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Wade v. Montgomery County

United States District Court, S.D. Texas, Houston Division

September 30, 2019

Alyssa Wade, Plaintiff,
v.
MONTGOMERY COUNTY, TEXAS, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Christina A. Bryan United States Magistrate Judge

         This civil rights case is before the Court on the parties' cross-motions for summary judgment. Dkts. 50, 54.[1]Having considered the parties' submissions (Dkts. 50, 54, 59, 60, 62, 64, 66), the law, and argument of counsel at a hearing on the record on September 4, 2019, the Court recommends Defendant's motion be denied in part and granted in part, Plaintiffs motion be denied, and this case proceed to trial on Plaintiffs surviving claims.

         I. Background

         On April 8, 2015 Montgomery County police arrested Plaintiff for probation violations related to charges for possession of a controlled substance. Dkt. 54-2 at 18. At the time of her arrest, Plaintiff informed jail staff that she was under the care of a physician and was on numerous prescription medications for mental health conditions. Dkt. 54-2 at 15-16. At intake, jail staff classified Plaintiff as a medium risk for suicide. Dkt. 54-2 at 47. After intake, Plaintiff was placed in the general population for a very short period of time, and then moved to a "violent cell" for another very short period of time. Dkt. 66-1 at 2-8. A "violent cell" is a small cell with rubberized floors, walls, and door, "which lessens the likelihood of someone being able to injur[e] themselves by hitting, kicking, head biting [sic] the walls or the door." Dkt. 54-2 at 66. Also, a "violent cell" has a drain in the floor that functions as a toilet. Id. On April 10, 2019, Plaintiff was moved from the "violent cell" to a 24-hour observation cell in the female booking area. A "24-hour cell" is a single person cell designed to separate an inmate from other inmates. It is monitored both by a closed-circuit TV and face-to-face rounds by guards. Dkt. 54-2 at 64. The 24-hour cell in which Plaintiff was housed contained a shower, sink, toilet, and desk. Id. at 66; Dkt. 54-4 at 160. At the time of Plaintiff s suicide attempt, 24-hour cells, including the one in which she was housed, also contained regular bed sheets and bunks with fixed handles. Id. at 68, 82.

         On April 10, 2015, a contract clinician with Tri-County Mental Health Services, John Jay Conley, evaluated Plaintiff. Conley, who is not a doctor, recommended that Plaintiff be moved to the infirmary as soon as possible and that she remain in the 24-hour cell under suicide precautions until transferred to the infirmary. Dkt. 54-2 at 86. Conley's notes indicate that Plaintiff requested to stay in a 24-hour cell until she could start taking her medications. Dkt. 54-2 at 86. On April 12, 2015, Plaintiff refused meals and was banging on her cell and yelling for medications. Dkt. 54-2 at 88, 90. On April 13, 2015, Plaintiff attempted suicide in the 24-hour cell by wrapping a bed sheet around her neck and securing it to a handle on a bunk bed. Dkt. 54-2 at 88. During the suicide attempt, Plaintiff fell and hit her head. See Dkt. 50 at 13; P.Ex. A (video). Jail staff took Plaintiff, who was bleeding from her mouth, nose, and chin, to the infirmary. Dr. Ahmed, a physician employed by Correctional Healthcare Companies, Inc. (CHC) examined her and told staff to call 911 for transport to Conroe Regional Medical Center. Dkt. 54-2 at 244.

         As a result of her suicide attempt, Plaintiff suffered a broken jaw which required surgery. She was hospitalized following the incident for almost two weeks. Dkt. 54-3 at 16-17. Hospital records dated April 23, 2015 indicate "there will be a followup setup with Dr. Jason Bailey in 4 to 6 weeks." Dkt. 54-3 at 16-17. After return to the Montgomery County Jail on April 20, Dr. Ahmed wrote an order approving psychiatric and pain medications for Plaintiff. Dkt. 66-1 at 21-32, 26. On April 24, 2015, Conley evaluated Plaintiff and recommended she remain in the infirmary with monitoring until medically cleared, then placed in a 24-hour cell with monitoring. Dkt. 54-3 at 34. Plaintiff had a psychiatric consult on April 30, 2015 and psychiatric medications were continued. Dkt. 66-1 at 40-41. Jail records reflect that jail staff called Dr. Bailey on May 26, 2015 to inquire about an appointment for Plaintiff, who was due to have the wires removed from her mouth the week of June 8, 2015, but no appointment was set at that time. Dkt. 54-3 at 36. Plaintiff stayed in the jail's medical unit until June 5, 2015 when she was placed in the general population with no medical restrictions. Dkt. 66-1 at 47.

         During July 2015, Plaintiff repeatedly filed grievances and complained about complications from the wires in her mouth, the delay in having the wires removed, and her need for medications. See Dkt. 54-3 at 45-55. The Hospital District Health Care Program notified Plaintiff on May 20, 2015 that she was ineligible for medical services because "No Medical Need - Not a Covered Service." Dkt. 66-1 at 45. It is unclear whether the notice refers to her need to have the wires removed from her jaw or some other medical service. Plaintiff finally was admitted to Conroe Regional Hospital for surgery to remove the wires from her mouth on August 5, 2015, the day prior to her release from jail. Dkt. 54-3 at 98; Dkt. 66-1 at 67.

         Plaintiff filed this lawsuit against Defendant Montgomery County on April 5, 2017. Plaintiffs Second Amended Complaint asserts causes of action against the County under 42 U.S.C. § 1983 for violation of her rights to receive adequate medical care and to be protected from suicidal actions, and for violation of her rights under the Americans with Disabilities Act and § 504 of the Rehabilitation Act. The most succinct statement of the factual bases for Plaintiffs claims is contained in her Summary Judgment Response:

Ms. Wade was denied her mental health medications, placed in a solitary cell without a toilet for two days, and then moved to another solitary cell with a bedsheet and tie-down point. After she attempted suicide, Ms. Wade continued to be denied her medications as prescribed, was placed back in solitary confinement, and denied her medically necessary follow-up treatment.

Dkt. 60-2 at 22-23. Defendant moves for summary judgment on all of Plaintiff s claims.

         II. Summary Judgment Standards

         Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. FED. R. ClV. P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5thCir. 2001). Dispute about a material fact is "genuine" if the evidence could lead a reasonable jury to find for the nonmoving party. Hyatt v. Thomas, 843 F.3d 172, 177 (5thCir. 2016). "An issue is material if its resolution could affect the outcome of the action." Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5thCir. 2002). The non-moving party who bears the burden of proof at trial must do more than point to a metaphysical doubt about the material facts to overcome a motion for summary judgment. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The Court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. R.L. Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013).

         III. Section 1983 Analysis

         A. Legal Standards

         The following four subsections set forth the legal standards governing § 1983 claims by jail inmates asserting municipal liability for constitutional deprivations. Additional legal standards are discussed later in connection with Plaintiffs specific claims.

         1. Municipal Liability

         Montgomery County is the only defendant in this case. In order to establish Monell liability against a municipal entity under 42 U.S.C. § 1983, a plaintiff must show the entity had a policy or custom that was the "moving force" behind the violation of her constitutional rights. Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 691 (1978). This means that to succeed on her claim against Montgomery County, Plaintiff must (a) identify a policymaker, (b) identify an official policy or custom, and (c) demonstrate that the official policy or custom was a moving force behind the violation of her constitutional rights. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). "The three attribution principles identified here-a policymaker, an official policy and the "moving force" of the policy-are necessary to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself." Id. In this case, Sheriff Gage is a policy maker for Montgomery County and the Inmate Handbook represents official policy of the Montgomery County jail.[2] Therefore, the ultimate summary judgment in this case is whether Plaintiff has met her burden to present sufficient evidence that an official policy of the Montgomery County jail was the moving force behind a violation of her constitutional rights.

         2. Pre-trial v. Post-Conviction § 1983 Legal Standards

         The determination of whether Plaintiff's constitutional rights were violated requires a separate analysis of events before and after her conviction. Plaintiff was arrested on April 8, 2015 and held as a pretrial detainee. Dkt. 54-2 at 4, 18. On May 22, 2015 she pled guilty to a misdemeanor drug charge, was sentenced to 90 days in jail, and was released on August 6, 2015. Dkt. 50 at 38-39; Dkt. 66-1 at 71. Plaintiff complains of conditions and events that occurred at the Montgomery County Jail while she was a pretrial detainee, as well as later while she was a convicted prisoner. Whether an individual is detained prior to trial, or is confined to serve a sentence, the state is obligated to provide for basic human needs during the inmate's period of detention or confinement. Hare, 74 F.3d at 644. However, the rights of pretrial detainees are measured by the due process requirements of the Fourteenth Amendment, while the rights of sentenced inmates are measured by the standards of the Eighth Amendment. Ybarra-Fuentes v. City of Rosenberg, Civil Action No. H-18-1824, 2018 WL 6019177 at * 2 (S.D. Tex. Nov. 16, 2018) (citing Jacobs v. W. Feliciana Sheriffs Dep't, 228 F.3d 388, 393 (5th Cir. 2000). Thus, though the standards overlap in the sense that both the Fourteenth and Eighth Amendments protect an inmate's rights to medical care and protection, Plaintiff's claims as a pretrial detainee should be analyzed separately from her claims arising from her treatment as a sentenced inmate. See Baughman v. Hickman, No. 17-20679, 2019 WL 3820065, at *2 (5th Cir. Aug. 15, 2019) (Noting that while "[t]he proper analysis of each category of claims is the same, [because] 'Fourteenth Amendment case law concerning pretrial detainees [is based on] the Supreme Court's Eight Amendment precedent concerning prisoners[, ]" the court would analyze pretrial detainee's claims according to case law involving pretrial detainees.) (internal citations omitted).

         3. Pretrial Detainee § 1983 Legal Standards: Episodic Acts or Omissions v. Conditions of Confinement

         Whether Plaintiffs claims challenge "conditions of confinement" or "episodic acts or omissions" by a municipal or prison official affects the legal standards applicable to her claims as a pretrial detainee. Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996); Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) ("We begin by deciding whether to classify the "challenge as an attack on a 'condition of confinement' or as an 'episodic act or omission.')). The Fifth Circuit has made clear that a plaintiff challenging a municipality's failure to prevent a suicide attempt may assert either a "conditions of confinement" or an "episodic act or omission" claim, or both. Garza v. City of Donna, 922 F.3d 626, 633 n.3 (5th Cir. 2019) ("The district court did go a step beyond our precedent by asserting that our court 'uniformly' holds that jail-suicide cases are to be decided on an episodic-act basis. In a recent case, we allowed that a jail suicide might give rise to a conditions theory." Citing Sanchez v. Young Cty., Tex., 866 F.3d 274, 279 (5th Cir. 2017) ("plaintiffs can bring a pretrial detainee case, whether or not it ultimately involves suicide, under alternative theories of episodic acts and omissions by individual defendants or unconstitutional conditions of confinement.")); Estate of Henson v. Wichita Cty. Tex., 795 F.3d 456, 464 (5th Cir. 2015) (there is no rule barring a plaintiff from pleading both conditions of confinement and episodic acts and omissions theories of his case and the court my properly evaluate both separately); Gann, 2016 WL 10807190 at *7-8 (recognizing both episodic acts and omissions and conditions of confinement theories in a jail suicide case).

         The distinction between an "episodic act or omission" claim and a "condition of confinement," or jail conditions, claim is significant because "no mens rea is required to establish a [jail-conditions] claim." Ybarra-Fuentes, 2018 WL 6019177 at * 3; Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009) (a plaintiff who has properly stated a conditions of confinement claim "is relieved from the burden of demonstrating a municipal entity's or individual jail official's actual intent...."). The Supreme Court set the standard for evaluating whether a condition of confinement violates the Constitution in Bell v. Wolfish, \\\ U.S. 520, 543 (1979). Under Bell, a prison condition violates the Constitution only if it "is not reasonably related to a legitimate, non-punitive government objective." Id.; Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (citing Bell, 441 U.S. at 539 and Hare, 74 F. 3 d at 640). In other words, if a Plaintiff can show that she was subj ected to a condition of confinement that does not have a reasonable relationship to a non-punitive purpose, then she need not separately prove that the County maintained that condition with deliberate indifference. See Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997) (In condition of confinement cases, the municipality's promulgation and maintenance of the challenged conditions establishes the intent to cause the alleged constitutional violation).

         In contrast, the Bell test has no place in the analysis of a claim based on the episodic act or omission of a state jail official. Hare, 74 F.3d at 647-48. To succeed in a case alleging an episodic act or omission, an inmate must establish that a jail official acted with subjective, deliberate indifference to Plaintiffs constitutional rights. Id; Scott, 114 F.3d at 54. "A prison official acts with subjective deliberate indifference if (1) he knows that an inmate faces a substantial risk of serious bodily harm; and (2) he disregards that risk by failing to take reasonable measures to abate it." Gobert v. Caldwell, 463 F.3d 339, 346 (5thCir. 2006). Subjective deliberate indifference is an onerous standard and requires more than negligence or even gross negligence by prison officials. Farmer v. Brennan, 511 U.S. 825, 837 (1994). And, even if a plaintiff shows an individual acted with subjective deliberate indifference, in order to impose liability on a municipality for episodic acts and omissions, Plaintiff must also show the acts or omissions "resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the [plaintiff]'s constitutional rights." Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).

         4. Post-Conviction § 1983 Legal Standards: Deliberate Indifference

         The episodic acts or omissions v. conditions of confinement framework and the Bell test do not apply to claims asserting post-conviction violations of the Eighth Amendment, which prohibits officials' deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (Deliberate indifference to the medical needs of prisoners, either by prison doctors or jail staff, is proscribed by the Eighth Amendment.). Because Plaintiff seeks to impose municipal liability on the County for her post-conviction lack of medical care, she must show both that jail staff acted with subjective deliberate indifference, and that her injury resulted from a County policy maintained with objective deliberate indifference. Baughman v. Hickman, No. 17-20679, 2019 WL 3820065, at *3 (5th Cir. Aug. 15, 2019) ("County as opposed to individual liability has the additional requirement that the 'violation resulted from a [county] policy or custom adopted and maintained with objective deliberate indifference.'" (citation omitted)); Lawson v. Dallas Cty., 286 F.3d 257, 263-64 (5th Cir. 2002); Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).

         B. Plaintiffs 42 U.S.C. § 1983 Pre-trial Detainee Claims 1. Plaintiff Is Not Asserting § 1983 Claims Based on Episodic Acts or Omissions

         Defendant argues that Plaintiff has asserted only episodic act or omission claims, which as discussed above require a showing of subjective deliberate indifference by an individual actor that rises above mere medical negligence.[3] Dkt. 50 at 20-22. Because Plaintiff has not made a showing of subjective deliberate indifference, Defendant argues that it is entitled to summary judgment on Plaintiff's § 1983 claims in their entirety. However, because Plaintiff asserts conditions of confinement claims, the failure to present evidence of subjective deliberate indifference is not fatal to her claims.

         Plaintiffs Second Amended Complaint expressly asserts only claims based on Plaintiffs conditions of confinement. Dkt. 26 at 10 ("Montgomery County violated Plaintiffs constitutional right to receive adequate medical care as a condition-of-confinement"); Id. at 13 ("Montgomery County violated Plaintiffs constitutional right to be protected from suicidal action as a condition-of-confinement"). She reiterated her intent to prosecute this action only as a § 1983 "conditions of confinement" case in her Motion for Summary Judgment (Dkt. 51-2), her Response to Defendant's Motion for Summary Judgment (Dkt. 60-2), and at the September 4, 2019 hearing. See Hr. at 10:31:10-10:31:33 (arguing that it was Montgomery County's written policy that directly caused Plaintiffs injury).

         Plaintiffs operative Complaint and briefing do include factual allegations of discrete acts or omissions by jail officials. For example, Plaintiff alleges that Montgomery County jail staff ignored her pleas for medication; refused to administer her prescribed medication; refused to allow her to eat; and refused her pain killers after jaw surgery. Dkt. 26 at 5-7. In her Summary Judgment Response Plaintiff states that individual officers did not observe her on the day of her suicide attempt with the frequency required by official jail policy. See Dkt. 54 at 13-14. She further alleges that Deputy Thierry ignored her pleas for help on the day of her suicide attempt. Id. at 14. However, despite these accusations, Plaintiff does not claim that any individual was deliberately indifferent to her needs. Instead, "Ms. Wade maintains that, while individual officers and medical personnel carried out Montgomery County's policies, it was the policies, practices, customs, and procedures that were the moving force behind her injury." Dkt. 60-2 at n.43. Plaintiff has not pled or supported with evidence any theory of this case based on the episodic act or omission of an individual. As Defendant accurately points out in its motion, "Wade does not identify any employee or agent of Montgomery County who acted with deliberate ...


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