Case: 21-20200 Document: 00516695420 Page: 1 Date Filed: 03/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2023
No. 21-20200
Lyle W. Cayce
Clerk
Kevion Rogers,
Plaintiff—Appellant,
versus
Jeffrey Jarrett; Jeremy Bridges; Texas Department of
Criminal Justice,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2330
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Don R. Willett, Circuit Judge:
A trusted prison inmate was working unsupervised in a hog barn when
the ceiling collapsed, striking him in the head. He told the prison agricultural
specialist that he needed medical attention. But the specialist thought the
inmate looked no worse for wear and ordered him back to work. A short while
later, the inmate asked another prison staffer for medical attention. The
staffer radioed a supervisor. Based on the staffer’s report, the supervisor, too,
thought nothing serious had happened and did not immediately grant the
Case: 21-20200 Document: 00516695420 Page: 2 Date Filed: 03/30/2023
No. 21-20200
request. The inmate’s condition later worsened. He was sent to the hospital
and diagnosed with a traumatic brain injury. The district court granted
summary judgment to Defendants based on qualified immunity. For the
reasons below, we AFFIRM.
I
Kevion Rogers was a trusted inmate. Prison staff let Rogers work
unsupervised and outside the prison’s security fence. Rogers’s daily job was
to help take care of the prison’s hogs. One day Rogers went into one of the
prison’s hog barns looking for a powder used to keep baby hogs healthy. As
he was leaving, part of the barn’s ceiling collapsed and hit him on the head.
Rogers blacked out.
After he came to, another inmate took Rogers to see the prison’s staff
agricultural specialist, Jeffrey Jarrett. Rogers walked normally into Jarrett’s
office. And though Rogers “had dust on him,” his only visible injury was a
scraped knee. An agitated Rogers demanded “to go to the infirmary.” But
from Jarrett’s perspective, Rogers “looked fine.” Rogers didn’t “look hurt,”
and spoke without a slur. Jarrett told Rogers to keep looking for the powder.
Rogers walked normally out of the office. He did not see Jarrett again that
morning. Jarrett’s job responsibilities took him away from the prison to
another unit.
Rogers tried to go on about his business. But he was “lightheaded”
and had to sit down. Other inmates tried to keep him awake as he drifted “in
and out of consciousness.” Soon after another prison staffer arrived to get
the inmates ready for lunch. Rogers told the staffer that “the ceiling collapsed
on [his] head” and showed the staffer the “debris.” Rogers again asked for
medical attention. The staffer radioed Jarrett’s supervisor, Jeremy Bridges,
and informed him “that the ceiling had fallen on [Rogers’s] head and that
[Rogers] had sustained a head injury.” Bridges radioed back to take Rogers
2
Case: 21-20200 Document: 00516695420 Page: 3 Date Filed: 03/30/2023
No. 21-20200
“back to [his] bunk” so Bridges could “take a look at [him] later.” But
Rogers objected—he still wanted “to go eat lunch.” Rogers’s objection made
Bridges think whatever injuries Rogers had were not “serious.” Bridges
radioed back that going to lunch was fine. He’d be out to check on Rogers
“soon.”
For whatever reason though, Rogers was still brought back to his bunk.
By the time he reached his dormitory his condition had begun to deteriorate.
His head and eyes had begun to swell, his face was bruising, and he was
showing signs of respiratory distress. Prison staff at the dormitory thought
this was “abnormal,” and so Rogers was redirected to the prison’s
administrative building. He collapsed on the way there, began to “seize
violently,” and started “vomiting.” Rogers “lost consciousness.” Within
minutes prison staff at the administrative building summoned medical
assistance. Emergency medical services evacuated Rogers to a nearby
hospital by helicopter. Hospital staff diagnosed Rogers with a “traumatic
brain injury; no hemorrhage.”1
Rogers sued Jarrett, Bridges, and the Texas Department of Criminal
Justice in Texas state court. Under 42 U.S.C. § 1983, Rogers alleged that
prison staff violated his Eighth and Fourteenth Amendment rights by acting
with deliberate indifference towards him. Under the Texas Tort Claims Act,
Rogers alleged premises-liability claims. Defendants removed the case to
federal court and moved for summary judgment on all claims. The district
court granted summary judgment to Defendants on Rogers’s § 1983 claims,
declined to exercise supplemental jurisdiction over his TTCA claims, and
remanded the case to state court. Rogers timely appealed. He argues that
1
Hospital staff released Rogers back to the prison the next day with prescriptions
for pain and anti-nausea medication. The district court found “no evidence in the record
of subsequent problems or complications.”
3
Case: 21-20200 Document: 00516695420 Page: 4 Date Filed: 03/30/2023
No. 21-20200
Jarrett and Bridges were deliberately indifferent towards his serious medical
needs and thus not entitled to qualified immunity.2
II
We review summary judgment de novo.3 Courts may grant summary
judgment on an issue only when “no genuine dispute as to any material fact”
exists “and the movant is entitled to judgment as a matter of law.”4 A fact
dispute is “genuine” if “a reasonable jury could return a verdict for [the
nonmovant] based on the evidence.”5 “[W]e must view all evidence and
draw all justifiable inferences in favor of [Rogers], the nonmovant.”6 Still,
“[c]onclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation” do not count for
raising a genuine fact dispute.7
2
Rogers was represented by counsel in the district court and here. He also argued
in the district court that Defendants were deliberately indifferent towards his safety by
having him work in the hog barn. He did not raise that theory in his opening brief. Likewise,
Rogers raised no claims against TDCJ in his opening brief. He also did not raise the district
court’s refusal to exercise supplemental jurisdiction. It is not our role to “raise and discuss
legal issues that [a party] has failed to assert” on appeal. Brinkmann v. Dall. Cnty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). So Rogers has abandoned those issues and
arguments.
Id.
3
Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020).
4
Id. (quoting Rogers v. Bromac Title Servs., L.L.C.,
755 F.3d 347, 350 (5th Cir.
2014)).
5
Coleman v. BP Expl. & Prod., Inc., 19 F.4th 720, 726 (5th Cir. 2021).
6
Id.
7
Id. (quoting TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir.
2002)).
4
Case: 21-20200 Document: 00516695420 Page: 5 Date Filed: 03/30/2023
No. 21-20200
III
Rogers contends that the district court improperly granted Jarrett and
Bridges qualified immunity. We have explained before that plaintiffs bear the
“burden” to “demonstrate the inapplicability of the defense.”8 And Rogers
had to meet that burden for each defendant.9 That means Rogers had to (1)
raise a fact dispute on whether his constitutional rights were violated by the
defendants’ individual conduct, and (2) show those rights were “clearly
established at the time of the violation.”10 On this record, Rogers failed to
meet either prong.
A
Rogers contends that he raised a fact dispute on a constitutional
violation. He argues that both Jarrett and Bridges acted with deliberate
indifference towards his serious medical needs, violating his Eighth
Amendment rights in the process. But “[d]eliberate indifference is an
extremely high standard to meet.”11 As the Supreme Court has explained,
Rogers needed to raise a fact dispute on whether Jarrett and Bridges were
each “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,” and actually “dr[ew] the
inference.”12 And serious harm isn’t just any harm. Rogers’s medical need
8
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per
curiam).
9
See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement
is an essential element of a civil rights cause of action.”).
10
See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
11
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
12
Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Stewart v. Murphy,
174 F.3d
530, 534 (5th Cir. 1999) (explaining that prison officials act with deliberate indifference only
5
Case: 21-20200 Document: 00516695420 Page: 6 Date Filed: 03/30/2023
No. 21-20200
had to be “so apparent that even laymen would recognize that care is
required.”13 The district court found “no evidence that would permit a jury
to infer that Jarrett and Bridges had subjective knowledge of the severity of
Rogers’s condition.” We agree with the district court.
A reasonable jury could not conclude on this record that either Jarrett
or Bridges actually inferred that Rogers was at substantial risk of serious
harm. As the district court noted, the record supports that both Jarrett and
Bridges knew that Rogers had been hit in the head. But as recounted above,
Jarrett did not perceive any apparent injury to Rogers other than a scraped
knee. From Jarrett’s perspective, Rogers was “look[ing] alright” and
“[didn’t] look hurt.” Rogers “had dust on him,” but did not have visible
injuries, did not slur his speech, and walked normally into and out of Jarrett’s
office. The same goes for Bridges. All he knew about Rogers’s injuries was
what he’d been told over the radio: that Rogers “had sustained a head injury”
after a ceiling collapse. But Bridges testified that he did not think it was a
particularly severe injury since Rogers had requested “to go eat lunch” while
he waited for Bridges to come see him. Indeed, Rogers did not develop severe
symptoms—seizures, vomiting, and loss of consciousness—until later on.
And once he did, prison staff rendered medical aid within minutes.
Rogers disagrees. He argues that fact disputes over what happened
preclude summary judgment; that the district court misapplied the
deliberate-indifference standard; and that Supreme Court and our caselaw
compel a contrary conclusion. We are unconvinced.
when they “know[] of and disregard[] an excessive risk to inmate health or safety” (quoting
Farmer, 429 U.S. at 837)).
13
See Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
6
Case: 21-20200 Document: 00516695420 Page: 7 Date Filed: 03/30/2023
No. 21-20200
First, Rogers argues “that there is a genuine issue of material fact in
dispute as to what actually happened on the morning of the incident,”
precluding summary judgment under our decisions. But the district court
analyzed Rogers’s claim under his version of events. And Jarrett and Bridges
do not dispute what they knew when. Rather, the only dispute on appeal is
what inferences Jarrett and Bridges drew from what they knew. Because the
inferences Rogers asks us to make are speculative, this argument fails.14
Second, Rogers argues that the district court misapplied the deliberate-indifference standard. In Rogers’s view, “the ultimate question” that his
claim turns on is “was [he] exposed to a ‘substantial risk of serious harm’”?
But that misstates the standard. It is not enough for Rogers to have raised a
fact dispute on whether Jarrett and Bridges “actually drew the inference that
[a] potential for harm existed,” as Rogers argues. The Supreme Court was
clear in Farmer v. Brennan: “an official’s failure to alleviate a significant risk
that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.”15 We
have likewise been clear: “[L]iability attaches only if [officials] actually
knew—not merely should have known—about the risk.”16 Bottom line: Mere
negligence is not enough.
Third, Rogers misreads Supreme Court and circuit caselaw. “[T]he
takeaway” from the Supreme Court’s decision in Estelle v. Gamble17 is not
that nonphysician prison staff are “expected to allow prisoners to consult
medical experts because they themselves are not qualified to diagnose or
14
Coleman, 19 F.4th at 726.
15
511 U.S. at 838.
16
Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999).
17
429 U.S. 97 (1976).
7
Case: 21-20200 Document: 00516695420 Page: 8 Date Filed: 03/30/2023
No. 21-20200
treat . . . medical condition[s],” as Rogers suggests. The takeaway is that
courts must “separately consider” the allegations against physician and
nonphysician staff alike when deciding deliberate-indifference claims.18 And
our decision in Austin v. Johnson19 adds little, if anything, to support Rogers’s
claims. Rogers admits that his case is “unlike” Austin because neither Jarrett
nor Bridges “failed to get medical treatment for [him] after [seeing] his
conditions worsening.”20
B
In sum, Rogers failed to raise a fact dispute over whether Jarrett and
Bridges acted with deliberate indifference. But even if he had, he’d still need
to show that his rights were “clearly established at the time of the
violation.”21 As we have explained many times, that takes showing that “the
violative nature of particular conduct is clearly established.”22 It just isn’t
enough to identify a right as “a broad general proposition.”23 The district
court did not address qualified immunity’s second step. Jarrett and Bridges
argue, though, that even assuming a violation, the law was not clearly
established under this standard. We agree with Jarrett and Bridges.
18
See id. at 108 (“The Court of Appeals focused primarily on the alleged actions of
the doctors, and did not separately consider whether the allegations against the
[nonphysician defendants] stated a cause of action.”).
19
328 F.3d 204 (5th Cir. 2003).
20
See id. at 210 (holding that “failure to call an ambulance for almost two hours
while [a minor] lay unconscious and vomiting” after an afternoon of forced exercise “rises
to the level of deliberate indifference”).
21
Brown, 623 F.3d at 253.
22
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)).
23
Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
8
Case: 21-20200 Document: 00516695420 Page: 9 Date Filed: 03/30/2023
No. 21-20200
In barely half a page of briefing Rogers argues that the Supreme
Court’s decision in Estelle “clearly established [the] law govern[ing] the
substance of this entire dispute.” But the only right Rogers identifies as being
violated was his right to be free from deliberate indifference towards his
serious medical needs. That generalized proposition of law is not enough.
The Supreme Court has articulated an exacting standard. Rogers needed to
point to “a case or body of relevant case law in which an officer acting under
similar circumstances was held to have violated the Constitution.”24 And
Estelle just isn’t that case. The Supreme Court reversed us in Estelle that the
doctors had acted with deliberate indifference towards the prisoner.25 And on
remand, we held that the nonphysician prison staff likewise didn’t act with
deliberate indifference.26 Therefore, we cannot agree with Rogers that he has
shown that Jarrett and Bridges violated clearly established law.
For the first time at oral argument, though, Rogers’s counsel argued
that our recent decision in Sims v. Griffin27 supports that Jarrett and Bridges
violated clearly established law. “[W]e cannot and will not consider
arguments raised for the first time at oral argument.”28 Under the Rules of
Appellate Procedure, Counsel should have advised us of any “pertinent and
significant authorities” that had come to his attention after briefing had
concluded “by letter.”29 But even had Rogers’s counsel filed that letter, Sims
is not the helpful precedent he thinks it is.
24
Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021) (cleaned up).
25
429 U.S. at 107–08.
26
554 F.2d 653, 653–54 (5th Cir. 1977) (per curiam).
27
35 F.4th 945 (5th Cir. 2022).
28
Jackson v. Gautreaux, 3 F.4th 182, 188 n.* (5th Cir. 2021).
29
See Fed. R. App. P. 28(j) (emphasis added).
9
Case: 21-20200 Document: 00516695420 Page: 10 Date Filed: 03/30/2023
No. 21-20200
All we recognized in Sims was what had already been clearly
established in our circuit: “[A] prisoner can show his clearly established
rights under the Eighth Amendment were violated if a prison 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.’”30 We have held officials liable for violating that
standard before, including when the record supported that they:
“offered no treatment options to a patient with a history of
cardiac problems who was experiencing severe chest pains;”31
“knew [a prisoner] had swallowed a bag full of drugs, vomited
multiple times, screamed for help, pleaded to go to the hospital,
and had steadily deteriorated since his arrival at the jail;”32 and
personally witnessed a prisoner’s head being struck
“repeatedly,” causing him to go “unconscious.”33
Rogers, though, would have us read these cases as clearly establishing that
any report of any strike to a prisoner’s head is enough to trigger a duty for
officials to seek advanced medical care for the prisoner. They do not. No
reasonable official would read them that way, and so we disagree with
Rogers’s formulation of clearly established law.34
30
35 F.4th at 951 (quoting Easter v. Powell,
467 F.3d 459, 465 (5th Cir. 2006) (per
curiam)) (emphasis added).
31
Easter, 467 F.3d at 465.
32
Sims, 35 F.4th at 952.
33
Moore v. LaSalle Mgmt. Co., 41 F.4th 493, at 502 (5th Cir. 2022).
34
See Buehler v. Dear, 27 F.4th 969, 981 (5th Cir. 2022) (“Although the plaintiff
need not identify ‘a case directly on point’ in order to make such a showing, he or she must
point to ‘authority at a sufficiently high level of specificity to put a reasonable official on
10
Case: 21-20200 Document: 00516695420 Page: 11 Date Filed: 03/30/2023
No. 21-20200
IV
What happened to Rogers was unfortunate. Maybe it was negligent.
But was it the product of deliberate indifference? Not on this record. And
even if it were, these officials did not violate clearly established law on these
facts. Bound by our controlling immunity precedent, we AFFIRM.
notice that his conduct is definitively unlawful.’” (quoting Vincent v. City of Sulphur, 805
F.3d 543, 547 (5th Cir. 2015)).
11
Case: 21-20200 Document: 00516695420 Page: 12 Date Filed: 03/30/2023
No. 21-20200
Don R. Willett, Circuit Judge, concurring:
Today’s decision upholding qualified immunity is compelled by our
controlling precedent. I write separately only to highlight newly published
scholarship that paints the qualified-immunity doctrine as flawed—
foundationally—from its inception.1
For more than half a century, the Supreme Court has claimed that (1)
certain common-law immunities existed when § 1983 was enacted in 1871,2
and (2) “no evidence” suggests that Congress meant to abrogate these
immunities rather than incorporate them.3 But what if there were such
evidence? Indeed, what if the Reconstruction Congress had explicitly
stated—right there in the original statutory text—that it was nullifying all
common-law defenses against § 1983 actions? That is, what if Congress’s
literal language unequivocally negated the original interpretive premise for
qualified immunity? Professor Alexander Reinert argues precisely this in his
new article, Qualified Immunity’s Flawed Foundation—that courts have been
construing the wrong version of § 1983 for virtually its entire legal life.
Wait, what?
1
Alexander A. Reinert, Qualified Immunity’s Flawed Foundation,
111 Cal. L. Rev. 201 (2023) (“This Article takes aim at the roots of the doctrine—
fundamental errors that have never been excavated.”).
2
Pierson v. Ray, 386 U.S. 547, 556–57 (1967) (tethering qualified immunity to
common-law defenses that existed circa 1871, like subjective good faith). Professor William
Baude has challenged this historical premise—forcefully and methodically—arguing that
qualified immunity departs significantly from traditional common-law principles. See
William Baude, Is Qualified Immunity Unlawful?,
106 Cal. L. Rev. 45, 49–60 (2018).
Professor Joanna Schwartz likewise questions the doctrine’s origins, contending there were
no common-law immunities. See Joanna C. Schwartz, The Case Against Qualified Immunity,
93 Notre Dame L. Rev. 1797 (2018).
3
Briscoe v. Lahue, 460 U.S. 325, 337 (1983) (“[W]e find no evidence that Congress
intended to abrogate the traditional common-law . . . immunity in § 1983 actions.”).
12
Case: 21-20200 Document: 00516695420 Page: 13 Date Filed: 03/30/2023
No. 21-20200
As passed by the Reconstruction Congress, Section 1 of the Civil
Rights Act of 1871 (now colloquially known as § 1983) read this way:
[A]ny person who, under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject, or cause
to be subjected, any person within the jurisdiction of the
United States to the deprivation of any rights, privileges, or
immunities secured by the Constitution of the United States,
shall, any such law, statute, ordinance, regulation, custom, or
usage of the State to the contrary notwithstanding, be liable to the
party injured in any action at law, suit in equity, or other proper
proceeding for redress . . . .4
The italicized language—the “Notwithstanding Clause,” as Professor
Reinert calls it—explicitly displaces common-law defenses.5 The language
that Congress passed makes clear that § 1983 claims are viable
notwithstanding “any such law, statute, ordinance, regulation, custom, or
usage of the State to contrary.” The language is unsubtle and categorical,
seemingly erasing any need for unwritten, gap-filling implications,
importations, or incorporations. Rights-violating state actors are liable—
period—notwithstanding any state law to the contrary.
Then things went off the rails, quickly and stealthily. For reasons lost
to history, the critical “Notwithstanding Clause” was inexplicably omitted
from the first compilation of federal law in 1874.6 The Reviser of Federal
4
Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871).
5
Reinert, supra at 235 and n.230 (observing that “this clause meant to encompass
state common law principles,” noting that this understanding—that “custom or usage”
was synonymous with common law—was, “after all,” why the Court overruled Swift v.
Tyson, 41 U.S. 1 (1842), in Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938), and also citing W.
Union Tel Co. v. Call Pub. Co.,
181 U.S. 92, 102 (1901), which in turn cites Black’s Law
Dictionary for the proposition that common law derives from “usages and customs”).
6
Reinert, supra at 207, 237.
13
Case: 21-20200 Document: 00516695420 Page: 14 Date Filed: 03/30/2023
No. 21-20200
Statutes made an unauthorized alteration to Congress’s language. And that
error was compounded when the various revised statutes were later
published in the first United States Code in 1926. The Reviser’s error,
whether one of omission or commission, has never been corrected. Today,
152 years after Congress enlisted the federal courts to secure Americans’
constitutional rights, if one were to Google “42 U.S.C. § 1983,” the altered
version that pops up says nothing about common-law defenses. According to
Professor Reinert, that fateful, unexplained omission means that courts and
scholars have never “grappled” with the Notwithstanding Clause’s
significance.7
All to say, the Supreme Court’s original justification for qualified
immunity—that Congress wouldn’t have abrogated common-law
immunities absent explicit language—is faulty because the 1871 Civil Rights
Act expressly included such language. Those sixteen lost words, by presumably
encompassing state common-law principles, undermine the doctrine’s longprofessed foundation and underscore that what the 1871 Congress meant for
state actors who violate Americans’ federal rights is not immunity, but
liability—indeed, liability notwithstanding any state law to the contrary.8
7
Id. at 236, 244.
8
Beyond excavating the long-lost text of what the Reconstruction Congress
actually passed, Professor Reinert asserts a second fundamental misstep: qualified
immunity is rooted in a flawed application of the checkered “Derogation Canon.” This
canon of statutory interpretation urges that statutes in “derogation” of the common law
should be strictly construed. The Court misapplied this canon, says Professor Reinert,
reading § 1983’s silence regarding immunity as implicit adoption of common-law immunity
defenses rather than rejection of them. Id. at 211 n.56 (collecting cases). Professor Reinert
maintains that the Derogation Canon has always rested on shaky ground, with Justice
Scalia, writing with lexicographer Bryan Garner, branding it “a relic of the courts’
historical hostility to the emergence of statutory law.” Id. at 218 (citing Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 318 (2012)). Even more importantly, Reconstruction-era legislators would
14
Case: 21-20200 Document: 00516695420 Page: 15 Date Filed: 03/30/2023
No. 21-20200
These are game-changing arguments, particularly in this text-centric
judicial era when jurists profess unswerving fidelity to the words Congress
chose. Professor Reinert’s scholarship supercharges the critique that modern
immunity jurisprudence is not just atextual but countertextual. That is, the
doctrine does not merely complement the text—it brazenly contradicts it.
In arguing that qualified immunity is flawed from the ground up,
Professor Reinert poses a provocative question: “If a legislature enacts a
statute, but no one bothers to read it, does it still have interpretive force?”9
It seems a tall order to square the modern qualified-immunity regime with
Congress’s originally enacted language. But however seismic the
implications of this lost-text research, “‘[a]s middle-management circuit
judges,’ we cannot overrule the Supreme Court.”10 Only that Court can
definitively grapple with § 1983’s enacted text and decide whether it means
what it says—and what, if anything, that means for § 1983 immunity
jurisprudence.11
not have understood the canon as operating to dilute § 1983 by implying common-law
defenses. Why? Because since the Founding era, the Supreme Court had only used the
Derogation Canon (criticized by mid-nineteenth courts and treatises for arrogating power
to judges) to protect preexisting common law rights, never to import common law defenses
into new remedial statutes. Reinert, supra at 221–28. In short, the Derogation Canon does
not validly apply to defenses. The more applicable canon, around which Reconstruction-era courts had coalesced, was a contrary one: remedial statutes—such as § 1983—should
be read broadly. Id. at 219, 227–28. In any event, as argued above, even if the Derogation
Canon did apply to defenses, the as-passed language of § 1983 explicitly displaced any
existing common-law immunities.
9
Id. at 246.
10
Sims v. Griffin, 35 F.4th 945, 951 n.17 (5th Cir. 2022) (quoting Whole Woman’s
Health v. Paxton,
978 F.3d 896, 920 (5th Cir. 2020) (Willett, J., dissenting), rev’d en banc,
10 F.4th 430 (5th Cir. 2021)).
11
Not all Supreme Court Justices have overlooked the Notwithstanding Clause. In
Butz v. Economou, the Court quoted the as-passed statutory language, including the
Notwithstanding Clause, yet, in the same breath, remarked that § 1983’s originally enacted
15
Case: 21-20200 Document: 00516695420 Page: 16 Date Filed: 03/30/2023
No. 21-20200
text “said nothing about immunity for state officials.” 438 U.S. 478, 502–03 & n.29 (1978)
(citing Pierson v. Ray,
386 U.S. 547 (1967), Imbler v. Pachtman,
424 U.S. 409 (1976), and
Scheuer v. Rhodes,
416 U.S. 232 (1974)). Indeed, members of the Supreme Court have often
noted the Notwithstanding Clause’s existence and omission from the U.S. Code. See Hague
v. Comm. for Indus. Org.,
307 U.S. 496, 510 (1939); Monroe v. Pape,
365 U.S. 167, 228 (1961)
(Harlan, J., concurring); Adickes v. S. H. Kress & Co.,
398 U.S. 144, 203 n.15 (1970)
(Brennan, J., concurring); see also Screws v. United States,
325 U.S. 91, 99 n.8 (1945)
(quoting the originally enacted text, including the Notwithstanding Clause); Monroe,
365
U.S. at 181 n.27 (majority) (same); Examining Bd. of Eng’rs, Architects, & Surveyors v. Flores
de Otero,
426 U.S. 572, 582 n.11 (1976) (same); Monell v. Dep’t of Soc. Servs.,
436 U.S. 658,
691–92 (1978) (same); Chapman v. Hous. Welfare Rights Org.,
441 U.S. 600, 608 n.15 (1979)
(same); Briscoe v. LaHue,
460 U.S. 325, 357 n.17 (1983) (Marshall, J., dissenting) (same);
Wilson v. Garcia,
471 U.S. 261, 262 n.1 (1985) (same); Jett v. Dall. Indep. Sch. Dist.,
491
U.S. 701, 723 (1989) (same); Ngiraingas v. Sanchez,
495 U.S. 182, 188 n.8 (1990) (same).
16
