De Paz Gonzalez v. Duane

pbs. DISTRICT Coes |

NORTHERN DISTRICT OF □□□□ |

IN THE UNITED STATES DISTRICT COURT | Hoy 18 2028 |

NORTHERN DISTRICT OF TEXAS | el □□□

FORT WORTH DIVISION | CLERK, U.S, DISTRET CO

BERMAN DE PAZ GONZALEA AND 8

EMERITA MARTINEZ-TORRES, §

INDIVIDUALLY AND AS HEIRS, §

AND ON BEHALF OF THE ESTATE OF §&

BERMAN DE PAZ-MARTINEZ,

§

Plaintiffs,

§

VS. § NO. 4:20-CV-072-A

§

THERESA M. DUANE, M.D., ET AL., 8

§

Defendants, §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motions of defendants,

Tarrant County Hospital District (“JPS"), Therese M. Duane, M.D.

(“Duane”), and Acclaim Physician Group, Inc. (‘*Acclaim”’}, to

dismiss. The court, having considered the motions, the response

of plaintiffs, Berman De Paz Gonzalez and Emerita Martinez-

Torres, individually and as heirs of Berman De Paz-Martinez, the

replies, the record, and applicable authorities, finds that the

motions of JPS and Acclaim should be granted and that Duane’s

motion should be granted in part and otherwise denied,

I.

Background and Plaintiffs’ Claims

On January 28, 2020, plaintiffs filed their original

complaint in this action. Doc.+ 1. Plaintiffs are the father and

mother of Berman De Paz-Martinez (“Berman”). They initially

brought claims on behalf of Berman’s estate, but filed a notice

of dismissal, Doc. 9, in response to the court’s order to

provide proof of authority to proceed in that capacity. Doc. 5.

The court dismissed the claims on behalf of the estate without

prejudice, making the judgment final. Doc. 11.

Defendants filed motions to dismiss the complaint, Docs.

16, 18, which the court granted. Docs. 27, 28, 29, 30.

Plaintiffs appealed. Doc. 31. The United States Court of Appeals

for the Fifth Circuit vacated and remanded, holding that

“Plaintiffs have a cause of action against Defendants and

standing to bring their § 1983 claims.”? Doc. 36 at 7. The Court

declined to address in the first instance other issues regarding

the § 1983 claims that had been raised in the motions to

dismiss. Id.

“Doc. _” reference is to the number of the item on the docket in this civil action.

* Plaintiffs did not appeal the dismissal of their state law claims. Doc. 36 at 3, n.2.

On remand, the parties agreed that plaintiffs could file an

amended complaint, Doc. 45, which they have done. Doc. 46, In

it, they allege:

On March 29, 2018, Berman, age 21, suffered a very serious

brain injury, was in a coma in grave condition, and was kept

alive by a ventilator at John Peter Smith Hospital. Doc. 46,

13, 16, 18. Plaintiffs were informed through an interpreter

that their son’s prognosis was extremely poor. Id. | 18. The

family came together to pray for a miracle and almost

immediately, Berman started making movements for the first time.

Id. On March 31, 2018, the family spent 45 minutes with a

chaplain, telling him that they believed in miracles, saw their

son make movements in response to prayer, absolutely did not

wish to stop treatment, and needed more time. Id. 4 19. Staff

toid the family that Berman could stay for seven days, at which

time he would be released to go home with the necessary medical

equipment to keep him alive. Id. § 20. At 6:00 a.m. the next

morning, Duane appeared with an interpreter and told Berman’s

father that the doctors had gotten together and decided to take

Berman off life support. Id. {| 21. Duane disconnected Berman and

his father watched him die. Id. § 22.

Plaintiffs allege that the Texas Advanced Directives Act,

Tex. Health & Safety Code §§ 166.001-.166, (“TADA”), provides

the only process for effectuating removal of life support from

patients, and that defendants violated their constitutional

rights by failing to comply therewith.?

In support of their claims against JPS and Acciain,

plaintiffs cite to a July 11, 2018 article by a political

advocacy group called Direct Action Texas entitled, “Does JPS

Have a Plug-Pulling Problem?” Doc. 46, Ex. A. According to the

article, an unnamed medical director at JPS had allegedly been

pulling the plug on patients she deemed worthy of death. “This

doctor is allegedly [skipping the legal steps] and taking upon

herself to make the final decision to puil the plug.” Id. The

original unnamed source claimed that the doctor had illegally

terminated as many as ten patients in March alone. According to

the article, JPS's CEO denied the incidents and it was unclear

how much the board of managers knew. Id. Plaintiffs also rely on

an anonymous email from a purported surgical resident, who

claimed that there were only three patients for whom Duane

withdrew care and it was only when Duane became more reckless

that nurses went to the CEO to complain. Doc. 46, Ex. B. The

anonymous source claimed that pursuant to an agreement with JPS,

3 Plaintiffs assert that Berman’s constitutional rights were viclated and purport to seck damages as a result. Doc. 46,

41 49, 51. However, they admit that the claims brought on behalf of Berman’s Estate were voluntarily dismissed and

are not being reasserted. Id. at 1, n.1,

Duane was dismissed in lieu of a formal complaint to the Texas

Medical Board. Id.

IT.

Grounds of the Motions

Defendants make several different arguments in support of

their motions, but basically urge that: (1) the Fourteenth

Amendment does not provide a constitutional right to medical

care; (2) violation of TADA does not give rise to a claim under

§ 1983; and, (3) plaintiffs have failed to plead an official

policy or custom so as to give rise to liability on the part of

Acclaim and JPS.

Tit.

Applicable Legal Standards

A. Pleading Generally

Rule 8({a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

It requires that a complaint contain "a short and plain:

statement of the claim showing that the pleader is entitled Eo

relief," Fed. R. Civ. PB. 8(a}) (2), “in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) {internal quotation marks and ellipsis omitted). Although

a complaint need not contain detailed factual allegations, the

"showing" contemplated by Rule 8 requires the plaintiff to do

more than simply allege legal conclusions or recite the elements

of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus,

while a court must accept all of the factual allegations in the

complaint as true, it need not credit bare legal conclusions

that are unsupported by any factual underpinnings. See Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can

provide the framework of a complaint, they must be supported by

factual allegations.").

Moreover, to survive a motion to dismiss for failure to

state a claim, the facts pleaded must allow the court to infer

that the plaintiff's right to relief is plausible. Iqbal, 556

U.S. at 678. To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely -

consistent with unlawful conduct are insufficient. Id. In other

words, where the facts pleaded do no more than permit the court

to infer the possibility of misconduct, the complaint has not

shown that the pleader is entitled to relief. Id. at 679.

"Determining whether a complaint states a plausible claim for

relief .. . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense." Id.

As the Fifth Circuit has explained: “Where the complaint is

devoid of facts that would put the defendant on notice as to

what conduct supports the claims, the complaint fails to satisfy

the requirement of notice pleading.” Anderson v. U.S. Dep’t of

Housing & Urban bev. 554 F.3d 525, 528 {Sth Cir. 2008). In sum,

"a complaint must do more than name laws that may have been

violated by the defendant; it must also allege facts regarding

what conduct violated those laws. In other words, a complaint

must put the defendant on notice as to what conduct is being

called for defense in a court of law.” Id. at 528-29. Further,

the complaint must specify the acts of the defendants

individually, not collectively, to meet the pleading standards

of Rule 8(a). Iqbal, 556 U.S. at 676; Griggs v. State Farm

Lioyds, 181 F.3d 694, 699 (5th Cir. 1999); see also Searcy v.

Knight (In re Am. Int’l Refinery), 402 B.R. 728, 738 (Bankr. W.D.

La. 2008).

B. Pleading Under 42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must

allege a violation of a right secured by the Constitution or

laws of the United States and that a person acting under color

of state law violated that right. West v. Atkins, 487 U.S. 42,

48 {1988}; Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525

(Sth Cir. 2004). ,

The law is clearly established that the doctrine of

respondent 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 (Sth Cir, 1990}, Liability

may be imposed against a governmental body only if that 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 municipal 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

municipal 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 deprivation. Id. at 824.) Thus, to establish

municipal 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

an “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 municipality's lawmaking officers or by an

official to whom the Lawmakers have delegated

policy-making authority; or

2. A persistent, widespread practice of city 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 municipal policy. Actual or

constructive knowledge of such custom must be

attributable to the governing body of the municipality

or to an official to whom that body had delegated

policy-making authority.

Actions of officers or employees of a municipality do

not render the municipality liable under § 1983 unless

they execute official policy as above defined.

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

The general rule is that allegations of isolated incidents

are insufficient to establish a custom or policy. Fraire v. City

of Arlington, 957 F.2d 1268, 1278 (Sth Cir. 1992); McConney v.

City of Houston, 863 F.2d 1180, 1184 (Sth Cir. 1989); Languirand

Vv. Hayden, F717 F.2d 220, 227-28 (Sth Cir, 1983).

IV.

Analysis

The law is clear that a person like Berman, who is not

incarcerated or otherwise in custody of defendants, does not

have a constitutional right to medical care. DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.189, 196 (1989);

Warris v. McRae, 448 U.S. 297, 317 (1980). Specifically, the

Constitution “generally confer[s] no affirmative right to

governmental aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the government

itself may not deprive the individual.’ DeShaney, 489 U.S. at

196. See Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487,

1495-96 (10th Cir. 1992) (that plaintiffs received some treatment

did not entitle them to further treatment) . Thus, defendants

argue, there is no constitutional right to be kept alive

artificially. The question is not, however, whether Berman was

entitled to continuing care, but whether, having intubated him,

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defendants could extubate him without prior notice and an

opportunity to respond.

None of the cases cited by the parties appears to discuss

this question, at least not in detail. The case closest on

point, Reynolds v. Parkland Mem. Hosp., No. 3:12~-CV-4571-N-BN,

2012 WL 7153849 (N.D. Tex. Dec. 28, 2012), adopted, 2013 WL

607152 (N.D. Tex, Feb. 19, 2013), holds that plaintiffs ina

case like this do not have a cause of action under section 1983.

In Reynolds, doctors at Parkland Hospital, a governmental entity

like District, “refused to meet with Reynolds’ family, made the

decision to withhold life support without consulting the family,

and made ‘inappropriate’ medical decisions that resulted in his

death.” 2012 WL 7153849, at *1. The court held that without a

special relationship, Parkland and its employees had no

constitutional duty to protect Reynolds and the question of any

deliberate indifference was “simply immaterial.” Id. at *3.

Reynolds was not appealed and does not appear to have been cited

by any other court.

In this case, the Fifth Circuit has recognized a cause of

action under § 1983, to wit: “Plaintiffs have a cause of action

against Defendants.” Doc. 36 at 7. It may be that the Court was

persuaded (or simply assumed) that the creation of artificial

life came with a correspondent right to due process. Whatever

the case, the Court did net go further, but indicated that other

issues raised by defendants in their motions to dismiss might

have merit. Id. Accordingly, the court considers those issues,

beginning with whether a violation of state procedure amounts to

a constitutional deprivation.

Plaintiffs allege that defendants’ violation of TADA

amounted to a denial of due process. The law in the Fifth

Circuit is that a violation of state law does not constitute a

constitutional violation or a violation of federal law. Woodard

v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005); Reynolds, 2012 Wh

7153849 at *4. In particular, a state’s failure to follow its

own procedural regulations does not establish a violation of due

process.‘ Giovanni v. Lynn, 48 F.3d 908, 913 (Sth Cir, 1995). See

Daniels v. Williams, 474 U.S. 327, 332-33 (1986) (noting that the

Fourteenth Amendment is not a font of tort law to be

superimposed upon whatever systems may already be administered

by the states and that just because an actor may be a state

official does not mean that his act becomes a constitutional

violation). To the extent plaintiffs assert claims arising out

"The local state court of appeals has recognized that the operative section of the TADA provides a set of procedures

by which an attending physician may obtain immunity from civil liability and criminal prosecution for a decision to

unilaterally discontinue life-sustaining treatment. T.L. v. Cook Children’s Med. Ctr, 607 S.W.3d 9, 24 (Tex, App.-—

Fort Worth 2020, pet. denied),

12...

of the alleged violation of TADA, those are not claims under

§ 1983.

As for JPS and Acclaim, plaintiffs have not pleaded

sufficient facts to show plausible claims against them.

Governmental liability cannot be based on respondeat superior,

which is really what plaintiffs are trying to do. See Doc. 54 at

19-21 (arguing that Duane was a vice-principal of Acclaim, hence

its liability). Plaintiffs argue that Duane’s title or alleged

status somehow makes her a policymaker on behalf of JPS and

Acclaim. Id. at 18-19 (citing Doc. 46, { 42). But as one of the

cases they rely upon says, the title of the employee is not

dispositive. Hammerly Oakes, Inc. v. Edwards, 958 S.W.2d 387,

391 (Tex. 1997). As JPS points out, its final policymaker is its

board of managers. Tex. Health & Safety Code § 281.047. Its

medical executive committee adopts policies relating to medical

decision-making. Tex. Health & Safety Code § 281.0286(e) & (Ff).

Plaintiffs have not pleaded facts to show that Duane was a

policymaker for either entity.® Rather, the exhibits to the

amended complaint indicate that Duane was a rogue employee who

was neither making nor following policy. Doc. 46, Exs. A & B.

5 Plaintiffs overleak the fundamental difference between final decision-making authority and final policymaking

authority. Sec Bolton y. City of Dallas, $41 F.3d 545, 548-50 (Sth Cir. 2008)(finality of an employee’s action does

not automatically lend it the character of a policy).

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Plaintiffs argue that even if Duane was not a policymaker

for JPS and Acclaim, they would still be liable because

plaintiffs have alleged that the policies of each were the

moving forces in the constitutional violations. Doc. 54 at 21-

25. Plaintiffs overlook that they must still identify

policymakers for JPS and Acclaim, which they have not done. ®

Bennett, 735 F.2d at 862. Further, they have not identified an

unconstitutional policy or custom that caused the deprivation of

a constitutional right. Merely speculating and making conclusory

allegations that a policy existed is not enough.” Pena v. City of

Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018); Turner v.

Lieutenant Driver, 848 F.3d 678, 685 (Sth Cir. 2017). The policy

or custom must have been adopted or maintained with objective

deliberate indifference. Scott v. Moore, 114 F.3d 51, 54 (5th

Cir. 1997), Failure to adopt a policy only counts if it amounts

to an intentional choice and not merely an unintentional

negligent oversight; that is, the failure to adopt a policy must

be deliberately indifferent. Rhyne v. Henderson Cnty., 973 F.ad

386, 392 (Sth Cir. 1992).

® Plaintiffs do not specify any acts of JPS and Acclaim individually, See Iqbal, 556 U.S. at 676.

7 Again, the exhibits upon which plaintiffs rely indicate that Duane “took it upon herself to make final decisions,

that it was unclear how much the board of managers of JPS knew, that nurses went to the CEO of FPS at some

unspecified time after Duane became more reckless, and that Duane was dismissed, Doc. 46, Exs. A & B. Plaintiffs

have not alleged facts from which it could be concluded that JPS and Acclaim condoned what Duane did, much less

that there was a policy that was the moving force behind her alleged constitutional! violations.

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Vv.

order

For the reasons discussed herein,

The court ORDERS that the motion of JPS to dismiss be, and

is hereby, granted, and that plaintiffs’ claims against JPS be,

and are hereby, dismissed.

The court further ORDERS that the motion of Duane and

Acclaim be, and is hereby, granted in part and the claims

against Duane arising out of failure to comply with TADA and all

claims against Acclaim be, and are hereby, dismissed.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of the claims against JPS and Acclaim.

SIGNED November 18, 2021. LD

af

JQ McBRYDE

Sexior United States Distri Judge .

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