Case: 23-60310 Document: 79 Page: 1 Date Filed: 04/08/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 8, 2024
No. 23-60310
____________ Lyle W. Cayce
Clerk
Yashia Culberson, Individually and On Behalf of All Heirs-AtLaw and Wrongful Death Beneficiaries of Dale O’Neal,
deceased; The Estate of Dale O’Neal,
Plaintiffs—Appellants,
versus
Clay County; Sheriff Eddie Scott, In His Individual and Official
Capacity; Officers and Jail Employees John and Jane Does
1-5, In Their Individual and Official Capacities Representing Jail Guards of the
Clay County Jail and/or Other Employees, Including Supervisory Officials
Whose Identities are Currently Unknown; Annie Avant, In Her Individual
and Official Capacity; Cynthia Myles, In Her Individual and Official
Capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:21-CV-114
______________________________
Before Higginbotham, Smith, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
The estate and heirs (Culberson) of Dale O’Neal, a pre-trial detainee
murdered by his cellmate in Clay County’s jail, sued several officers and the
Case: 23-60310 Document: 79 Page: 2 Date Filed: 04/08/2024
No. 23-60310
County under Section 1983 for failure to protect O’Neal in violation of the
Fourteenth Amendment.
The district court agreed with the magistrate judge’s exclusion of a
late-designated expert (and accompanying report), on which Culberson
relied to establish the County’s liability. It then granted summary judgment
to all defendants because the underlying constitutional claim failed:
Culberson could not create a fact question as to whether the individual
defendants acted with deliberate indifference. This was a closer question for
the intake officer (Avant), but the district court concluded that, in the
alternative, she had qualified immunity. On appeal, Culberson argues only
that it was an abuse of discretion to exclude the expert and error to grant
summary judgment to Avant.
We AFFIRM.
I.
Dale O’Neal was arrested on March 8, 2019, by the West Point Police
Department pursuant to a bench warrant for failure to appear before the
Municipal Court of West Point and on an arrest warrant for trespass issued
by the Clay County Justice Court. He was transported to the Clay County
Detention Center. Jail personnel last saw O’Neal alive and uninjured at
approximately 4:23 AM on March 15. O’Neal was found dead at 7:40 AM.
His cellmate, Cameron Henderson, strangled O’Neal to death with the cord
attached to the phone in their jail cell.
Henderson had been arrested two days prior, on March 13, after a
9-1-1 caller reported Henderson threatening his two grandmothers with a
knife. The arresting officer, Parker Smith, listed three charges on
Henderson’s jail intake sheet: A “warrant for shopl[i]fting” and
“disturbance of peace of a business,” with “simple assault by threat”
crossed out at an unknown time. The intake officer, Annie Avant, booked
2
Case: 23-60310 Document: 79 Page: 3 Date Filed: 04/08/2024
No. 23-60310
Henderson at approximately 2:30 PM, and assigned him to the same cell as
O’Neal.
The parties dispute what information was conveyed to Avant by Smith
and through the booking system. Smith testified that he found Henderson
with a knife and that arresting officers would tell intake officers if individuals
were found with weapons. He answered affirmatively when asked whether
he “told someone at the detention center about the dangerous Mr.
Henderson, correct?” But when asked directly whether he “remember[ed]
specifically telling the booking officer” that Henderson “had a knife or had
made threats,” Smith answered “no.” When Avant was asked whether she
“recall[ed] whether or not Officer Smith said anything to you about the
specifics of how Henderson was acting before he was arrested,” she
answered “no.” There was also conflicting testimony over whether the
booking system would have revealed that Henderson was, five months
earlier, determined to be a threat and put on a Chancery Court hold.
Henderson’s intake sheet was completed, except for answers to questions
about whether he appeared to be under the influence or experiencing
withdrawal.
On March 14, Henderson’s grandfather moved in Chancery Court to
commit Henderson to drug addiction treatment because he was a risk to
himself and others. The Chancery Court granted the motion that day and
ordered the County to transport Henderson to a physician, but the fax
transmittal of the order shows that the jail did not receive it until at least two
hours after O’Neal was found dead.
II.
Culberson argues that it was error to exclude the late-designated
expert, who submitted a report identifying County “customs, practices and
procedures” that purportedly led to O’Neal’s death. We review for abuse of
discretion. 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1288 (5th Cir. 1991).
3
Case: 23-60310 Document: 79 Page: 4 Date Filed: 04/08/2024
No. 23-60310
Briefly, a review of the record confirms that the designation was late.
Culberson essentially argues that the order granting her motion to extend the
discovery and dispositive motions deadlines extended a different deadline:
the deadline to designate Rule 26(a)(2) experts. But these deadlines were
always treated differently. The case management orders (CMOs) set
separate deadlines for discovery, the parties’ designations of experts, and
“dispositive motions and Daubert-type motions challenging another party’s
expert.” Fifty-seven days after her expert designation deadline, Culberson
filed a motion. That motion identified only the “current discovery deadline”
and “current motions deadline” and requested an extension of “CMO
deadlines by 60 days due to the parties’ ongoing discovery,” specifically the
“discovery and motions deadlines in this matter.” The magistrate judge
denied the motion but noted that the parties could make a renewed request
should the trial be continued, and repeated the discovery and motions
deadlines. The trial was ultimately continued, and the district court’s order
stated that the “Magistrate Judge will reset all deadlines associated with the
case once the trial date is reset.” When the new trial date was noticed, the
magistrate judge ordered new deadlines for discovery and motions but
referenced no other deadlines. Culberson designated her expert on the day
of the new discovery deadline but the order extending the discovery deadline
had not extended the expert designation deadline. It was therefore untimely.
Next, to determine whether exclusion was an abuse of discretion, we
consider: “(1) [T]he explanation for the failure to identify the witness; (2)
the importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such prejudice.”
Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007) (quoting
Geiserman v. MacDonald,
893 F.2d 787, 791 (5th Cir. 1990)).
First, we agree with the magistrate judge that Culberson did “not
provide any explanation for . . . [her] failure to designate the expert[] in a
4
Case: 23-60310 Document: 79 Page: 5 Date Filed: 04/08/2024
No. 23-60310
timely manner,” and “relied solely on the argument the designation was
timely.”
Second, we turn to the expert’s importance. The magistrate judge
concluded that, while Culberson did not refute defendants’ argument that all
of the underlying evidence described in the report was admissible, this factor
still “strongly favor[ed]” Culberson because “parties typically do not”
engage experts unless “testimony is at least significantly helpful.” But the
magistrate judge’s observation does not weaken the argument that Culberson
could have relied on the underlying evidence from the record that the report
discussed. That evidence includes: Avant’s deposition testimony that
officers make cell assignments based on the charge of the booked individual
without considering the person’s past booking history; evidence (form
unspecified) that Henderson “acted up” in the booking area; evidence of a
glass tube, which might have been drug paraphernalia, in the cell, suggesting
that Henderson may have used drugs that made him more violent; the jail’s
policy requiring officers to investigate a detainee’s behavior and record to
determine whether to perform a strip search, which was not performed on
Henderson; the failure to perform welfare and security checks because of the
time elapsed between when the last officer entered the area and when O’Neal
was discovered; and general mismanagement evidenced by the fact that an
inmate was ordered released but remained in the jail for years. Culberson
never explained why she could not have relied on this underlying evidence in
the record at summary judgment.
Third, we consider prejudice to the opposing party. Betzel, 480 F.3d
at 707. The magistrate judge concluded that “defendants would be
substantially prejudiced,” because they “assert[ed], without contradiction,
that they had no prior notice of” Culberson’s intent to call an expert witness
and “were likely unprepared to do so at that late date.” We agree that,
though discovery was extended, that “was not sufficient to counter the unfair
5
Case: 23-60310 Document: 79 Page: 6 Date Filed: 04/08/2024
No. 23-60310
surprise” and allowing this late designation would be “contrary to the
practice of [the district court] as shown by [CMOs] entered in almost every
case.”
Fourth, we consider whether a continuance would have cured this
prejudice. Betzel, 480 F.3d at 707. The magistrate judge pointed to the fact
that the case was already continued and reasoned that “a second continuance
would result in further delay and increased expense to defend this lawsuit.”
Additionally, the magistrate judge looked to the fact that the first and third
factors favored exclusion, which was relevant because otherwise, scheduling
orders and local rules would never be enforced if continuances were always
granted. And we have “repeatedly emphasized” that while “continuance is
the preferred means of dealing with a party’s attempt to designate a witness
out of time,” it “would not deter future dilatory behavior, nor serve to
enforce local rules or court-imposed scheduling orders.” Betzel,
480 F.3d at
709. That is the case here.
Culberson fails to show an abuse of discretion. Betzel, on which she
relies, is distinguishable. In that case, exclusion was “the extreme end of the
sanction spectrum . . . imposed against the lowest end of the prejudice
spectrum,” where the opposing party only “trivially relied on . . . lack of
expert testimony,” and instead almost wholly relied on legal contentions at
summary judgment. Id. at 708. But Culberson conceded prejudice and never
explains why exclusion is “extreme” when, unlike in Betzel, a continuance
had already been granted. Furthermore, while the party offering the expert
in Betzel needed the expert to prove any damages, Culberson never addresses
why she could not have relied on the record evidence discussed by the expert.
Id. at 707.
III.
We affirm the grant of summary judgment to Avant on the basis of
qualified immunity. “The doctrine of qualified immunity protects
6
Case: 23-60310 Document: 79 Page: 7 Date Filed: 04/08/2024
No. 23-60310
government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Courts
engage in a two-prong inquiry, taking the prongs in any order. Id. at 236.
“The first asks whether the facts, ‘[t]aken in the light most favorable to the
party asserting the injury, . . . show the officer’s conduct violated a [federal]
right [.]’” Tolan v. Cotton,
572 U.S. 650, 655-56 (2014) (alternation in
original) (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)). “The second
prong of the qualified-immunity analysis asks whether the right in question
was ‘clearly established’ at the time of the violation.” Id. at 656 (quoting
Hope v. Pelzer,
536 U.S. 730, 739 (2002)). To be clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987).
Culberson “has the burden to point out the clearly established law.”
Clarkston v. White, 943 F.3d 988, 993 (5th Cir. 2019). After Avant raised the
defense of qualified immunity, Culberson failed to point to any case—
sufficiently analogous or otherwise—supporting the proposition that the
alleged constitutional violation was of clearly established law. Culberson
“forfeit[ed] [this] argument by failing to raise it in the first instance in the
district court,” Rollins v. Home Depot USA,
8 F.4th 393, 397 (5th Cir. 2021),
and we therefore do not reach whether there is any clearly established law to
which Culberson could have pointed.
Culberson asserts that the district court was “simply incorrect” that
Culberson failed to do so because there were “twelve cases (four from the
Supreme Court, eight from this Court) on qualified immunity cited by
Plaintiffs.” Primarily, Culberson maintains that her citation to Brown v.
Callahan, 623 F.3d 249 (5th Cir. 2010) was an “argu[ment] that the qualified
7
Case: 23-60310 Document: 79 Page: 8 Date Filed: 04/08/2024
No. 23-60310
immunity issue as to Avant—who, like the jail staff in Brown, was present for
the relevant events—could not be decided on summary judgment.”
Culberson’s opposition to summary judgment only cited these cases,
including Brown, however, as a boilerplate recitation of the general standard
that courts apply when defendants assert a qualified immunity defense at the
summary judgment stage. Furthermore, even if Culberson had used Brown
to argue there was a violation of clearly established law, that case did not
address whether jail staff were entitled to qualified immunity because only
the supervising sheriff’s appeal was before the court. See Brown, 623 F.3d at
254 (“[w]hether . . . other staff violated [plaintiff’s] rights is not before us”
and “we express no opinion on [the] merits”). Culberson did not carry her
burden.
…
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
8
