Opinion
Civil Action No. 6:02-CV-080-C
March 19, 2003
ORDER
On this date the Court considered the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed November 27, 2002, by Defendants, The State of Texas (hereinafter "Defendant State"), San Angelo State School (hereinafter "Defendant SASS"), Phillip Bough in his official capacity as Superintendent of SASS (hereinafter "Defendant Bough"), Texas Department of Mental Health and Mental Retardation (hereinafter "Defendant TDMHMR"), Karen F. Hale in her official capacity as Commissioner of TDMHMR (hereinafter "Defendant Hale"), Texas Department of Protective and Regulatory Services (hereinafter "Defendant TDPRS"), Richard Hoffman in his official capacity as Executive Director of TDPRS (hereinafter `"Defendant Hoffman"), and Dr. William K. Murray, individually and in his official capacity as Medical Director of Defendant SASS (hereinafter "Defendant Murray") (collectively hereinafter `"Defendants"). The Response of Barbara Thomas Douglas, Anita Randall, Kenneth Hawkins, Ricky Hawkins, Eddie Hawkins, and Romaic Hawkins (hereinafter "Plaintiffs") to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment was untimely filed on January 21, 2003. This Court need not consider materials submitted after a reasonable filing deadline. Nevertheless, for the sake of thoroughness and clarity, this Court also considered the pertinent arguments and supplemental evidence raised by Plaintiffs' untimely filed Response and Appendix. Defendants filed their Reply to Plaintiffs' Response to Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment, on February 6, 2003. Defendants also asked this Court to strike Plaintiffs' response filed out of time.
Although Defendant Bough was named in his official capacity as Superintendent of San Angelo State School in Plaintiffs' Original Pleadings in state court before removal to this Court and in Defendants' Original Answer and joined in the Notice of Removal, he is not named in Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgement. For the reasons stated infra, the Court will discuss Plaintiffs' claims against Defendant Bough herein.
In addition, this Court also considered Plaintiffs' Motion to Compel Responses to Outstanding Discovery and to Deny Defendants' Motion for Summary Judgment, filed on January 21, 2003. No Response was filed by Defendants.
After considering all the relevant arguments and evidence, the Court GRANTS Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; DENIES as moot Plaintiffs' Motion to Compel Responses to Outstanding Discovery and to Deny Defendants' Motion for Summary Judgment; and DENIES Defendants' Motion to Strike.
I. FACTUAL BACKGROUND
Plaintiffs are all brothers and sisters of the deceased, Corey Hawkins (hereinafter "Decedent"), and are residents of the State of Texas. Defendants SASS, TDMHMR, and TDPRS are all units of state government within the State of Texas. Defendant Bough was the Superintendent of Defendant SASS, Defendant Hale was the Commissioner of Defendant TDMHMR, Defendant Hoffman was the Executive Director for Defendant TDPRS, and Defendant Murray was the Medical Director for Defendant SASS.
Prior to August 8, 2000, Decedent was transferred to Defendant SASS for confinement and observation. Decedent had previously been found incompetent in a commitment hearing filed in Dallas County, Texas. Decedent was placed under the care, supervision, and control of Defendant SASS. Sometime on August 8, 2000, an altercation occurred between Decedent and staff of Defendant SASS. An investigation was conducted by the Texas Department of Health and Human Services, and an investigative report was filed which contained conflicting responses as to how the altercation occurred. However, the investigative report did indicate that words were exchanged between Decedent and Direct Care Staff #1 (DCS#l) and that DCS#1 tried to "redirect" Decedent away from DCS#1. This then resulted in a physical altercation in which Decedent retained DCS#1 in a headlock. DCS#1 struck Decedent several times on the left side while he was retained in the headlock. Two other Direct Care Staff intervened and attempted to stop and separate the altercation. All four individuals then fell to the floor as DCS#1 continued to strike Decedent with his closed right fist below Decedent's left armpit. According to the investigative report, Decedent complained of pain below his left armpit. A nursing staff member at Defendant SASS was informed of the altercation. Plaintiffs contend that the nurse examined the Decedent, who was complaining of pain to the chest beneath the left armpit, but did not consult Decedent's medical files. The medical file allegedly contained information showing that Decedent had a history of hypertension, heart murmur, renal insufficiency (he had only one kidney — the left), and moderate mental retardation. Decedent was returned to his room that same evening directly after the nurse's medical examination. The nursing log indicated that no injuries were noted from that examination.
The next morning, on August 9, 2000, Decedent rose, showered, dressed, and ate breakfast He then went outside and smoked a cigarette before returning to his room to brush his teeth. Some point in time later, Decedent was discovered face down on the floor. While nurses performed CPR on the Decedent, Defendant Murray was summoned to the room. In his affidavit, Defendant Murray states that he "ran" to the dormitory and, when he arrived, he observed the nurses administering CPR to Decedent. Defendant Murray could detect no signs of life and advised the nurses that they could stop CPR efforts.
Defendant Murray, as Medical Director at Defendant SASS, was responsible for the administrative and professional leadership of the entire Medical Services Division of Defendant SASS. All department heads within that division answer directly to the Medical Director. Defendant Murray's medical opinion concluded that Decedent "expired due to cardiac arrhythmia." The autopsy report from San Angelo Community Medical Center also concluded that "clinically [Decedent] appeared to have a cardiopulmonary arrest. . . . The cause of death is probably arrhythmia."
Plaintiffs' suit against Defendants is brought, in part, pursuant to 42 U.S.C. § 1983 (hereinafter "§ 1983") and alleges that Defendants violated Decedent's civil and constitutional rights under theEighth Amendment to be free from the use of excessive force and to receive adequate medical and supervisory care while confined at Defendant SASS. Plaintiffs' Original Petition alleges that the abuse suffered by Decedent while in the care of the Defendants resulted ultimately in his death, that Defendants failed to render medical aid to Decedent, and additionally failed to monitor Decedent's condition after the altercation. Plaintiff also alleges that the failures to render medical aid and monitor Decedent's condition occurred notwithstanding Decedent's disclosure to the muse of chest pain below the left armpit, in the vicinity where he had been struck repeatedly by DCS#1, Plaintiffs also plead, in actions by Defendants in the "negligent use or non use of tangible personal property."
II. PROCEDURAL BACKGROUND
Plaintiffs' Original Petition was filed in the 391st Judicial District Court in and for Tom Green County, Texas, on August 9, 2002. Defendants' Original Answer was filed on September 23, 2002, in the 391st Judicial District Court. Defendants filed their Notice of Removal on September 25, 2002. Plaintiffs were ordered to file a reply pursuant to Rule 7(a) of the Federal Rules of Civil Procedure on September 27, 2002. Plaintiffs' Rule 7(a) Reply to Defendants' Assertion of Qualified Immunity was filed on October 21, 2002. Defendants filed their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on November 27, 2002. Defendants filed a Corrected Appendix in Support of Motion for Summary Judgment on December 5, 2002. Plaintiffs' Response to Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, along with Appendix, was untimely filed on January 21, 2003. Plaintiff also filed a Motion to Compel Responses to Outstanding Discovery and to Deny Defendants' Motion for Summary Judgment on the same date. Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment was filed February 6, 2003, along with a Motion to Strike within the Reply,
III. STANDARD
Conversion of Rule 12(b)(6) Motion to Rule 56 MotionWhen a party moves to dismiss an action under Rule 12(b)(6), both parties necessarily proceed with the expectation that the court win decide the motion based on the pleadings alone. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). If, however, on a Rule 12(b)(6) motion for judgment on the pleadings, "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." FED. R. CIV. P. 12(b). See also Porter v. Shearson Lehman Bros., Inc., 802 F. Supp. 41, 53 (S.D. Tex, 1992) (noting that the Fifth Circuit has long recognized that materials filed concurrently with pleadings are sufficient to convert a motion to dismiss into a motion for summary judgment). Whether or not the court considers matters outside the pleadings is left entirely to the discretion of the court. Isquith on behalf of lsquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n. 3 (5th Cir. 1988). The court's discretion is generally exercised in terms of whether the proffered material and the resulting conversion to a Rule 56 procedure is likely to facilitate the disposition of the action. Id
When a motion to dismiss is converted into a motion for summary judgment, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED. R. CIV. P. 12(b). The purpose of the "reasonable opportunity" language contained in Rule 12(b) is to prevent unfair surprise to the parties. Clark v. Tarrant County, Texas, 798 F.2d 736, 745 (5th Cir. 1986). AD parties are entitled to notice that the court might treat the motion as one for summary judgment. Isquith, 847 F.2d at 195. See also Clark, 798 F.2d at 746 (holding that the district court erred in dismissing a case under summary judgment without giving notice as required by Rule 56).
However, when a non-movant submits material outside the pleadings in response to a Rule 12(b)(6) motion, the non-movant is deemed to have constructive notice that the motion to dismiss might be treated as a motion for summary judgement. Dayco v-Goodyear Tire Rubber Co., 523 F.2d 389, 393 (6th Cir. 1975), Constructive notice that the court might consider matters outside the pleadings is sufficient to satisfy the notice requirements of Rule 56. Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995). A party who submits material beyond the pleadings in opposition to a Rule 12(b)(6) motion to dismiss is scarcely in a position to claim unfair surprise or inequity. Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n. 2 (10th Cir. 1996).
In the instant case, this Court finds that (1) not only does Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment give the non-movant Plaintiffs actual notice that this Court might treat Defendants' alternative motions as a Rule 56 motion, but (2) the non-movant Plaintiffs have submitted materials outside the pleadings in response to Defendants' alternative motions and "[are] scarcely in a position to claim unfair surprise or inequity." Accordingly, pursuant to Rule 12(b), this Court will treat Defendants' alternative motions as a Rule 56 motion for summary judgment.
Summary Judgement
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party, Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v, Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. That is, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
In cases where the defense of qualified immunity is raised, the moving party is not required to put forth evidence to meet its summary judgment burden for a claim of immunity. Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000). "It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity." Id.
IV. DISCUSSION
42 U.S.C. § 8 1983Plaintiffs sued Defendants under § 1983 seeking redress for Defendants' alleged violations of Decedent's constitutional rights by those acting under color of state law. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or humanities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983 (1994). Section 1983 is not itself a source of substantive rights but merely provides "a method of vindicating federal rights conferred elsewhere." Albright v. Oliver, 510 U.S. 266, 271 (1984) (internal quotations omitted).
To establish a claim under § 1983, a plaintiff must prove that a person acting under the color of state law deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Martin v. Thomas, 973 F.2d 449, 452-53 (5th Cir. 1992); Augustine v. Doe, 740 P, 2d 322, 324-25 (5th Car. 1984). A plaintiff must further prove that the alleged constitutional deprivation was not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 835 (1994). The negligent deprivation of life, liberty, or property is not a constitutional violation, Campbell v, City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Furthermore, it is not enough to allege that government officials with no direct contact with a plaintiff were responsible for acts of their subordinates. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439 (5th Cir. 1999). Individual Capacity Under 42 U.S.C. § 1983 Defendant Murray, Qualified Immunity
The other Defendants sued in their individual capacities are not property before this Court and therefore will not be considered. The Plaintiffs' claims against Defendants Webb and Direct Care Staff #1, #2, #3, and #4 were dismissed without prejudice on February 25, 2003, by an order of this Court pursuant to Federal Rule of Civil Procedure 54(b).
Government officials performing discretionary functions are protected from individual civil liability under § 1983 pursuant to the doctrine of qualified immunity if their conduct violates no "clearly established statutory or constitutional rights of which a reasonable person would have known." Beck, 204 F.3d at 638. "An official acts within his discretionary authority when he performs nonministerial acts within the boundaries of his official capacity." Tamez v. City of San Marcos, Tex., 118 F.3d 1085, 1091-92 (5th Cir. 1997). The United States Supreme Court has characterized the doctrine of qualified immunity as protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). If the law does not put an official on notice that his conduct would clearly be unlawful, then summary judgment based on qualified immunity is appropriate. Id. Accordingly, "officials who reasonably but mistakenly [commit a constitutional violation] are entitled to immunity." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).
Qualified immunity is an immunity from suit extending beyond a defense to liability and includes all aspects of civil litigation, including discovery. Mitchell v. Forsyth, 472 U.S. 226, 231 (1991). Therefore, determining qualified immunity is a threshold question, Brewer v, Wilkinson, 3 F.3d 816 (5th Cir. 1993), and the burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994). Plaintiff must plead facts with sufficient particularity so that the facts, if proved, would warrant the relief sought. Id, The plaintiff must also state with factual detail and particularity bases for the claim, which necessarily includes why defendant official cannot successfully maintain the defense of immunity. Scott v. City of Dallas, 876 F. Supp. 852 (N.D. Tex. 1995).
Claims of qualified immunity are reviewed under a bifurcated analysis. Beck, 204 F.3d at 638. First, the court must determine whether the plaintiff alleged a violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). A right is "clearly established" if to contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right" Anderson v. Creighton, 483 U.S. 635, 640 (1987). The term "clearly established" docs not necessarily refer to commanding precedent that is factually on all-fours with the case at bar. Morris v, Dearborne, 181 F.3d 657, 665 (5th Cir. L999). Rather, the right is "clearly established" if it is based on pre-existing law and the unlawfulness of the conduct in question is apparent Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000). Furthermore, the applicable law must be clearly established at the time of the allegedly actionable conduct, Morris, 181 F.3d at 665.
Second, the court must address whether the "defendant's conduct was objectively reasonable in light of clearly established law at the time that the challenged conduct occurred." Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). "The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known" that the defendant's conduct violated the plaintiff's asserted constitutional rights. Thompson v. Upshur, 245 F.3d 447, 457 (5th Cir. 2001) (emphasis in original). 1, "Clearly Established" Eight
The law is well settled that "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 198 (1989). When a person is taken into custody and held against his will, "the Constitution imposes . . . a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200. Because a "special relationship" exists between the State and prisoners who have been deprived of their liberty to care for themselves, the State is obligated to ensure their "reasonable safety" from themselves and others. Id. at 199. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200.
Plaintiffs' Original Petition alleged that Defendants collectively had a duty to ensure that Decedent's civil rights were not violated and that the conduct of Defendants did violate those rights. Plaintiffs' Particularized Statement of Liability Against Defendants Claiming Qualified Immunity further alleges that Defendant Murray, as Medical Director of Defendant SASS, authorizes the medical protocol for Defendant SASS's infirmary and has a corresponding duty to not only implement but also monitor the medical protocols to ensure adequate medical care to SASS inmates. There is scant evidence to show that Defendant Murray breached the duty to implement and monitor medical protocols. A conclusory allegation is not sufficient to make a showing that such a. duty was in fact owed by Defendant Murray and that it was in fact breached. Defendant Murray's affidavit attests that he only became aware of the altercation incident and the nurse's evaluation of the Decedent after the collapse of Decedent on the morning of August 9, 2000. It is further evident from the evidence in the affidavit that Defendant Murray did administer care to Decedent in an effort to resuscitate him. What more Defendant Murray could have done at that point is not evident to this Court. Therefore, this Court finds that Plaintiff has insufficiently alleged and failed to offer evidence of a violation by Defendant Murray of a clearly established constitutional right.
2. Objectively Reasonable
Although the first prong of the qualified immunity analysis fails, the second prong will also be analyzed for clarity and thoroughness. The second prong requires this Court to determine if Defendant Murray's conduct was objectively reasonable in light of clearly established few as it existed at the time of Decedent's alleged injuries, Gelnn, 242 F.3d at 312. Whether an individual's conduct is objectively unreasonable must be considered against the subjective deliberate indifference standard. Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 394 (5th Cir. 2000). An official acts with subjective deliberate indifference if he "had subjective knowledge of a substantial risk of serious harm to [an inmate] but responded with deliberate indifference to that risk." Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996). Deliberate indifference is a state of mind more blameworthy than negligent Farmer v. Brennan, 511 U.S. 825, 835 (1994). "Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and thus do not divest the official of qualified immunity." Doe v. Dallas Indep. Sch. Dist, 153 F.3d 211, 219 (N.D. Tex. 1998). As previously discussed, there is no evidence to show that Defendant Murray acted with deliberate indifference in his actions on the morning of August 9 in an effort to resuscitate Decedent.
However, Plaintiffs are also suing Defendant Murray in his supervisory capacity as Medical Director of SASS for failing to property supervise the nurse who gave Decedent a medical examination the night before Decedent's death. This allegation is very similar to the improper implementation and monitoring of medical protocols discussed above and will be treated in the same manner in analysis above. Keeping in mind that Plaintiffs do not allege that Defendant Murray was present at the time of the altercation or during the nurse's examination, "supervisory officials may be held liable only if (1) they affirmatively participate in the acts that cause constitutional deprivations, or (2) implement unconstitutional policies that causally result in plaintiff's injury." Mouille v. City of Live Oak 977 F.2d 924, 929 (5th Cir. 1992); Tompkins v. Belt, 828 F.2d 298 (5th Cir. 1987). Generally, a supervisor may be held liable only if he was personally involved in the constitutional deprivation or there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation Id. A claim against an official should be dismissed where there is no evidence that either (1) the official had any knowledge of, or connection with, the policy of which the plaintiff complained, or (2) the official had any personal involvement with the events respecting the plaintiff. Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988). Finally, the [supervisory] inadequacy must be obvious and obviously likely to result in a constitutional violation." Thompson v. Upshur, 245 F.3d 447, 459 (5th Cir. 2001).
More on point with the facts at hand, doctors may not be held liable under the theories of respondeat superior or vicarious liability forEighth Amendment violations of a nurse's claimed omissions. Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999) (further stating no cause of action exists against the doctor even if the nurse's omissions amounted to deliberate indifference).
Plaintiffs have produced no evidence of any personal involvement by Defendant Murray which caused Decedent's death or injuries. Indeed, the evidence not only acknowledged that Defendant Murray was not present at the time of the alleged constitutional violations, but the evidence also shows that Defendant Murray was unaware that Decedent had been in a physical altercation or that the nurse had examined him until after Decedent's death the next morning Plaintiffs have offered no persuasive evidence which shows that Defendant Murray ultimately demonstrated a subjective and deliberate indifference to Decedent's right to adequate medical care or that Defendant Murray's supervisory inadequacies, if any, were "obvious and obviously likely to result in a constitutional violation," Defendant Murray may not be held vicariously liable for actions of the nurses whom he supervises.
Moreover, it cannot be said that all reasonable medical directors at a state school would recognize the alleged unconstitutionality of Defendant Murray's supervisory or personal acts or omissions. Nor can it be said that Plaintiffs' allegations of improperly monitoring and implementing effective medical protocols resulted in the inadequate supervision of the nurse who examined Decedent Further, Plaintiffs have not shown that such alleged supervisory inadequacy would be obviously likely to result in a constitutional violation. Therefore, this Court finds that Defendant Murray's conduct was objectively reasonable and that Defendant Murray is entitled to qualified immunity, in his individual capacity, as to Plaintiffs' § 1983 claims. Official Capacity Under S 1983 Defendants State. SASS. Bough. TDMHMR, Hale. TDPRS. Hoffman, and Murray
The United States Supreme Court has held that neither states nor their officials acting in their official capacities are "persons" under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 So. Ct 2304 (1989). That analysis would cover not only Defendant State but also Defendants SASS and TDMHMR. See Tex. Health Safety Code Aim, § 532.001 et seq. (Vernon 1997 and Supp. 2003) (listing TDMHMR as a department of the state and specifically listing SASS as a facility of that department at § 532.001(b)(20)). Defendant TDPRS is likewise a department of the state and therefore covered by the Supreme Court analysis. See Tex. Hum. Res. Code Ann. § 40.001 et seq. (Vernon 1997 and Supp. 2003). The analysis would farther cover Defendants Bough, Hale, Hoffman, and Murray as officials acting within their official capacities. 491 U.S. 58 (1989).
Even assuming that Defendants could be considered as "persons" under § 1983, to hold one of them liable for the misconduct of one of their employees, a plaintiff most allege that an official policy or custom was a cause in fact of the deprivation of rights, Leffall v. City of Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). To satisfy the cause-in-fact requirement, the plaintiff must allege that the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996). Having failed to demonstrate with evidence the existence of an official policy that violated Decedent's civil and constitutional rights, Plaintiffs' evidence simply does not substantiate a finding that these Defendants imlemented a policy so deficient that it was a repudiation of Decedent's constitutional rights and was the moving force behind the unconstitutional violation Plaintiff alleges. Therefore, this Court finds that Plaintiffs have failed to establish § 1983 liability against any of the Defendants as `"persons" since they were either acting within their official capacities or as the State of Texas and its departments.
In addition, Plaintiffs are hereby given notice that this Court will sua sponte dismiss the claims against Defendant Bough in his: official capacity if Plaintiffs cannot present evidence to this Court presenting a genuine issue of material feet. Plaintiffs have ten days from the date of this order to present such evidence to the Court or Defendant Bough win be dismissed
Common Law Negligence Claims Defendants State. SASS. Bough. TDMHMR Hale. TDPRS, Hoffman
Generally a state enjoys sovereign immunity from suit unless it has expressly given its consent to be sued Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 144, 113 So. Ct. 684, 687-88. Even where it has consented to be sued, the state is immune from liability. Missouri Pacific R.R. Co. v. Brownsville Navigation Dist, 453 S.W.2d 812, 813 (Tex. 1970). An exception to this rule is the Texas Tort Claims Act ("TTCA"), which waives the state's immunity from suit and from liability for certain listed areas. Tex. Civ. Prac. Rem Code. §§ 101.001 et seq. (Vernon 1997 and Supp. 2003). However, the TTCA waives sovereign immunity in state court only; it does not waive Eleventh Amendment immunities to suit in federal courts. Sherwinski v. Peterson, 98 F.3d 849 (5th Cir. 1996) (prisoner assorted Violation of Eighth Amendment and 42 U.S.C. § 1983 claim based on alleged deliberate indifference to serious medical needs and supplemental tort claim under the TTCA). The Sherwinski court held the TTCA waiver of immunity is limited only to courts created by the state of Texas. Id. at 851. "Applying this standard, we find that the [TTCA] waives sovereign immunity in state court only.
This is the only reasonable construction of the statute. The act clearly does not waive Eleventh Amendment immunity to suit in federal courts." Id, at 852 (remanded for entry of order dismissing the state law claim against the department); see also Tex. Civ. Prac. Rem Code Ann. § 101.102(a) (West 1993 and Supp. 2002),
However, the United States Supreme Court held that voluntary removal to federal court by a state defendant would waive Eleventh Amendment immunity. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 122 S. Ct 1640 (2002). The Lapides case is distinguishable in that it applies only to a removal situation in which the state's underlying sovereign immunity had been waived or abrogated in state court as well. Id. at 1643 (stating "[n]or need we address the scope of waiver by removal in a situation where the State's underlying sovereign immunity from suit has not been waived or abrogated in state court").
This Court will analyze the state law negligent claim under the TTCA to determine if sovereign immunity has been waived for the alleged acts of Defendants. Only if the TTCA first waives sovereign immunity is it then proper to determine if removal by Defendants to federal court has also waived immunity from suit in federal court. See Lapides, 122 So. Ct. 1640, 1643. Plaintiffs allege that the death of Decedent was caused by the "negligent use or non use of tangible personal property." (emphasis added). Although section 101.021 of TTCA does waive the immunity from suit and liability, it specifically requires that the injury or death be "caused by a condition or use of tangible personal property. . . ." See id. Exceptions to immunity do not apply to a prisoner who brings suit for the failure to provide adequate medical care, because failure to give medical care cannot involve the `use" of tangible property. Diaz v. Central Plains Regional Hosp., 802 F, 2d 141 (5th Cir. 1986) (quoting the Texas Supreme Court in Texas Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974)). The Texas Supreme Court has also held that failure to record information in a medical file or failure to rely on information recorded in a medical file does not constitute "use" of tangible personal property such that would waive governmental immunity. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994). Plaintiffs have not produced any evidence showing the use or misuse of tangible personal property by any of the Defendants that could be considered sufficient to waive immunity from tort claims under the TTCA. Although. Plaintiffs allege that the nurse who examined Decedent after the altercation had a duty to review Decedent's medical records, York indicates that failure to rely on information in a medical file does not rise to the level of "use or misuse of tangible personal property." Therefore, this Court finds that because Plaintiffs have failed to allege an action that fits within the Texas Tort Claims Act waiver of immunity from suit and liability, the common law negligent claims arc not actionable (regardless of voluntary removal) against Defendants State, SASS, Bough, TDMHMR, Hale, TDPRS, and Hoffman in this Court.
Plaintiffs are given notice that this Court will sua sponte dismiss the claims against Defendant Bough in his official capacity if Plaintiffs cannot present evidence to this Court presenting a genuine issue of material fact. Plaintiffs have ten days from the date of this order to present such evidence to the Court or Defendant Bough will be dismissed.
Defendant Murray — Official Immunity
When sued in an individual capacity, employees of the state are entitled to raise the defense of official immunity, rather than sovereign immunity. "We are persuaded that Texas law insulates government officials from the burden of suit as well as from civil liability for damages." Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir. 1996) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). The Texas Supreme Court held in Lancaster that "government employees are entitled to immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." See Cantu, 77 F.3d at 804, 810. If the plaintiff wholly fails to state a valid claim, then it is not necessary to analyze whether the defendant is entitled to official immunity under the three-prong test. Id. at 810. This Court will analyze Defendant Murray's entitlement to official immunity under the Lancaster standard regardless of whether the Plaintiff wholly felled to state a valid claim.
As a physician occupying the role of Medical Director for Defendant SASS, Defendant Murray was acting within the scope of his authority on the day Decedent collapsed and died, Defendant Murray's affidavit attests to his conduct and actions on that morning. In setting any medical policies or protocol for Defendant SASS, it is logical for this Court to conclude that he was also acting within the scope of his authority. There is no evidence before this Court that Defendant Murray acted in any manner that would suggest anything less than "good faith." Plaintiffs provide no evidence to suggest that Defendant Murray's duties were not of the type commonly referred to as "discretionary." Discretionary actions require personal deliberation, decision, and judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992) (Cornyn, J. concurring). Plaintiffs have not shown that the actions by Defendant Murray fail to be "discretionary" by merely pleading a conclusion that he "knew or should have known that he had a duty to not only institute but also to properly monitor the implementation of effective medical protocols which would protect [inmates] from the fatal consequences of adequate [sic] medical treatment," See Plaintiffs Particularized Statement of Liability Against Defendants Claiming Qualified Immunity, at p. 4, ¶ 4. Therefore, this Court finds that Defendant Murray is entitled to official immunity against Plaintiffs' claims.
CONCLUSION
After considering all the relevant arguments and evidence, tins Court GRANTS the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment filed by Defendants and hereby DISMISSES with prejudice Defendants The State of Texas, San Angelo State School Texas Department of Mental Health and Mental Retardation, Karen F. Hale, Texas Department of Protective and Regulatory Services, Richard Hoffman, and Dr. William K. Murray from this action; DENIES as moot Plaintiffs' Motion to Compel Responses to Outstanding Discovery and to Deny Defendants' Motion for Summary Judgment; and DENIES Defendants' Motion to Strike.
For the reasons stated above, the Court will sua sponte dismiss the claims against Defendant Bough in his official capacity if Plaintiffs cannot present evidence to this Court presenting a genuine issue of material fact. Plaintiffs have ten days from the date of this order to present such evidence to the Court or Defendant Bough will be dismissed
SO ORDERED.
JUDGMENT PURSUANT TO RULE54(b)
On this date the Court granted Defendants The State of Texas, San Angelo State School, Texas Department of Mental Health and Mental Retardation, Karen F. Hale, Texas Department of Protective and Regulatory Services, Richard Hoffman, and Dr. William K. Murray's Motion for Summary Judgment There is no just reason for delay in entering a final judgment and final judgment should be entered pursuant to Federal Rule of Civil Procedure 54(b).IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that Plaintiffs' claims against Defendants The State of Texas, San Angelo State School, Texas Department of Mental Health and Mental Retardation, Karen F. Hale, Texas Department of Protective and Regulatory Services, Richard Hoffman, and Dr. William K. Murray are DISMISSED with prejudice, This judgment shall be a final judgment as to all claims against such Defendants, pursuant to Federal Rule of Civil Procedure 54(b).