here rely 

on the third category, attempting to prove official policy through practice. 

Plaintiffs must therefore demonstrate that there existed “[a] persistent, 

widespread practice of city officials or employees, which, although not 

authorized by officially adopted and promulgated policy, is so common and well 

settled as to constitute a custom that fairly represents municipal policy.”12

Plaintiffs must also establish “[a]ctual or constructive knowledge of such 

custom” by the municipality or the official who had policymaking authority.13

In this circuit:

Actual knowledge may be shown by such means as discussions at 

council meetings or receipt of written information. Constructive 

knowledge may be attributed to the governing body on the ground 

that it would have known of the violations if it had properly 

exercised its responsibilities, as, for example, where the violations 

were so persistent and widespread that they were the subject of 

prolonged public discussion or of a high degree of publicity.14

Plaintiffs’ only evidence of this alleged custom consists of the events 

surrounding Hicks’ death, Pool’s employee history, and a report regarding 

conditions in the jail prepared by the United States Department of Justice.

Harris County urges us not to consider the DOJ report, arguing that the 

district court erred in admitting it into evidence; that while the report falls

within the public record exception to the hearsay ban, the report is not relevant

and is untrustworthy because it was prepared in anticipation of litigation. 

Plaintiffs counter that the district court erred in determining that the DOJ 

report is admissible only to show notice rather than as evidence of an

 11 Connick, 563 U.S. at 61 (citations omitted).

12 Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984).

13 Id.

14 Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984).

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underlying pattern of unconstitutional behavior.15 Without directly responding 

to Harris County’s evidentiary objections, the district court held that the report

was admissible to show that “Harris County [was] on notice of a possible 

pattern of potentially unconstitutional acts at the time preceding the 

investigation.” However, because the report was issued two years before Hicks’

death, the district court also ruled that the report was irrelevant to showing a 

pattern of unconstitutional behavior at that time.

Whether the DOJ report should have been admitted for purposes other 

than establishing notice under Monell is a close question. We afford the district 

court broad discretion in its evidentiary rulings on relevance.16 Still, the bar is 

low—evidence is relevant if it has “any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.”17 Reports of this type may 

make it at least marginally more likely that patterns of unconstitutional 

conduct occurred. Hicks’ death two years later could lead to the reasonable 

inference that those patterns—for example, a pattern of unconstitutional 

excessive force—had not abated.18

We also recognize the Seventh Circuit’s holding in Daniel that these 

reports, prepared pursuant to the statutory duty of the Department under the 

Civil Rights of Institutionalized Persons Act, are not untrustworthy as 

documents prepared in anticipation of litigation.19 “The mere fact that ‘the 

Attorney General may initiate a lawsuit’ against the Jail if a resolution is not 

otherwise reached to address its unconstitutional conditions does not mean 

 15 See Shepherd v. Dall. Cty., 591 F.3d 445, 456-58 (5th Cir. 2009).

16 United States v. Young, 655 F.2d 624, 626 (5th Cir. 1981).

17 Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 425 (5th Cir. 2006) 

(paraphrasing FED. R. EVID. 401).

18 See Shepherd, 591 F.3d at 456-58 (affirming the district court’s admission of a DOJ 

report into evidence as not unfairly prejudicial under Rule 403). 19 Daniel v. Cook Cty., 833 F.3d 728, 740-41 (7th Cir. 2016); see also 42 U.S.C. § 1997.

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that the preliminary investigation was conducted as anticipatory fact-finding 

for a potential lawsuit. If the law were otherwise, many official investigative 

findings would be inadmissible.”20 As our sister circuit found, reports of this 

type may be especially relevant in Monell claims, where the plaintiff is 

burdened with demonstrating a systemic failing—“exactly what the 

Department of Justice experts were looking for.”21

But ultimately we need not decide this issue today.22 For even if the 

report is some admissible evidence relevant to Plaintiffs’ Monell claim, more is 

required: that evidence must be sufficient to demonstrate that a question for 

trial remains as to whether there existed a “persistent, widespread practice of 

city officials or employees” that “is so common and well settled as to constitute 

a custom that fairly represents municipal policy.”23 A successful showing of 

such a pattern “requires similarity and specificity; ‘[p]rior indications cannot 

simply be for any and all “bad” or unwise acts, but rather must point to the 

specific violation in question.’”24 “While the specificity required should not be 

exaggerated, our cases require that the prior acts be fairly similar to what 

ultimately transpired . . . .”25

 20 Daniel, 833 F.3d at 741. 21 Id. at 742. We note that our discussion is limited to the DOJ report’s relevance and 

its possible untrustworthiness as a document prepared in anticipation of litigation. 

Depending on the nature of the report at issue and the specific circumstances of a particular 

case, such a report might not withstand scrutiny under other evidentiary rules. 22 “This court reviews a district court’s exclusion of expert testimony for abuse of 

discretion. But even when this court finds an abuse of discretion, it will not reverse the 

district court’s ruling unless it affected the [complaining] party’s ‘substantial rights.’” Moench 

v. Marquette Transp. Co. Gulf-Inland, L.L.C., 838 F.3d 586, 594 (5th Cir. 2016) (citations 

omitted). Even if erroneous, the partial admission of the DOJ report was harmless to both 

parties.

23 Webster, 735 F.2d at 841.

24 Peterson, 588 F.3d at 850 (quoting Estate of Davis ex rel. McCully v. City of N. 

Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).

25 Estate of Davis, 406 F.3d at 383.

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Assuming without deciding that the able district court abused its 

discretion under Rule 401 in admitting the DOJ report for a limited purpose, 

Plaintiffs’ evidence is insufficient to clear the high bar of Monell liability at

this summary judgment stage. As an initial matter, many of the constitutional 

deficiencies discussed in the report are not on all-fours with those complained 

of by Plaintiffs, such as issues related to medical care for inmates with chronic 

conditions, medical record-keeping, overcrowding, and sanitation. Two 

subsections of the DOJ report are on point and relevant to Plaintiffs’ 

constitutional claims in a broad sense, detailing allegedly inadequate mental 

health care and allegedly excessive uses of force. The report helpfully provides 

examples of these broad themes to illustrate with greater specificity the 

unconstitutional patterns identified by DOJ experts. However, these specific 

examples do not resemble—with sufficient similarity—the constitutional 

violations alleged by Plaintiffs so as to establish the required pattern of that 

unconstitutional conduct. The scant additional evidence offered by Plaintiffs—

such as Pool’s employee history—fails to cure these deficiencies and render the 

evidence as a whole sufficient. Plaintiffs’ allegations also must be viewed 

against the backdrop of a major jail facility that, at the time of DOJ’s 

investigation, housed 9,400 detainees, approximately 2,000 of which were 

receiving some form of psychotropic medication.

In sum, even with the DOJ report, Plaintiffs have not met their 

evidentiary burden of showing a genuine dispute of material fact as to the 

existence of a “persistent, widespread practice of city officials or employees, 

which, although not authorized by officially adopted and promulgated policy, 

is so common and well settled as to constitute a custom that fairly represents 

municipal policy.”26 Quite simply, under our precedent, Plaintiffs have not 

 26 Webster, 735 F.2d at 841.

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produced sufficient evidence27 of similar acts28 to move to trial. To hold that 

this evidence is sufficient to establish an official policy of Harris County “would 

be effectively to hold the [County] liable on the theory of respondeat superior, 

which is expressly prohibited by Monell.”29

V.

Plaintiffs also appeal the district court’s grant of summary judgment on 

the failure-to-train claims. “In limited circumstances, a local government’s 

decision not to train certain employees about their legal duty to avoid violating 

citizens’ rights may rise to the level of an official government policy for 

purposes of § 1983.”30 We have held that: 

[T]o succeed on a Monell claim arising from a municipality’s failure 

to adopt an adequate training policy, a plaintiff must demonstrate 

that: “(1) [the municipality’s] training policy procedures were 

inadequate, (2) [the municipality] was deliberately indifferent in 

adopting its training policy, and (3) the inadequate training policy 

directly caused [the constitutional violation].”31

In assessing whether a training policy and procedure is inadequate, we look to 

whether the program “enable[s] officers to respond properly to the usual and 

recurring situations with which they must deal.”32 Plaintiffs must demonstrate 

 27 See Peterson, 588 F.3d at 850 (“Where prior incidents are used to prove a pattern, 

they ‘must have occurred for so long or so frequently that the course of conduct warrants the 

attribution to the governing body of knowledge that the objectionable conduct is the expected, 

accepted practice of city employees.’” (quoting Webster, 735 F.2d at 842)). 28 See Peterson, 588 F.3d at 851 (“A pattern requires similarity and specificity; ‘[p]rior 

indications cannot simply be for any and all “bad” or unwise acts, but rather must point to 

the specific violation in question.’” (quoting Estate of Davis ex rel. McCully v. City of N.

Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).

29 Peterson, 588 F.3d at 852.

30 Connick, 563 U.S. at 61.

31 Kitchen, 759 F.3d at 484 (quoting Sanders-Burns v. City of Plano, 594 F.3d 366, 381 

(5th Cir. 2010)); accord Benavides v. Cty. Of Wilson, 955 F.2d 968, 972 (5th Cir. 1992) (citing 

City of Canton v. Harris, 489 U.S. 378 (1989)).

32 Benavides, 955 F.2d at 973 (quoting City of Canton, 489 U.S. at 391) (internal 

quotation marks omitted).

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that the highly predictable consequence of not training is that the asserted 

injury would occur.33 While it may in theory be possible to establish the 

inadequacy of a training program with a single incident,34 “adequately trained 

officers occasionally make mistakes; the fact that they do says little about the 

training program or the legal basis for holding the city liable.”35

Plaintiffs allege several training shortcomings, two of which come closer 

to stating a viable claim: (1) that officers were not properly trained in the useof-force and (2) that officers were not properly trained in the rendition of 

medical aid. Again, Plaintiffs primarily rely on the DOJ report as evidence of 

training deficiencies. But the allegations of the DOJ report are here weak 

evidence, at best, of a failure to train. Regarding excessive force, the 

Department’s criticisms largely center on improper training regarding 

restraining prisoners and cell extraction techniques, neither of which are 

directly at issue here. As for medical aid training, Plaintiffs cite to page twentythree of the report, which states that “[t]he Jail should increase staff training 

to ensure that staff is prepared to implement emergency procedures and 

operate emergency equipment [in] the event of an emergency.” The quoted 

language is from a section labeled “Sanitation and Life Safety” and appears to 

address training in the use of fire safety equipment. Plaintiffs have failed to 

produce competent summary judgment evidence of Harris County’s failure to 

train regarding responses to assaults by inmates and medical aid following a 

response incident.

 33 Peterson, 588 F.3d at 849.

34 Cardenas v. Lee Cty., 569 F. App’x 252, 257-58 (5th Cir. 2014) (unpublished)

(quoting City of Canton, 489 U.S. at 390). The example the Court gave in City of Canton was 

a police force arming officers but failing to train them in the use of deadly force.

35 City of Canton, 489 U.S. at 391.

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VI.

Plaintiffs argue in the alternative that the magistrate judge abused her 

discretion by not granting leave to amend because Plaintiffs’ current counsel 

was not the counsel of record when the initial pleadings were filed. In denying 

leave to amend, the court found that “although Plaintiffs had retained new 

counsel of record, the counsel entered appearances well before the pleading 

amendment deadline of December 6, 2013.” Plaintiffs argue that they did not 

delay in seeking leave to amend in bad faith, but good faith is not here good 

cause. The magistrate judge did not abuse her discretion in denying leave to 

amend after the amendment deadline.

****

We affirm the grant of summary judgment rejecting all claims against 

Harris County.

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