United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
Christina A. Bryan United States Magistrate Judge
civil rights case is before the Court on the parties'
cross-motions for summary judgment. Dkts. 50,
54.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
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.
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.
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.
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.
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
Dkt. 60-2 at 22-23. Defendant moves for summary judgment on
all of Plaintiff s claims.
Summary Judgment Standards
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).
Section 1983 Analysis
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.
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. 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.
Pre-trial v. Post-Conviction § 1983 Legal
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).
Pretrial Detainee § 1983 Legal Standards: Episodic Acts
or Omissions v. Conditions of Confinement
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).
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
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).
Post-Conviction § 1983 Legal Standards: Deliberate
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.
Plaintiffs 42 U.S.C. § 1983 Pre-trial Detainee
Claims 1. Plaintiff Is Not Asserting §
1983 Claims Based on Episodic Acts or Omissions
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. 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.
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).
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 ...