This is both an astonishing story and significant case, so I'm reprinting it all here. These guys were falsely imprisoned in Orleans Parish following Hurricane Katrina, and it looks like the whole bunch of folks responsible for it are getting off scott free. For how they treated all their prisoners, the sheriff and his people should really be strung up. This goes to show how incredibly hard it is to hold state actors accountable for gross negligence and abuse - hell, even when they commit atrocities, like what prison guards did to Marcia Powell in Arizona, it's hard to get anyone fired, much less prosecuted or sued...
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WAGANFEALD v. GUSMAN
ROBIE J. WAGANFEALD; PAUL W. KUNKEL, JR., Plaintiffs-Appellees,
v.
MARLIN N. GUSMAN, Orleans Parish Criminal Sheriff; WILLIAM C. HUNTER, OPCSO Chief Deputy, Defendants-Appellants.
No. 11-30081.
United States Court of Appeals, Fifth Circuit.
Filed March 12, 2012.
Before: KING, JOLLY, and WIENER, Circuit Judges.
WIENER, Circuit Judge.
Plaintiffs-Appellees
Robie J. Waganfeald and Paul W. Kunkel, Jr. (collectively, "Appellees")
filed this action against several defendants, including
Defendants-Appellants Marlin N. Gusman, Orleans Parish Criminal Sheriff,
and William C. Hunter, Orleans Parish Criminal Sheriff's Office Chief
Deputy (collectively, "Appellants"), under 42 U.S.C. § 1983 for
violations of their Fourth, Sixth, and Eighth Amendment rights. The
Appellees also brought a false imprisonment claim against the Appellants
under Louisiana law. Appellees' claims arise out of their incarceration
in New Orleans at and around the time that Hurricane Katrina struck the
city. After trial, a jury found that Appellants were not liable for
some of those claims, but (1) held Gusman liable for falsely imprisoning
Appellees, and (2) held Hunter liable for denying Appellees' purported
Sixth Amendment right to use a telephone following their arrest. We
reverse the jury's verdict as to both claims for which Appellants were
held liable.
A. Facts
The
facts of this case are largely undisputed. On the evening of Friday,
August 26, 2005, Appellees, traveling by car from Houston, Texas to
Toledo, Ohio, stopped for the night in New Orleans. They checked into a
hotel, then proceeded to the French Quarter, some time after 1:00 a.m.
on the morning of August 27, and remained there for approximately four
hours, consuming several beers each. At approximately 5:00 a.m., two New
Orleans police officers placed Appellees under arrest for public
intoxication under New Orleans Municipal Code § 54-405. Appellees assert
that they were not intoxicated when the arrests took place, but instead
that Kunkel fell to the ground when his bad knee gave out as he stepped
off a curb, and that Waganfeald was attempting to help Kunkel to his
feet.
At the
time of the arrests, Hurricane Katrina was in the Gulf of Mexico and was
estimated to make landfall on Monday morning. For several days prior to
Katrina's estimated landfall, Gusman and his staff prepared the Orleans
Parish Prison ("OPP") to weather the storm with all staff and all
prisoners-an average daily population of 5,800-remaining inside the
complex. At that time, OPP comprised eleven main facilities which held
inmates, as well as ancillary buildings. In the event of serious
flooding, Gusman's plan called for staff and prisoners to "vertically
evacuate" to the upper floors of the OPP facilities. On the morning of
Sunday, August 28, a mandatory evacuation order was issued for residents
of New Orleans, but that order did not apply to OPP staff and
prisoners.
Appellees'
arresting officers took them to the Intake and Processing Center
("IPC") at OPP, at which point Appellees' money, valuables, and cell
phones were confiscated. Appellees were not given an opportunity to make
bail, but instead were placed in the Templeman III facility at OPP,
which could house as many as 1,200 pre-trial detainees. At the time,
Gusman was in charge of OPP, Hunter directed prison operations, and
Warden Gary Bordelon oversaw Templeman III.
Normally,
a number of telephones-both free and collect-were available for inmate
use in the IPC. Collect telephones were also available in the Templeman
III building. For security reasons, cell phones were not allowed in the
prison complex. After being booked, Appellees attempted to make phone
calls using the IPC telephones, but soon discovered that they were not
working. That Saturday, Hunter, who was responsible for the phone
system, became aware that all of the telephones at OPP were inoperable.
Hunter instructed the telephone supervisor, Donald Hancock, to report to
the prison. Hancock examined the system that day and determined that
the telephone service provider's lines were overloaded. Because the
problem was not with the OPP telephones themselves, prison officials
were unable to remedy the problem. Hancock reported his findings to
Hunter at some point that weekend. Sheriff Gusman testified that he was
not made aware of the problem with the phones. Gusman further testified
that, in theory, he or Hunter could have allowed the inmates to use
their cell phones, but Gusman emphasized that prison policy forbids cell
phone use (even by most deputies) because of security risks. OPP phones
remained inoperable throughout the weekend, and Appellees were unable
to make any phone calls during that time.
After
being booked, Appellees were placed in separate cells in Templeman III,
where they remained as Hurricane Katrina approached and then hit New
Orleans at approximately 6:00 AM on Monday, August 29, 2005. Initially,
OPP officials believed that the complex had weathered the storm
unscathed. After the levees were breached and the city flooded, however,
the prison's generators stopped working, and its water and food
supplies were contaminated. As floodwater entered the Templeman III
building, officers evacuated inmates to higher floors. Appellees
experienced insufferable conditions as the water rose in their cells.
Kunkel was locked in his cell until Wednesday evening; Waganfeald was
moved to a miniature gymnasium within OPP. Both Kunkel and Waganfeald
went without food and water for approximately three days. The
temperature was very high; there was no air circulation; the toilets did
not flush. In the midst of this chaos, Appellees believed that the
prison guards had abandoned them, and they had no way of making contact
with the outside world. Both men believed that they might die.
Appellees
were finally moved from OPP on Wednesday, August 31, but this did not
mark the end of their ordeals. They were taken by boat to a highway
overpass, where they, along with thousands of other inmates, continued
to endure heat, hunger, and thirst. Appellees were then placed on buses
and transported out of New Orleans. For about a month, Kunkel endured
further deplorable conditions, first at Louisiana's Hunt Correctional
Institute, and then at the Louisiana State Penitentiary at Angola,
before being released on October 3, 2005. Waganfeald was taken to
Cathoula Parish Prison and was released on October 5, 2005. Other than
an eye infection for which Kunkel received treatment at Angola,
Appellees did not suffer physical injuries, but both men have reported
psychological trauma as a result of these experiences.
B. Proceedings
Appellees filed suit on August 28, 2006, asserting claims under 42 U.S.C. § 1983 for violations of, inter alia,
the Fourth Amendment (based on their allegedly unlawful detention), the
Sixth Amendment (based on their inability to contact counsel by
telephone), and the Eighth Amendment (based on their conditions of
confinement). Their complaint also asserted claims for false
imprisonment under Louisiana law. The named defendants included Gusman,
individually and in his official capacity as Criminal Sheriff of Orleans
Parish; Hunter, individually and in his official capacity as Chief
Deputy Criminal Sheriff of Orleans Parish; Bordelon, individually and in
his official capacity as Warden of the Templeman III jail facility;
various officers of the New Orleans Police Department; the City of New
Orleans; and Mayor C. Ray Nagin.
Appellees
proceeded to trial against Gusman, Hunter, and Bordelon. On October 14,
2010, the jury found Gusman liable for false imprisonment and awarded
compensatory damages of $200,000 to Waganfeald and $259,300 to Kunkel.
The jury found, however, that Gusman was not liable for the Fourth,
Sixth, and Eighth Amendment claims. The jury also rejected the claims
against Gusman in this official capacity, finding that his official
policies were not the moving force behind any violation of Appellees'
constitutional rights. Additionally, the jury found Hunter liable for
violating the Appellees' Sixth Amendment right to counsel, denied
qualified immunity to Hunter, and awarded each Appellee $100,000 for
these violations. The jury rejected the remaining claims against Hunter,
and it exonerated Bordelon on all claims. The district court then
entered judgment later that month.
At the
close of Appellees' case and at the close of evidence, Appellants orally
moved for judgment as a matter of law. The district court denied each
motion. After the jury verdict was announced, Appellants moved for
judgment as a matter of law, or, in the alternative, a new trial. The
district court denied both motions, and Appellants timely appealed.
With regard to issues that were preserved in the district court, we review its denial of judgment as a matter of law de novo, applying the same standard as the district court.1
Judgment as a matter of law is proper "[i]f a party has been fully
heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue[.]"2
"[W]e will uphold a jury verdict unless the facts and inferences point
so strongly and so overwhelmingly in favor of one party that reasonable
men could not arrive at any verdict to the contrary."3
Further, we must review the evidence in the light most favorable to the
jury's determination, and we may not reweigh the evidence or substitute
the jury's reasonable factual inferences for our own.4
The
jury rejected all claims against Gusman relating to Appellees'
conditions of confinement and their inability to make telephone calls.
The jury found Gusman liable for false imprisonment, however, which
under Louisiana law consists of two elements: "(1) detention of the
person; and (2) the unlawfulness of the detention."5 It is undisputed that Gusman detained the Appellees, and thus, the question at issue is whether that detention was unlawful.
The
only basis urged by Appellees that their detention was unlawful is
Gusman's failure to release them when they were not granted a probable
cause determination within 48 hours after their arrest. Under Louisiana
law, a person who is arrested and in custody is "entitled to a
determination of probable cause within forty-eight hours of arrest."6 If such a determination is not timely made, "the arrested person shall be released on his own recognizance."7 This statute tracks the United States Supreme Court's decision in County of Riverside v. McLaughlin,8
in which the Court held that a probable cause determination must
generally be made within 48 hours to comply with the Fourth Amendment.9
As Appellees were arrested at approximately 5:00 a.m. on Saturday,
August 27, 2005, this 48-hour period expired at 5:00 a.m. on Monday,
August 29-just as Hurricane Katrina struck the Gulf Coast. Appellees had
received no probable cause determination as of that Monday morning, but
Gusman continued to detain them.
Appellees
insist that the 48-hour rule permits no exceptions, but the United
States and Louisiana Supreme Courts have indicated otherwise. In Riverside,
the United States Supreme Court stated that if a probable cause
determination is not made within 48 hours, "the burden shifts to the
government to demonstrate the existence of a bona fide emergency or
other extraordinary circumstance."10 Likewise, interpreting the relevant state statute, the Louisiana Supreme Court stated in Louisiana v. Wallace:
In the
absence of a bona fide emergency or other extreme circumstances, all
persons arrested without a warrant for whom a probable cause
determination is not made within 48 hours must be immediately released
from custody on their own recognizance.11
This statement constitutes dicta, as Wallace
did not involve an emergency, but it nonetheless demonstrates that the
Louisiana Supreme Court recognizes an emergency exception to the 48-hour
rule.12 Notably, the emergency exception in Wallace is worded almost identically to the same exception in Riverside,
the decision that led to the creation of the Louisiana statute in the
first place. It is therefore plain that both the federal and the
Louisiana 48-hour rules contain an emergency exception. This aligns with
common sense, because adopting Appellees' position that the 48-hour
rule permits absolutely no exception could lead to any number of absurd
consequences. Thus, in determining whether Appellees' detention was
unlawful, we apply the emergency exception to the 48-hour requirement.
Gusman
maintains that his detention of Appellees falls within this emergency
exception. He also contends that he is immune from liability for false
imprisonment under Louisiana's discretionary immunity statute.13
Appellees counter the latter point by claiming that Gusman waived his
discretionary immunity defense in the trial court and cannot raise it on
appeal. In particular, Appellees note that although Gusman raised
discretionary immunity in his answer and in his post-verdict Rule 50(b)
and Rule 59 motions, he failed to raise the issue in the pre-trial order
or in his Rule 50(a) motion for judgment as a matter of law.14 Appellees themselves may have waived this waiver argument by failing to raise it in opposition to Gusman's Rule 50(b) motion,15
but we do not reach that issue, or the discretionary immunity argument
at all. Rather, we reverse the jury's verdict on the simpler and more
direct ground that Gusman's actions fall within the emergency exception
to the 48-hour rule.16
The
undisputed evidence in this case compels the conclusion that Hurricane
Katrina was a bona fide emergency within the meaning of the emergency
exception to the 48-hour rule. Indeed, if Katrina was not an emergency,
it is difficult to imagine any set of facts that would fit that
description. As the storm bore down on New Orleans, Gusman and his
officers had to provide for the security and safety of approximately
5,800 of their own inmates, plus 130 more inmates who were transferred
from St. Bernard Parish.17
The officers planned to evacuate inmates vertically in the Templeman
III building to higher floors, if necessary. They also stockpiled food
and water in the Templeman III building-on the first floor,
unfortunately.
OPP
initially survived the storm without flooding, but this changed rapidly
after the levees were breached. The water rising on the first floor of
Templeman III quickly reached waist level, the generator went out, and
food and water supplies were contaminated. The electronic system for
controlling the cell doors ceased to function, and officers had to open
the doors manually, which-for some cells on the first floor-required the
officers to dive into the water to manipulate the locking mechanism.
The temperature grew very hot, and the officers allowed the inmates to
break windows for purposes of air ventilation. The officers worked for
many hours with inadequate food, water, and sleep. After the arduous
process of evacuating the inmates was completed, the officers continued
working to evacuate other individuals who were stranded in the
neighborhood. In light of this clear emergency, we hold that the 48-hour
rule was suspended. Consequently, Gusman did not falsely imprison the
Appellees by holding them without a probable cause determination rather
than releasing them into the teeth of the storm on the morning of August
29, 2005.
Appellees
contend that they would not have received a probable cause
determination within 48 hours of their arrest even in the absence of
Hurricane Katrina, because the Municipal Courts did not operate on the
weekends at that time. The jury, however, answered "No" to the following
interrogatory:
Do you
find by a preponderance of the evidence that Sheriff Marlin Gusman, in
his capacity as the Criminal Sheriff of Orleans Parish, had a policy,
practice, or custom of deliberate indifference to arrested individuals'
right to have a probable cause determination made by an impartial judge
or magistrate within 48 hours of an arrest made without a warrant that
was the moving force behind a violation of [Appellees'] constitutional
rights?
If
Gusman had a general policy of detaining individuals beyond 48 hours
without a probable cause hearing, even in the absence of an emergency,
that interrogatory would have to have been answered in the affirmative.
In that situation, the municipal policy would certainly have been
"adopted with `deliberate indifference' to its known or obvious
consequences."18 Further, the municipal policy would be the "`moving force' behind the constitutional violation,"19 as there would unquestionably have been a "direct causal link"20
between Gusman's policy and the violation of the 48-hour rule. But, as
the jury answered "No," and Appellees have not appealed that factual
finding, they cannot rely on Gusman's purported policy of violating the
48-hour rule even in non-emergency conditions.
Gusman's
detention of Appellees was not unlawful because his actions fell within
the emergency exception to the 48-hour rule. Thus, we must reverse the
district court's denial of Gusman's motion for judgment as a matter of
law. We thus do not reach Gusman's additional argument that the jury's
verdict was internally inconsistent.
The
jury found that Chief Deputy Hunter acted in a manner that was
deliberately indifferent to Appellees' asserted Sixth Amendment right to
use a telephone to contact "an attorney and/or family and friends"
following their arrest. The jury also rejected Hunter's defense of
qualified immunity. On appeal, Hunter contends that the district court
erred by denying him qualified immunity because (1) there was no
violation of Appellees' Sixth Amendment right to counsel because that
right never attached, no "critical stage" of the proceedings was
reached, and Hunter did not act intentionally; and (2) even if there
were such a violation, it had not been clearly established that refusing
to allow pre-trial detainees to use cell phones when land lines are
disrupted in an emergency violates the Sixth Amendment.
"A
public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff's
constitutional rights and (2) the defendant's actions were objectively
unreasonable in light of clearly established law at the time of the
violation."21
A defendant violates clearly established law only if "the contours of
[the] right are sufficiently clear that every reasonable official would
have understood that what he is doing violates that right."22
For a legal principle to be clearly established, "we must be able to
point to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high
degree of particularity"23 and that places the statutory or constitutional question "beyond debate."24
When a defendant asserts qualified immunity, the plaintiff has the burden of proving that it is inapplicable.25 Qualified immunity should be adjudicated "at the earliest possible stage in litigation,"26
but "if the issue is not decided until trial the defense goes to the
jury which must then determine the objective legal reasonableness of the
officers' conduct."27 We have discretion to decide which prong of the qualified immunity analysis to address first.28
As a
preliminary matter, Appellees contend that Hunter has waived qualified
immunity. Hunter raised qualified immunity generally in his answer and
proposed jury instructions, the district court instructed the jury on
qualified immunity, and the jury found that Hunter's actions were not
objectively reasonable in light of Appellees' constitutional rights.
Hunter did not raise qualified immunity in his pre-verdict motions for
judgment as a matter of law under Rule 50(a),29
but he did in his post-verdict motion for judgment as a matter of law
under Rule 50(b). In response to Hunter's Rule 50(b) motion, Appellees
did not counter that Hunter waived qualified immunity but instead
responded to the merits of that issue. Thus, Appellees have waived their
waiver argument.30
Appellees
also contend that even if Hunter has not waived qualified immunity
generally, he has waived his specific contentions that Appellees' Sixth
Amendment right to counsel never attached and that no "critical stage"
of the proceedings was reached. In lieu of addressing this specific
waiver argument, we hold that even if Appellees had a Sixth Amendment
right to counsel during the period in question, Hunter did not act in an
objectively unreasonable manner in light of clearly established law, so
the district court should have granted him judgment as a matter of law
on qualified immunity.
There
is no dispute that, during the period in question, telephones were made
available to Appellees, but that it was not possible to place calls on
these or any telephones at the facility. Donald Hancock, the telephone
supervisor for the Orleans Parish Criminal Sheriff's Office, testified
that on the Saturday before Hurricane Katrina made landfall, calls could
not be placed from OPP because the telephone service provider's lines
were overloaded. He testified further that because the problem was
external, and the OPP telephones themselves were functioning properly,
there was nothing he could have done to remedy the problem. Hancock
timely reported his findings to Hunter and evacuated New Orleans that
Sunday morning. When Hancock and Hunter spoke again later that day,
Hunter asked Hancock to return and continue working on the phones, but
Hancock again informed Hunter that the problem was external and that
there was nothing he could do.
Appellees
contend that in this situation, Hunter should have allowed them to use
their cell phones to make calls. In accordance with standard procedures,
Appellees' cell phones had been confiscated when they were booked into
the prison. As noted, Gusman testified that inmates are not allowed to
possess cell phones because that would pose a "security risk." He went
on to explain that allowing the use of cell phones would impair prison
officials' ability to record inmates' calls, which is important because
"inmates either make threatening phone calls or try to continue their
illegal activity while in jail." Gusman also stated that, for security
reasons, even deputies are generally not allowed to carry cell phones
while on duty. Gusman testified that he was completely unaware of the
problems with the OPP telephone system during the period in question,
but he acknowledged that Hunter would have had the authority to allow
prisoners to use their cell phones.
There
is no particularized, clearly established law which would have
instructed Hunter that, under the Sixth Amendment, he had to allow
pre-trial detainees to use their cell phones when land lines were
disrupted. Appellees have pointed us to no such authority, and we have
found none. To the contrary, we have ruled that prisoners have "no right
to unlimited telephone use."31
Other courts have observed that "a prisoner's right to telephone access
is subject to rational limitations in the face of legitimate security
interests of the penal institution.'"32
As a general matter, "maintaining institutional security and preserving
internal order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees."33
Thus, prison officials are "accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain
institutional security."34
In this
case, Hunter faced the security risks that would generally follow from
allowing prisoners to use cell phones, which were exacerbated by the
emergency conditions that were present during the approach, landfall,
and aftermath of Katrina. Inmates were unable to use the land-line
telephones in the OPP not because of any action that Hunter took, but
because of overloaded external lines, a situation beyond any control of
law enforcement. Distributing cell phones to approximately 5,930
inmates, or even just the 1,200 pre-trial detainees in Templeman III,
would have been a creative and potentially beneficial option, but it
would also have added to prison officials' unprecedented logistical
burden as well as the potential security risks. Before Hurricane Katrina
struck, prison officials had no reason to assume that the telephone
lines would be overloaded for a significant length of time; after the
prison flooded, they were overwhelmed with more urgent emergency tasks.
The unprecedented emergency conditions would also have made it very
difficult if not impossible for any counsel that Appellees might have
reached to provide meaningful assistance. We do not suggest (or deny)
that there is a blanket emergency exception to the Sixth Amendment right
to counsel. Rather, we hold only that in light of the security risks
and unique emergency conditions he faced, Hunter did not act in an
objectively unreasonable manner under clearly established law. The
district court therefore erred by not granting Hunter qualified immunity
as a matter of law.
There
is no doubt that Appellees suffered terribly while held in custody after
Hurricane Katrina struck New Orleans. It is equally clear, however,
that (1) Gusman's failure to release Appellees falls within the
emergency exception to the rule that a probable cause determination must
be made within 48 hours, and (2) Hunter's failure to allow Appellees to
use cell phones was not objectively unreasonable in light of any
clearly established law. We therefore reverse and vacate the judgment of
the district court, and remand with instructions to enter judgment in
favor of Gusman and Hunter on all claims asserted by Appellees.
REVERSED, VACATED, and REMANDED WITH INSTRUCTIONS.
Footnotes
1. Julian v. City of Houston, 314 F.3d 721, 725 (5th Cir. 2002).
2. Fed. R. Civ. P. 50(a)(1).
3. Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001).
4. Id.
5. Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669, 690 (La. 2006).
6. La. Code Crim. Proc. art. 230.2(A).
7. Id. art. 230.2(B)(1) (emphasis added).
8. 500 U.S. 44, 56 (1991).
9. See Louisiana v. Wallace, 25 So.3d 720, 723-24 (La. 2009) (Louisiana statute codified Riverside).
10. Id. at 57.
11. 25 So.3d at 727.
12. See Hulin v. Fibreboard Corp., 178 F.3d 316, 328 (5th Cir. 1999) ("A federal court has a duty to determine state law as it believes the State's highest court would.").
13.
La. Rev. Stat. Ann. § 2798.1 ("Liability shall not be imposed on public
entities or their officers or employees based upon the exercise or
performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of
their lawful powers and duties.").
14. See Maryland Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701,
707-08 (5th Cir. 2011) (when a party fails to raise an issue in a Rule
50(a) motion, it waives the right to raise that issue in a Rule 50(b)
motion).
15. See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429,
435 (5th Cir. 1996) (holding that when the party opposing the Rule
50(b) motion "did not raise the waiver bar in opposing the [R]ule 50(b)
motion, they may not raise that bar on appeal"); see also Ross v. Buckeye Cellulose Corp., 980 F.2d 648,
661 n.20 (11th Cir. 1993) (noting that even if the defendant waived a
particular defense by failing to include it in the pre-trial order, the
plaintiffs waived that waiver by failing to make the waiver argument in
front of the district court); but see Scribner v. Dillard, 141 F. App'x 240, 243 (5th Cir. 2005) (unpublished) (holding that "waiver of waiver" per Thompson
does not apply when defendants failed to raise defense, not only in
Rule 50(a) motion, but at any time prior to the verdict; the defense was
therefore considered waived).
16.
The emergency exception presents no waiver issue: Gusman raised the
exception in the pre-trial order, the district court instructed the jury
on it, and Gusman presses the issue on appeal.
17. See
La. Rev. Stat. Ann. § 15:706(c) ("The sheriff of the parish to which
the prisoner is conveyed shall keep the prisoner safe and secure").
18. Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998).
19. Id.
20. Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).
21. Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
22. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (internal brackets and quotation marks omitted).
23. Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011).
24. al-Kidd, 131 S.Ct. at 2083.
25. Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
26. Id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
27. McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).
28. Morgan, 659 F.3d at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
29. FED. R. CIV. P. 50(a).
30. See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996) (waiver of waiver).
31. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982).
32. Douglas v. Gusman, 567 F.Supp.2d 877, 886 (E.D.La. 2008) (quoting Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.1994)); see also Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989) (same).
33. Bell v. Wolfish, 441 U.S. 520, 546 (1979).
34. Id. at 547; see also id.
(security considerations "are peculiarly within the province and
professional expertise of corrections officials, and, in the absence of
substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should
ordinarily defer to their expert judgment in such matters.") (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)); Whitley v. Albers, 475 U.S. 312,
322 (1986) ("prophylactic" prison security measures are entitled to
deference, even if there exist "arguably superior alternatives").
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