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County of El Paso v. Dorado

Court of Appeals of Texas, Eighth District, El Paso

December 1, 2005


          Appeal from the 120th District Court of El Paso County, Texas (TC# 97-2506)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.


          Richard Barajas, Chief Justice.

         On the Court's own motion, we withdraw our opinion and judgment dated September 15, 2005 and substitute the following.

         This is an appeal from a jury verdict rendering judgment against the County of El Paso under 42 U.S.C. § 1983 arising from the death of Eduardo Miranda while he was incarcerated in the El Paso County jail. Appellant filed a motion for new trial which was overruled by operation of law. For the reasons stated, we reverse the judgment of the trial court and render judgment in favor of Appellant.


         On July 25, 1997, Jessie Dorado ("Dorado"), in her individual capacity, as Mother and Next Friend of Brianna Alexis Miranda, and on behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte ("Dr. Miranda"), deceased, sued the County of El Paso ("El Paso County"). Dorado alleged that the decedent died after he was denied access to his seizure medication following his arrest and subsequent detention in the El Paso County Detention Facility. Appellees sued for damages pursuant to the Texas Wrongful Death Act and the Survival Statute and for constitutional deprivations under 42 U.S.C. § 1983. Appellant filed a Plea to the Jurisdiction based upon the lack of applicability of the Wrongful Death Act to Counties. The trial court denied the plea and the County appealed. This Court reversed the judgment of the trial court and rendered judgment in favor of the County regarding the question of applicability of the wrongful death statute to counties. [1]

         Subsequently, Appellant filed a motion for summary judgment which was granted in part and denied in part. Appellant filed a second interlocutory appeal raising a question regarding qualified immunity of the nurses, which was denied. [2] In May of 2003, trial was had to a jury on allegations of the violation of the constitutional rights of Eduardo Miranda under 42 U.S.C. § 1983 and the Texas Tort Claims Act. The jury rendered a verdict against Appellees under the Texas Tort Claims Act, but in favor of Appellees for violation of Dr. Miranda's constitutional rights. The trial court entered judgment on June 16, 2003 in the amount of almost $5 million dollars in damages and attorney's fees. Appellant filed a motion for new trial which was overruled by operation of law. This appeal follows.

         Dr. Miranda was arrested for outstanding traffic warrants on the evening of February 27, 1997. He was booked into the El Paso County Detention Center in the early hours of February 28, 1997. At the time of his booking, Dr. Miranda informed jail personnel he had a history of convulsions. He did not inform them, however, that he was under medication for the condition. In addition, Dr. Miranda made other false statements to the intake person during the booking process. Dr. Miranda indicated that he was unemployed and provided an incorrect address.

         On March 1, 1997, Dr. Miranda told Nurse Juan Carlos Dominguez that he was under physician's orders to take two milligrams of Ativan each night to control his seizures. This information was also untruthful. Dr. Miranda was actually self prescribing a much higher dose of the medication. Nurse Dominguez in reliance on the information provided by Dr. Miranda, confirmed the prescription and contacted Dr. Harold Block, the jail physician, for further instructions. Dr. Harold Block gave orders to give Dr. Miranda his prescribed medications, which was done. The next night, March 2, 1997, Nurse Raul Tellez was responsible for administering Dr. Miranda's prescription. Nurse Tellez summoned Dr. Miranda around 8 p.m., but Dr. Miranda did not respond. As a result, he did not receive his prescribed medication. Around 11:30 p.m., Dr. Miranda suffered a seizure and Nurses Junette Davis and Vivian Perez responded to the medical assistance call. Nurse Davis stayed with Dr. Miranda while Nurse Perez returned to the clinic to call Dr. Block for direction. Dr. Block instructed Nurse Perez to administer a four milligram injection of Ativan and a five milligram injection of Haldol. Dr. Miranda was moved from his cell to the jail clinic for treatment. At the clinic, the medical staff realized Dr. Miranda was no longer breathing. He was transported to the hospital by EMS. He died less than an hour after his seizure.

         The record contains different accounts of what occurred during the hour prior to Dr. Miranda's death. The County contends Dr. Miranda suffered a seizure, but had recovered before medical staff arrived to assist him. He then became violent and had to be restrained. He was then carried on a stretcher to the jail clinic, handcuffed and shackled, and given an injection of Ativan. After the injection was given, the staff noticed Dr. Miranda was no longer breathing and had turned blue. The medical staff tried to revive him and called an ambulance. All efforts to resuscitate him were unsuccessful.

         The Dorado family contends that Dr. Miranda was experiencing seizures before and during the time he was restrained. Their evidence suggests that he was not violent, but rather convulsing uncontrollably at the time he was forcibly restrained. There is also evidence indicating that the restraints used, the position his body was placed in, and the time delays in treatment could have caused Dr. Miranda to stop breathing.

         Dr. Miranda's widow, Jessie Dorado, brought suit alleging wrongful death under the Texas Tort Claims Act and asserting claims under 42 U.S.C. § 1983. This case was tried to a jury on the 2nd of May, 2003 and a verdict was rendered in favor of the County on the claims filed under the Texas Tort Claims Act but in favor of Dorado under 42 U.S.C. § 1983. The trial court entered a judgment against the County for almost $5 million in damages and attorney's fees.


         Appellant files six issues on appeal. Issues One and Five complain of sufficiency of the evidence regarding the jury's verdict under 42 U.S.C § 1983 and the court's findings of facts and conclusions of law regarding the award of attorney's fees. Issue Two complains of the trial court's ruling allowing the testimony of Dr. Glenn Johnson, a physician as an expert witness. Issue Three complains of the jury instructions submitted by the court. Issue Four asserts that the trial court committed error by entering a judgment against the County under 42 U.S.C. § 1983 on the grounds that the Appellees are not entitled to recover damages against the County and that the only proper plaintiff is the Estate of Eduardo Miranda. Issue Six is a challenge to the interest rates assessed by the trial court.


         In reviewing a "no evidence" challenge, the appellate court considers only the evidence and reasonable inferences therefrom that tend to support the jury findings, disregarding all contrary evidence and inferences. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 667 (Tex. 1996). If there is any evidence of probative force to support the jury's findings, however, a motion for j.n.o.v. must be denied. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986).

         A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate "no evidence" claims. When the party having the burden of proof suffers an unfavorable finding, [3] the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex. App.__El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex. App.__Fort Worth 1987, writ ref'd n.r.e.).

         When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex. App.__El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex. App.__El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832. We review Appellant's issue to resolve the question of liability under 42 U.S.C. § 1983 as a matter of law.

         IV. 42 U.S.C § 1983

         Deliberate Indifference and Custom, Policy or Practice

         Title 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983.

         A cause of action under this section involves two essential elements: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 331-32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Unlike a claim asserted pursuant to state law, consent to suit is not required. See Gomez v. Housing Authority of the City of El Paso, 148 S.W.3d 471, 477-78 (Tex. App.__El Paso 2004, pet. denied).

         As a pretrial detainee, Dr. Miranda's constitutional rights flowed from the due process guarantees of the Fourteenth Amendment rather than from the Eighth Amendment's prohibition against cruel and unusual punishment. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc). 42 U.S.C. § 1983 authorizes suits against state and local government officials who violate a person's constitutional rights. In Estelle v. Gamble, the Supreme Court held that the Eighth Amendment's proscription of cruel and unusual punishments forbids jail officials to be deliberately indifferent to inmates' serious medical needs because such indifference is itself cruel and unusual punishment. 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Pretrial detainees also have a right to be free from jail officials' deliberate indifference to their serious medical needs. Hare, 74 F.3d at 643. This right springs from both procedural and substantive due process and is at least as great as that mandated by the Eighth Amendment. Id.; see also Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). To establish a violation of this right, an inmate must show that he or she was subjected to a substantial risk of serious harm. The inmate must also prove that the jail official was subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and then actually drew such an inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). Finally, the inmate must establish that the jail official's response to the perceived risk of harm shows that official's deliberate indifference. Farmer, 511 U.S. at 844-45. Alejo v. Dallas County, No. Civ.A. 303CV1612N, 2005 WL 701041, at *1 (N.D.Tex. March 24, 2005).

         When such a detainee complains of unconstitutional medical treatment, there is no significant legal distinction between pretrial detainees and convicted prisoners. Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). When a pretrial detainee's claim is based on a jail official's episodic act or omission, "the proper inquiry is whether the official had a culpable state of mind in acting or failing to act." Hare, 74 F.3d at 643. To establish liability, a pretrial detainee must "show that a state official acted with deliberate indifference to a substantial risk of serious medical harm and that injuries resulted." Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).

         In an episodic-act-or-omission case against a municipality, "an actor is usually interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom or rule (or lack thereof) of the municipality that permitted or caused the act or omission." Flores v. County of Hardeman, Texas, 124 F.3d 736, 738 (5th Cir. 1997). To succeed in holding a municipality liable under these standards, the plaintiff must establish not only that a municipal employee acted with subjective deliberate indifference but also that the employee's act resulted from a policy or custom adopted or maintained by the municipality with objective deliberate indifference to the plaintiff's constitutional rights. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).

         Municipalities and other local government units are "persons" within the meaning of section 1983 and may be liable for a constitutional tort suffered as the result of an official policy, custom or pattern. See Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. A municipality may be held liable for a single act or decision of a municipal official with final policy-making authority. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion); Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). But it cannot be held liable solely because it employs a tortfeasor__or, in other words, a municipality cannot be held liable under section 1983 on a respondeat superior theory. Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036; Gomez, 148 S.W.3d at 478.

         Official Custom, Policy or Practice

         When analyzing a section 1983 claim against a municipality or governmental entity, the court must decide if the governmental entity promulgated "an official policy, practice, or custom," which could subject it to section 1983 liability. Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37. The Fifth Circuit has defined an "official policy" for the purposes of section 1983 liability to be either: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or (2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).

         The facts of this case do not present an "official policy" under these definitions. There is no constitutional requirement that municipalities provide jailers and law enforcement personnel with sophisticated medical training so that they will detect hidden medical problems. The Fifth Circuit has applied this principle to the detection of suicidal tendencies in pretrial detainees:

It is one thing to require a municipality to train its police officers to recognize and not ignore obvious medical needs of detainees with known, demonstrable and serious mental disorders. It is quite another to require as a constitutional minimum that a municipality train its officers to medically screen each pretrial detainee so that officers will unerringly detect suicidal tendencies. The latter requires the skills of an experienced medical professional with psychiatric training, an ability beyond that required of the average police officer by the due process clause. Burns v. City of Galveston, Texas, 905 F.2d 100, 104 (5th Cir. 1990), disagreed with on other grounds, Hare, 74 F.3d at 633.

         We believe that the same rational applies to the pretrial detainee who is not forthcoming about his or her need for, or dependance upon, medication. The individual bears the responsibility for informing the jail personnel about his or her medical condition in a truthful manner. The County of El Paso, therefore, was not required to train its jailers how to recognize the ambiguous signs of drug dependency or drug overdose. While a more extensive medical examination might have revealed Dr. Miranda's drug dependency, the County and its jailers were not constitutionally required to provide such a high standard of care. Moreover, it cannot be inferred that any additional training of or screening by the jail staff would have prevented Dr. Miranda's seizure from his self-induced abuse of medication. At the time of his arrest, Dr. Miranda failed to identify the nature of his medical condition in a truthful manner. The jail personnel responded to the information provided to them by Dr. Miranda. It is unreasonable to require that the jail ...

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