IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40338

 

TRAVIS ALTON; ET AL

Plaintiffs

TRAVIS ALTON

Plaintiff-Appellant

versus

TEXAS A&M UNIVERSITY; ET AL

Defendants

THOMAS DARLING; MALON SOUTHERLAND;

ROBERT H DALTON; M T “TED” HOPGOOD, 

Major General

Defendants-Appellees

 

Appeal from the United States District Court

for the Southern District of Texas 

 

February 22, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is an appeal from a grant of summary judgment to

officials of Texas A&M University, based on qualified immunity to

a claim for money damages for a deprivation of constitutional

rights, arising out of the hazing of a student member of its Corps

of Cadets. The Corps is a voluntary student military training

organization with over 2100 members. Its chain of command runs
1The Fish Drill Team is a precision rifle drill unit made up

only of freshmen cadets.

2

from student cadet leaders to the Commandant of the Corps, a

retired U.S. Marine Corps General. Travis Alton is a former member

of the Corps of Cadets and filed this suit against certain cadets,

“student defendants”; the present Commandant of the Corps, Major

General Ted Hopgood; the former Commandant of the Corps, Major

General Thomas Darling; the Vice-President for Student Affairs, Dr.

Malon Southerland; and the faculty advisor to the Fish Drill Team,1

Captain Robert Dalton, collectively, “defendant officials”. Alton

asserts claims under 42 U.S.C. § 1983 stemming from the injuries

inflicted by the student defendants. We address Alton’s claims

against only the defendant officials in this appeal.

I

Alton alleges that during the week of January 6 through

January 13, “hell week” for the Fish Drill Team, upperclassmen

drill team cadet advisors known as hounds beat him nightly and once

taped his head like a mummy, twisting and jerking his chapped lips.

Alton’s treatment during hell week was not reported to school

authorities.

Alton alleges that about three weeks later, while the drill

team was preparing for a competition, the student defendants beat

Alton for botching a drill movement and instructed him to tell the

other members of the drill team the penalty for miscues. The

drill team later finished second at the meet and the student
3

defendants punished the team for that “failure” during practice on

February 12, 1997. Alton asserts that, as part of his punishment,

he was knocked down, kicked in the ribs, and made to run until

exhaustion. These incidents were not reported. However, Alton did

confide in his brother, who told their parents. Alton’s parents

then asked Colonel Joe Hoffman, an administrator of the Corps of

Cadets, to investigate.

Meanwhile, before the parents called, former cadet Hanson, the

senior cadet advisor to the drill team, told Captain Dalton, the

team’s faculty advisor, of a rumor that upperclassmen beat an

unidentified freshman. On March 21, Captain Dalton met with Alton.

Alton, however, denied that the incidents had occurred. Alton now

explains that he did so because of pressure from former Cadet

Hanson. 

After this meeting, Captain Dalton asked Colonel McClesky, the

Chief of Operations and Training and overseer of cadet misconduct

investigations, whether any investigation was underway regarding

the beating rumor. Colonel McClesky told Dalton that he thought

Colonel Ruiz, head of the Army ROTC, might know something about it,

but Ruiz would not be available until Monday, March 24, 1997.

Alton alleges that Captain Dalton tried to schedule a meeting that

day, Friday, March 21, 1997, with General Hopgood and the others in

the chain of command to discuss the situation, but Colonel Ruiz was

not available and the meeting was postponed until the 24th. Alton
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claims that he had no protection over the weekend and that the

officials did nothing to prevent further hazing. 

On Saturday night, Alton faced a “hound interview,” part of a

selection process for cadet advisors to the drill team. According

to Alton, at the interview, cadets poked him in the eye, punched

him, and then told him to sit down on a stool and relax. Then,

after turning out the lights, the cadets punched him. When the

lights were turned on again, the cadets handed a knife to Alton and

told him to cut himself, which he did. The cadets then told Alton

that “this never happened.”

At 8:15 a.m. on Monday, March 24, Captain Dalton and Colonel

Ruiz discussed the rumored beating incident. Captain Dalton was

instructed to set up a meeting for that day with the student

defendants. After Captain Dalton left, Alton and his parents met

with General Hopgood and the colonels. According to General

Hopgood, it was apparent that Travis Alton recently had been hazed

and abused. The General then acted swiftly and dramatically: He

suspended all nine cadets implicated and ordered them out of the

Corps residential facilities. After hearings held by Student

Conflict Resolution Services, the nine cadets were expelled or

suspended for hazing. They were later indicted, and criminal

proceedings were pending at the time summary judgment was granted

in this case. 

Despite General Hopgood’s action, on July 8, 1997, Alton filed

his complaint in the United States District Court. The district
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court granted summary judgment to the defendant officials on

qualified-immunity grounds. This ruling alone is before this

court. 

II

This court reviews summary judgment rulings de novo, applying

the same standards as did the lower courts. See In re Hudson, 107

F.3d 355, 356 (5th Cir. 1997). Summary judgment is proper only "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law."

Fed.R.Civ.P. 56(c). A dispute about a material fact is “genuine”

if the evidence is such that a reasonable jury could return a

verdict in favor of the nonmoving party. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Where critical evidence is

so weak or tenuous on an essential fact that it could not support

a judgment in favor of the nonmovant, or where it is so

overwhelming that it mandates judgment in favor of the movant,

summary judgment is appropriate. See Armstrong v. City of Dallas,

997 F.2d 62, 67 (5th Cir. 1993). 

To state a claim under § 1983 for violation of the Due Process

Clause, as Alton attempts to do in this case, plaintiffs "must show

that they have asserted a recognized 'liberty or property' interest

within the purview of the Fourteenth Amendment, and that they were

intentionally or recklessly deprived of that interest, even
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temporarily, under color of state law." Griffith v. Johnston, 899

F.2d 1427, 1435 (5th Cir. 1990) (citations omitted). 

III

Alton’s § 1983 substantive due process claim is grounded upon

a right to bodily integrity. Of course, “[t]he right to be free of

state-occasioned damage to a person’s bodily integrity is protected

by the fourteenth amendment guarantee of due process.” Doe v.

Taylor, 15 F.3d 443, 450-51 (5th Cir. 1994)(en banc). Alton makes

two arguments for imposing § 1983 liability upon the defendant

officials: (1) the state-actor cadets violated Alton’s

constitutional right to bodily integrity by subjecting him to

physical abuse, and the defendant officials are liable because the

cadets’ conduct can be imputed to them; and (2) Alton’s injuries

were the result of the officials’ implementing and condoning the

Corps’ custom and policy of hazing.

Neither side disputes that the defendant officials are state

actors. The student cadet leaders of the Corps are vested with

authority over the less senior cadets and serve as a link in the

chain of command between a freshman, like Alton, and the officials

who oversee the Corps. Considering this authority and the unique

paramilitary structure of the A&M Corps of Cadets, the student

cadet leaders in this particular situation were arguably acting

under color of state law. We will assume so, although we need not

pause to decide this point, given our ready disposition of the

appeal on grounds we will explain. 
7

IV

Even if we assume arguendo that the student cadet leaders

acted under color of state law, and we do not decide the question,

Alton’s first basis for holding the defendant officials liable --

imputation of the cadets’ conduct -- fails. Supervisory officers,

like the defendant officials, cannot be held liable under § 1983

for the actions of subordinates, like the cadets, on any theory of

vicarious liability. See Monell v. Department of Social Services,

436 U.S. 658, 691-95 (1978); Bennett v. City of Slidell, 728 F.2d

762, 767 (5th Cir. 1984) (en banc). Only the direct acts or

omissions of government officials, not the acts of subordinates,

will give rise to individual liability under § 1983. See Coleman

v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997).

The officials, however, may be liable when enforcement of a policy

or practice results in a deprivation of federally protected rights.

See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215-16 (5th

Cir. 1998). 

In Doe v. Taylor, we noted the close relationship between the

elements of municipal liability and an individual supervisor's

liability and concluded that a supervisory official may be liable

under § 1983 if that official demonstrates a deliberate

indifference to a plaintiff’s constitutionally protected rights.

See Taylor, 15 F.3d at 453. Likewise, in Scott v. Moore, we

explained in the pretrial detention context that a detainee could

succeed in holding a municipality liable for a due process
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violation if the detainee could show that a municipality employee’s

act resulted from a municipal policy or custom adopted or

maintained with objective indifference to the detainee’s

constitutional rights. Scott v. Moore, 114 F.3d 51, 54 (5th Cir.

1997). 

In sum, the officials’ conduct must be measured against the

standard of deliberate indifference. Alton must establish the

following:

1. The officials learned of facts or a pattern of inappropriate

hazing behavior by a subordinate pointing plainly toward the

conclusion that the subordinate was abusing the student;

 

2. The officials demonstrated deliberate indifference toward the

constitutional rights of Alton by failing to take action that was

obviously necessary to prevent or stop the abuse; and

3. The officials’ failure caused a constitutional injury to Alton.

See Doe, 15 F.3d at 454.

Alton’s evidence in the summary judgment record consists of a

summary of twenty-eight incidents and the official reaction to them

during a two-year period. The district court found that few of the

listed incidents appeared to rise to the level of a constitutional

injury and that no misconduct that approached the severity of the

conduct alleged in this case was ever reported to the officials.

While this evidence supports an inference that the officials knew

of hazing incidents within the Corps, there is no evidence that in

responding to the incidents the officials acted with deliberate

indifference in preventing abuse. On the contrary, according to
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the evidence in the summary judgment record, the officials acted to

prevent hazing and to punish hazing activities. 

Turning directly to the incidents concerning Alton, he told

the officials that no hazing had occurred. Despite Alton’s denial,

the defendant officials scheduled a meeting to consider the

possibility that he was being hazed. We are not pointed to

sufficient evidence that the school officials learned of facts or

a pattern of misbehavior that would lead a reasonable official to

believe that Alton’s constitutional rights were being violated.

Perhaps the officials may have been negligent, though we do not

make that suggestion, in failing to realize Alton was coerced into

lying about his abuse and failing to take immediate steps to

prevent the possibility of further abuse to Alton over the weekend,

but this cannot fairly be described as deliberately indifferent

conduct. The evidence shows that when the physical abuse of Alton

was brought to the officials’ attention, they took immediate and

firm action. It is also uncontroverted that the officials tried to

educate cadets and their parents about the Corps anti-hazing policy

and took disciplinary action in response to reports of cadet

misconduct. 

The standard of deliberate indifference is high. See Doe v.

Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir. 1998).

Actions and decisions by officials that are merely inept,

erroneous, ineffective, or negligent do not amount to deliberate
10

indifference and do not divest officials of qualified immunity.

See id. Alton did not demonstrate that there is a genuine issue of

fact as to whether the officials’ conduct reflected a conscious

disregard for the risk that students would suffer bodily injuries

of constitutional dimensions at the hands of student cadet leaders.

We have found no record support for the assertion that

defendants were deliberately indifferent to Alton’s rights. It

follows that plaintiffs’ second theory -- that defendant officials

implemented, condoned, approved, and conspired to cover up the

Corps’ custom and policy of hazing -- must fail, a fortiori. We

recognize that Alton attempts to prove that the official face of

not tolerating abuse of cadets by fellow cadets was false; that by

the nod and turn of the eye a pattern and custom of abuse was

perpetuated class to class and generation to generation. But

Alton’s firm belief that this is the reality of the Corps is not

the requisite proof. Nor are we insensitive to the reality that

his proof may be made the more difficult by deep loyalties of

participants internal to the very custom Alton would prove. And

there is a related second reality: “military hazing itself may

appear abusive to those unfamiliar with its objectives.” Indeed,

the ratlines of V.M.I. are described by Justice Ginsburg in United

States v. Virginia, 518 U.S. 515 (1996), as an opportunity not to

be denied females. Given the fine and murky line between the

permissible and the impermissible, we ought not repudiate an
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official who conducted a careful investigation into questioned

conduct.

V

Alton also faults the district court for relying on facts

outside of the record to support its summary judgment decision.

These non-record facts about which Alton complains are said to be

evidenced by statements by the district court extolling the

qualities of Texas A&M and considering the policy ramifications of

its decision. While extolling a distinguished university is best

left to other venues, we are not persuaded that any error here was

prejudicial.

AFFIRMED.