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Akins v. Liberty County

United States District Court, Fifth Circuit

January 9, 2014

FREDERICK RAY AKINS, Plaintiff,
v.
LIBERTY COUNTY, TEXAS; PHIL FITZGERALD, in his Official Capacity; LIBERTY COUNTY SHERIFF'S DEPARTMENT EMPLOYEES, in their Individual Capacities and Whose Names are Presently Unknown to Plaintiff; COMMUNITY EDUCATION CENTERS, INC.; EMPLOYEES OF COMMUNITY EDUCATION CENTERS, INC., and TIMOTHY NEW, Defendants.

MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Pending before the court are Defendants Liberty County, Texas ("Liberty County") and Liberty County Judge Phil Fitzgerald's ("Judge Fitzgerald") (collectively, the "Liberty County Defendants") Motion for Summary Judgment (#78) and Defendants Community Education Centers ("CEC") and Warden Timothy New's ("Warden New" or "New") Motion for Summary Judgment (#81).[1] Defendants seek the dismissal of Plaintiff Frederick Ray Akins's ("Akins") claims pursuant to Federal Rule of Civil Procedure 56. Also pending is CEC and Warden New's Motion for Judgment on the Pleadings (#79), wherein CEC and New seek dismissal of Akins's claims under Federal Rule of Civil Procedure 12(c). Having considered the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Defendants' motions should be granted.

I. Background

A. Procedural History

On June 8, 2010, Akins filed the instant lawsuit, asserting numerous causes of action against Defendants[2] arising from his detention in the Liberty County Correctional Facility ("the jail") from June 8, 2009, to June 12, 2009. Akins seeks to recover pursuant to 42 U.S.C. ยงยง 1981, 1983, and 1985 for violations of his constitutional "rights, " "rights and privileges, " denials of "due process and equal protection, " and a denial of his "statutory rights." In addition, Akins asserts several state law tort theories, including premises liability, negligence, misuse of information and negligence in the handling of medical information, defamation, libel per se, defamation per se, intentional infliction of emotional distress, and vicarious or respondeat superior liability.

The Liberty County Defendants moved for summary judgment on March 27, 2012. The next day, March 28, 2012, CEC and Warden New moved for summary judgment and judgment on the pleadings. Pursuant to Local Rule CV-7(e), Akins's responses were due on April 13, 2012, and April 15, 2012, respectively. Akins, however, did not respond.

Instead, on May 15, 2012, Akins filed a suggestion of bankruptcy. As a result, the case was administratively closed on May 21, 2012. Approximately one year later, on May 22, 2013, the bankruptcy trustee filed an Abandonment of Litigation, specifically listing this lawsuit. In addition, Akins was discharged from bankruptcy on June 10, 2013. Defendants, therefore, sought to reopen the case for rulings on the instant motions. Akins failed to respond to the motion to reopen. As a consequence, Defendants' motion was granted, and the case was reopened on October 1, 2013.

To date, Akins has not responded to Defendants' motions or requested leave to do so. As a result, the court accepts as undisputed the facts set forth by Defendants in their motions for summary judgment. See Jegart v. Roman Catholic Church of Diocese of Houma Thibodaux , 384 F.Appx. 398, 400 (5th Cir. 2010) ("When a party does not file an opposition to a motion for summary judgment, the district court is permitted to consider the facts listed in support of the motion as undisputed."); Eversley v. MBank Dallas , 843 F.2d 172, 175 (5th Cir. 1988); Ass'n of Taxicab Operators, USA v. Yellow Checker Cab Co. , 910 F.Supp.2d 971, 975 (N.D. Tex. 2012); Lynch v. Jet Ctr. of Dallas, LLC , No. 3:05-CV-2229-L, 2007 WL 211101, at *3 (N.D. Tex. Jan. 26, 2007); Local Rule CV-56(c).

B. Undisputed Facts as Asserted by Defendants[3]

1. Akins was in Portland, Oregon, when he was advised that Liberty County Sheriff Henry Patterson ("Sheriff Patterson" or "Patterson") had a warrant for his arrest. Akins was charged with tampering with a government document with the intent to harm and was subsequently re-indicted in October 2010 for organized crime and theft.

2. In 2009, Akins dropped out of Thomas Jefferson School of Law in San Diego, California, because of the indictments against him. Akins was previously employed as the owner of ICL Investigations, a firm that performed commercial litigation and personal injury investigations. Because of the criminal charges brought against Akins in Liberty County, he is precluded from and no longer maintains a private investigator's license in Texas or Missouri.

3. After learning of his arrest warrant, Akins contacted Sheriff Patterson and traveled to Texas. On June 8, 2009, around 8:00 a.m., Akins's son drove him to the Sheriff's Office where he was greeted by, met, and spoke with Sheriff Patterson. Akins remained in Patterson's office for 20 to 30 minutes, waiting for Chief Jim Cooper ("Chief Cooper" or "Cooper") to arrive. Once Cooper arrived, he escorted Akins to booking, where he booked Akins into the jail.

4. Akins stated that Patterson had a good attitude, was cordial, and after Cooper took Akins to booking, Akins had no further interaction with Patterson.

5. After being booked in, Chief Cooper placed Akins in a holding cell with four other individuals. Akins remained in the cell until his arraignment. Akins had no problems with the four individuals while in the holding cell.

6. That same day, Chief Cooper took Akins to the 75th Judicial District Court of Liberty County, Texas, to be arraigned and to have his bond set. After waiting in court for approximately 20 minutes, Judge Rusty Hight ("Judge Hight") saw Akins and set his bond at $100, 000.00.

7. Akins contends that misinformation about his state of residence resulted in an elevated bond-$100, 000.00. He admitted, however, that he contested the issue during the hearing and later conceded that it was the district attorney who persuaded or contributed to the judge setting the bond at $100, 000.00. CEC and New were not involved with Akins's arraignment hearing. Akins has no personal knowledge of whether CEC or Warden New had any involvement in setting his bond.

8. Akins believes that Liberty County Judge Fitzgerald was influential in setting his bond, but he admitted that he has no such direct evidence, was not sure if Judge Fitzgerald ever communicated with Judge Hight about his bond, and admitted that his belief is based on something he heard from a couple of political operatives whose names he does not remember.

9. Akins had no direct dealings with Judge Fitzgerald during the events at issue in this case. He merely heard that Fitzgerald had something to do with his situation but was unable to identify anyone or any document that would indicate Fitzgerald's involvement. Further, Akins provided no direct evidence that Judge Fitzgerald was involved in any way with his incarceration during the five days Akins was in jail.

10. Akins stated that Judge Hight directed that Akins's CPAP (continuous positive airway pressure) machine be made available.[4]

11. After the arraignment, around 5:00 p.m. on June 8, 2009, Chief Cooper brought Akins back to the jail and permitted him to make some phone calls to his son to arrange for his bond, medications, and CPAP machine. Cooper then turned Akins over to general jail personnel. Later that evening, jail personnel moved Akins from a holding cell to general population for the remainder of the day. After he was turned over to the general jail personnel, Akins had no interaction with Cooper.

12. At all relevant times, Liberty County had a contract with an entity believed by Liberty County to be a subsidiary of CEC. Under the contract, the contractor was responsible for the maintenance, operation, and management of the jail. The contractor was also responsible to train its employees, provide sanitation/hygiene, and supply recreation, access to courts, health care services, food, commissary, telephone system, religious services, facility supplies, grievance procedures, security and control, and sufficiently trained personnel to provide 24-hour care and supervision to inmates.

13. Akins stated that Chief Cooper, like Sheriff Patterson, was cordial to him. He admitted that neither Patterson, Cooper, nor anyone associated with CEC or Liberty County, mistreated him up until this point in time and throughout the remainder of the day. Akins further admitted that his complaints did not involve any mistreatment by Sheriff Patterson or Cooper. After he was brought back from his arraignment by Cooper, Akins had no dealings with Cooper or any other Sheriff's Office personnel. Akins later dismissed Sheriff Patterson as a defendant in this case because he felt Patterson "wasn't culpable."

14. Sometime between his incarceration in the holding cell and being placed in the jail's general population, Akins saw a nurse he described as a "very nice lady."

15. When he was booked in, Akins recalled saying "Hello" to someone he later learned was Warden New, but he had no other conversations with New in June 2009, and he did not send any request for services or grievances to New in June 2009.

16. Akins makes various allegations of mistreatment while in the jail beginning on June 9, 2009, including being temporarily placed in a cell in the "old jail" one afternoon where he was subjected to a 20 to 30-minute exposure to backed-up sewage, alleged delays in receiving his CPAP machine, water, and medicine, and being placed in a solitary confinement cell (which had an electrical outlet for his CPAP machine).

17. Akins testified that he did not have his CPAP machine or medications and started getting ill sometime after being booked into the jail.

18. Akins was moved from the holding cell to general population where he spent the night of June 8, 2009. Akins was taken to the old jail, a separate building, on the afternoon of June 9, 2009, by a female officer named Chapman. At the old jail, Akins was placed in a cell on the lower block by a male officer. Akins testified that the cell in which he was placed had a plugged drain and feces on the floor. He stayed in that cell for 20 to 30 minutes. He was then removed to a holding cell near the old jail's control room. He claims that the correctional officer who moved him to the holding cell apologized for the plumbing leak.

19. While in the holding cell, a nurse came to see Akins and gave him blood pressure medication. She came back every hour after that and kept giving Akins additional blood pressure medication. Once the nurses at the jail determined that Akins needed blood pressure medication, "they stayed on [him] until they got it straightened out." Akins remained in the holding cell the night of June 9, 2009. He claims that the sink in the holding cell was broken, and a trustee provided him some water. The nurses brought water to Akins at every pill pass. Akins also received liquids with his meals but testified that he did not care for the drinks that were served.

20. On June 10, 2009, Akins was moved to a look-down cell, which he referred to as a solitary confinement cell in his deposition.

21. Akins's contention that he did not receive "needed medical equipment" referred to his CPAP machine. Akins saw his son at the jail with the CPAP machine on June 10, 2009, and waved to him. He received his CPAP machine on the evening of June 11, 2009. The solitary confinement cell had an electrical outlet to accommodate the CPAP machine, but the holding cell did not. Akins got a good night's sleep after receiving his CPAP machine and blood pressure medication from the nurse.

22. While in the jail, Akins never sent a written request for services to the medical unit, and he did not discuss any of the allegations in his lawsuit with Warden New while he was at the jail in 2009. Akins testified that he is suing New because he is in management and in charge of running the jail and, therefore, he is responsible for putting Akins in harm's way. New never personally interacted with Akins. Akins is not aware of whether New was, at any time, involved with providing medical care or dispensing medication at the infirmary.

23. Akins has no knowledge of who ran the kitchen at the jail. He also does not know if he was placed on a low-salt diet. Akins testified that he received between 10 and 13 meals at the jail and that two of those meals were "salty." He also claims that two meals smelled like urine, but he has no personal knowledge whether anyone urinated in his food. Further, Akins conceded he had no personal knowledge of the nutritional plans or the requirements for nutrition at the jail.

24. During his stay at the jail, Akins was on blood pressure medication, which the nurses brought to him. The nurses checked his blood pressure when he was first booked in and checked it several times after that.

25. Akins has no knowledge of the contents of CEC's operations manual for the jail. At deposition, Akins was "not sure" what the "established policy or custom" violations were, but with respect to an unreasonable seizure, Akins agreed that Sheriff Patterson simply took him into custody when Akins voluntarily turned himself in. CEC personnel were only involved in assisting with booking Akins in at the jail after he surrendered himself.

26. Akins was released from the jail around noon on June 12, 2009.

27. Akins was unable to name any individuals who might have been treated similarly to the way Akins felt he was treated at the jail.

28. Akins has no knowledge that anyone with Liberty County or CEC, prior to June 8, 2009, knew of a collapsed sewer or main drain line at the jail.

29. The jail's repair records indicate no knowledge on the part of CEC or Liberty County of a collapsed sewer line prior to June 8, 2009.

30. Although Akins alleges Cooper and New verbally divulged information regarding his medical records to Bill Buchanan ("Buchanan") in the presence of Sheriff Patterson and Vanessa Brashier ("Brashier"), [5] the information is based on alleged hearsay statements from Brashier made six months before Akins's December 14, 2011, deposition. Akins was not present during these conversations. Akins has no personal knowledge of whether New or anyone associated with CEC disclosed his medical information.

31. Akins admitted that he released some of his blood pressure information into the public domain via an e-mail dated June 14, 2009, two days after he was released from the jail. Nonetheless, he also stated there were other media sources publishing this information while he was in jail. Akins, however, could not identify the sources, did not remember where he saw the information, and did not produce any supporting documentation. He also does not know when the alleged statements by Cooper and/or New were made to Brashier and Buchanan.

32. Akins stated that the release of his medical information embarrassed him, as he does not like his private medical information being made public.

33. Akins admitted he is not asserting any defamation claims against CEC, New, or Liberty County, and is not aware of CEC, New, Liberty County, Patterson, or Fitzgerald publishing any defamatory statements about him.

34. Akins stated he was not sure if CEC, New, Liberty County, or Patterson was negligent in determining whether certain statements were true before they were published.

35. Other than his hearsay allegations concerning New, Akins has no evidence that New intentionally tried to hurt him in any way.

36. Akins admitted he has no reason to believe that Liberty County discriminated against him because of his race or gender. Akins also testified he did not know of any voting rights or contract issues he had with Liberty County. Further, other than an alleged CEC employee calling Akins a "Cracker" on one occasion, Akins has no evidence CEC discriminated against him based on his race or gender or attempted to prevent him from voting or entering into a contract.

37. Although Akins alleged he received anonymous threatening text messages, he was not able to trace them or determine their origin. No one associated with CEC, including New, ever threatened Akins with bodily harm.

38. On July 8, 2009, Akins sent an e-mail to Sheriff Patterson complaining about his detention. Patterson responded on July 10, 2009, that if Akins intended to file a formal complaint, he would have to come into the Sheriff's Office on July 13, 2009, and complete the appropriate paperwork. The letter also stated that if a formal complaint was filed, an investigation would immediately commence, and an investigator would meet with Akins for more information. There is no evidence that Akins filed a formal complaint.

39. On December 31, 2009, more than 6 months after his incarceration, Akins's counsel sent Liberty County a Notice of Claims letter asserting $5, 011, 500.00 in damages and demanding $1, 008, 500.00 to settle.

II. Analysis

A. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The parties seeking summary judgment bear the initial burden of informing the court of the basis for their motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); QBE Ins. Corp. v. Brown & Mitchell, Inc. , 591 F.3d 439, 442 (5th Cir. 2009); Warfield v. Byron , 436 F.3d 551, 557 (5th Cir. 2006); Lincoln Gen. Ins. Co. v. Reyna , 401 F.3d 347, 349 (5th Cir. 2005).

"A fact is material only if its resolution would affect the outcome of the action...." Wiley v. State Farm Fire & Cas. Co. , 585 F.3d 206, 210 (5th Cir. 2009); accord Poole v. City of Shreveport , 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese , 423 F.3d 446, 454 (5th Cir. 2005). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). "An issue is genuine ' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan ex rel. Bazan v. Hidalgo Cnty. , 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248; accord Poole , 691 F.3d at 627; Bayle v. Allstate Ins. Co. , 615 F.3d 350, 355 (5th Cir. 2010); Wiley , 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Int'l Specialty Lines Ins. Co. , 438 F.3d 519, 523 (5th Cir. 2006); Cooper Tire & Rubber Co. , 423 F.3d at 454. The moving parties, however, need not negate the elements of the nonmovant's case. See Bayle , 615 F.3d at 355; Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005) (citing Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994)); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc. , 390 F.3d 336, 339 (5th Cir. 2004).

Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. Celotex Corp. , 477 U.S. at 322 n.3 (quoting FED. R. CIV. P. 56(e)); Anderson , 477 U.S. at 256; Bayle , 615 F.3d at 355; EMCASC Ins. Co. , 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States , 391 F.3d 621, 625 (5th Cir. 2004). "[T]he court must review the record taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)); see Riverwood Int'l Corp. v. Emp'rs Ins. of Wausau , 420 F.3d 378, 382 (5th Cir. 2005). All the evidence must be construed in the light most favorable to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility. Reeves , 530 U.S. at 150; Downhole Navigator, LLC v. Nautilus Ins. Co. , 686 F.3d 325, 328 (5th Cir. 2012); EEOC v. Chevron Phillips Chem. Co., LP , 570 F.3d 606, 615 (5th Cir. 2009); Lincoln Gen. Ins. Co. , 401 F.3d at 350; Smith ex rel. Estate of Smith , 391 F.3d at 624. The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in his favor. Groh v. Ramirez , 540 U.S. 551, 562 (2004) (citing Anderson , 477 U.S. at 255); Cotroneo v. Shaw Env't & Infrastructure, Inc. , 639 F.3d 186, 192 (5th Cir. 2011); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC , 578 F.3d 255, 258 (5th Cir. 2009).

Nevertheless, "only reasonable inferences in favor of the nonmoving party can be drawn from the evidence." Mills v. Warner-Lambert Co ., 581 F.Supp.2d 772, 779 (E.D. Tex. 2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc. , 504 U.S. 451, 469 n.14 (1992)); accord Cannata v. Catholic Diocese of Austin , 700 F.3d 169, 172 (5th Cir. 2012). "If the [nonmoving party's] theory is... senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Eastman Kodak Co. , 504 U.S. at 468-69; accord Shelter Mut. Ins. Co. v. Simmons , 543 F.Supp.2d 582, 584-85 (S.D.Miss.), aff'd , 293 F.Appx. 273 (5th Cir. 2008). The nonmovant's burden is not satisfied by "some metaphysical doubt as to the material facts, ' by conclusory allegations, ' by unsubstantiated assertions, '" by speculation, by the mere existence of some alleged factual dispute, or "by only a scintilla' of evidence." Little , 37 F.3d at 1075 (quoting Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888 (1990); Matsushita Elec. Indus. Co. , 475 U.S. at 586; Hopper v. Frank , 16 F.3d 92, 97 (5th Cir. 1994); Davis v. Chevron U.S.A., Inc. , 14 F.3d 1082, 1086 (5th Cir. 1994)); accord Thibodeaux v. Vamos Oil & Gas Co. , 487 F.3d 288, 294-95 (5th Cir. 2007); Warfield , 436 F.3d at 557; Boudreaux , 402 F.3d at 540. "Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment." Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 2003); accord RSR Corp. v. Int'l Ins. Co. , 612 F.3d 851, 857 (5th Cir. 2010); Hugh Symons Grp., plc v. Motorola, Inc. , 292 F.3d 466, 468 (5th Cir.), cert. denied , 537 U.S. 950 (2002); see Hockman v. Westward Commc'ns, LLC , 407 F.3d 317, 332 (5th Cir. 2004).

Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. Nebraska v. Wyoming , 507 U.S. 584, 590 (1993); Celotex Corp. , 477 U.S. at 322; EMCASCO Ins. Co. , 438 F.3d at 523; Cutrera v. Bd. of Supervisors of La. State Univ. , 429 F.3d 108, 110 (5th Cir. 2005); Patrick v. Ridge , 394 F.3d 311, 315 (5th Cir. 2004). "[W]here the nonmoving party fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, no genuine issue of material fact can exist." Apache Corp. v. W&T Offshore, Inc. , 626 F.3d 789, 793 (5th Cir. 2010). "In such a situation, there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. , 477 U.S. at 322-23.

B. Judgment on the Pleadings Under FED. R. CIV. P. 12(c)

CEC and Warden New move for judgment on the pleadings and seek to dismiss certain of Akins's state law claims.[6] Rule 12(c) provides: "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c); accord Hughes v. The Tobacco Inst., Inc. , 278 F.3d 417, 420 (5th Cir. 2001); see Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312 (5th Cir. 2002); Jones v. Greninger , 188 F.3d 322, 324 (5th Cir. 1999). "A motion brought pursuant to FED. R. CIV. P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Herbert Abstract Co. v. Touchstone Props., Ltd. , 914 F.2d 74, 76 (5th Cir. 1990); see Great Plains Trust Co. , 313 F.3d at 312; United States v. Renda Marine, Inc. , 750 F.Supp.2d 755, 763 (E.D. Tex. 2010), aff'd , 667 F.3d 651 (5th Cir. 2012), cert. denied , 133 S.Ct. 1800 (2013). Such motions are treated as a motion for judgment on the pleadings based on a failure to state a claim upon which relief can be granted. See Truong v. Bank of Am., N.A. , 717 F.3d 377, 381 (5th Cir. 2013); Gentilello v. Rage , 627 F.3d 540, 543-44 (5th Cir. 2010) ("We evaluate a motion under Rule 12(c) for judgment on the pleadings using the same standard as a motion to dismiss under Rule 12(b)(6) for ...


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