Opinion
Civil Action No. 1:04-CV-233-C.
February 3, 2006
ORDER
On this date, the Court considered:
1. Motion for Summary Judgment of Defendants Howard County and Howard County Sheriff's Department, filed October 14, 2005;
2. Plaintiffs' Amended Response to Motion for Summary Judgment, filed November 10, 2005;
3. Defendants' Reply, filed November 28, 2005;
4. Plaintiffs' Motion to Reconsider the Court's Order Denying Plaintiffs' Second Motion for Leave to Amend and Enlarge Deadlines, filed January 24, 2006; and
5. Defendants' Response to Plaintiffs' Motion to Reconsider, filed January 30, 2006.
I. PROCEDURAL HISTORY
Plaintiffs filed their Original Complaint on October 18, 2004. The Howard County Defendants filed their Original Answer on November 8, 2004.Plaintiffs moved on March 1, 2005, to file Plaintiffs' First Amended Original Complaint. On March 22, 2005, the Court ruled on said motion to amend by granting in part and denying in part Plaintiffs' request. The Court's denial in part went to the fact that Plaintiffs were attempting to continue to assert claims against Defendant Trooper Weldon Jones, named in the Original Complaint and dismissed by prior orders of the Court. (Order and J. dated February 1, 2005 (dismissing Defendant Jones)). Thus, the Court directed Plaintiffs that they would be allowed to file their First Amended Original Complaint, but only as to the Howard County Defendants. Plaintiffs were ordered to prepare a First Amended Original Complaint and file it on or before 9:00 a.m. on April 1, 2005. The Defendants were instructed that they would have thirty (30) days after the filing of Plaintiffs' First Amended Complaint to re-file a motion for summary judgment addressing the live pleadings.
On April 1, 2005, Plaintiffs filed their First Amended Original Complaint, which added claims under the Texas Tort Claims Act and advanced a claim for equal protection violations under the Fourteenth Amendment to the Constitution of the United States. Defendants filed their Answer to the First Amended Original Complaint on April 18, 2005, again raising the defense of qualified immunity. On April 25, 2005, Defendants moved to file their Supplemental Answer to Plaintiffs' First Amended Original Complaint to add a defense under Section 101.106 of the Texas Civil Practice Remedies Code, applicable to Plaintiffs' Texas Tort Claims Act claims. The Court granted the Howard County Defendants' Motion to File Supplemental Answer by Order dated April 25, 2005.
Defendants Walker, Dunlap, and Smith (collectively, "Individual Defendants") filed their Motion for Summary Judgment based on qualified immunity on May 2, 2005. Plaintiffs filed their Response on May 23, 2005, along with their attached Appendix in Support. By order dated July 29, 2005, the Court granted summary judgment to Defendants Walker, Dunlap, and Smith in their individual capacities based on qualified immunity. On November 10, 2005, Plaintiffs filed an untimely Notice of Appeal from the qualified immunity order and judgment.
"A timely notice of appeal is mandatory and jurisdictional." See In re Lacey, 114 F.3d 556, 557 (5th Cir. 1997).
Defendants Howard County and Howard County Sheriff's Department (also referred to in this Order as "County" or "Howard County" or "Defendants") filed the pending Motion for Summary Judgment on October 14, 2005. On November 7, 2005, Plaintiffs filed a Response. On November 8, 2005, the Court ordered that Plaintiffs' Response be unfiled for failure to comply with Local Rules or to contain original signatures. Plaintiffs filed an Unopposed Motion to File Amended Pleadings [Response] on November 10, 2005, in an effort to correct the errors. On November 10, 2005, the Court granted Plaintiffs' Unopposed Motion to File the Amended Response and it was filed on the same date (the Court also extended Plaintiffs' deadline for filing said Response). Defendants were permitted to file a Reply, which was filed November 28, 2005.
Plaintiffs filed a Motion for Leave to File a Second Amended Complaint on November 10, 2005. The Court denied Plaintiffs' Motion for Leave by Order dated November 16, 2005, because the scheduling deadline for filing amended complaints had long since passed and Plaintiffs had failed to even address the standard of "good cause." On November 28, 2005, Plaintiffs then filed another Motion for Leave to Amend Showing Good Cause and an additional Motion for Extension of Deadlines [Contained in Scheduling Order]. Defendants filed a Response on December 19, 2005. The Court denied Plaintiffs' Motion for Leave and for Extension by Order dated December 22, 2005. Plaintiffs filed a Motion to Reconsider the Court's Order Denying Plaintiffs' Second Motion for Leave to Amend and Enlarge Deadlines, on January 24, 2006. Defendants filed their Response on January 30, 2006. This case is set for trial on April 3, 2006.
II. BACKGROUND
Plaintiffs filed suit arising out of the death of Richard Dunn Allen. Plaintiffs' First Amended Complaint brings suit against Defendants Howard County and Howard County Sheriff's Department under 42 U.S.C. §§ 1983 and 1981, for the allegedly wrongful death of Richard Dunn Allen ("Mr. Allen" or "the Deceased"). Plaintiffs Glenda Forgan and Robert Allen bring their action as alleged parents of the Deceased. Plaintiff Glenn Forgan, Jr. brings this action as the executor and/or representative of the estate of the Deceased.
The Fifth Circuit recognizes a parent's right to a cause of action under § 1983 to recover for injuries caused by the deprivation of a child's constitutional rights. See Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992).
Defendants have contested Glenn Forgan, Jr.'s standing to bring suit in an individual capacity under the Texas Wrongful Death statutes. Defendants have moved for summary judgment on the claims asserted by Plaintiff Glenn Forgan, Jr. after directing the Court to testimony that he is not the biological or adoptive father of Decedent. Plaintiffs failed to direct the Court to evidence to controvert this testimony. Thus, summary judgment is granted as to Plaintiff Glenn Forgan, Jr.'s claims brought in his individual capacity.
Specifically, Plaintiffs allege deliberate indifference by the Defendants in that Defendants allegedly acted intentionally and with conscious indifference to Mr. Allen's rights guaranteed by the Fourteenth Amendment to the Constitution of the United States. Plaintiffs bring their constitutional claims solely under the Fourteenth Amendment to the Constitution of the United States. (Pls.' First Am. Orig. Compl. at ¶ 7. ("Pursuant to the Fourteenth Amendment to the United States Constitution, Plaintiffs were/are entitled to equal protection of all laws, which include the enforcement and implementation of all laws of the state of Texas. Defendants violated Plaintiffs' constitutional rights through conscious and deliberate indifference to same.")).
Plaintiffs' Original Complaint contained claims pursuant to the Fifth and Eighth Amendments to the United States Constitution; however, those claims are no longer specifically included in Plaintiffs' First Amended Original Complaint. ( Compare Pls.' Orig. Compl. at ¶ 35 (listing Eighth Amendment as well as Fifth and Fourteenth Amendments) with Pls.' First Am. Orig. Compl. (making no mention of the Eighth or Fifth Amendment)). Thus, it is unclear if Plaintiffs strategically chose to advance only an equal protection claim or if they wished to also proceed with an unpleaded safety and medical needs claim. Although Plaintiffs have attempted to again amend their complaint after Defendants moved for summary judgment on the equal protection claim, Plaintiffs' requests to do so have been denied by prior orders of this Court. (Orders dated November 16, 2005 and November 28, 2005.)
On or about January 25, 2004, Texas Department of Public Safety Officer Weldon Jones identified a vehicle on Interstate Highway 20 in Howard County, Texas, being driven and operated in a peculiar and confusing manner. The vehicle driven by Mr. Allen continued to back up, stop momentarily, and then pull forward a few feet. Mr. Allen repeated this process several times while being observed by Trooper Jones. After pulling behind the vehicle and approaching the driver, Trooper Jones observed that Mr. Allen's speech was slurred, his clothes were in disarray, and he was unsteady on his feet. Trooper Jones detected the smell of alcohol and attempted to administer a balance test, which Trooper Jones did not complete upon determining that Mr. Allen was too unsteady, while standing, to safely complete the test.
Mr. Allen was taken to Big Spring Jail, at which point he was asked to take a breathalyzer test. Mr. Allen was apparently confused and did not actually refuse to take the breathalyzer test; however, he could not make up his mind, and after a period of time, Trooper Jones interpreted Mr. Allen's indecision as a refusal to take the test. Mr. Allen was placed under arrest. Shortly after midnight, Mr. Allen was taken to Howard County Jail for booking and processing.
Mr. Allen was placed in a detoxification cell at the Howard County Jail at approximately 12:45 a.m. and remained there for approximately 30 minutes. Dunlap, a jailer, then removed Mr. Allen from the detoxification cell at approximately 1:15 a.m. and continued the booking process. During the time Mr. Allen was being booked, he disclosed certain information to Dunlap which, Plaintiffs allege, indicated that Mr. Allen should have been considered a high risk for attempted suicide. However, among other indications that Defendants assert as showing that he was not at high risk for suicide, when questioned as to whether he was "thinking about killing [him]self today," Mr. Allen specifically answered, "No." Mr. Allen was also described as laughing, wanting to make jokes, and as someone who did not evidence psychological problems.
Dunlap testified that, considering all the factors, he would classify Mr. Allen as a "risk" for suicide rather than as a "high risk" for committing suicide. Dunlap placed Mr. Allen on a 15-minute watch. Plaintiffs disagree with Dunlap's determination to place Mr. Allen on a 15-minute watch and allege that Mr. Allen should have been under a continuous watch and considered a "high risk" for suicide. Howard County's "Inmate Mental Disabilities/Suicide Prevention Plan" in place at the time allows for three levels of supervision. The second level of supervision is apparently the level of observation that Mr. Allen was alleged to be under and was defined to apply to the following types of inmates.
Fifteen-minute observation for moderate risk inmates that have been released from constant observation. Inmates that have prior history of suicidal behavior, but no apparent intent at this time. Manipulative inmates that threaten suicide but are not judged to be legitimately suicidal. Inmates who are at risk of serious deterioration of mental conditions. Inmates who are to [sic] intoxicated to complete intake screening or refuse to participate in the process.
(Pls.' App. at 164.)
Mr. Allen was then placed in a "J-cell" next to the jailers' office so that he could be easily monitored. Mr. Allen questioned Dunlap about things that would occur in the future such as when a) he would get his money back that was taken from him during the booking process, b) he would be released the next morning, and c) he would be able to eat and take a shower. Mr. Allen also requested some reading material, either "a comedy or a Bible," and Dunlap provided him with a Bible. Dunlap removed the shower curtain from Mr. Allen's cell prior to placing him there. After being placed in his cell, Mr. Allen was checked on at least three occasions prior to the fourth check (at around 2:30 a.m.), in which he was found hanging in his cell. Mr. Allen had hanged himself with his jail clothes — the jail-issued trousers.
Dunlap attempted to cut Decedent loose with the help of another officer, Deputy Carter. An attempt to take the pulse was performed and no pulse was found. The other jailer, Irene Buchanan, at Deputy Carter's direction, released an inmate who stated that he knew how to perform CPR to help. Dunlap and Deputy Carter went to retrieve a CPR mask from the jailers' office and place a medical emergency call for assistance. The time to place the phone call and retrieve the CPR mask took approximately anywhere from "a matter of 10 seconds" to "[not] more than a minute. . . ." Deputy Carter attempted to blow air into the lungs through the mask while the other inmate continued to do chest compressions until the EMS arrived. A team of emergency medical technicians arrived at approximately 2:38 a.m. and attempted final resuscitation efforts, which were also unsuccessful.
Sheriff Walker and Chief Jailer Mike Smith were not present on the night of Mr. Allen's incarceration and had no knowledge of the situation until they were notified after the fact. However, Plaintiffs allege that Walker and Smith were "personal[ly] involve[ed]" in Mr. Allen's death by way of the jail conditions, training, licensing, intake, screening, evaluation, detention, and monitoring of Mr. Allen. Sheriff Walker is alleged to have failed to establish and teach the proper policies and procedure regarding potential high-risk suicides and also to have failed to ensure that jail personnel were trained to perform CPR.
Dunlap had been employed as a jailer for approximately eight months and had attended an 80-hour course to obtain his jailers' certification. The other jailer on duty that night, Ms. Irene Buchanan, was beginning her first night on the job.
Plaintiffs allege violations of the Texas Commission on Jail Standards, the Texas Commission on Law Enforcement Officer's Standards and Education ("TCLEOSE"), and the Texas Council on Offenders with Mental Impairments ("TCOMI"). Howard County did maintain a policy regarding the booking of detainees, which included suicide-risk assessment factors and procedures. Sheriff Walker's predecessor apparently implemented the policy and Walker did not have a personal role in the drafting or formulation of the policy. Smith did not have a role in the development of the policy either. The policy was in place at the time of Decedent's suicide.
Plaintiffs allege that Howard County
(1) failed to ensure that its jail and/or jailer was following the Texas Jail Commission Standards;
(2) allowed the jail to be inadequately staffed and overcrowded;
(3) implemented a plan that allowed high-risk suicide detainees to be monitored on a fifteen-minute basis and be given clothes which are known to be used as a tool for suicide;
(4) failed to implement and train employees on the proper suicide protocols;
(5) failed to follow high-risk protocol; and
(6) failed to follow the TCLEOSE standards for having equipment related to resuscitation of individuals immediately available as well as having personnel trained to use the equipment.See Pls.' First Am. Compl. at ¶¶ 40 and 43.
Finally, Plaintiffs allege claims by way of the Texas Tort Claims Act, Texas Civil Practice and Remedies Code § 101.021(2), in that Mr. Allen used his jail clothes issued to him by Howard County to commit suicide.
III. STANDARD
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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (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, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (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. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. Absent such a showing, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). If no factual showing is made in opposition to a motion for summary judgment, the district court is not required to search the record sua sponte for some genuine issue of material fact. In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims). "A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." LR 56.5(c) (emphasis added).
IV. DISCUSSION
Motion to Reconsider
Preliminarily, the Court will address Plaintiffs' pending Motion to Reconsider the Court's Order Denying Plaintiffs' Second Motion for Leave to Amend and Enlarge Deadlines, filed January 24, 2006. Plaintiffs' chief argument stems from Plaintiffs' disagreement with this Court's scheduling deadlines in this case. The Court will give a brief overview of how this case has proceeded.
The Court's scheduling order entered in this case clearly put the parties on notice of the schedule on which the case would proceed. (Order dated Dec. 6, 2004.) Defendants raised the defense of qualified immunity in their initial filing. As is required in this circuit, the issue of qualified immunity is to be determined at the earliest possible stage of litigation. Thus, parties were allowed to conduct discovery only on the issue of qualified immunity until the Court ruled on whether the Individual Defendants were entitled to qualified immunity. (Order dated Jan. 10, 2005 (also setting the date for motions to dismiss and/or for summary judgment on the issue of qualified immunity to be filed within thirty days — thus giving the parties thirty days to conduct discovery as to the issue of qualified immunity)). The Individual Defendants filed a timely motion for summary judgment on February 9, 2005 — within the 30-day deadline set by the January 10, 2005 Order. Thus, Plaintiffs had not only the thirty days for discovery on the issue of qualified immunity, but they also had the additional twenty days in which the response was due to continue to conduct discovery. Plaintiffs filed a Motion for Leave to File a First Amended Complaint on the same day their Response to the Individual Defendants' Motion for Summary Judgment was due. The Court granted Plaintiffs' motion to file the First Amended Complaint and denied as moot the pending motion for summary judgment on the issue of qualified immunity because that motion would have addressed a non-live pleading. The Court, however, allowed the Individual Defendants a full thirty days to re-file their motion for summary judgment following Plaintiffs' filing of the First Amended Complaint. Thus, even more time accrued for Plaintiffs to conduct discovery on the issue of qualified immunity (specifically the alleged unconstitutional conduct of the individuals) because of their amending the complaint.
Plaintiffs filed their First Amended Complaint on April 1, 2005, and Defendants re-filed their motion for summary judgment on May 2, 2005. Plaintiffs' response was due and filed on May 23, 2005. Plaintiff therefore had almost four and a half months to complete discovery on the issue of qualified immunity and the alleged unconstitutional conduct of the Individual Defendants prior to filing their Response. Plaintiffs have contended on multiple occasions that such deadlines are unreasonable and somehow unrealistic for completing discovery on an issue that this circuit requires to be concluded at the earliest possible time. Even so, Plaintiffs were then allowed to supplement their appendix over a month later on June 23, 2005. Thus, Plaintiffs were still adding to their evidentiary support over five months after the court order setting the qualified immunity motions deadline. On July 19, 2005, Plaintiffs filed a motion seeking this Court to delay ruling on the Individual Defendants' motion for summary judgment. The Court denied Plaintiffs' motion for continuance and ruled on the Individual Defendants' motion, finding that they were entitled to summary judgment. The Court issued its Order and Judgment on July 29, 2005, finding summary judgment proper as to the Individual Defendants.
On August 15, 2005, the Court lifted the stay of discovery in the case as to all other issues beyond qualified immunity. The scheduling order entered in this case on December 6, 2004, set October 14, 2005, as the deadline for filing motions for summary judgment. Thus, Plaintiffs were on notice that they had two months to complete the discovery as to Howard County's liability in this case (plus an additional twenty days before the response would be due in early November). On September 7, 2005, Plaintiffs filed an Opposed Motion to Extend Time for Deadlines and a Motion for Revised Scheduling Order — arguing issues of uncompleted discovery as to Individual Defendants. On September 19, 2005, Plaintiffs also filed a motion to reconsider the Court's July 29, 2005 Order and Judgment on the issue of qualified immunity. The Court denied Plaintiffs' motion to reconsider its July 29, 2005 Order, finding that Plaintiffs failed to file a timely Rule 59 motion or a timely notice of appeal, and denied Plaintiffs' motions for extension of deadlines and to revise the scheduling order. Plaintiffs' chief argument for revision of the scheduling order was that they had not been able to properly conduct discovery and depositions in the time allowed or to designate experts in a timely manner. The Court's scheduling order in this case was not merely a suggestion to the parties. Sufficient time lines were set which the parties could have met had they been diligent. See Baker v. American Airlines, Inc., 430 F.3d 750, 755-57 (5th Cir. 2005).
Defendants filed the pending Motion for Summary Judgment on October 14, 2005. Plaintiffs filed their Amended Response to Howard County and Howard County Sheriff's Department's Motion for Summary Judgment on November 10, 2005 (following leave to file out of time due to Plaintiffs' attempted filing on Nov. 7, 2005 without complying with Local Rules and without containing original signatures).
Plaintiffs then wished to amend their First Amended Complaint to include claims for due process violations that they chose to drop when they amended the first time. (Pls.' Mot. for Leave to File Pls.' Second Am. Compl., filed Nov. 10, 2005.) At no time prior to the deadline for filing motions for leave to amend pleadings (March 15, 2005) did Plaintiffs move to have the deadline extended. The Court denied Plaintiffs' Motion for Leave filed some eight months after the deadline for amending pleadings. (Order dated Nov. 16, 2005 (stating Plaintiffs did not even attempt to argue the proper standard for amending after deadline had passed)). Plaintiffs then filed Plaintiffs' Second Motion for Leave to Amend and for Extension of Deadlines on November 28, 2005. Defendants filed their Response to said motions on December 19, 2005, and on December 22, 2005, the Court denied Plaintiffs' Second Motion for Leave as well as the Motion to Extend Deadlines. (Order dated Dec. 22, 2005 (finding Plaintiffs failed to show good cause and adopting reasons argued by Defendants in their Response)).
Finally, Plaintiffs have filed the pending Motion to Reconsider the Court's Order Denying Plaintiffs' Second Motion for Leave to Amend and Enlarge Deadlines. Plaintiffs argue repeatedly in their request for reconsideration of extending deadlines that they have not completed depositions, expert designations, and gathering of evidence. (Mot. Reconsider at pp. 6-8 (listing "fact witnesses have just been or have yet [to be] deposed," "Plaintiffs require additional time to depose material fact witnesses, complete medical work-up and take expert depositions," new "fact witnesses have not been deposed," "Defendants precluded Plaintiffs from securing critical evidence and testimony," and "attempts to locate Mr. Allen's treating physicians")). Plaintiffs additionally argue that one of Plaintiffs' prior assistant counsel also "impair[ed]" and "negatively impact[ed]" the case before primary counsel discovered said impairment. (Mot. Reconsider at 5, ¶ 12.) Taking all these assertions as true, it is clear that any failure of Plaintiffs to secure depositions, locate and designate experts, or any other general discovery complaints are problems of their own (or their counsel's) making. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992) ("[T]he trial court need not aid non-monvants who have occasioned their own predicament through sloth."). As stated above, Plaintiffs have been on notice as to the schedule in this case, and Plaintiffs have had adequate time for discovery prior to this Court's ruling on the prior motion for summary judgment. See Cormier v. Pennzoil Exploration Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (month was sufficient time to have completed discovery). Plaintiffs were also given adequate time for discovery as to Howard County's liability from August 15, 2005, until their pending Amended Response was due — almost three full months. See id.
This case is not so complex as to make a failure to meet those deadlines excusable or unrealistic. Moreover, it is unclear why Plaintiffs did not utilize the procedural tools available to obtain the information and depositions before the deadlines. See Walters v. City of Ocean Springs, 626 F.2d 1317, 1320-22 (5th Cir. 1980) (not abuse of trial court's discretion to deny continuance when nondiligent party failed to make use of various discovery mechanisms that are at his disposal); 10B Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2741 at 431-37 (3d ed. 1998). Plaintiffs never filed a motion to compel, nor has the Court been directed to any evidence showing that Plaintiffs and/or their counsel ever actually noticed a witness for deposition. If Plaintiffs did actually notice a witness or an Individual Defendant for a deposition, Plaintiffs failed to attach any evidence of it to this pending Motion for Reconsideration. For Plaintiffs to continue to argue a need to depose witnesses and locate medical records at such a late hour in this case is inexcusable. Plaintiffs were also aware of the deadline for amending their complaint and moved to amend the first time prior to the deadline. Leave for that amendment was granted.
Plaintiffs themselves chose to drop their due process claims and proceed under an equal protection claim at a time when motions for leave to amend pleadings were allowed under the Scheduling Order. The Court, in an effort to be thorough, discussed why Plaintiffs failed to survive summary judgment as to the issue of due process and qualified immunity in the July 29, 2005 Order. Now, following the granting of the Individual Defendants' motion for summary judgment based on the pleadings of the First Amended Complaint, and after more than adequate time for discovery prior to granting that motion, Plaintiffs seek to amend their pleadings and assert a new cause of action not pleaded based on facts "newly" discovered as to the Individual Defendants' acts and/or omissions.
Additionally, Plaintiffs argue that they "did not become aware of the need for a second amendment until Defendants Howard County and Howard County Sheriff's Department filed their Motion for Summary Judgment." (Mot. Reconsider at p. 3, ¶ 5.) Thus, after all the time for discovery and following the prior motion for summary judgment (in which Defendants clearly argued that Plaintiffs had dropped their due process claims (Defs.' Mot. Summ. J., filed May 2, 2005, at pp. 5 and 16)), Plaintiffs now argue that they wish to "clarifiy" a claim for a due process violation after having the opportunity to read Defendants' pending Motion for Summary Judgment.
Again, any delay in becoming aware of a need for a second amendment in order to add or "clarify" a due process claim, is Plaintiffs' own making. Plaintiffs should have noticed the Individual Defendants and any other witnesses they wished to depose prior to the filing of Individual Defendants' Motion for Summary Judgment.
Plaintiffs have failed to show good cause to modify the scheduling order and they will not be allowed a second chance to develop the case. See SW Enters. v. SouthTrust Bank of Ala., 315 F.3d 533, 536-37 (5th Cir. 2003). Plaintiffs have had ample opportunity for discovery and apparently believed, as they now argue, that they were advancing a due process claim all along. Thus, the evidence in support of Plaintiffs' arguments contained in their Response to the pending motion for summary judgment was apparently gathered in pursuit of a due process claim as well as an equal protection claim — evidence that does not suffice to create a genuine issue of material fact as to such a claim. If Plaintiffs' arguments that they believed they were still advancing due process claims all along are taken as true, it can be assumed that Plaintiffs have already mustered all the evidence available in support of such a due process claim. In other words, if Plaintiffs really believed they had advanced due process claims, they should have been conducting discovery on such claims during the permitted discovery period. If Plaintiffs are yet seeking to continue discovery for a due process claim, such a request is flatly denied for the reason that Plaintiffs have had more than ample opportunity for discovery in support of any claim — pleaded, not pleaded, or thought to have been pleaded.
For these reasons and the reasons stated in Defendants' Response to this motion and Defendants' response to the prior Second Motion for Leave to Amend and for Extension of Deadlines, Plaintiffs' Motion to Reconsider is DENIED. Summary Judgment
As argued by Defendants, Plaintiffs are apparently attempting to unwind the clock and secure an enlargement of deadlines and the entry of a new scheduling order so that they might re-argue issues that have been determined by a prior order and judgment.
Even though Defendants argue that the result in this pending Motion for Summary Judgment is affected by the prior order, the Court will address, just as Defendants did, Plaintiffs' due process arguments and why they fail to create a genuine issue of material fact for such a claim. The Court, however, is not finding that Plaintiffs did actually allege such a claim in their First Amended Complaint. See Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1255-56 (5th Cir. 1995) (claim raised for first time in response to motion for summary judgment need not be addressed on the merits).
Even though Plaintiffs have raised many of the same arguments that were raised in the prior motion for summary judgment, the only issue now before this Court is whether Defendant Howard County is entitled to summary judgment on Plaintiffs' claims asserted against it. Although Plaintiffs have also sued Howard County Sheriff's Department, any claims asserted against Howard County Sheriff's Department are in reality claims against Howard County. Howard County Sheriff's Department is not a separate jural entity amenable to suit under Texas law. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (Tex. 1991); Magnett v. Dallas County Sheriff's Dep't, WL 51355 at *1 (N.D. Tex. Jan. 20, 1998); Jacobs v. Port Neches Police Dep't, 915 F. Supp. 842, 844 (E.D. Tex. 1996). Plaintiffs failed to come forward with any evidence showing that Howard County Sheriff's Department has been granted a separate legal existence from Howard County. Thus, Howard County Sheriff's Department is entitled to summary judgment as to Plaintiffs' claims against it.
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 F.2d 322, 324-25 (5th Cir. 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). As to the liability of a county, a plaintiff must show that a policy or custom of the county was the moving force behind a constitutional violation. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690-91 (1978). "[P]roof of an inadequate policy, without more, is insufficient to meet the threshold requirements of § 1983." Gonzales v. Ysleta I.S.D., 996 F.2d 745, 757 (5th Cir. 1993). Rather, a plaintiff must also show deliberate indifference. "[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of Cnty. Comm'rs of Bryan Cnty. Oklahoma v. Brown, 520 U.S. 397, 410 (1997).
Although Plaintiffs raise an equal protection claim (without clarifying), Plaintiffs clearly have not directed the Court to any competent evidence that could be construed as creating a genuine issue of material fact as to whether Mr. Allen was treated in a manner different from other inmates at the Howard County Jail. Moreover, as to evidence for an equal protection claim, Defendants have provided evidence in the record that all inmates go through the same process when coming into the Howard County Jail. Plaintiffs admitted during deposition testimony that they have no knowledge of how Mr. Allen was treated or handled differently than any other similarly situated inmate as a result of any policy, practice, or custom of discrimination. Plaintiffs have failed to direct the Court to any evidence to create a genuine issue of material fact as to whether Mr. Allen was not treated equally in this regard.
Furthermore, Plaintiffs have failed to address the proper standard for an equal protection claim — that similarly situated individuals were treated differently in violation of a constitutional right. Plaintiffs argue that deposition testimony by Walker shows that he would have "identified a detainee under same or similar circumstances as being high risk." (Resp. at p. 17, ¶ 33; Pls.' Br. at p. 9, ¶ 16.) However, as argued by Defendants, pure speculation about what might have been done is not evidence of unequal treatment of how others were actually treated differently. If Plaintiffs are attempting to argue that the classification protocols that allowed Decedent to be classified as a "risk" rather than a "high risk" are grounds for an equal protection claim, such a claim would be governed by whether a rational basis exists for such classification. The Court finds, as a matter of law, that a rational basis does exist for such a classification. Moreover, Defendants offered uncontroverted evidence in support of the existence of a rational basis. ( See also Defs.' App. Ex. I, p. 5 (App. p. 87)).
Because Plaintiffs have failed to direct the Court to evidence to create a genuine issue of material fact regarding an equal protection claim, Defendant is entitled to summary judgment on said claim. Plaintiffs fail to produce evidence that would create a genuine issue of material fact that Dunlap's classification of Decedent as less than a high risk for suicide was wholly lacking in any rational basis or was arbitrary. In fact the undisputed evidence supports just the opposite. It is undisputed that Decedent was administered the suicide information sheet and medical intake forms when he was booked into the jail. Plaintiffs have failed to direct the Court to competent summary judgment evidence such as would create a genuine issue of material fact that Decendent was classified any differently than other inmates with similar information in their intake reports so as to deny him of equal protection in any form, including equal protection of his right to serious medical and safety needs. Thus, Defendants are entitled to summary judgment on the equal protection claims.
In this Court's July 29, 2005 Order, which specifically found that Plaintiffs had failed to direct the Court to evidence that would create a genuine issue of material fact as to whether the Individual Defendants were deliberately indifferent, the Court found that the Individual Defendants did not act with deliberate indifference and that a constitutional violation had not occurred. (Order dated July 29, 2005); Domino v. Texas Dep't Criminal Justice, 239 F.3d 752, 754 (5th Cir. 2001) (quoting Vance v. Nunnery, 137 F.3d 270, 273 (5th Cir. 1998), as holding that a district court may take the facts and the evidence to which a plaintiff actually directs the court and determine if an individual defendant acted with deliberate indifference)); id. ("the first part of the qualified immunity test — whether [the plaintiff] has alleged a violation of a clearly established constitutional right — depends upon whether the summary judgment evidence, viewed in a light most favorable to [a plaintiff], demonstrates that [an individual defendant] was deliberately indifferent. . . ."). The Court further addressed the possibility of a medical and safety needs claim as well, though stating that Plaintiffs had apparently abandoned their medical and safety needs claim and had chosen to advance an equal protection claim instead. The Court will again address Plaintiffs' allegations of failure to protect from harm and suicide, whether raised as an equal protection or as a due process claim. Defendants argue that "Plaintiffs' consistent complaint comes down to a claim that `the facts and circumstances of this case — that Allen succeeded in hanging himself and committing suicide' demonstrates . . . [a] constitutionally inadequate [policy]." (Defs.' Reply at p. 7.) However, the Court expressly rejects the attempts by Plaintiffs' to re-interject arguments which are nothing more than an attempt to take a second bite at the apple as to the Individual Defendants' actions and whether an individual acted with deliberate indifference or in an objectively unreasonable manner. To such extent, the Court will only discuss the arguments in an effort to show that Plaintiffs have failed to support the vast majority of their arguments that Howard County maintained a policy or custom which was deliberately indifferent and actually was the moving force behind an alleged constitutional violation. Any effort to rehash the arguments as to an individual's conduct and liability are expressly rejected.
As stated by Defendants, even assuming, arguendo, that Dunlap could have classified Decedent as a high suicide risk does not establish that the Defendants' policies were constitutionally inadequate. Additionally, as argued by Defendants, Plaintiffs virtually admit that Defendant Howard County had a suicide policy in place because Plaintiffs argue that if Dunlap had properly followed the policies and procedures, then Decedent may not have committed suicide. (Defs.' Reply at 8 (citing all the instances where Plaintiffs argue in their Response what Howard County Jail's policies and procedures required)). Thus, as properly argued by Defendants, Plaintiffs practically admit that policies existed and were not the moving force behind Decedent's death. Rather, Plaintiffs apparently argue that Dunlap was at fault.
Proof of a single incident will not suffice to hold the County liable for inadequate training or to establish a custom or policy. Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998). Besides being a settled issued as to whether any of the Individual Defendants acted with deliberate indifference (Order dated July 29, 2005), deliberate indifference of Howard County can not be shown by evidence that a particular officer might have been more adequately trained; because officers make mistakes will not serve as evidence of inadequate training. City of Canton, Ohio v. Harris, 489 U.S. 378, 390-91 (1989). Plaintiffs also fail to direct the Court to competent summary judgment evidence that creates a genuine issue of material fact that the County's training was not in compliance with state-mandated standards for its officers. Therefore, Plaintiffs have not met the burden of proof for establishing that the training was constitutionally inadequate. An entity's training is presumed adequate when in compliance with state-mandated training standards. Baker v. Putnall, 75 F.3d 190, 199 (5th Cir. 1996). Plaintiffs must direct the Court to evidence that any inadequacy alleged actually represents County policy and that it did not comply with state standards. Id. Conclusory allegations masquerading as fact will not suffice. Douglass, 79 F.3d at 1428. More than a scintilla of evidence is also required. See Anderson, 477 U.S. at 251.
As is the case with much of Plaintiffs' Brief, the evidence is not supported with proper citations to evidence that actually stands for the propositions for which it is cited (if cited at all).
It is undisputed that the jailer on duty that night, Dunlap, received training and was a certified jailer and that the training included suicide prevention. It is undisputed that Dunlap performed the required screening and classification of Mr. Allen. It is also undisputed that all jailers receive a copy of the County's jail policies and procedures and have access to the rules and regulations of the Texas Jail Standards Commission and a videotape on suicide prevention. Plaintiffs' conclusory allegations that Dunlap could have been trained to do more do not amount to deliberate indifference on the part of the County, nor are they a substitute for competent summary judgment evidence.
Plaintiffs attempt to argue that the "facts of this case clearly demonstrate that Howard County failed [state standards] requirements." (Br. at p. 4, ¶ 5 (citing to ¶ 5 of Kiekbusch Aff. and Ex. A2)). However, the cited-to paragraph and exhibit do not support the conclusion for which they are cited. Neither the cited-to paragraph nor the exhibit states that Howard County failed to meet state requirements. Rather, Plaintiffs conclude as much and expect the Court to make a leap of logic along with them. Plaintiffs make another such unsupported conclusory statement on page 4 of their Brief when they argue that "officers were not trained to follow this policy until after Allen's death." (Br. at 5, ¶ 10 (citing Kiekbusch Aff. at ¶ 10)). Again, the affidavit at paragraph 10 makes no mention of officers not being trained until after Decedent's death. (Pls.' App. at 170, ¶ 10.) As stated in the Local Rules, each assertion in a summary judgment brief must be accompanied by "citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." LR 56.5(c). Plaintiffs' Brief is replete with such unsupported, conclusory allegations.
In every instance throughout Plaintiffs' Brief in which no citation exists or the citation does not support the conclusory allegation, the Court will not search out the record in order to find facts to create a genuine issue of material fact.
Finally, as argued by Defendants, Plaintiffs have failed to direct the Court to competent summary judgment evidence to create a genuine issue of material fact as to whether, inadequate or not, any alleged failure to train was the moving force behind a constitutional violation. Brown, 520 U.S. at 404. After acknowledging that a violation must " result from a policy or custom adopted or maintained by the municipality," (Pls.' Br. at p. 6, ¶ 12) (emphasis added), Plaintiffs fail to address the issue or direct the Court to evidence on the issue of the alleged unconstitutional policy being a moving force behind the alleged violations. Moreover, Plaintiffs go on to argue in the very next paragraph that Dunlap "should have known that Allen was a high risk for suicide." (Id. at ¶ 13.) As stated above, negligence is insufficient to establish deliberate indifference.
As argued by Defendants, Plaintiffs do not allege a failure to supervise in the First Amended Complaint. However, there is no evidence (or, at a minimum, none that would create a genuine issue of material fact) as to whether the jailers were inadequately supervised. Nor have the Plaintiffs directed the Court to any evidence that Howard County's supervision was deliberately indifferent. Thus, Defendants are entitled to summery judgment on any deliberate indifference/inadequate supervision claim. Prior Findings and Judgment Preclude Liability on Behalf of the County
Most importantly, as argued by Defendant, the Fifth Circuit case of Flores v. County of Hardeman, Texas, disposes of Plaintiffs' § 1983 claims against Defendant Howard County. 124 F.3d 736, 739 (5th Cir. 1997). In Flores, the Fifth Circuit specifically held that "[t]o prove an underlying constitutional violation in an episodic act or omission case such as this one, a pretrial detainee must first establish that an official acted with subjective deliberate indifference." Id. "Only then may he hold a municipality accountable for that due process violation." Id. "Because we have held that plaintiff's § 1983 claims against [the Sheriff in his individual capacity] fail, those claims against [the] County fail as well." Id.
Based upon the prior findings in this case that the Plaintiffs failed to address or raise a genuine issue of material fact as to the deliberate indifference of the Individual Defendants, and the other findings in the prior summary judgment order, Plaintiffs' claims against the Defendants must fail. See, e.g., id.; Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997).
Texas Tort Claims Act
As argued by Defendants, Plaintiffs' allegations do not state a claim under the Texas Tort Claims Act, Tex. Civ. Prac. Rem. Code §§ 101.001 et seq., because the "use" of the trousers by Decedent to hang himself was not "use" by Howard County or any of its officials as contemplated by the statute. Merely providing Decedent with the trousers does not equate to "use" by the Defendant. See San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). In a matter involving state law, the Court will look first to Texas Supreme Court opinions on the issue before turning to case law from a federal district court in Texas. Moreover, as pointed out by Defendants, Cowan was issued following the cases cited by Plaintiffs in their Brief. Thus, summary judgment is granted in favor of Defendants as to Plaintiffs' claims advanced pursuant to the Texas Tort Claims Act.
V. CONCLUSION
Plaintiffs' Motion for Reconsideration is DENIED for the reasons discussed in this Order and for the reasons argued in Defendants' Response to said Motion.
For the reasons stated herein and as argued in Defendants' Motion, Brief, and Reply, Defendants' Motion for Summary Judgment is GRANTED in its entirety.
The trial setting of April 3, 2006, is VACATED.
SO ORDERED.