IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20710

MICHELLE HALL; DANNY HALL, Individually and as next friend of 

M.S.H., a minor, 

 Plaintiffs - Appellants

v.

ROBERT EMERSON ROBINSON; HARRIS COUNTY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-3474

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants, Michelle and Danny Hall (the “Halls”), 

individually and as next friend of M.S.H., appeal the district court’s grant of 

summary judgment to defendants-appellees Robert Emerson Robinson 

(“Robinson”) and Harris County (the “County”) (collectively the “State”). For 

the reasons explained below, we AFFIRM the judgment of the district court.

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2015

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

Fifteen-year-old minor M.S.H. was incarcerated at the Harris County 

Juvenile Detention Center (the “Detention Center”) on aggravated robbery 

charges from March 10, 2012, to May 25, 2012. She was housed on the fourth 

floor in a unit reserved exclusively for female detainees. 

Twenty-eight-year-old Robinson, a state-certified Juvenile Supervision 

Officer (“JSO”) employed in the Detention Center at the County’s Juvenile 

Probation Department since 2006, was assigned to work on the fifth floor 

during M.S.H.’s incarceration. Not long after M.S.H.’s arrival, Robinson began 

unaccompanied visits to M.S.H.’s cell two to three times per week. He was 

granted access to M.S.H.’s cell by another employee, stationed at the control 

center, who triggered a mechanism that remotely controlled and unlocked cell 

doors. 

During his visits, Robinson offered M.S.H. food and candy and described 

sexual acts he wanted to engage in with her. Robinson touched M.S.H.’s 

breasts, buttocks, and vagina on at least three occasions and wrote sexually 

explicit letters to M.S.H. that were delivered by another JSO.1 Robinson raped

M.S.H. on May 23, 2012. 

On August 1, 2012, JSO Ruthie Coleman-Lister found and turned in a

packet containing several sexually explicit letters addressed to Robinson from 

M.S.H.2 Unit Supervisor Purvis Hunt delivered the envelope to 

Superintendent Aaron Bearsley, who immediately contacted M.S.H.’s mother, 

notified the Houston Police Department and the Texas Juvenile Justice 

 

1 JSO Derrick Coon delivered sexually explicit letters on Robinson’s behalf. JSO Coon 

also made inappropriate sexual comments and advances toward M.S.H. when he delivered 

Robinson’s letters. 

2 JSO Lister previously made JSO Sonya Ray aware of the improprieties she observed 

between Robinson and M.S.H. Neither JSO reported Robinson’s misconduct while M.S.H. 

was in custody. 

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Division, and temporarily suspended Robinson during an internal 

investigation. On August 7, 2012, the investigator conducting the internal 

investigation concluded that Robinson’s conduct “violated the TJJD [Texas 

Juvenile Justice Department] code of ethics,” and Robinson was terminated. 

According to M.S.H.’s affidavit, she reported Robinson’s advances to JSO 

Jones prior to the discovery of the letters. Jones asked whether M.S.H. planned 

to report the incidents and M.S.H. responded that she did not. M.S.H. had a 

copy of the Detention Center’s grievance procedures but did not officially report 

her concerns about Robinson. M.S.H. or her parents could have alerted the

Harris County Juvenile Board (the “Juvenile Board”) and supervisory staff of 

Robinson’s behavior through the “Youth Grievance Process.” The Youth 

Grievance Process provides that “[a]ll youth shall have full access to the 

grievance process and have the right to file a written grievance.” Another 

policy, “Community Complaints,” states that “[a] complaint may be filed by any 

youth, the youth’s parents/guardians, or their representative . . . .” Lastly, the 

“Juvenile Rights” policy provides “[t]he facility shall have a written grievance 

procedure with at least one level of appeal” and that “[r]esidents shall not be 

subjected to abuse, exploitation or neglect . . . .” 

On December 12, 2013, Robinson was convicted of sexual assault of a 

child under seventeen years of age. The Halls filed civil suit on November 28, 

2012, in the Southern District of Texas. After the district court granted 

Robinson’s motion for summary judgment on October 20, 2014, the Halls filed 

a timely notice of appeal on November 19, 2014. 

The Halls raise two issues on appeal. First, they contend the County’s 

immunity from suit was waived by the JSOs’ negligent failure to report 

Robinson’s behavior. Second, the Halls assert that there is a genuine issue of 

material fact concerning the County’s failure to train and supervise Robinson. 

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DISCUSSION

I. Standard of Review

The court reviews the district court’s grant of summary judgment de 

novo, with all evidence construed in the light most favorable to the nonmovant. Squyres v. Heico Cos., 782 F.3d 224, 230-31 (5th Cir. 2015). Summary 

judgment is appropriate when no genuine issue of material fact exists and the 

moving party is entitled to judgment as a matter of law. Celotex Corp v. Catrett, 

477 U.S. 317, 322 (1986). This court “resolve[s] factual controversies in favor 

of the nonmoving party, but only where there is an actual controversy, that is, 

when both parties have submitted evidence of contradictory facts.” Antoine v. 

First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quotation marks 

omitted).

II. Failure to Report

The district court dismissed the Halls’ state law claims under the Texas 

Tort Claims Act (“TTCA”) with prejudice. The TTCA protects Texas and its 

municipalities from liability for the intentional torts (including assault or 

battery) of State employees. TEX. CIV. PRAC. & REM. CODE § 101.057. 

Sovereign immunity also protects the State from liability for the negligence of 

its officers or agents, unless there is a constitutional or statutory provision 

waiving immunity. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). 

The district court correctly granted summary judgment in favor of the State. 

We affirm. 

First, this court cannot reach the merits of the Halls’ negligence claim 

against Harris County because the issue is raised for the first time on appeal. 

The record contains no mention of the negligent behavior of the JSOs until the 

Halls’ Brief on appeal. In response to the State’s motion for summary 

judgment, the Halls claimed that County employees acted deliberately in not 

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reporting Robinson’s behavior. As a general rule, this court declines to address 

contentions not made before the district court absent some extraordinary 

circumstance. French v. Allstate Indem. Co., 637 F.3d 571, 582-833 (5th Cir. 

2011). 

Second, even if the negligence claim were raised, the Halls’ failure-toreport claim does not meet the requirement for a waiver of governmental 

immunity. The TTCA waives the State’s immunity in a limited number of 

circumstances, one of which is “personal injury and death so caused by a 

condition or use of tangible personal or real property. . . .” Univ. of Tex. Med. 

Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) (quoting TEX. 

CIV. PRAC. & REM. CODE § 101.021). In their response to the motion for 

summary judgment, the Halls asserted that summary judgment was improper 

because there was a genuine issue of material fact as to whether the 

unmonitored video surveillance system and open access to M.S.H.’s cell were 

proximate causes of M.S.H.’s injuries. The Halls did not provide summary 

judgment evidence on appeal to show that M.S.H.’s injuries were proximately 

caused by the condition or use of tangible personal or real property. 

Additionally, a “guard’s sexual assault is the type of intervening intentional 

act contemplated and referred to in the case law as an example of when 

sovereign immunity is not waived.” Bonham v. Tex. Dep’t of Crim. Justice, 101 

S.W.3d 153, 158-59 (Tex. App. –Austin 2003, no pet.) (holding that while the 

layout of the prison “was part of the context” of a sexual assault, it was an 

“intervening” condition that made the “intentional act possible.”).

Lastly, as the district court noted, the Halls alleged assault, battery, and 

intentional infliction of emotional distress claims were against Robinson, not 

the County. A signed Order issued on July 29, 2013, dismissed the Halls’ claims 

against Robinson in his official capacity. The Halls’ amended complaint alleged 

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assault, battery, and intentional infliction of emotional distress against 

Robinson, but there is no evidence in the record to suggest that Robinson was 

ever served with summons and a copy of the amended complaint. The affidavits 

of service show that defendants Thomas D. Brooks and the County received 

copies of the Halls’ amended complaint, but Robinson did not. As such, the 

claims against Robinson in his personal capacity are susceptible of dismissal 

without prejudice. See Fed. R. Civ. P. 4(m). Even looking at the record in the 

light most favorable to the Halls, there is a lack of evidence to show that 

governmental immunity would have been waived had the Halls properly 

asserted a claim of negligence against the State.

On appeal, the Halls rely heavily on Downey v. Denton County to 

demonstrate that sovereign immunity may be waived when an employee’s 

antecedent negligence was the proximate cause of injury. 119 F.3d 381, 387-90 

(5th Cir. 1997). In Downey, the court found that government immunity was 

waived because the female employee’s negligence in leaving a female inmate 

and male guard in a locked room unattended for almost two hours, with a 

disconnected voice-activated security device, was the proximate cause that 

allowed the male guard to sexually assault the female inmate. Id. at 389. 

The TTCA claims in Downey were specifically directed at the female 

employee’s negligence in failing to supervise and not the male guard’s 

intentional torts, which would have been barred by sovereign immunity. Id. at 

388. The negligence claim against the county in Downey also involved the

condition of tangible property (the dysfunctional voice-activated security 

device) such that sovereign immunity was waived. Id. at 388-90. The case at 

hand is legally and factually distinguishable from Downey because the Halls 

did not raise the issue of County employees’ negligence. 

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III. Failure to Train and Supervise

The district court dismissed the Halls’ 42 U.S.C. § 1983 claims against 

Harris County with prejudice. It held that: 

the fact that one JSO had been accused of sexual abuse in the five 

years prior to Robinson’s rape of M.S.H. is not proof of a pattern or 

widespread practice of JSOs having improper relationships with 

or committing sexual abuse of detainees within the Detention 

Center. It follows that Plaintiffs have failed to raise a genuine 

issue of material fact that the County or the Juvenile Board was 

deliberately indifferent to the proper training and supervision of 

JSOs employed in the Detention Center during Robinson’s 

employment and prior to the commission of his crime against 

M.S.H. 

Based on this view of the uncontested evidence, the district court held 

that the County was entitled to summary judgment. We affirm for the same 

reason. 

Section 1983 demands a high standard of proof before imposing 

municipal liability. See Synder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998); 

see also City of Canton v. Harris, 489 U.S. 378, 396 (1989) (O’Connor, J., 

concurring) (“Where a §1983 plaintiff can establish that the facts available to 

city policymakers put them on actual or constructive notice that the particular 

omission is substantially certain to result in the violation of the constitutional 

rights of their citizens, [§ 1983 is] satisfied.”) A municipality may not be held 

liable under § 1983 on a theory of respondeat superior. Monell v. Dep’t of Soc. 

Servs., 436 U.S. 658, 694 (1978). A municipality may be held liable under §1983 

if the plaintiff evinces a constitutional tort caused by action taken “pursuant 

to official municipal policy.” Id. at 691. In other words, a municipality may be 

held liable under § 1983 when the municipality actually causes a constitutional 

violation through execution of an official policy or custom. Id. at 694-95. 

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The Fifth Circuit, in order to satisfy Monell, requires proof of “(1) an 

official policy (or custom), of which (2) a policy maker can be charged with 

actual or constructive knowledge, and (3) a constitutional violation whose 

‘moving force’ is that policy (or custom).” Pineda v. City of Houston, 291 F.3d 

325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 

578 (5th Cir. 2001)).3 To establish the existence of a widespread custom, of 

which the County policymaker knew or should have known, the plaintiff must 

show more than a single constitutional violation. Piotrowski, 237 F.3d at 581. 

In this case, the Juvenile Board must have had actual or constructive 

knowledge of the custom. 

The Halls assert that the “custom” of JSOs violating official policies and 

procedures provides enough evidence to show that the inadequacy of JSO 

training or supervision was “obvious and obviously likely to result in a

constitutional violation.” Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) 

(quotation marks omitted). The Halls frame the idea of custom narrowly within 

the confines of M.S.H.’s thirty-seven day stay in the Detention Center. In 

contrast, the State questions whether seventeen reported incidents of JSO 

misconduct (only one specifically involving sexual misconduct between a JSO 

and inmate) filed over a five year period constitutes custom. We agree with the 

State that the Halls have failed both to demonstrate a widespread history of 

JSO misconduct and that the Juvenile Board had actual or constructive 

knowledge of Robinson and the other JSOs’ behavior. 

 

3 An official policy is “[a] policy statement, ordinance, regulation or decision that is 

officially adopted and promulgated by the municipality’s law-making officials or by an official 

to whom the lawmakers have delegated policy-making authority.” Webster v. City of Houston, 

735 F.2d 838, 841 (5th Cir. 1984) (en banc)). An official policy may also stem from a custom 

created by 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” it 

fairly represents “municipal policy.” Id.

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It is clear from the record that the Halls’ claim falls short of 

demonstrating municipal liability. The Halls construe the failure of JSOs to 

report alleged and perceived misconduct between JSO Robinson and M.S.H. as 

a series of events that allowed Robinson to “groom” and eventually rape 

M.S.H.4 The Halls ultimately contend that these failures amount to Harris 

County’s deliberate indifference of M.S.H.’s constitutional rights. The record 

suggests otherwise. 

Summary judgment evidence indicates M.S.H. did not take advantage of 

the grievance procedures in place that would have timely signaled to the 

Juvenile Board a need for change in M.S.H.’s situation and the JSOs’ behavior. 

While not dispositive, it is relevant that the Halls do not address the Youth 

Grievance Process and how it is consistent with deliberate indifference on 

appeal. Instead, the Halls argue the County’s failure to train and supervise 

Detention Center employees demonstrates their deliberate disregard of 

County policies, which in turn permitted Robinson to sexually assault M.S.H. 

The Halls do not point to specific deficiencies in Harris County’s training 

or supervision policies or an insufficiency in Robinson’s training. In general, 

the Department has a “zero tolerance policy regarding any incidents of sexual 

abuse,” which mandates that employees shall not “maintain or give the 

appearance of maintaining an inappropriate relationship with a juvenile 

residing in a facility.” Robinson, specifically, received state certification and 

training in compliance with TJJD standards. The Texas Juvenile Probation 

Commission certified Robinson as a Juvenile Detention Officer in 2006, which 

 

4 The Halls claim on appeal that the district court failed to consider the “persistent 

failure of multiple Harris County Juvenile Justice Center (“HCJJC”) employees to adhere to 

Harris County policies and procedures with respect to 1) the reporting of 

sexual/inappropriate contact; 2) the allowance of inappropriate contact between Robinson 

and M.S.H.; and 3) the failure to enforce existing Harris County policies and procedures that 

would have prevented Robinson’s sexual assault of M.S.H.” 

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required he complete 40 hours of training. The Commission renewed his 

certification as a Juvenile Supervision officer once he finished 86.50 hours of 

training. Topics covered in these trainings include: juvenile rights, safety and 

security, abuse, and exploitation and neglect. Robinson received training 

regarding juvenile rights on eight separate occasions from 2006 to 2012. He 

signed a copy of the Code of Ethics, which specifies employees may not 

“maintain an inappropriate relationship with juveniles assigned to their 

caseload, supervised by the juvenile probation department, or coming under 

the supervision of the juvenile court.” The Halls do not criticize Robinson’s 

training or the rules, policies, and procedures implemented by the Juvenile 

Board concerning the treatment of juveniles in the Juvenile Probation 

Department’s custody. 

Overall, the Halls have not alleged that the failure of JSOs to report 

inappropriate behavior between a male JSO and female inmate is so common

and well-known to the Juvenile Board, that it constitutes a custom that fairly 

represents official policy. Specifically, the Halls have not demonstrated that 

these instances of misconduct among JSOs amount to a widespread custom 

that should have signaled to the Juvenile Board a need for additional training 

and supervision. Peterson v. City of Fort Worth, 588 F.3d 838, 850-51 (5th Cir. 

2009) (“where prior incidents are used to prove a pattern,” there must be proof 

of numerous similar incidents that occurred frequently and/or over a long 

period of time and not just a single instance). The Halls have also failed to 

demonstrate the alleged custom was the “moving force” that drove Robinson to 

rape M.S.H. Finally, the Halls have not provided sufficient evidence to show 

that the Juvenile Board was deliberately indifferent to the training and 

supervision of JSOs. Consequently, there is no genuine issue of material fact 

and the district court’s grant of summary judgment stands. 

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CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of 

summary judgment. 

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