Court of Appeals of Texas, Eighth District, El Paso
from the 120th District Court of El Paso County, Texas (TC#
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
Richard Barajas, Chief Justice.
Court's own motion, we withdraw our opinion and judgment
dated September 15, 2005 and substitute the following.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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. 
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.  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
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
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.
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
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
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.
ISSUES ON APPEAL
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.
STANDARD OF REVIEW
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).
"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,
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.).
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
U.S.C § 1983
Indifference and Custom, Policy or Practice
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.
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).
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).
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).
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).
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.
Custom, Policy or Practice
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).
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.
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 ...