Schrader v. Texas Department of Public Safety

_ POO USBSereocRT

| NORTHERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRIC? courRT FILED _

NORTHERN DISTRICT OF TEXAS '

FORT WORTH DIVISION | | nov 23 aan |

| CLERK, U.S. DISTRICT COURT

La

JUSTIN SCHRADER, § veneer EY eae

§

Plaintif E,

§

VS. § NO. 4:20-CV-160-A

§

TEXAS DEPARTMENT OF PUBLIC §

SAPETY, ET AL., §

§

Defendants.

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of defendants Erath

County (“County”), Vanessa Griffin (“Griffin”), and Matt Coates

{“Coates”}, and the motion of defendant Julie Ruggles

(“Ruggles”), for summary judgment. The court, having considered

the motions, the responses of plaintiff, Justin Schrader, the

reply of County, Coates, and Griffin, the record, and applicable

authorities, finds that the motions should be granted,

I.

Plaintiff's Claims

The operative pleading is plaintiff’s second amended

complaint filed September 10, 2020. Doc.’ 50, In it, plaintiff

alleges that his leg was broken on January 29, 2018, by a state

trooper who said he stopped plaintiff for racing and evading

'The “Doc, _” reference is to the number of the item on the docket in this action,

arrest. Id. § 10-11. A County deputy took plaintiff to the jail,

which sent him to the hospital before it would accept him. Id.

12. Plaintiff was jailed in the County jail with instructions

from the emergency room doctor to keep his leg elevated, put no

weight on it, keep it iced, and schedule surgery. Id. 4 14-15.

Defendants knew of plaintiff's serious medical needs and were

deliberately indifferent to them. Id. passim.

Plaintiff sues for violations of the Fourteenth Amendment.

Id., 8-15. Specifically, he sues County for (1) episodic acts or

omissions, (2) conditions of confinement, and (3) failure to

train. He sues Coates and Griffin for failure to supervise. He

sues Griffin and Ruggles for deliberate indifference.’

If.

Grounds of the Motions

Ruggles is a registered nurse who provided 30 hours of

nursing services per week to inmates at County jail pursuant to

a contract between her employer, Southern Heaith Partners, Inc.

(*“SHP”), and County. Ruggles was supervised by Laurie Srubar,

FNP, who was the County jail medical provider. Ruggles Maintains

that plaintiff cannot establish that she had subjective

? He alternatively sues Ruggles under common law, but defendants do not contend that she was not a state actor.

knowledge of a substantial risk of serious harm to plaintiff but

responded with deliberate indifference to that risk.’ Doc. 59.

Coates is the Sheriff of County and is the policy-maker for

its jail. Griffin is the jail administrator. County, Coates, and

Griffin argue that plaintiff’s constitutional rights were not

violated by a policy, custom, or practice of County; neither

Coates nor Griffin were deliberately indifferent to training or

supervision of jailers; plaintiff£'’s serious medical needs were

never treated with deliberate indifference; and, even if

plaintiff's constitutional rights were violated, Coates and

Griffin are entitled to qualified immunity. Doc. 57.

Til.

Applicable Legal Principles

A. Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure provides

that the court shall grant summary judgment on a claim or

defense if there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. Fed,

R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). The movant bears the initial burden of pointing out

to the court that there is no genuine dispute as to any material

3 Ruggles also argues that she is not liable in her official capacity, but plaintiff says that he did not sue Ruggles in

her official capacity. Doc, 78,

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986),

The movant can discharge this burden by pointing out the absence

of evidence supporting one or more essential elements of the

nonmoving party's claim, “since a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial.” Id. at 323,

Once the movant has carried its burden under Rule 56(a),

the nonmoving party must identify evidence in the record that

creates a genuine dispute as to each of the challenged elements

of its case. Id. at 324; see also Fed. R. Civ. P. 56(c) (“A

party asserting that a fact. . . is genuinely disputed must

support the assertion by . . . citing to particular parts of

materials in the record . .. .").’ If the evidence identified

could not lead a rational trier of fact to find in favor of the

nonmoving party as to each essential element of the nonmoving □

party's case, there is no genuine dispute for trial and summary

judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587, 597 {1986).

Although the court must resolve all factual inferences in

favor of the nonmovant, the nonmovant cannot manufacture a

disputed material fact where none exists. Albertson v. T.J.

4 Tt is not the court’s job to sift the record in search of evidence to support a party’s opposition to a motion for

summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (Sth Cir. 1998).

Stevenson & Co., 749 F.2d 223, 228 (5th Cir, 1984). He cannot

defeat a motion for summary judgment by submitting an affidavit

that contradicts, without explanation, his earlier sworn

deposition. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

806 (1999); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,

495 (5th Cir. 1996); Albertson, 749 F.2d at 228. Nor can he rely

on conclusory allegations unsupported by concrete and particular

facts. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th

Cir. 1995).

The mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

motion for summary judgment . Anderson, 477 U.S. at 247-48.

Moreover, “[wlhen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

B. Entity and Supervisor Liability Under § 1983

The law is clearly established that the doctrine of

respondeat superior does not apply to § 1983 actions. Monell v.

New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) ;

Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). The

misconduct of a subordinate must be affirmatively linked to the

action or inaction of the supervisor. Southard v. Tex. Bd. Of

Crim. Justice, 909 F.2d 121, 123 (5th Cir. 1990). A supervisor

may be liable under § 1983 only if he or she, by action or

inaction, demonstrates deliberate indifference to a plaintiff's

constitutionally protected rights. Id. at 551. The deliberate

indifference standard allows the court to separate omissions

that amount to an intentional choice from those that are. merely

unintentionally negligent oversights. Id. (quotations and

citations omitted}.

Liability may be imposed against a local government only if

the governmental body itself subjects a person to a deprivation

of rights or causes a person to be subjected to such

deprivation. Connick v. Thompson, 563 U.S. 51, 60 (2011). Local

governments are responsible only for their own illegal acts. Id.

(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). Thus,

plaintiffs who seek to impose liability on local governments

under § 1983 must prove that action pursuant to official policy

caused their injury. Monell, 436 U.S. at 691. Specifically,

there must be an affirmative link between the policy and the

particular constitutional violation alleged. City of Oklahoma

City v. Tuttle, 471 U.S. 808, 823 (1985).

Proof of a single incident of unconstitutional activity is

not sufficient to impose liability, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional policy, which policy can be attributed to a

governmental policymaker. Tuttle, 471 U.S. at 823-24. (If the

policy itself is not unconstitutional, considerably more proof

than a single incident will be necessary to establish both the

requisite fault and the causal connection between the policy and

the constitutional deprivations, Id, at 824.) Thus, to establish

governmental liability requires proof of three elements: a

policymaker, an official policy, and a violation of

constitutional rights whose moving force is the policy or

custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th

Cir, 2001).

The Fifth Circuit has been explicit in its definition

of “official policy” that can lead to liability on the part

of a governmental entity, giving the following explanation

in an opinion issued en banc in response to a motion for

rehearing in Bennett v. City of Slidell:

1. A policy statement, ordinance, regulation or

decision that is officially adopted and promulgated by

the [entity’s] lawmaking officers or by an official to

whom the lawmakers have delegated policy-making

authority; or

2. A persistent, widespread practice of [entity]

officials or employees, which, although not authorized

by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that

fairly represents [entity] policy. Actual or

7

constructive knowledge of such custom must be

attributable to the governing body .. . or to an

official to whom that body had delegated policy-making

authority.

Actions of officers or employees of [an entity]

do not render the [entity] liable under § 1983 unless

they execute official policy as above defined.

735 F.2d 861, 862 (5th Cir. 1984) (per curiam).

Culpability for deprivation of rights is at its most

tenuous where a claim turns on failure to train or supervise.

Connick, 563 U.S. at 61. The failure to train or supervise must

constitute deliberate indifference to the rights of persons with

whom the untrained or unsupervised employees come into contact.

And, to establish deliberate indifference for failure to train

or supervise ordinarily requires the plaintiff to show a pattern

of similar constitutional violations sufficient to give notice

that the course of training or supervision is deficient in a

particular respect. Id. at 62; Bowen v. Watkins, 669 F.2d 979,

988 (5th Cir. 1982) (“Usually, a failure to supervise gives rise

to section 1983 liability only in those situations in which

there is a history of widespread abuse.”).

Neither a supervisory official nor a governmental entity

can be held liable for failing to adopt policies to’ prevent

constitutional violations. See, e.g., Vela v. White, 703 F.2d

147, 153 (Sth Cir. 1983); Reimer v. Smith, 663 F.2d 1316, 1323

(5th Cir. 1981); Wanger v. Bonner, 621 F.2d 675, 680 {Sth Cir.

1980).

Cc. Qualified Immunity

Qualified immunity insulates a government official from

civil damages liability when the official’s actions do not

“violate clearly established statutory or constitutional rights

of which a reasonable person would have known.“ Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be “clearly

established,” that right’s contours must be “sufficiently clear

that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). Individual liability thus turns on the objective

legal reasonableness of the defendant’s actions assessed in

light of clearly established law at the time. Hunter v. Bryant,

502 U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In

Harlow, the court explained that a key question is “whether that

law was clearly established at the time an action occurred, ”

because “fi]lf the law at that time was not clearly established,

an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be said to

‘know’ that the law forbade conduct not previously identified as

unlawful.” 457 U.S. at 818. In assessing whether the law was

clearly established at the time, the court is to consider all

relevant legal authority, whether cited by the parties or not.

Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials

of reasonable competence could differ on the lawfulness of

defendant’s actions, the defendant is entitled to qualified

immunity. Mullenix v. Luna, 577 U.S. 7, 11 (2015); Malley v.

Briggs, 475 U.S. 335, 341 (1986); Fraire, 957 F.2d at 1273.

In analyzing whether an individual defendant is entitled to

qualified immunity, the court considers whether the plaintiff

has alleged any violation of a clearly established right, and if

so, whether the individual defendant’s conduct was objectively

reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In

so doing, the court should not assume that the plaintiff has

stated a claim, i.e., asserted a violation of a constitutional

right. Siegert, 500 U.S. at 232. Rather, the court must be

certain that, if the facts alleged by the plaintiff are true, a

violation has clearly occurred. Connelly v. Comptroller, 876

F.2d 1209, 1212 (Sth Cir. 1989). Even if defendants are alleged

to have acted in unison, the court must address the actions of

each individually to determine whether qualified immunity

applies. Cass v. City of Abilene, 814 F.3d 721, 730-31 (5th Cir.

2016); Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007);

Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).

10

A mistake in judament does not cause an officer to lose his

qualified immunity defense. In Hunter, the Supreme Court

explained:

The qualified immunity standard “gives ample room

for mistaken judgments” by protecting “all but the.

plainly incompetent or those who knowingly violate the

law.” Malley, [475 U.S.] at 343. . . ,. This

accommodation for reasonable error exists because

“officials should not err always on the side of

caution” because they fear being sued.

502 U.S. at 229. “[fA]n allegation of malice is not sufficient to

defeat immunity if the defendant acted in an objectively

reasonable manner.” Malley, 475 U.S. at 341. Further, that the

officer himself may have created the situation does not change

the analysis. That he could have handled the situation better

does not affect his entitlement to qualified immunity. Young v.

City of Killeen, 775 F.2d 1349, 1352-53 (5th Cir. 1985).

When a defendant relies on qualified immunity, the burden

is on the plaintiff to negate the defense. Kovacic v. Villareal,

628 F.3d 209, 211-12 (5th Cir. 2010); Foster v. City of Lake

Jackson, 28 F.3d 426, 428 (5th Cir, 1994). The standard is

demanding. Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th

Cir. 2015). Although Supreme Court precedent does not require a

case directly on point, existing precedent must place the

statutory or constitutional question beyond debate. White v. □

Pauly, 137 S. Ct. 548, 551 (2017). That is, the clearly

lI

established law upon which the plaintiff relies should not be

defined at a high level of generality, but must be

particularized to the facts of the case. Id. at 552. Thus,

failure to identify a case where an officer acting under similar

circumstances was held to have violated a plaintiff’s rights

will most likely defeat the plaintiff's ability to overcome a

qualified immunity defense. Id.; Surratt v. McClarin,; 851 F.3d

389, 392 (Sth Cir. 2017}.

D. Deliberate Indifference to Medical Needs

The Eighth Amendment proscribes cruel and unusual

punishments, which the Supreme Court has interpreted to include

deliberate indifference to serious medical needs of prisoners.

. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A pretrial

detainee’s complaint of deliberate indifference to medical needs

arises under the Fourteenth Amendment. Thompson v. Upshur Cnty.,

245 F.3d 447, 457 (5th Cir. 2001).

A pretrial detainee’s claims against a governmental entity

are characterized as “conditions of confinement” or “episodic

act or omission” claims. Garza v. City of Donna, 922 F.3d 626,

632 (Sth Cir. 2019). In a conditions of confinement claim, the

plaintiff attacks the general conditions, practices, rules or

restrictions of pretrial confinement. Scott v. Moore, 114 F.3d

51; 53 (5th Cir. 1997). To succeed on such a claim, the

. 12

plaintiff must prove (1) a rule or restriction, an intended

condition or practice, or a de facto policy as evidenced by

sufficiently extended or pervasive acts of jail officials, (2)

not reasonably related to a legitimate governmental objective,

i.e., arbitrary or purposeless, (3) that caused a violation of

his constitutional rights. Duvall v. Dallas Cnty., 631 F.3d 203,

207 {Sth Cir. 2011). He must demonstrate a pervasive pattern of

serious deficiencies in providing for his basic human needs. As

the Fifth Circuit has noted:

[I] solated examples of illness, injury, or even death,

standing alone, cannot prove that conditions of

confinement are constitutionally inadequate. Nor can

the incidence of diseases or infections, standing

alone, imply unconstitutional confinement conditions,

since any densely populated residence may be subject

to outbreaks. Allegations of insufficient funding are

similarly unavailing.

Shepherd v. Dallas Cnty., 591 F.3d 445, 454 (5th Cir. 2009).

“Proving a pattern is a heavy burden, one that has rarely been

met in our caselaw.” Id. at 452.

In an “episodic act or omission claim,” the plaintiff

complains of a specific act or omission by a state actor. Scott,

114 F.3d at 53. For deliberate indifference to rise to the level

of a constitutional violation, the plaintiff must establish that

the defendant knew of and disregarded an excessive risk to the

plaintiff's health or safety. Farmer v. Brennan, 511 U.S. 825,

13

837 (1994). The defendant “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.” Id. A

defendant's “failure to alleviate a significant risk that he

should have perceived but did not” does not constitute a

constitutional violation. Id. at 838. “[D]eliberate indifference

cannot be inferred merely from a negligent or even a grossly

negligent response to a substantial risk of serious harm.”

Thompson, 245 F.3d at 459, Rather, the plaintiff must show that

the defendant acted with subjective deliberate indifference.

Hare v, City of Corinth, 74 F.3d 633, 648-49 (Sth Cir.

1996) (discussing Farmer). Deliberate indifference is an

extremely high standard to meet. Domino v. Tex. Dep't of Crim.

Justice, 239 F.3d 752, 756 (Sth Cir. 2001}.

IV.

Undisputed Facts

County, Coates, and Griffin set forth twenty-one pages of

facts supported by record references. Doc. 57 at 2-23. Plaintiff

disputes very few of them. Doc. 75 at 16-18. And, as discussed,

infra, many of the alleged disputes are not relevant. Except for

an alleged inaccuracy regarding when Ruggles worked and when

plaintiff was booked into the jail, plaintiff does not

specifically address the summary judgment evidence submitted by

14

Ruggles. Doc. 78 at 21.

As is its custom, the court is giving the summary judgment

evidence whatever weight, if any, it deserves. In particular,

the court is not giving much weight to the affidavit submitted

by plaintiff inasmuch as it contradicts without explanation much

of his sworn deposition testimony, beginning in the first

substantive paragraph with the statement that he was on his way

home from work when he was stopped for racing.*® Doc. 76 at 166;

id. at 312-13 (after work, plaintiff went to the grocery store

and then to his house and had dinner). He states that he was not

provided any assistive devices in his cell, id. at 166, whereas

he testified that maybe he was in a wheelchair and he just could

not remember using one. Doc. 58 at 34. He states that no one

would tell him anything or give him any information, Doc. 76 at

166, whereas he testified that he was told more than once that

he would hurt himself with the crutches. Doc. 58 at 54-55. He

refers to a time “{a]fter they quit giving me painkillers,” Doc.

76 at 166, whereas it is clear from his deposition testimony

that he considered tylenol a painkiller and that it was provided

te him. Doc. 58 at 51-53.

Pertinent to the motions, the record establishes: _

3 A video from the scene of the arrest reflects that plaintiff had been drinking Doc, 58 at 356. In one of the videos

submitted by plaintiff, he admits that he had been drinking and is obviously drunk, but that video pertains to another

arrest for public intoxication, on May 31, 2019, and not the incident in question. Doc. 76 at Appx 9.

15

Coates serves as the County’s jail policymaker. The

policies he enacts are strictly governed by the Texas Commission

on Jail Standards (“TCJS”). Coates exercises supervision and

control over the jail. He appointed Griffin to supervise the

jail’s operations. Doc. 58 at 78-79. Coates and Griffin are in

constant contact regarding daily jail operations, including

medical care provided to inmates. Id. at 83-85, 133-34. Coates

has been commended by TCUS for excellent work. Id. at 330.

At the time plaintiff was incarcerated, medical services to

inmates were provided by SHP, through a contract with County.

Id. at 314-29. Ruggles, a registered nurse, was employed by SHP

to work at the jail 30 hours per week. Id. 232, 234. Ruggles was

supervised by Laurie Srubar, FNP. Id. at 235; Doc. 60 at 1-2,

The County health services plan provided that a nurse would be

available Five days per week and that emergency care would

always be available. Inmates would have access to prescription

and nonprescription medications; medical instructions would be

followed as written; inmates’ medical records would be

maintained. Outside medical appointments would not be kept

because of the high risk of a security breach if the inmate and

his family were aware of the arrangements. Doc. 58 at 309-13.

Jailers who violated the plan were subject to discipline. Id. at

. 120. Jailers were not allowed to ignore medical needs and were

16

required to secure treatment whenever needed, regardless of the

circumstance. Jailers were required to monitor inmates to ensure

their safety. Id. at 91-93, 104, 134-35. Griffin ensured that

the health plan was followed and that staff met medical needs of

inmates. Id. at 96.

Griffin never let Coates know that there was any problem or

shortcomings with SHP. Id. at 87. Coates and Griffin never had a

complaint about Ruggles or about medical care. Coates had no

reason to believe that plaintiff's medical needs were being

ignored because there were not any other complaints about

medical care at the jail. Id. at 97, 135.

Late on January 29, 2018, movant was stopped by a Texas

Department of Public Safety officer for street racing with

another vehicle. Id. at 288. The officer performed a leg sweep,

which resulted in plaintiff’s left leg being broken at his

ankle. Id. at 266. A County officer responding to the call

summoned an ambulance when he heard plaintiff say his leg was

broken. Id. at 356. When the ambulance arrived, plaintiff

refused treatment, yelling obscenities and homophobic and racial

epithets and being unusually belligerent. Id. at 215, 356.

Because plaintiff refused medical care, the County officer

transported him to the County jail. Id. at 210. Pursuant to

County policy, Griffin, who was on duty that night, refused to

17

allow plaintiff to be booked without first being examined at the

hospital. Id. at 163. The officer took plaintiff to the

hospital, where he was immediately seen and treated, Id. at 23,

210-11. A splint was placed on his left leg. Id. at 60; Doc. 76

at Appx 10. The doctor who saw him provided the officer with an

“Tnmate Clearance Report” that advised plaintiff should “Keep

{left] ankle/foot elevated as much as possible. Use crutches &

no weight bearing on [left] leg when up. Ice pack to ankle 20

Minutes every 2 hrs for 48 hrs. Tramadol 100 mg every 6 [hours]

as needed for pain.” Doc, 58 at 266. The officer also received a

summary that gave instructions to call Dr. Kevin Vanden Berge to

arrange follow up and then probably surgery the following week

when swelling was better. The diagnosis was a broken ankle and

the summary specifically described the injury and how to treat

it. The instructions directed to take tylenol, advil, or

tramadol for pain. The directions for applying ice to the

injured area said to leave the ice on for 20 minutes, 2-3 times

a day. The hospital provided the officer with six tramadol

capsules to give plaintiff. Id. at 26, 266-76, 337.

Plaintiff was transported to the jail where he used

crutches to get from the vehicle to the booking area. Id. at 27-

28. The transporting officer gave Griffin the report and

summary. Id. at 165, 167. Plaintiff used crutches to get to the

18 :

holding cell where he recalled being housed for two days. Id. at

32. The cell contained steel benches approximately twenty-four

inches off the floor, a toilet, and a sink. Plaintiff was issued

a mat to be used as a mattress. Id. at 30-31. Although the

crutches were taken from him, plaintiff never asked for them

while in this cell. Id. at 32-33. He does not recall having a

wheelchair in the cell, but Griffin saw him sitting in one. Id.

at 34, 168-69. He also had an extra mattress to prop up his

foot. Id. at 168. He was given the tramadol he received at the

hospital and jailers brought him ice. Id. at 34-39. He could not

testify as to how many times he was brought ice. Id. at 34.

Griffin instructed jailers to take plaintiff ice whenever he

asked for it. Id. at 170-72.

Plaintiff recalls being moved to a medical cell that

measured approximately twelve feet by six or eight feet. Id. at

41. He was given the crutches to move to the new cell. Id. at

43, Plaintiff also received ice and the remaining tramadol that

had been given to him in the hospital in the new cell. Id. at

38-39, 46-47. After he received one or two tramadol, he was

given tylenol, but he does not know how often. He asked for pain

medicine four or five times a day and received it once or twice

a day, two pills at a time. He does not know the strength. Id.

at 51-53. He does not recall how many times he was given ice.

19

Id, at 46-47. He did not move around much in that cell and does

not remember going to the restroom. Id. at 42. He communicated

with jailers through an intercom speaker that he could reach

from where he was lying. The majority of the time jailers

answered the intercom. He could press the button as many times

as he wanted. Id. 44-45. Plaintiff did not have his crutches in

this second cell. Id, at 187-88. He was told that he might hurt

himself. Id. at 54-55. He never asked for any other medical care

or. filed any grievances while in the jail. Id. at 56. Griffin

never refused to provide plaintiff medicine, medical care, or

medical treatment. Id. at 70. Coates never refused to give

plaintiff medicine. Id. Coates visited plaintiff only once and

they discussed who was liable to pay for the surgery.*® Id. at 50.

Although Ruggles did not see plaintiff, because he refused to

come and see her, she knew from Griffin and other jailers that

he was being provided ice, crutches, a wheelchair, and tylenol.

Id. at 175; Doc. 60 at 2. ,

Coates and Griffin tried to follow the doctor’s orders.

Griffin instructed jailers to provide plaintiff all six of the

tramadol tablets from the hospital. Doc. 58 at 100-01, 121-22,

167-68. Griffin called Vanden Burge’s office on January 31, the

6 Plaintiff was told by his doctor’s office that County was liable, Coates took the position that County was not liable

since it was not responsible for the broken leg. In any event, plaintiff would have had the surgery had he remained in

custody, Doc. 58 at 111, 117-19, 185,

20

day after plaintiff’s arrival at the jail, to make an

appointment for follow-up. Id. at 175-76, 181. On February 2,

2018, plaintiff was taken to the appointment. Id, at 57. Notes

of the appointment do not reflect that plaintiff complained that

he was in excruciating pain or being denied pain medication.

Rather, plaintiff said that he was not currently. taking

medication for pain because he was out. Id. at 346. The doctor

sent a tramadol prescription to the pharmacy after discussing

the risks and benefits of opioid and/or other controlled

substances. Id. at 347. The pharmacy delivered the tramadol to

the jail, where it was placed with plaintiff's property. Id. at

164, When Ruggles told Griffin that Srugar would not approve

additional tramadol and told Ruggles to give plaintiff tylenol,

Griffin made sure tylenol was provided. Id. at 175, 177, 1793,

306. Griffin checked on plaintiff almost every day and had

jailers check on him every fifteen minutes, which they did. Id.

at 163, 277-84.

The doctor scheduled surgery for February 7. Id. at 56-57,

62, 196. Pursuant to jail policy, Griffin rescheduled the

surgery for February 9, the next available time. Id. at 183-84,

195. Coates believed that plaintiff would be more comfortable at

home recovering from the surgery. Id. 113, 118, 127. Griffin

21

made arrangements for plaintiff to be bonded out of jail.” Id. at

186-87. He was released the day before the surgery. Id. at 307.

Griffin returned the unused tramadol to plaintiff’s mother.* Id.

at 164, 196. There is no evidence that the two day delay in

surgery affected the outcome.

Vv.

Analysis . □

As for the conditions of confinement claim, defendants have

established that facts do not exist to support such a claim. In

response, plaintiff fails to point to any evidence establishing

an official policy, custom, or practice that caused a particular

violation of plaintiff's constitutional rights. He simply

includes in his brief three paragraphs containing conclusory

allegations to the effect that evaluation, monitoring, and

treatment of inmates with serious medical illness was grossly

inadequate due to poor or non-existent procedures and

understaffing. Doc. 75 at 19-20. Plaintiff does not point to any

examples of iliness, injury, or death to show that the

conditions of confinement were constitutionally inadequate,

Despite citing to Shepherd v. Dallas Cnty., 591 F.3d 445 (5th

? Plaintiff had been charged with a felony and a misdemeanor. The felony charge was dropped and plaintiff was able

to bond out on a personal recognizance bond for the misdemeanor.

8 Plaintiff says only that the tramadol was not returned to him, There is no evidence to support any contention that

Ruggles took the tramadol or used it for her own purposes,

22

Cir. 2009), he relies on no other instances of alleged

deprivation but his own, which clearly does not begin to meet

the test.

Defendants have further shown that there was not any

deliberate indifference to training or supervision. Written

policies, vel non, there were verbal policies in place that

required jailers to get medical assistance for any inmate

needing it at any time. Brumfield v. Hollins, 551 F.3d 322, 332

(5th Cir. 2008). Further, absent a known danger, defendants

cannot have been deliberately indifferent. Id.

Under the heading “Failure to Supervise/Train,” plaintiff

includes a mere three paragraphs. Doc. 75 at 20-21. Again, the

cases he cites concern substantially egregious facts that do not

exist here. In Martone v. Livingston, No. 4:13-CV-3369, 2014 WL

3534696 {S.D. Tex. July 16, 2014), prison officials were held

liable for acting with deliberate indifference in creating and

approving dangerous conditions that caused a death by heat

stroke. Two other cases he cites concerned motions to dismiss

and whether the plaintiff had pleaded viable causes of action,

not whether summary judgment evidence established a genuine

issue of fact. In Stephens v. Correctional Servs, Corp., 428 F.

Supp. 2d 580 (B.D. Tex. 2006), plaintiff alleged sufficient.

facts to state a claim that jailers placed him, a pretrial

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detainee, with violent criminals who threatened his life,

ignored his complaints of the danger, and allowed him to be

severely beaten, suffering life-threatening injuries. In Spikes

v. McVea, No. 17-8164, 2018 WL 2095732 (E.D. La. May 7, 2018),

the plaintiff alleged that he suffered with a fractured hip for

43 days before the doctor saw him; the doctor had been the

subject of 29 separate complaints by patients, including

specific allegations of failure to provide constitutionally

adequate medical care; and, if the nurses had been properly

overseen, they would have known that plaintiff needed to be

examined by a doctor. Plaintiff here makes no attempt to

establish a factual basis for the failure to train or supervise

claims.

As stated, proof of deliberate indifference normally

requires a plaintiff to show a pattexn of violations and that

the inadequate training or supervision is obvious and obviously

likely to result in a constitutional violation of the kind

asserted by plaintiff. Here, the evidence (if there is any) of

failure to train or supervise is simply too attenuated to permit

an inference that County, Coates, or Griffin was deliberately

indifferent. Brown v. Callahan, 623 F.3d 249, 255-56 (5th Cir.

2010}. ,

With regard to the liability of Griffin and Ruggles for

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deliberate indifference to plaintiff's serious medical needs,

plaintiff must show that each of them was aware of facts from

which an inference of excessive risk to plaintiff’s health and

safety could be drawn and that each actually drew that

inference. Farmer, 511 U.S. at 837. Mere delay in medical care

May constitute a constitutional violation but only if there has

been deliberate indifference that results in substantial harm.

Raster v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). The injury

suffered must be more than de minimis. Siglar v. Hightower, 112

F.3d 191, 193 (Sth Cir. 1997).

Here, plaintiff admits that Griffin never denied him

medical care or medicine. He only sued Ruggles because he

believed that she was responsible for his medical care. He

cannot point to anything she did or failed to do that caused him

specific harm.’ The record reflects that jailers checked on

plaintiff every fifteen minutes. They provided him ice, took him

for a consultation with his surgeon, and scheduled surgery for

him. Plaintiff disagreed with the medicine he was provided after

he had taken all of the tramadol from the emergency room visit,

but he did receive medication. He has not pointed to specific

evidence to show that there is a genuine fact issue as to

? Failure to know or follow certain nrocedate or to document everything as required has no bearing on any injury

allegedly suffered by plaintiff, because he has not shown that Ruggles knew that her failure to so comply would

cause plaintiff to suffer any injury.

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deliberate indifference to a serious medical need.

Finally, the individual defendants have each claimed the

right to qualified immunity. Although acknowledging the proper

standard, plaintiff makes no attempt to show at more than a high

level of generality whether the violative nature of the conduct

at issue is clearly established. Morrow v. Meachum, 879 F.3d

870, 875 (5th Cir. 2019), That is, he does not point out any

cases establishing a particular right to treatment or care for a

broken ankle. Thompson, 245 F.3d at 458 (plaintiff must have

case law from this circuit handed down in time to be clearly

established at the time of the events being considered). Instead

he cites to cases that are inapposite. See Hope v. Pelzer, 536

U.S. 730 (2002) (precedent established that tying plaintiff to a

hitching post without a shirt in the sun for 7 hours without

water and bathroom breaks while taunting him was a violation of

the Eighth Amendment); Domino, 239 F.3d 752 (reversing denial of

summary judgment for a prison psychiatrist who did not foresee

an inmate’s suicide).

Even assuming that simply citing to Estelle is sufficient

to establish the standard, deliberate indifference is an

extremely high standard to meet, as plaintiff should know. Doc.

78 at 18 (citing Watkins v. Monroe, No. 6:18-CV-347, 2020 WL

1282504, at *4 (E.D. Tex. Feb. 26, 2020)). Yet, plaintiff has ©

26

not shown that any of the defendants actually knew of and

disregarded any excessive risk of serious bodily harm to him.”

Garza v. Gity of Donna, 922 F.3d 626, 635 (Sth Cir. 2019)

Deliberate indifference cannot be inferred merely froma

negligent or even a grossly negligent response to a substantial

risk of serious harm.** Thompson, 245 F.3d at 459.

In sum, although the summary judgment evidence shows that

none of the individual defendants could list all of plaintiff's

constitutional rights or recite chapter and verse of jail

standards or the contract between County and SHP, and that their

record-keeping may not have been the best,** all of them knew

that plaintiff was being cared for. He was being checked every

fifteen minutes; an appointment was made and kept for his

follow-up visit to the surgeon; he was given ice and medication;

he could call for assistance whenever he needed it; his surgery

was scheduled and he was released from custody so that he could

For example, although Ruggles knew generally what complications might result from an unstable fracture, there is

no evidence that she knew of any specific risk faced by plaintiff (who had been treated in the emergency room and

placed in a splint) and that she was deliberately indifferent to that risk.

No defendant contends that plaintiff had to establish subjective intent to harm him, yet plaintiff devotes a portion

of his briefs to this non-issue, Doc, 75 at 22-23; Doc. 78 at 17-18.

court questions whether plaintiff has established more than a de minimis injury, but the resolution of that

issue does not affect the outcome here, where it is clear that plaintiff received medical care but just did not like the

care he received. Ruiz v. Mercado, No. M-14-921, 2016 WL 1166040 (S.D. Tex. Feb. 10, 2016).

3 There is no evidence to support plaintiff's apparent contention that if something was not documented, it did not

happen. For example, no records have been produced to show that plaintiff was supplied a wheelchair in his first cell

or a walker with a seat (or shower chair) in his second cell, but Griffin testified that she saw that he had each. (Even

if he did not, the failure to provide them does not ammount to a constitutional violation. See, e.g., Brown y. Adams,

267 F, App’x 377 (Sth Cir, 2008); Roberts v, La, Dep’t of Corr., 163 F.3d 1357 (Sth Cir, 1988),

27

recuperate at home. Plaintiff has not raised a genuine fact

issue for trial as to any of his claims.

VI.

order

The court ORDERS that defendants’ motions for summary

judgment be, and are hereby, granted; that plaintiff take

nothing on his claims against defendants; and that such claims

be, and are hereby, dismissed with prejudice.

SIGNED November 23, 2020.

1 /

”

JQHN MCBRYDE

ited States Distrif#t Judge

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