Opinion
SA-18-CV-01277-DAE
2021-02-10
Kurt Steven TIEDE, SID #1009352, Plaintiff, v. Javier SALAZAR, Bexar County Sheriff; Lieutenant Arnold Martinez, Bexar County Deputy; Hung Dinh, Bexar County Deputy; Sergeant Miguel Delgado, Bexar County Deputy; Corporal Regina Ramirez, Bexar County Deputy, Defendants.
Kurt Steven Tiede, San Antonio, TX, pro se. Susan A. Bowen, Bexar County District Attorney's Office, San Antonio, TX, for Defendants.
Kurt Steven Tiede, San Antonio, TX, pro se.
Susan A. Bowen, Bexar County District Attorney's Office, San Antonio, TX, for Defendants.
ORDER
David A. Ezra, Senior United States District Judge Before the Court are Plaintiff Kurt Steven Tiede's ("Tiede") 42 U.S.C. § 1983 Civil Rights Amended Complaint, Defendants’ Motion for Summary Judgment, and Tiede's Response to Summary Judgment and his supporting affidavit. (ECF Nos. 36, 60, 78, 97). Based on the analysis set out below, Defendants’ Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Tiede was confined in the Bexar County Adult Detention Center ("BCADC") based on a parole violation for a prior offense and a new charge based on the offense of burglary of a vehicle. See https://search.bexar.org/Case/CaseSummary?r=29464124-17a7-49ad-a36e-47fd454ea873&st=s&s=1009352&cs=&ct=&=,,,,,,,,,,,&full=y&= (last visited Feb. 9, 2021). It is undisputed that during Tiede's 2018 confinement, specifically on October 26, 2018, the BCADC experienced a plumbing issue in Unit BE where Tiede was confined. (ECF Nos. 36; 60, Exh. 1, pp. 1–3). The toilets in cells BE 35 and 36 overflowed, flooding the dayroom and numerous cells. (ECF Nos. 36; 60, Exh. 1, p. 3). According to an affidavit and Facility Incident Report prepared by Defendant Deputy Hung Dinh, when he noticed the flooding, he ordered the inmates to return to their cells, but they refused. (ECF No. 60, Exh. 1, p. 3, Exh. 5, ¶ 4). Deputy Dinh telephoned "the 4th floor Sgt Office" about the flooding and the inmates’ refusals to return to their cells. (ECF No. 60, Exh. 1, p. 3, Exh. 5, ¶ 4). He avers maintenance was called to shut off the water. (Id. ).
Defendant Corporal Regina Ramirez responded to Unit BE. (ECF No. 60, Exh. 1, pp. 2–4, Exh. 4, ¶ 4). She too ordered the inmates back into their cells, but they refused. (ECF No. 60, Exh. 1, pp. 2–4, Exh. 4, ¶ 5). Corporal Ramirez contacted Defendant Lieutenant Arnold Martinez. (ECF No. 60, Exh. 1 pp. 1–3, Exh. 2, ¶ 3, Exh. 4, ¶ 6). Lieutenant Arnold entered Unit BE and asked the inmates "8 or 9 times to return to their cells so that maintenance could come in to make repairs." (ECF No. 60, Exh. 2, ¶ 4). He avers maintenance is on staff in the building twenty–four hours a day, but due to safety concerns, will not enter a Unit until inmates are secured in their cells. (Id. ). This testimony was echoed in the affidavit of Juan Jimenez, a maintenance employee at the BCADC who was called in to attend to the incident. (ECF No. 60, Exh. 6, ¶¶ 2–4).
According to Tiede, during the incident and despite multiple orders to return to their cells, he and other inmates were sitting "peacefully" on tables in the dayroom "to avoid being exposed to sewage water contamination." (ECF No. 36). Lieutenant Martinez states about twenty inmates refused to return to their cells, prompting him to call "a Code 6 and a Code 2 to regain order in the Unit and begin initial cleanup." (ECF No. 60, Exh. 1, p. 1, Exh. 2, ¶ 6). The Lieutenant explained that a Code 2 activates a six–man Special Emergency Response Team ("SERT"); a Code 6 activities all on-duty SERT members to assist the six-man team. (ECF No. 60, Exh. 2, ¶ 6). Lieutenant Martinez avers he called the Code 6 because of the number of inmates involved. (Id. ). Tiede claims the Lieutenant called the Codes because Tiede said exposure to the flooding, which he described as sewage water, was "cruel and unusual punishment." (ECF No. 36). When Lieutenant Martinez told the inmates he called the Codes, some ran for their cells. (ECF No. 60, Exh. 2, ¶ 7). When SERT arrived, most remaining inmates also ran for their cells. (Id. ).
SERT members saw inmates standing and sitting in the dayroom, and according to team leader Deputy Jesse Chavez, inmates were "standing up yelling and not wanting to go into their assign[ed] cells." (ECF No. 60, Exh. 1, pp. 5). They were ordered onto the floor, according to Tiede, facedown in the flooding waters. (Id. ). Although it appears the water covers the dayroom floor, the level is extremely low, so low that it allowed even those inmates placed face down on the floor to lift their head and avoid contact with it. (ECF Nos. 60, Exh. 1, pp. 36–37; 98). Four inmates refused to get down and SERT utilized force to control these inmates. (ECF No. 60, Exh. 1, pp. 5–11, 14, Exh. 4, ¶ 7). Tiede was not one of the four inmates who refused SERT orders. (ECF No. 60, Exh. 1, pp. 5–11; Exh. 2, ¶ 7, Exh. 4, ¶ 7, Exh. 5, ¶ 9). The SERT action was recorded; Defendants submitted the videos as summary judgment evidence. (ECF Nos. Exh. 60, Exh. 1, pp. 36–37; 98). According to Lieutenant Martinez, after all inmates were secured, those involved in the flooding incident were locked down for forty-eight hours "for their defiant behavior" and to protect the Unit deputies, and to allow the inmates to "cool down." (ECF No. 60, Exh. 2, ¶ 10).
As to the nature of the water that flooded the Unit, Tiede contends it was "contaminated with human feces, urine, and other bio–hazard material," exposing him "significant health risk," especially when he was forced to lie facedown on the floor. (ECF No. 36). Again, the summary judgment evidence shows a very low level of water on the floor, allowing those inmates placed on the floor to avoid it by simply lifting their heads. (ECF Nos. 60, Exh. 1, pp. 36–37; 98). Although Lieutenant Martinez, Corporal Ramirez, and Deputy Dinh claimed not to have seen feces or other biohazardous material in the water, several SERT members stated in their Facility Incident Reports that the water that contained an unstated amount of feces and urine. (ECF No. 60, Exh. 1, pp. 6, 8, 12, 15, Exh. 2, ¶¶ 2, 11, Exh. 4,¶ 5, Exh. 5, ¶ 5). Lieutenant Martinez recommended replacement of only footwear for SERT and other responding officers. (ECF No. 60, ¶ 11).
Tiede contends that following the incident, neither he nor any other inmate was permitted to shower or given clean clothing until either October 28, 2018 or October 31, 2018—Tiede references both dates in his Amended Complaint. (ECF No. 36, compare ¶¶ 20, 25, with ¶¶ 20, 24). He claims the inability to shower or change clothing exposed him to potential health risks. (ECF No. 36). Tiede further contends he and other inmates were "denied medical attention." (Id. ).
Although inmates were placed on lockdown for forty–eight hours, Lieutenant Martinez states he did not believe any inmate required medical attention after the incident—other than those subdued by SERT, but if Tiede believed he needed medical attention, he could have requested it even during the lockdown. (ECF No. 60, Exh. 2, ¶ 11). He further states Tiede could have requested new clothing and only those inmates who had refused to return to their cells would have had clothing that was wet anywhere except for the bottom of their pants. (ECF No. 60, Exh. 2, ¶¶ 12, 13). Deputy Dinh states he did not deny any inmate medical care and if he had believed an inmate needed medical attention, he would have called for it. (ECF No. 60, Exh. 5, ¶ 13). He further states that any inmate needing medical care could have requested it. (Id. ). A little over two months after the flooding incident, Tiede filed this section 1983 action against Sheriff Javier Salazar, Lieutenant Martinez, Corporal Ramirez, Sergeant Miguel Delgado, and Deputy Dinh in their individual capacities. (ECF No. 1). Tiede subsequently amended his Complaint (ECF No. 36). In his Amended Complaint, Tiede contends Defendants’ acts or omissions during and after the October 26, 2018 flooding incident violated his rights under the Eighth and Fourteenth Amendments. (Id. ). More specifically, and liberally construing the allegations in Tiede's Amended Complaint, the Court finds he alleged constitutional violations relating to episodic claims of excessive force and deliberate indifference to his medical needs or safety. (Id. ). As relief, Tiede seeks compensatory and punitive damages. (Id. ).
In an alleged third claim for relief in the Amended Complaint, Tiede states Defendants "used gross negligence." (ECF No. 36). However, after reviewing the entire Amended Complaint, the Court finds Tiede is merely restating his allegation that Defendants were deliberately indifferent to his medical needs. (Id. ). In the context of medical care, a prison official violates the Eighth or Fourteenth Amendments when he or she acts with deliberate indifference to an inmate's serious medical needs. Domino v. Texas Dep't of Criminal Justice , 239 F.3d 752, 754 (5th Cir. 2001). Neither negligence nor gross negligence is sufficient to establish deliberate indifference. Lewis v. Evans , 440 F. App'x 263, 265 (5th Cir. 2011) (citing Hernandez v. Tex. Dep't of Prot. & Reg. Servs. , 380 F.3d 872, 882 (5th Cir. 2004) ).
Tiede also states he is seeking a declaratory judgment that Defendants’ acts or omissions violated his civil rights. The Court concludes this is nothing more than a request to have the Court find in his favor, not a separate request for substantive relief.
The Court finds Tiede's claims should be characterized as "episodic" as opposed to claims based on "jail conditions." See Campos v. Webb Cnty., Tex. , 597 F. App'x 787, 791 (5th Cir. 2015) (quoting Hare v. City of Corinth, Miss. , 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc)). The Fifth Circuit instructs that a pretrial detainee's "constitutional complaints of Fourteenth Amendment violations" are analyzed "under one of two rubrics, ‘jail conditions’ or ‘episodic acts or omissions." Id. "Jail condition" challenges are evaluated to determine whether a "particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective." Id. (quoting Bell v. Wolfish , 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ). However, episodic acts or omissions are evaluated to determine whether the pretrial detainee has proven the defendant official "acted or failed to act with subjective deliberate indifference to the detainee's needs." Id. (quoting Hare , 74 F.3d at 636, 647–48 ).
Defendants filed an Advisory asserting Tiede is a pretrial detainee for purposes of his claims, and Tiede states in his Amended Complaint that he was a pretrial detainee. (ECF Nos. 36, 57). The Supreme Court held excessive force claims by pretrial detainees fall under due process protections of the Fourteenth Amendment but excessive force claims by convicted prisoners fall under the cruel and unusual punishment prohibitions of the Eighth Amendment. Kingsley v. Hendrickson , 576 U.S. 389, 400, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). The Fifth Circuit held similarly with regard to claims based on deliberate indifference to medical needs. Gibbs v. Grimmette , 254 F.3d 545, 548 (5th Cir. 2001). Because all parties agree Tiede was a pretrial detainee, the Court will conduct its analysis accordingly.
Jail condition challenges are against "general conditions, practices, rules or restrictions of pretrial confinement," e.g:, number of bunks per cell, mail privileges, disciplinary segregation, etc., whereas episodic challenges are against "a jail official's episodic act or omission." Hare , 74 F.3d at 643. In other words, a claim against jail conditions exists when "a jailer's act or omission ... implement[s] a rule or restriction or otherwise demonstrate[s] the existence of an identifiable intended condition or practice." Id. at 645. Absent an established rule, a jail condition claim exists only where there is "extended or pervasive misconduct," establishing a pattern, which the Fifth Circuit has recognized is a "heavy burden" that has rarely been met in its caselaw. Id. ; Shepherd v. Dallas Cnty. , 591 F.3d 445, 452 (5th Cir. 2009). The Fifth Circuit made a distinction between episodic and jail condition claims, in part, because when a jail implements a condition or policy, this "manifests an avowed intent to subject a pretrial detainee to that rule or restriction." Id. at 644. However, "[w]ith episodic acts or omissions, intentionality is no longer a given," therefore mandating a higher showing of subjective indifference demonstrating the "official had the requisite mental state to establish his liability as a perpetrator." Id. at 645.
Here, Tiede has not alleged Defendants’ conduct was based on existing rules or restrictions nor did he allege extended or pervasive misconduct so as to establish a sufficient pattern. (ECF No. 36); Hare , 74 F.3d at 645. Rather, Tiede's allegations are limited to Defendants’ acts or omissions during and after a single event—the flooding of Unit BE on October 26, 2018. (ECF No. 36). Accordingly, given the absence of allegations of systematic policies or failures or a sufficient pattern, the Court finds Tiede has alleged episodic claims of excessive force and deliberate indifference to his medical needs or safety with harm resulting from each. See, e.g., Campos , 597 F. App'x at 792 (holding that claim by mentally handicapped inmate that prison officials failed to isolate him from other inmates, resulting in sexual assault, alleged an episodic claim of deliberate indifference to medical needs, not a systematic failure or police to not screen mentally handicapped inmates or house them in the general population); Olabisiomotosho v. City of Houston , 185 F.3d 521, 526 (5th Cir. 1999) (holding that allegation that officers failed to screen and secure treatment for asthmatic detainee "fits the definition of the episodic omission"); Scott v. Moore , 114 F.3d 51, 53 (5th Cir. 1997) (en banc) (rejecting rape–victim plaintiffs argument that her claim was condition of confinement because understaffing allowed assault to occur, and holding claim was episodic because alleged harm was assault itself).
In response to Tiede's Amended Complaint, Defendants filed a joint motion for summary judgment asserting qualified immunity. (ECF No. 60). Tiede filed an affidavit and a response to the motion for summary judgment. (ECF Nos. 78, 97).
We construe the affidavit filed July 29, 2020, as part of Tiede's response to the motion for summary judgment even though it was not filed with the response. (ECF Nos. 78, 97).
Tiede also filed a second affidavit and affidavits of several other BCADC inmates. (ECF Nos. 85, 88, 89). Like the affidavit filed July 29, 2020, these affidavits were filed prior to the filing of Tiede's summary judgment response. Upon review, the Court finds these affidavits concern general plumbing issues in the BCADC that occurred approximately two years after the one upon which Tiede's Amended Complaint is based. (ECF Nos. 36, 85, 88, 89). The statements in these affidavits address general "jail conditions" relating to plumbing issues in the BCADC. (ECF No. 85, 88, 89). However, as noted above, Tiede's claims are episodic, i.e., alleged constitutional violations based on acts or omissions by jail officials during and after a discrete event that occurred on a single, specific date. (ECF No. 36); see Campos , 597 F. App'x at 791. The Court declines to construe these affidavits as a supplement to the Amended Complaint. Accordingly, based on Tiede's asserted claims, the Court finds these affidavits are irrelevant to Tiede's episodic claims. (ECF Nos. 85, 88, 89).
ANALYSIS
In their motion for summary judgment, Defendants allege entitlement to judgment as a matter of law based on qualified immunity. (ECF No. 60). Defendants contend the evidence establishes as a matter of law there were either no constitutional violations or Defendants’ acts or omissions were reasonable. Defendants contend Tiede has failed to produce any actual summary judgment evidence to the contrary. (Id. ).
Standard of Review
A district court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F. R. CIV. P. 56(a) ; see Funches v. Progressive Tractor & Implement Co., L.L.C. , 905 F.3d 846, 849 (5th Cir. 2018). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Darden v. City of Fort Worth , 880 F.3d 722, 727 (5th Cir.), cert. denied , ––– U.S. ––––, 139 S.Ct. 69, 202 L.Ed.2d 23 (2018) (emphasis added) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).
Generally, the non–movant must bring forward evidence to create a genuine issue of material fact only after the movant shows entitlement to judgment as a matter of law. Giles v. Gen. Elec. Co. , 245 F.3d 474, 493 (5th Cir. 2001). However, when, as here, a defendant properly pleads qualified immunity, the burden shifts to the plaintiff to demonstrate the defendant is not entitled to immunity by showing a violation of an actual constitutional right that was clearly established at the time of the alleged violation. See Escobar v. Montee , 895 F.3d 387, 393 (5th Cir. 2018) ; Romero v. City of Grapevine , 888 F.3d 170, 176 (5th Cir. 2018). Despite this shifting burden, a court must still "view the facts in the light most favorable to the nonmovant." Darden , 880 F.3d at 727.
Verified allegations in an inmate–plaintiff's complaint or summary judgment response are deemed competent summary judgment evidence. See Al–Raid v. Ingle , 69 F.3d 28, 32 (5th Cir. 1995). Nevertheless, even verified allegations are insufficient to defeat summary judgment if they are nothing more than "conclusory allegations," "unsubstantiated assertions," or constitute "only a scintilla of evidence." Little v. Liquid Air. Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). The non–movant must identify specific evidence in the records and articulate the manner in which the evidence supports his claims. Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force , 379 F.3d 293, 301 (5th Cir. 2004). The non–movant's evidence must raise more than some "metaphysical doubt as to the material facts." Funches , 905 F.3d at 849. A genuine issue of fact does not exist "if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." City of Alexandria v. Brown , 740 F.3d 339, 350 (5th Cir. 2014).
Applicable Law
Qualified immunity has been described as " ‘an entitlement not to stand trial or face the other burdens of litigation.’ " Staten v. Adams , 939 F. Supp. 2d 715, 723 (S.D. Tex. 2013) (quoting Saucier v. Katz , 533 U.S. 194, 199–200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ), aff'd , 615 F. App'x 223 (5th Cir. 2015). Qualified immunity "provides ample protections to all but the plainly incompetent or those who knowingly violate the law." Id. (quoting Malley v. Briggs , 475 U.S. 335, 349, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). It is a shield from " ‘undue interference’ " with a government official's duties and " ‘potentially disabling threats of liability.’ " Collie v. Barron , 747 F. App'x 950, 952 (5th Cir. 2018) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
Once a defendant pleads qualified immunity, the Court must undertake a two–pronged inquiry. Tolan v. Cotton , 572 U.S. 650, 655, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). Under the first prong, the Court must determine whether the facts alleged by the plaintiff establish or "make out a violation of a constitutional right." Darden , 880 F.3d at 727 (quoting Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ); Bush v. Strain , 513 F.3d 492, 500 (5th Cir. 2008). The second prong requires the Court to determine whether the defendant's actions were objectively reasonable in light of the law that was "clearly established" at the time of the alleged constitutional violation. Darden , 880 F.3d at 727 ; Haverda v. Hays Cnty. , 723 F.3d 586, 598 (5th Cir. 2013). The Supreme Court and the Fifth Circuit have consistently held that for a defendant pleading qualified immunity to be liable, his conduct must have violated clearly established constitutional rights of which a reasonable person would have known. See, e.g., Harlow , 457 U.S. at 818, 102 S.Ct. 2727 ; Easter v. Powell , 467 F.3d 459, 462 (5th Cir. 2006). If reasonable officials could differ on the lawfulness of the defendant's conduct, the defendant is entitled to qualified immunity. Zarnow v. City of Wichita Falls, Tex. , 500 F.3d 401, 407–08 (5th Cir. 2007). With regard to the second step, an official's act or omission is objectively reasonable unless all reasonable officials would have realized the particular challenged conduct violated the constitutional provisions at issue, giving ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
Application
1. Defendant Sheriff Javier Salazar
Defendants contend Sheriff Salazar is entitled to summary judgment based on qualified immunity because there is no allegation he was personally involved in the events upon which Tiede's section 1983 claims are based. (ECF No. 60). Defendants argue that in the absence of an allegation that the Sheriff was personally involved in the incident forming the basis of Tiede's section 1983 claims, Tiede has failed to "make out a violation of a constitutional right" to support his section 1983 claims against the Sheriff. See Darden , 880 F.3d at 727.
To state a section 1983 claim, i.e., make out a violation of a constitutional right, against a defendant like the Sheriff in his individual capacity, a plaintiff must allege the Sheriff was personally involved in the actions complained of or is responsible for the policy or custom giving rise to the alleged constitutional deprivation. See Alderson v. Concordia Parish Corr. Facility , 848 F.3d 415, 420 (5th Cir. 2017) (holding that under section 1983, officials are not vicariously liable for conduct of those under their supervision, they are accountable for their own acts and for implementing unconstitutional policies that result in constitutional deprivations); Jones v. Lowndes Cnty., Miss. , 678 F.3d 344, 349 (5th Cir. 2012) ("A Section 1983 claimant must ‘establish that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation.’ "). In this case the Court finds Tiede has done neither. (ECF No. 36). Rather, Tiede simply alleges he sent the Sheriff a letter about the October 26, 2018 incident but the Sheriff never responded or took any action in response. (ECF Nos. 36, 60). Accordingly, even taking Tiede's allegations about the Sheriff as true, the Court finds Tiede has failed to rebut Defendants’ assertion that as a matter of law he failed to "make out a violation" of any constitutional right by Defendant Sheriff Salazar. See Darden , 880 F.3d at 727. By failing to allege the Sheriff was personally involved in the October 26, 2018 events or implemented an unconstitutional policy or custom with regard to the events or Tiede's claims, Tiede has failed to show a constitutional violation in support of his section 1983 claims against Sheriff Salazar. See Darden , 880 F.3d at 727. In the absence of a constitutional violation, Sheriff Salazar is entitled to summary judgment based on qualified immunity. Id.
2. Defendant Sergeant Miguel Delgado
Defendants contend Sergeant Delgado is entitled to summary judgment because he was not present for, much less involved in, the events forming the basis of Tiede's alleged constitutional violations. (ECF Nos. 36, 60). They argue that because Tiede has failed to show a violation of his constitutional rights by Sergeant Delgado, the Sergeant is entitled to summary judgment based on qualified immunity. See Darden , 880 F.3d at 727.
In support of their contention, Defendants rely on Sergeant Delgado's affidavit, the responding SERT members Facility Incident Reports, and the SERT "2nd – Shift/South Tower Daily Roster and Assignment" sheet for October 26, 2018. (ECF No. 60, Exh. 1, pp. 5–15, 17, Exh. 3, ¶¶ 2–3). In his affidavit, Sergeant Delgado avers that on October 26–27, 2018, he worked the first shift at the BCADC. (ECF No. 60, Exh. 3, ¶ 2). He states he was not involved in the events that took place in Unit BE on October 26, 2018. (Id. ¶ 3). Sergeant Delgado "notes" that Tiede has made no specific allegations against him, claiming he does not know why Tiede named him as a defendant. (Id. ¶¶ 3–4). The incident reports, coupled with the SERT shift sheet support the Sergeant's sworn statements.
Pages five through fifteen of Exhibit 1 are Facility Incident Reports completed by members of SERT who responded to the Codes called by Lieutenant Martinez. (ECF No. 60, Exh. 1, pp. 5–15, Exh. 2, ¶ 6). Those SERT members included Gustavo Vargas, Taryn Armitage, Jesse Chavez, Joel Chavez, Marc Patino, Noah Volpi, Julian Yzaguirre, and Gustavo Vargas. (ECF No. 60, Exh. 1, pp. 5–15). According to the "2nd – Shift/South Tower Daily Roster and Assignment" sheet, the five SERT members who completed the incident reports relating to the incident that forms the basis of Tiede's claims were on duty during the second shift on October 26, 2018. (ECF No. 60, Exh. 1, p. 17). Sergeant Delgado was on the first shift that day and the next. (ECF No. 60, Exh. 3, ¶ 2). Thus, the summary judgment evidence shows the Sergeant was not present for, or involved in, the events forming the basis of Tiede's claims. (ECF No. 60, Exh. 1, pp. 5–15, 17, Exh. 3, ¶¶ 2–3).
Tiede neither contests Defendants’ summary judgment evidence nor provides evidence contrary thereto. (ECF Nos. 36, 78, 97). The Court finds Defendants’ summary judgment evidence establishes as a matter of law that the Sergeant was in no way involved in the events forming the basis of Tiede's alleged constitutional violation. (ECF No. 60, Exh. 1, pp. 5–15, 17, Exh. 3, ¶¶ 2–3). It therefore follows that Tiede has failed to show a constitutional violation by Sergeant Delgado, entitling the Sergeant to summary judgment based on qualified immunity. See Darden , 880 F.3d at 727. Tiede did nothing more than name Sergeant Delgado as a defendant, providing no specific allegations against him and failing to show he was even present during the flooding incident. (ECF No. 36).
3. Defendants Lieutenant Arnold Martinez, Corporal Regina Ramirez, & Deputy Hung Dinh
Tiede contends Defendants Martinez, Ramirez, and Dinh violated the constitutional prohibition against cruel and unusual punishment by using excessive force and acting with deliberate indifference to his medical needs and safety. (ECF No. 36). The Court will address each alleged constitutional violation separately.
For purposes of the Court's analysis in this section, "Defendants" refers to Lieutenant Martinez, Corporal Ramirez, and Deputy Dinh. The Court has already determined summary judgment is appropriate as to Sheriff Salazar and Sergeant Delgado for reasons inapplicable to the other Defendants.
a. Excessive Force
Tiede's episodic excessive force claim is based on his contention that he was "forced" or "pushed" face down onto the sewage–covered floor. (ECF Nos. 36, 78, 97). Although in his Amended Complaint and affidavit in support of his summary judgment response Tiede does not identify the defendant he claims forced or pushed him to the floor, in his summary judgment response, Tiede twice identifies the alleged perpetrator as Lieutenant Martinez. (ECF No. 97). Accepting these verified statements in the response as true, the Court finds Tiede has not alleged an episodic excessive force claim against either Corporal Ramirez or Deputy Dinh. (ECF No. 97). Accordingly, the Court finds Corporal Ramirez and Deputy Dinh are entitled to summary judgment based on qualified immunity with regard to the excessive force claim because based on the facts he alleged, Tiede has not made out a constitutional violation as to these defendants. See Darden , 880 F.3d at 727. The Court will now determine whether Lieutenant Martinez is also entitled to summary judgment on Tiede's excessive force claim.
Tiede contends excessive force was used against other inmates during the flooding incident. (ECF No. 36, 97). To the extent Tiede is attempting to assert claims on behalf of other BCADC inmates, he lacks standing to do so. Persons claiming a deprivation of constitutional rights are required to show a deprivation of their personal rights as opposed to the rights of others. See Barrows v. Jackson , 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) ("Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party."). Further, Tiede may not act as counsel for other BCADC inmates. See Gonzales v. Wyatt , 157 F.3d 1016, 1021 (5th Cir. 1998).
To establish excessive force, a plaintiff must show an injury that resulted directly and only from a use of force that was clearly excessive and that the excessiveness of the force was clearly unreasonable. Id. at 727. In 2015, the Supreme Court clarified the law concerning excessive force claims brought under the Fourteenth Amendment. See Kingsley v. Hendrickson , 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). The Court held a pretrial detainee need only show the claimed use of force was "objectively unreasonable." Id. at 391, 396–97, 135 S.Ct. 2466. The Supreme Court expressly rejected the use of a subjective standard relied on in prior cases, holding the prior cases are now only relevant "insofar as they address the practical importance of taking into account the legitimate safety–related concerns of those who run jails." Id. at 401, 135 S.Ct. 2466.
"[O]bjective reasonableness turns on the ‘facts and circumstances of each particular case.’ " Id. at 397, 135 S.Ct. 2466 (quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). The reasonableness of the force used must be assessed "from the perspective of a reasonable officer on the scene, including what the officer knew at the time," and accounting for the "legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained." Id. A court must defer to the "policies and practices that in [the] judgment" of jail officials "are needed to preserve internal order and discipline and to maintain institutional security." Id. (quoting Bell , 441 U.S. at 540, 547, 99 S.Ct. 1861 ). Considerations that may bear on the reasonableness of the force used include: (1) the relationship between the need for the use of force and the amount of force used; (2) any effort by the official to temper or limit the amount of force; (3) the severity of the security problem at issue; (4) the threat reasonably perceived by the officer; and (5) whether the plaintiff was actively resisting. Id. The Court held these factors are illustrative; they are neither exclusive nor conclusive. See id. The Kingsley factors are similar to those set out in Hudson v. McMillian , in which the subjective standard was applied. Compare Kingsley , 576 U.S. at 397, 135 S.Ct. 2466, with Hudson v. McMillian , 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The Hudson factors included the extent of the injury, the need for the force, the relationship between the need for and the force used, the threat reasonably perceived, and any efforts to temper the severity of the force. Hudson , 503 U.S. at 7, 112 S.Ct. 995. This Court takes into account the factors from both Kingsley and Hudson , and in so doing, concludes Lieutenant Martinez is entitled to summary judgment.
In his Amended Complaint, Tiede contends he was "standing in front of cell 18 with [the] door open" when Lieutenant Martinez "forced" him into his cell and "forced" or "pushed" him face down to the floor in "waste" or "contaminated water." (ECF Nos. 78, 97). According to Tiede, the force "injur[ed] [his] neck" and caused "numb hands and pain." (ECF No. 78).
As detailed above, the undisputed summary judgment evidence shows Tiede's Unit was flooding and officials—Deputy Dinh, Corporal Ramirez, and Lieutenant Martinez—ordered all inmates back to their cells multiple times so maintenance could enter and stop the flooding. (ECF No. 60, Exh. 2, ¶ 4, Exh. 4, ¶ 5, Exh. 5, ¶ 4). Despite these repeated requests, at least twenty inmates refused, including, by his own admission, Tiede. (ECF Nos. 60, Exh. 2, ¶ 5; 78). As set out above, Tiede states in his verified summary judgment response that he was outside of his cell when Lieutenant Martinez allegedly forced him back inside and onto the floor. (ECF No. 78). The SERT videos, which Defendants provided in support of their motion for summary judgment, show inmates still in the dayroom in contravention of officials’ multiple orders to return their cells. (ECF No. 60, Exh. 1; 98).
Although Lieutenant Martinez denied using any force against Tiede, taking Tiede's claim that the Lieutenant forced him back into his cell and onto the floor, the Court finds the summary judgment evidence shows these actions were objectively reasonable under the circumstances confronting officials at the time of the alleged use of force. See Kingsley , 576 U.S. at 397, 135 S.Ct. 2466. BCADC officials, including Defendants, were confronted with a serious flooding problem requiring immediate maintenance intervention. (ECF No. 60, Exh. 1, pp. 1–3). Maintenance could not enter the Unit until the inmates returned to their cells, which many, including Tiede, refused to do despite multiple orders. (ECF No. 60, Exh. 2, ¶ 4, Exh. 4, ¶ 5, Exh. 5, ¶ 4). As for his injury, Tiede has alleged a nebulous neck injury, unsupported by anything other than his own self–serving conclusion, which is insufficient to defeat summary judgment. (ECF No. 78); see Little , 37 F.3d at 1075.
"[T]he core judicial inquiry" is "whether force was applied in good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wilkins v. Gaddy , 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (quoting Hudson , 503 U.S. at 7, 112 S.Ct. 995 ). This has not changed under Kingsley. Considering the summary judgment evidence, the applicable Kingsley and Hudson factors, and the proper core inquiry, the Court finds Lieutenant Martinez's use of force against Tiede, if any, was applied in good faith in an effort to restore internal order and discipline and to maintain institutional security. See Kingsley , 576 U.S. at 397, 135 S.Ct. 2466. In sum, the Court finds the Lieutenant's single act of force was objectively reasonable under the circumstances that confronted him, entitling him to summary judgment based on qualified immunity.
b. Deliberate Indifference to Health and Safety Needs
Tiede's second episodic-act claim is based on Defendants’ actions after his exposure to "sewage water," during the October 26, 2016 flooding event. (ECF No. 36). He contends he was not permitted to shower or provided clean clothes for a number of days after the event and was not provided medical treatment. (Id., compare ¶¶ 20, 25, with ¶¶ 20, 24). Tiede contends these omissions were in deliberate indifference to his medical needs and safety in violation of his Fourteenth Amendment rights and as a result, he suffered "an unknown significant health risk" and "expos[ure] to Hepititis C [sic] now, and in the future." (ECF No. 36).
As with the analysis in the excessive force section of this Order, when the Court refers to "Defendants" in this section, it is referring to Lieutenant Martinez, Corporal Ramirez, and Deputy Dinh. The Court has already determined summary judgment is appropriate as to Sheriff Salazar and Sergeant Delgado for reasons inapplicable to the other Defendants.
Pretrial detainees and convicted inmates are owed the same duty under the Fourteenth and Eighth Amendments with regard to basic human needs, including medical and safety needs. Cadena v. El Paso Cnty. , 946 F.3d 717, 727 (5th Cir. 2020) ; Hare , 74 F.3d at 650. Although the Constitution does not require a comfortable prison, prison officials must provide humane conditions, including medical care. Gates v. Cook , 376 F.3d 323, 332 (5th Cir. 2004) (citing Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ).
To establish liability in an episodic-act claim alleging a violation of the Fourteenth Amendment with regard to serious medical needs or safety, a pretrial detainee must establish "objective exposure to a substantial risk of serious harm" and "that prison official acted or failed to act with deliberate indifference to that risk. Gobert v. Caldwell , 463 F.3d 339, 345–46 (5th Cir. 2006) ; see Cadena , 946 F.3d at 727–28. A prison official acts with deliberate indifference "only if [(A)] he knows that the inmates face a substantial risk of serious bodily harm and [(B)] he disregards that risk by failing to take reasonable measures to abate it." Gobert , 463 F.3d at 346 (quoting Farmer , 511 U.S. at 833–34, 114 S.Ct. 1970 ). The applicable mens rea of deliberate indifference demands subjective knowledge of a substantial health risk. See Gobert , 463 F.3d at 348 (citing Farmer , 511 U.S. at 847, 114 S.Ct. 1970 ). As the Court stated in Farmer , "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. " 511 U.S. at 837, 114 S.Ct. 1970 (emphasis added); see Garza v. City of Donna , 922 F.3d 626, 634–35 (5th Cir. 2019). Moreover, the official must have subjectively intended for the harm to occur. Thompson v. Upshur Cnty., Tex. , 245 F.3d 447, 459 (5th Cir. 2001) (citing Hare , 74 F.3d at 643 ).
"A serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required." Cadena , 946 F.3d at 727–28 (quoting Gobert , 463 F.3d at 345 n.12 ).
Deliberate indifference is an extremely high standard to meet, requiring evidence evincing a "wanton disregard for any serious medical needs." Estelle v. Gamble , 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Failure to alleviate a significant risk that the official should have perceived but did not is insufficient to show deliberate indifference. Farmer , 511 U.S. at 838, 114 S.Ct. 1970 ; see Garza , 922 F.3d at 634–35.
The Court begins by recognizing there is no evidence Tiede ever requested a change of clothing or medical care or otherwise made Defendants or other BCADC officials aware of his perceived medical or safety issues following the flooding. This lends credence to Lieutenant Martinez's affidavit testimony wherein he states he did not believe inmates needed medical care because of their exposure to the water or that the water was contaminated to the extent suggested by Tiede. (ECF No. 60, Exh. 2, ¶ 11). He states Tiede could have requested medical care through the intercom system even during the Unit lockdown. (Id. ). Tiede also could have told any Unit officer he needed to be taken to medical. (Id. ). Moreover, inmates, including Tiede, were moved temporarily to another floor due to the flooding, diminishing any potential exposure to hazards within the flood waters. (Id. ). Tiede could have asked those officers for a change of clothing or a referral to medical. (Id. ). Deputy Dinh also expressed his subjective belief that none of the inmates in the flooded Unit needed care. (ECF No. 60, Exh. 5, ¶ 13). He too states an inmate who felt they needed care could have requested it. (Id. ). Finally, the summary judgment evidence shows that after the flooding, inmate workers were assigned to clean up the water and provided cleaning supplies for the job. (ECF No. 60, Exh. 4, ¶ 8).
Tiede claims, and there is some evidence to suggest, the water that flooded the Unit contained some amount of feces and urine. (ECF No. 36; 60, Exh. 1, pp. 6, 8, 12, 15). However, Defendants all swore not to have seen feces or other biohazardous material in the water. (ECF No. 60, Exh. 2, ¶ 11, Exh. 4, ¶ 4, Exh. 5, ¶ 5). Additionally, Lieutenant Martinez specifically states he did not believe the water was contaminated. (ECF No. 60, Exh. 2, ¶ 11). Corporal Ramirez avers the "water looked like clear water to [her] and there was no smell." (ECF No. 60, Exh. 4, ¶ 4). Likewise, Deputy Dinh testified "the water was just water to [him]" and he did not see any feces in the water. (ECF No. 60, Exh. 5, ¶ 5). Defendants’ statements and beliefs are supported by the SERT videos provided as summary judgment evidence. (ECF No. 60, Exh. 1, 98). The videos from the SERT members’ body and video cameras show a very low level of water on the floor and do not show any feces in the water. (ECF No. 60, Exh. 1, 98). Nevertheless, assuming Defendants were aware of facts from which an inference could have been drawn that a substantial risk of serious harm existed due to contaminants in the water, there is no evidence any Defendant actually drew such an inference or subjectively intended that Tiede be harmed. See Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ; Garza , 922 F.3d at 634–35 ; Thompson , 245 F.3d at 459. Tiede contends only that Defendants knew there was feces and urine in the water, he does not allege or present evidence showing Defendants subjectively knew the contamination posed a serious medical risk to inmates if they failed to change clothing or receive medical treatment. (ECF No. 36). In fact, he alleges only that it was "obvious" that a significant health risk existed as a result of the flooding. (Id. ).
Although SERT members filed reports in which they stated there was some feces or urine in the water, their knowledge cannot be imputed to Defendants under a subjective standard. Moreover, claims by SERT members does not establish Defendants subjectively knew exposure to the water presented a substantial risk of serious harm to Tiede or that they intended Tiede to be harmed. See Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ; Garza , 922 F.3d at 634–35 ; Thompson , 245 F.3d at 459.
Moreover, a denial of medical care or attendance to medical safety needs is only actionable if it results in substantial harm. Feliz v. El Paso Cnty. , 441 F. Supp.3d 488, 503 (W.D. Tex. 2020) (citing Easter , 467 F.3d at 464 ). Tiede wholly fails to identify any actual injury or damage to his health from the incident, speculating that Defendants’ omissions with regard to his medical needs and safety caused him "unknown significant harm" and potential exposure to Hepatitis C "now, and in the future." ( Id. ).
Accordingly, the Court finds Tiede has failed to "make out a violation of a constitutional right" with regard to his Fourteenth Amendment claim based on deliberate indifference to medical needs and safety. See Darden , 880 F.3d at 727. Evidence of subjective knowledge of a substantial health risk or subjective intent to harm is wholly lacking here. See Gobert , 463 F.3d at 348 (citing Farmer , 511 U.S. at 847, 114 S.Ct. 1970 ); Thompson , 245 F.3d at 459. The Court finds that at best, the record shows Defendants were negligent to the extent they denied Tiede a change of clothing or medical care for two to five days after the flooding incident, which is insufficient for a due process claim based on denial of medical needs. See Campos , 597 F. App'x at 792. Therefore, the Court finds Defendants are entitled to summary judgment based on qualified immunity. See id.
CONCLUSION
After reviewing the summary judgment evidence and applying the applicable standard of review and law, the Court finds summary judgment in favor of Defendants based on the defense of qualified immunity should be granted. The Court finds Defendants established as matter of law that either Tiede failed to make out a constitutional violation or Defendants’ actions were objectively reasonable. See Darden , 880 F.3d at 727.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 60) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Kurt Steven Tiede shall take nothing in this cause against Defendants.