Opinion
Civil No. 3:99-CV-1386-H.
May 11, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion for Summary Judgment, filed November 12, 1999, and all responses and replies thereto; and Defendants' Motion to Strike Plaintiff's Appendix in Response to Defendants' Motion for Summary Judgment, filed December 9, 1999, and Plaintiffs response thereto; and Plaintiff's Motion to Extend Discovery, filed May 5, 2000,
I. BACKGROUND
On June 17, 1997, Plaintiff Ernest Buffin was arrested by Rockwall County Police on a warrant, and was booked into Rockwall County Jail. Two days later, on June 19, 1997, Buffin was transferred to Dallas County Jail pending charges of probation violation.
Plaintiff suffers from epilepsy, and may have seizures if untreated. Plaintiff treats his disease with two drugs: Phenobarbital (one dose in the morning, two doses in the evening) and Dilantin (two doses per day). Mrs. Elizabeth Buffin, Plaintiff's wife, visited the Rockwall County Jail with her minister and delivered Plaintiff's medication to his custodians.
Defendants contend that after Plaintiff was booked into Dallas County jail, he was interviewed by an intake nurse, who noted his epilepsy. The next day, Defendants contend, Buffin was examined by a physician, who prescribed phenobarbital and dilantin for his condition, which he received. Mrs. Buffin states that she received several calls from Plaintiff in which he stated he was not given this medication.
On June 24, 1997, four days after being admitted to Dallas County Jail, detention officers were called to Buffin's cell, were he was found on the floor, apparently after falling from his bunk. He was examined by a jail nurse, and transferred by ambulance to Parkland Hospital. While he was being treated at Parkland, Dallas County Jail released him from their custody. Buffin suffered from indentations in his head and swelling in his brain. Part of Plaintiff's brain was removed, and he is now only minimally aware of his surroundings.
Plaintiff has sued Sheriff Jim Bowles, Unknown Employees of Dallas County Sheriff's Department, and Dallas County for failure to provide adequate medical care. Defendants now move for summary judgment in their favor.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could possibly find for the nonmoving party as to any material fact. FED.R.Civ.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill. , 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED.R.CIV.P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. DEFENDANTS' MOTION TO STRIKE
Plaintiff submits six exhibits as summary judgment evidence. The first is an affidavit of Elizabeth Buffin, the wife of the plaintiff; the remaining five exhibits are newspaper articles regarding the lack of medical treatment in Dallas County Jail. Defendant objects to each of the exhibits on the basis of lack of personal knowledge, hearsay, irrelevance, and speculation. Evidence must be admissible to be considered at summary judgment stage. See Fed.R.Civ.P. 56(e); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 191 (5th Cir. 1991).
The Court sustains the Defendants objections as to the newspaper articles (Pl. App. 06-15). As for Mrs. Buffin's affidavit, (Pl. App. at 01-05), the Court overrules Defendants' objections.
Mrs. Buffin states facts relating to the incarceration of her husband, her activities in bringing medication to her husband, her conversations with her husband while he was incarcerated, and her interactions with the hospital once he was released there. Each of these statements is relevant to the claim of failure to provide medical care, is not speculative, and is based on Mrs. Buffin's personal perception of the events.
It is true that Mrs. Buffin relates her conversations with her husband while he was incarcerated in a Dallas County Jail, which is hearsay. In those conversations, Mr. Buffin states that he was not receiving his medication, which is a statement of physical condition or present sense impression. See Fed.R.Evid. 803(1), (3). Moreover, due to the incapacity of Mr. Buffin, the affidavit of his wife is essential and has an guarantee of trustworthiness equivalent to the statement of Mr. Buffin himself
IV. MOTION FOR SUMMARY JUDGMENT
A. Deliberate indifference
Plaintiff sues under the Due Process clause of the Fourteenth Amendment for Defendants failure to provide medical care for his epilepsy while Plaintiff was in pretrial detention in Dallas County Jail. Both parties appear to agree, as does the Court, that this case is governed by the "deliberate indifference" standard for episodic acts and omissions, rather the "reasonable relation" standard for challenges to prison conditions. See Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir, 1996).
Under Fifth Circuit law, a jail official's constitutional liability for failure to provide medical care to a pretrial detainee is measured by a standard of subjective deliberate indifference. See Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996). The public official owes the same duty under the Due Process Clause and the Eighth Amendment to provide pretrial detainees with medical care. See id. at 650. For liability to attach to a jail official, Plaintiff must prove that the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee, but responded with deliberate indifference. See id. at 650. The correct legal standard is not whether jail officers "knew or should have known," but whether they had gained actual knowledge of the substantial risk of harm. See id. Subjective knowledge may be inferred from circumstantial evidence. See Farmer v. Brennan, 511 U.S. 825, 842 (1994).
1. Sheriff Bowles
Upon review of the evidentiary submissions, it is clear that Plaintiff fails to provide any evidence, circumstantial or direct, that Defendant Sheriff Bowles had actual knowledge of the risk to Plaintiff of epileptic seizure. Moreover, there is no evidence that Sheriff Bowles himself was deliberately indifferent to a known risk. Bowles affidavit states that he did not personally participate in the events that gave rise to Plaintiffs' injuries. (Def. App. at 64.) Plaintiff proffers no contesting evidence that shows that Bowles had any subjective knowledge of Buffin's epilepsy.
Moreover, Bowles cannot be liable for actions of his subordinates based on a theory of vicarious liability or respondeat superior. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Therefore, Plaintiff fails to demonstrate an issue of fact regarding the personal culpability of Bowles for Plaintiff's injuries, and Bowles is GRANTED judgment as a matter of law.
2. Unknown Employees of Dallas County
However, the evidence submitted by both parties raises a question of fact regarding whether unnamed employees at Dallas County Jail were deliberately indifferent to Plaintiff's known medical needs. Defendants' evidence does not conclusively show that Plaintiff received his medicine; in fact, the discrepancies in Defendant's evidence suggest the opposite.
Plaintiff needed to receive two doses of Dilantin and three doses of Phenobarbital a day. It appears that Plaintiff received Phenobarbital, as Defendant submits a form that identifies the date and time of each dosage. (Def App. at 62). However, a similar form for Dilantin is not submitted, and an obvious inference is that Plaintiff did not receive Dilantin. Moreover, the form shows that Phenobarbital may have been inconsistently given over the five days Plaintiff was incarcerated: some days he received three pills, some days only two. (Def. App. at 62). Further, according to this form, Plaintiff received only one phenobarbital pill the evening of June 23 (rather than two), and no pill on June 24. Plaintiff was injured the afternoon of June 24.
Defendants also submit Plaintiff's medical chart as summary judgment evidence. This chart also raises questions as to whether Plaintiff received his medication. The chart states phenobarbital ordered . . . will send when received" and "need RX for dilantin" on June 22. (Def. App. at 59). Again, a reasonable inference is that the infirmary did not have these drugs, which corroborates Plaintiff's statements to his wife that he had not received his medication. Finally, although the affidavit of Steven Bowers conclusorily states that "Plaintiff received his medicine twice a day," (Def. App. at 57), he has no personal knowledge of that fact, as he does not state that he directly treated Plaintiff. Indeed, it appears that Plaintiff's treating physician at the Jail was a Dr. Sparks. (Def. App. at 62).
Defendant's evidence as a whole is insufficient to establish that Plaintiff received reasonable medical care while in the custody of Dallas County. Combined with Mrs. Buffin's affidavit that Plaintiff repeatedly told her he had not received his medicine, (Pl. App. at 1-5), there is a genuine issue of material fact regarding whether Plaintiff was denied medical care.
Defendants' evidence also shows that Dallas County employees were subjectively aware of Plaintiff's epileptic condition. Plaintiff's wife testified that she heard Plaintiff tell one of his custodians that he needed his medication. (Pl. App. at 03). The medical personnel that saw Plaintiff were also clearly aware that Plaintiff had epilepsy and that he needed his medications. (Def. App. at 59). Therefore, there is an issue of fact established about whether unnamed Dallas County employees were subjectively aware and deliberately indifferent to Plaintiff's medical condition.
In his Rule 7 reply, Plaintiff submitted evidence, albeit unauthenticated, that that he had been incarcerated in Dallas County Jail before this incident, and that each time the jail officials had noted he was epileptic.
Therefore, to the extent Defendants seek summary judgment as to individual defendants other that Sheriff Bowles, the motion for summary judgment is DENIED.
Defendants did not move for summary judgment on the basis that the unknown employees of Dallas County were not deliberately indifferent or were protected by qualified immunity.
B. Policy or custom
In addition to the unnamed individual officers and Sherriff Bowles, Plaintiff sues Dallas County. Plaintiff alleges that the jail officials' failure to provide Plaintiff medical care is a result of certain jail policies regarding admission of infirm inmates and administration of medicine to the inmates.
In order to hold Dallas County liable for the constitutional violation, Plaintiff must demonstrate (1) a constitutional violation based on deliberate indifference by a county employee, and also (2) that the employee's act resulted from a policy or custom adopted or maintained with objective deliberate indifference to Plaintiffs constitutional rights. See Hare v. City of Corinth, 74 F.3d 633, 639 n. 14 (5th Cir. 1996). A plaintiff must identily the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985).
As discussed above, Plaintiff has demonstrated a genuine issue of material fact regarding whether unnamed jail officials were subjectively indifferent to Plaintiff's known epileptic condition. Plaintiff has failed, however, to show that a policy or custom of the jail, adopted with objective indifference, caused the officials to violate Plaintiff's rights. Plaintiff points to the County Jail policy of requiring jail doctor's approval of medicine brought by an inmate as a possible cause of his injury. He alleges that delay in testing his medicine caused the jail officials to improperly deny him his medicine. However, Plaintiff has provided no evidence of an informal custom of delay.
Plaintiff's inability to contest Dallas County's evidence that there is no unconstitutional policy regarding medical care is no doubt because of the protective order that limits discovery. See Order of November 15, 1999 (J. Boyle). The Court notes that Dallas County moved for protective order based on qualified immunity, then filed a fact-intensive summary judgment motion based only partially on the qualified immunity of Sheriff Bowles. See Estate of Sorrells v. City of Dallas, 2000 WL 235705 (N.D.Tex. Feb. 25, 2000)( I. Kaplan) (noting "troubling trend in civil rights cases" where defendants seek a stay of discovery then file a fact-intensive summary judgment motion). Dallas County is not entitled to protection from discovery based on qualified immunity, Owens v. City of Independence, Missouri, 445 U.S. 622, 638 (1980), and thus Plaintiffs should be entitled to continue discovery against the County to properly contest its summary judgment motion.
Therefore, the Court declines at this time to rule on Dallas County's motion for summary judgment on the basis of no unconstitutional policy or procedure. See Fed.R.Civ.P. 56(f). As Plaintiffs cannot present facts sufficient to overcome the County's motion, the Court orders a continuance to allow Plaintiffs to attempt to rebut the facts presented in Dallas County's motion for summary judgment.
C. Injunctive Relief
Plaintiff asks for "appropriate injunctive relief for [sic] the conduct of Defendants herein" in paragraph 18 of his Complaint. Defendants move that, as Plaintiff is no longer incarcerated in any Dallas County jail, his prayer for injunctive relief is moot. See, e.g., Cooper v. Sheriff Lubbock County, Texas, 929 F.2d 1078, 1084 (5th Cir. 1991) (transfer from jail renders claims for injunctive relief moot). Plaintiff offers no argument in response. Therefore, the Court holds that Plaintiff's claim for injunctive relief is DISMISSED AS MOOT.
V. PLAINTIFFS MOTION TO EXTEND DISCOVERY, FILED MAY 5, 2000
The Court extends the deadline for completion of discovery until August 7, 2000 . In addition, the Court allows the deposition of the medical personnel that treated Plaintiff while he was at Dallas County Jail, and the depositions of the medical experts designated by Dallas County. Plaintiff must file a responsive pleading that sets forth evidence that creates a question of fact regarding an unconstitutional policy no later than August 7. 2000. The August trial date is VACATED. The Court will issue a new scheduling order.
VI. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Plaintiff's claims for injunctive relief and claims against Sheriff Jim Bowles for deliberate indifference are DISMISSED. The claims against the unknown employees of Dallas County may proceed. The Court declines at this time to rule on Dallas County's motion for summary judgment, to allow Plaintiff time for discovery.
SO ORDERED.