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Escobar v. Frio County

United States District Court, W.D. Texas, San Antonio Division

July 18, 2019





         This Report and Recommendation concerns Defendant Frio County and Sheriff Lionel Trevino's Motion for Summary Judgment [#60] and Defendant Frio County Jailers Wesley Wolfe, Escolastica Wolfe, Eulalio Garza, and Deputy Arocha's Motion for Summary Judgment [#61]. This case was referred to the undersigned for the disposition of all non-dispositive pretrial matters pursuant to this Court's Standing Order regarding cases filed by prisoners asserting claims under 42 U.S.C § 1983. The District Court thereafter referred Defendants' motions for summary judgment, both of which are dispositive motions, for a report and recommendation. Therefore, the undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendants' motions be granted in part and denied in part as follows.

         I. Procedural Background

         This civil rights action arises out of the alleged rape of Plaintiff Segundo “Bart” Escobar while he was being detained in the Frio County Jail/Holding Facility. Plaintiff originally filed this action in the Del Rio Division of the Western District of Texas on May 2, 2017, pursuant to 42 U.S.C. § 1983, alleging the County of Frio, the Frio County Sheriff's Office, and various individual sheriffs and jail administrators deliberately failed to protect him from the rape and denied him post-rape medical treatment.[1] (Compl. [#1] at 4-12.) The Del Rio Division ordered the case transferred to this division on May 3, 2017 [#3], and this Court granted Escobar's motion to proceed in forma pauperis in this action [#5] and ultimately appointed Escobar counsel [#27].

         Escobar filed a First Amended Complaint on September 11, 2018 [#53] against Defendants the County of Frio, Frio County Sheriff's Office, and the following individuals in their individual and official capacities: Former Sheriff Lionel Trevino, Jail Administrator Wesley Wolfe, County Jailer Escolastica Wolfe, County Jailer Eulalio Garza, III, and Deputy Sheriff Alfredo G. Arocha, III. Escobar's First Amended Complaint alleges violations of the Eighth Amendment and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against all Defendants for failure to protect him from sexual assault, for failure to provide him with medical care or to investigate his report of sexual assault, and for failure to protect him from self-harm. (Id. at ¶¶ 43-56.) Escobar also alleges that the individual Defendants-Defendants Trevino, W. Wolfe, E. Wolfe, Garza, and Arocha-owed him a duty to keep him safe from sexual assault and to provide proper medical and mental health treatment and that their breach of these duties constituted negligence and gross negligence in violation of Texas law. (Id. at ¶¶ 57-64.)

         All Defendants have moved for summary judgment [#60, #61]. Escobar filed a response to the motions [#62], and Defendants filed a joint reply [#63]. The motions are ripe for this Court's review.

         II. Summary Judgment Record

         The following facts are undisputed, unless otherwise noted. This case concerns events that occurred at the Frio County Jail/Holding Facility between May and June 2015. At the time of the events at issue, Defendant Trevino was the Sheriff of Frio County; Defendant Arocha was a Deputy with the Frio County Sheriff's Department; Defendant W. Wolfe was the jail administrator of the Frio County Jail; Defendant E. Wolfe, the mother of W. Wolfe, was one of the jailers and also in charge of the jail kitchen; and Defendant Garza was an additional jailer. (W. Wolfe Dep. [#60-3] at 21:21-22:1, 28:23-25; Trevino Dep. [#60-2] at 36:18-21, 49:22- 50:13; Garza Dep. [#60-5] at 11:4-8, 82:19-20.) Escobar was a frequent detainee at the Frio County Jail and had been detained there somewhere between eight and twelve times prior to the incidents underlying this suit. (Trevino Dep. [#60-2] at 78:14-18; W. Wolfe Dep. [#60-3] at 54:10-11; E. Wolfe Dep. [#60-4] at 41:1-3; Escobar Dep. [#60-6] at 59:20-23; Def.'s Am. Answer [#55] at 3.)

         Escobar identifies as a homosexual and has struggled with substance abuse and addiction, as well as mental health issues, for years. Escobar testified in his deposition that he has been diagnosed at various times with PTSD, bipolar disorder, and schizophrenia. (Escobar Dep. [#60- 6] at 130:17-24.) At the time of the detentions at issue in this suit, many of the Defendants already knew Escobar well. W. Wolfe was Escobar's ex-brother-in-law, as W. Wolfe was previously married to Escobar's sister. (W. Wolfe Dep. [#60-3] at 45:21-23.) When Escobar was a teenager, W. Wolfe and his ex-wife had attempted to obtain custody of Escobar but were unsuccessful. (W. Wolfe Dep. [#60-3] at 49:14-50:14; Escobar Dep. [#60-6] at 10:18-11:1.) Escobar had stayed with W. Wolfe and his ex-wife, on and off for five years, including a continuous one-year period before Escobar began having problems with addiction and substance abuse. (W. Wolfe Dep. [#60-3] at 51:2-52:7; Escobar Dep. [#60-6] at 13:8-10.) W. Wolfe was familiar enough with Escobar's problems to know that Escobar had become addicted to heroin when he was a teenager and that Escobar had ongoing issues with drug use. (W. Wolfe Dep. [#60-3] at 54:12-14; Escobar Dep. [#60-6] at 78:1-5.) W. Wolfe also knew that Escobar had a history of mental health issues because the Frio County Jail had called the Department of Mental Health and Mental Retardation (“MHMR”) numerous times to evaluate Escobar during his various detentions. (W. Wolfe Dep. [#60-3] at 142:12-143:1.) Sheriff Trevino testified in his deposition that the jail staff at Frio County Jail were generally aware that Escobar had mental health problems. (Trevino Dep. [#60-2] at 77:13-20.)

         On May 7, 2015, Escobar was arrested and arrived at the Frio County Jail to be detained. (Garza Dep. [#60-5] at 53:6-54:25; Observation Log [#60-1] at 2.) Garza was working at the time Escobar arrived and was responsible for Escobar's initial screening and booking. (Garza Dep. [#60-5] at 53:6-54:25, 56:2-57:25; Observation Log [#60-1] at 2.) Escobar was exhibiting withdrawal symptoms from heroin at the time of his arrival, but he self-reported as being neither depressed nor suicidal. (Screening Form [#62-9] at 1.) Escobar maintains that he informed Garza of his homosexuality sometime during the booking process and believes the other jailers were also aware of his sexual orientation. (Escobar Resp. to Rogs. [#62-1] at 7.) Sheriff Trevino also testified that he and the other jailers at Frio County Jail were aware of Escobar's sexual orientation, yet Garza claims he did not have such knowledge. (Garza Dep. [#60-5] at 160:17- 18; Trevino Dep. [#60-2] at 79:14-21.)

         Sometime between May 7, 2015 and May 10, 2015, Escobar was placed in “O Tank, ” one of the sections of the jail that houses eight men. (Garza Dep. [#60-5] at 21:7-25, 22:14-17, 29:16-19.) “O Tank” is the only section of the jail that does not have cameras due to its close proximity to the control center at the front of the jail. (Garza Dep. [#60-5] at 34:23-35:12.) On May 10, 2016, Garza clocked in for work around 2:00 p.m.; at this time, Escobar and one other inmate, a Mexican American who did not speak any English, were in “O Tank” in the tank's common break room. (Garza Dep. [#60-5] at 63:7-20, 70:22-71:24.) Escobar claims no one checked on him during the entire afternoon until they served him supper, yet an observation log documents the completion of the required 30-minute checks on every inmate and all tanks, including the holding and detox cells during this same time period. (Garza Dep. [#60-5] at 24:5- 25:8; Observation Log [#60-1] at 6, 9; Escobar Dep. [#60-6] at 76:13-15.)

         At approximately 5:00 p.m., Escobar began asking through the jail's PA system to make a phone call to his mom and to Emergency Medical Services (“EMS”), but Escobar was either not permitted to make any more calls that day or had been barred from making calls from the jail altogether, so Garza did not respond. (Garza Dep. [#60-5] at 68:9-24; Escobar Dep. [#60-6] at 61:10-62:6; Observation Log [#60-1] at 4.) Escobar then asked through the PA system to talk to Garza face to face because Escobar did not want to speak with Garza in front of the other inmate in the cell. (Garza Dep. [#60-5] at 69:2-19.) When he ultimately spoke with Garza, Escobar informed Garza that the other inmate in “O Tank” had raped him. (Garza Dep. [#60-5] at 69:20- 25.) Defendants vigorously dispute Escobar's claim that a rape occurred.

         According to Escobar, he was asleep on his mattress on the floor of the break area and woke up with the other inmate's penis in his anus. (Garza Dep. [#60-5] at 74:21-75:13.) Escobar claims there was blood smeared on his hands, on the back of his uniform, on his boxers, on the mattress, and on the floor. (Escobar Dep. [#60-6] at 66:12-67:9.) When Garza came to the tank, Escobar held up a pair of underwear with a stain on it for Garza as proof of the assault. (Garza Dep. [#60-5] at 79:11-21; Escobar Dep. [#60-6] at 86:20-25.) According to Garza, the stain looked old and dry and he suspected it was not blood from the alleged assault because Escobar was wearing his orange jail uniform, was acting calm, and did not appear to be injured. (Garza Dep. [#60-5] at 79:11-21, 94:22-24.) According to Garza, Escobar “was perfectly fine. He wasn't distraught or in fear or hurt. He wasn't bleeding from anywhere.” (Garza Dep. [#60-5] at 169:21-23.)

         The other inmate was removed from “O Tank, ” and Garza called Deputy Arocha in dispatch and E. Wolfe, who was also working a shift as a jailer at the time. (Garza Dep. [#60-5] at 80:11-82:18, 91:6-18; Escobar Dep. [#60-6] at 66:13-20, 87:1-88:8, 88:21-25.) Deputy Arocha arrived at the jail to talk with Escobar, and Escobar also told Arocha he had been raped. (Escobar Dep. [#60-6] at 66:19-22.) Escobar testified that he showed the blood stains to Arocha, Garza, and E. Wolfe. (Escobar Dep. [#60-6] at 65:19-25, 70:19-20.) Garza claims he did not see blood anywhere in the cell. (Garza Dep. [#60-5] at 169:24-170:4.) E. Wolfe also testified that Escobar did not appear to have anything wrong with him and she believed he had not been assaulted. (E. Wolfe Dep. [#60-4] at 60:2-13.) Escobar testified in his deposition that he asked to be taken him to the hospital to get checked for sexually transmitted diseases but his request was dismissed. (Escobar Dep. [#60-6] at 65:19-25.) There is no incident report about the rape and no one called EMS or took Escobar to the hospital for an examination. (Trevino Dep. [#60-2] at 68:9-24, 69:9-19.)

         Soon thereafter, around 6:30 p.m., Escobar again called for Garza on the PA system, this time saying he had cut himself, was bleeding, and wanted to go to the hospital. (Garza Dep. [#60-5] at 99:21-100:19; Escobar Dep. [#60-6] at 96:2-9; Observation Log [#60-1] at 5.) According to Escobar, he was so angry and distraught that the officers failed to adequately respond to the reported assault that he cut his wrist three times with a broken jail-issued razor that had been left in his cell. (Escobar Dep. [#60-6] at 91:21-92:22.) Both Garza and E. Wolfe testified that all that was visible on Escobar's arm were small little scratches that looked like a cat scratch and Escobar was not in distress. (Garza Dep. [#60-5] at 100:20-101:2; 102:17- 20, 103:22-25, 110:5-10.) Again, Defendants vigorously dispute Escobar's rendition of the facts surrounding this cutting or Escobar's characterization of it as an attempted suicide.

         Nonetheless, Garza removed Escobar from “O Tank” and placed him in the restraining chair at the front of the jail, where E. Wolfe cleaned and bandaged the cuts, changed Escobar into the green suicide gown, and placed him in the detox cell where there was a camera for monitoring. (Garza Dep. [#60-5] at 101:3-14; Escobar Dep. [#60-6] at 95:2-12, 96:19-97:13; Escobar Dep. [#60-6] at 97:17-98:3; Observation Log [#60-1] at 5.) Escobar was not taken to the hospital for a mental health evaluation or other treatment and was released soon thereafter from the jail. (Frio County Resp. to RFP [#62-7] at 4; Escobar Dep. [#60-6] at 99:1-9; Trevino Dep. [#60-2] at 73:3-5.)

         A few weeks later, on June 2, 2015, Escobar was again arrested and taken to the Frio County Jail for detention. (Trevino Dep. [#60-2] at 73:6-8; Escobar Dep. [#60-6] at 102:11-92.) Escobar claims he was again detoxing from heroin when he was admitted. (Escobar Dep. [#60-6] at 105:17-19.) A few days after Escobar was booked at the jail, on June 7, 2015, he attempted suicide or self-harm by swallowing shards of broken glass from a broken coffee container. (Escobar Dep. [#60-6] at 105:20-24; Observation Log [#60-1] at 23.) At this time, there was an inmate-by-inmate policy that allowed family members to bring commissary items to inmates, such as toiletries and snacks. (Trevino Dep. [#60-2] at 73:18-74:3; W. Wolfe Dep. [#60-3] at 81:4-19.) It was the responsibility of the jailers on staff to inspect the items before giving them to inmates. (Trevino Dep. [#60-2] at 74:12-24.) Although glass of any kind is not permitted in the jail, someone failed to notice the coffee container upon inspection. (Trevino Dep. [#60-2] at 76:18-20.) Escobar intentionally shattered the container and swallowed several quarter-size pieces of glass. (Trevino Dep. [#60-2] at 76:21-10; E. Wolfe Dep. [#60-4] at 126:17-127:2; Escobar Dep. [#60-6] at 107:9-17, 114:5-22.) Escobar testified that he was angry because the jail had not responded to his rape charge and had not taken his previous suicide attempt seriously. (Escobar Dep. [#60-6] at 119:22-120:21.)

         E. Wolfe called EMS, and Escobar was taken to the nearest emergency room at Frio Regional Hospital, where he was x-rayed and the glass shards were identified, and then transferred to Methodist Hospital for eight days of treatment. (E. Wolfe Dep. [#60-4] at 130:5- 15; Trevino Dep. [#60-2] at 77:9-78:3; Discharge Report [#62-10] at 1; Escobar Dep. [#60-6] at 123:14-124:9.) Escobar returned to the Frio County Jail upon his release from the hospital on June 15, 2015. (Escobar Dep. [#60-6] at 136:1-140:23; Observation Log [#60-1] at 30.) MHMR was never called to evaluate Escobar before, during, or upon his release from the hospital. (Trevino Dep. [#60-2] at 78:7-9.) The day after Escobar returned to the jail, he told jailers he was going to bite himself, was placed on suicide watch, and MHMR was called to visit with Escobar. (Observation Log [#60-1] at 30.)

         III. Legal Standard

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).

         IV. Analysis

         Defendants Frio County, Frio County Sheriff's Office, and Sheriff Lionel Trevino (the former Sheriff of Frio County) move for summary judgment [#60], arguing that (1) Escobar has failed to show a custom or policy of deliberate indifference that could subject Frio County to liability under 42 U.S.C. § 1983; (2) Defendant Frio County Sheriff's Department lacks jural existence as a matter of law to be subject to suit under Section 1983; (3) Defendant Trevino is entitled to qualified immunity as to Plaintiff's Section 1983 claims; and (4) Escobar's negligence claims against Sheriff Trevino fail as a matter of law under the Texas Tort Claims Act's election-of-remedies doctrine. Defendants W. Wolfe, E. Wolfe, Garza, and Arocha also move for summary judgment [#61], arguing they are also entitled to qualified immunity for the claims asserted against them in their individual capacities and Escobar's negligence claims fail as a matter of law under the election-of-remedies doctrine.

         Escobar filed a single response to the arguments raised in both of the motions [#62]. The response does not address the argument that Defendant Frio County Sheriff's Office lacks jural existence or that Escobar's negligence claims fail as a matter of law under the Texas Tort Claims Act's election-of-remedies doctrine, focusing instead on the municipal liability and qualified immunity arguments as to Escobar's Section 1983 claims. After considering the arguments raised, Escobar's response or lack of response thereto, and the summary judgment record before the Court, the undersigned concludes that (1) the Frio County Sheriff's Department is entitled to summary judgment because the Department has no legal capacity to be sued separately from Frio County; (2) the individual Defendants are entitled to summary judgment on Escobar's claims of negligence and gross negligence because these claims are barred by the Texas Tort Claims Act's election-of-remedies doctrine; (3) all of the individual Defendants are entitled to qualified immunity as to Escobar's Section 1983 claim based on a failure to protect him from sexual assault; (4) none of the individual Defendants are entitled to qualified immunity as to Escobar's Section 1983 claim based on a denial of adequate medical care in response to his report of a sexual assault; and (5) Frio County is not entitled to summary judgment on Escobar's Section 1983 municipal liability claim.

         A. Escobar's Section 1983 claims against Defendant Frio County Sheriff's Departmentfail as a matter of law because there is no ...

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