The opinion
Case: 23-20502 Document: 84-1 Page: 1 Date Filed: 08/15/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 15, 2024
No. 23-20502 Lyle W. Cayce
____________ Clerk
Kimaletha Wynn; Jeanique McGinnis, as next friend of K.Y.,
R.Y., and M.Y., minors; Valene Hoskins, as next friend of M.Y.;
Christina Bluefield Pickett, as next friend of C.Y.,
Plaintiffs—Appellants,
Vincent Leday; Melanie Young, as Representative of the
Estate of Gwenetta Young; Sharonda Donatto, as next
friend P. Y.; Reshan George, as next friend M. Y.; Phyllis
Smith, as next friend C. Y.,
Intervenor Plaintiffs—Appellants,
versus
Harris County, Texas; Sheriff Ed Gonzalez; Patricio
Lau; Abraham Romero; Leesa Brown,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4848
______________________________
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Before King, Stewart, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Vincent Young died by suicide while in pretrial detention at Harris
County Jail. His family members and the representative of his mother’s
estate sued, among other individuals and entities, the County and one of the
doctors at the Jail, Dr. Patricio Lau, for violations of the Texas Constitution,
other state laws, and Young’s constitutional rights under 42 U.S.C. § 1983.
As relevant here, the district court dismissed the Section 1983 claims brought
by the representative of Young’s mother’s estate for lack of standing and
dismissed all claims brought under the Texas Constitution against all
defendants before granting summary judgment to all defendants on the
remaining claims.
The representative of Young’s mother’s estate appeals the Section
1983 dismissal for lack of standing and the remaining plaintiffs appeal the
summary judgment to Lau and the County. Because plaintiffs point to no
reversible error, we AFFIRM.
I
Young was booked into the Jail on February 7, 2017, as a pretrial
detainee. A nurse at the Jail noted that Young reported a history of
depression and anxiety but denied experiencing suicidal ideation. Young
stated that he was experiencing Xanax withdrawal and was started on a
Librium taper for benzodiazepine abuse and withdrawal symptoms. He was
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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referred to a psychiatry consult but a February 10 assessment by the Jail
determined he did not need one.
On February 12 at 12:20 AM, Young asked to speak with a detention
officer. The officer described Young as “appear[ing] to be depressed” and
said that another detainee reported that “Young was suicidal.” The
detention officer called the County’s Crisis Intervention Response Team and
“advised them of Inmate Young’s nervous and concerned behavior.” When
they attempted to enter the cell at 7:15 AM, Young “closed his eyes and
pretended to snore.” He continued to do so despite being shaken, and was
told “that if [he] would not speak with [them], [they] would conclude [the]
interview and turn in his Referral.” The sergeant for the floor was then
notified.
Later that morning, Young was found unresponsive due to high blood
pressure and was brought to an outside hospital, where he remained for
almost twelve hours. He was diagnosed with unspecified leukocytosis and
hypertension. He returned from the hospital and was admitted into the Jail’s
infirmary. There, Lau examined Young and found that he was likely
experiencing withdrawal, ordered high blood pressure medication, and
continued Young on the benzodiazepine withdrawal protocol. Lau increased
the benzodiazepine withdrawal protocol treatment and admitted him into an
infirmary cell, where Young remained through his February 13 death.
Abraham Romero was the detention officer assigned to make rounds in that
part of the jail. He averred that he did not receive “any type of ‘pass-on’
from the previous shift” regarding Young, and so “[a]t no time did [he]
believe that [Young] was suicidal because if he was he would have been”
“wearing a suicide smock.” Romero did not check on Young between
approximately 5:50 PM and 7:10 PM, when Young was found unresponsive,
having hanged himself with bed linens. Romero was fired for falsifying logs
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to make it appear as though he had been conducting rounds and referred for
criminal prosecution.
II
We review de novo the dismissal of Melanie Young’s Section 1983
claim as representative of the estate of Vincent Young’s mother, Gwenetta
Young. See Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018).
Gwenetta Young survived her son but died before this lawsuit was filed. The
second amended complaint listed Melanie Young as a plaintiff solely in her
capacity as representative of Gwenetta Young’s estate. That complaint
stated that “Ms. Gwenetta Young’s wrongful death claims are brought by
her estate representative, Plaintiff Melanie Young,” then elaborated in a
footnote that “Texas does not allow claims of a descendant for wrongful
death to survive his/her death [so] [p]laintiff’s claims are brought solely
under 42 U.S.C. § 1983 federal claims for loss of inheritance damages.”
“Section 1983 recovery is limited to the party injured, the citizen whose
federal rights have been invaded,” but 42 U.S.C. § 1988 permits “look[ing]
to state survival and wrongful death statutes in section 1983 actions because
in a very real sense this does not do more than create an effective remedy and
merely assures that there will be a remedy.” Rodgers v. Lancaster Police & Fire
Dep’t, 819 F.3d 205, 209 n.9 (5th Cir. 2016) (internal quotation marks and
citations omitted).
The district court ruled orally that “all plaintiffs, except Melanie
Young, have standing to bring Section 1983 claims for damages under the
Texas Wrongful Death Statute.” It explained that this was because Texas’
“wrongful death statute . . . allows an action for actual damages arising from
an injury that causes an individual’s death,” but “[s]uch actions are, under
the statute itself, the exclusive benefit of the [surviving] spouse, children, and
parents of the deceased.” It continued that Melanie Young, as “the
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representative of the estate of [Vincent] Young’s deceased mother,” could
not bring such a claim because “claims of wrongful death do[] not survive the
beneficiary’s death.” Melanie Young’s attorney responded, “I believe that
the Court is correct . . . that [in] the current state that th[e] claim would not
survive the death of the mother as a wrongful death claim.” By subsequent
order, the district court restated that “Melanie Young, as the representative
of the estate of Young’s deceased mother . . . lacks standing because a
wrongful death claim does not survive the beneficiary’s death. See Webb v.
Livingston, 2017 WL 2118969, at *5-6 (S.D. Tex. May 16, 2017) (applying
Texas law).”
Plaintiffs then filed the operative complaint. While the complaint
noted that the district court had already dismissed Melanie Young’s claims
as representative of Gwenetta Young’s estate, the complaint repeated them
to “preserve [the] allegations.” Melanie Young conceded in district court
that she did not have standing, as Gwenetta Young’s estate representative,
to bring her claims under Texas’ wrongful death statute. Furthermore, when
she filed the operative complaint after those claims were dismissed, she did
not replead those claims to argue standing under a different statute, nor does
she offer an alternative now. The district court did not err in dismissing her
claims.
III
The summary judgment to Lau and the County is reviewed de novo.
See Nickell v. Beau View of Biloxi, LLC, 636 F.3d 752, 754 (5th Cir. 2011).
Summary judgment is proper “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.” Fed. R. Civ. P. 56(a). “[W]here the non-movant bears
the burden of proof at trial, the movant may merely point to an absence of
evidence,” which “shift[s] to the non-movant the burden of demonstrating
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by competent summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). “The nonmovant cannot satisfy this burden merely by denying the
allegations in the opponent's pleadings but can do so by tendering
depositions, affidavits, and other competent evidence to buttress its claim.”
Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992).
“[P]retrial detainees . . . are not protected by the Eighth
Amendment,” but this court has “held that ‘the State owes the same duty
under the Due Process Clause and the Eighth Amendment to provide both
pretrial detainees and convicted inmates with basic human needs, including
medical care and protection from harm, during their confinement.’” Hyatt
v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting Hare v. City of Corinth,
Miss., 74 F.3d 633, 650 (5th Cir. 1996) (en banc)). “To succeed in a § 1983
action based on ‘episodic acts or omissions’ in violation of Fourteenth
Amendment rights, a pretrial detainee must show subjective deliberate
indifference by the defendants.” Alderson v. Concordia Par. Corr. Facility,
848 F.3d 415, 419 (5th Cir. 2017) (quoting Hare, 74 F.3d at 643).
A
Plaintiffs fail to show that Lau violated Young’s constitutional rights.
We therefore do not consider whether Lau would have been eligible to assert
qualified immunity or entitled to it. We also pretermit Lau’s non-
jurisdictional, statute of limitations defense. See Bradley v. Sheriff’s Dep’t St.
Landry Par., 958 F.3d 387, 390 (5th Cir. 2020).
An official acts with “deliberate indifference” when he is (1) “aware
of facts from which the inference could be drawn that a substantial risk of
serious harm exists,” and (2) “also draw[s] that inference.” Hyatt, 843 F.3d
at 177 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). While
consistently emphasizing the high burden plaintiffs face on this second
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element, caselaw establishes that it can “be proved many ways, including
from circumstantial evidence.” Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir.
1995).
Plaintiffs allege that Lau was deliberately indifferent to Young’s risk
from suicide because Lau was aware that suicidal thoughts were a side effect
of Xanax withdrawal, had reviewed Young’s medical records, noted that
Young was experiencing withdrawal symptoms, and failed to enter special
orders for Young’s care resulting in Young being returned to an infirmary cell
after his blood pressure stabilized. This court has emphasized that “that the
constitutional standard of conduct must step up from negligence—that it
must be more than mere or even gross negligence” because “the Due Process
Clause was meant to prevent ‘abusive government conduct.’” Hare, 74 F.3d
at 645-46 (quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)). Even if
these facts were sufficient to satisfy the first part of the test for deliberate
indifference—awareness of facts from which one could infer a substantial risk
of serious harm, Hyatt, 843 F.3d at 177—plaintiffs make no argument as to
why the second part of the test, that the inference actually be drawn, id., was
met here. And to the extent that plaintiffs also attempt to argue a medical
malpractice claim, the conclusory assertion that Lau’s various treatment
decisions “all . . . fell below the standard of care of a reasonably prudent
physician” is insufficient to establish district court error.
B
Plaintiffs also fail to show error as to the summary judgment to the
County on the Section 1983 claim against it. To establish liability for the
County, plaintiffs were required to show “(1) an official policy (or custom),
of which (2) a policy maker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose ‘moving force’ is that
policy (or custom).” Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.
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2002) (internal citation omitted). On appeal, they offer two arguments as to
the County.
First, plaintiffs contend that the County had a “no Xanax” policy—
under which detainees who entered with Xanax prescriptions were denied
Xanax and tapered with other benzodiazepines—that was deliberately
indifferent to Young’s serious medical needs. Plaintiffs failed to create a
genuine question of material fact on whether there was such a policy. “The
existence of a policy can be shown through evidence of an actual policy,
regulation, or decision that is officially adopted and promulgated by
lawmakers or others with policymaking authority.” Valle v. City of Houston,
613 F.3d 536, 542 (5th Cir. 2010). The County pointed to testimony from a
staff physician, Dr. Sunder—who plaintiffs contend was the official
policymaker— that there was no such blanket policy. He testified that
“[t]here is no such policy” and explained that he knew this to be the case
because, “if a psychiatrist wants to prescribe Xanax for whatever reason,”
this is a “team of psychiatrists who will be able to prescribe” Xanax “if they
want to,” and “they will be able to just go ahead and do it.” The County
explained that the “policy” to which plaintiffs referred was an “easy-to-
understand detoxication flowchart” “made available to medical staff during
orientation and posted in a common room.” It was created “because some
medical providers confuse benzodiazepine taper procedures with opiate
procedures” as “a person on benzodiazepine, like Young, was more likely to
respond well to the Librium taper, which should be administered in the
clinic,” while “detainees with opiate addictions could receive Clonidine
while housed in the general population.” Plaintiffs point to no evidence that
Xanax was not prescribed to detainees, only to the fact that one staff
physician had prescribed it just once. Nor do they point to competent
summary judgment evidence that Young had a prescription for Xanax.
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Second, plaintiffs assert a general “unconstitutional lack of policies
surrounding suicidal detainees” and a lack of “pass-on information,” that
is—communication from one official to another about a detainee’s status and
concerns surrounding that detainee. They maintain that “[t]he lack of pass-
on information demonstrates liability against the County [because] it shows
that there was an unconstitutional lack of communication (a) among the
shifts . . . and (b) between the jailers and medical staff,” and “is illustrative
of the County’s unconstitutional lack of policies surrounding suicidal
detainees.” Plaintiffs cite testimony of their medical expert that a
“reasonably prudent physician, mental health professional, or nurse most
certainly should have ordered a suicide smock and the patient be admitted
into a specialized room because of his high risk for suicide because of his
psychotic behavior.” Plaintiffs do not offer further argument on appeal.
Without more, they fail to show that a fact question precluded summary
judgment on whether there “was a constitutional violation whose ‘moving
force’ is that policy (or custom)” to which they point. Pineda, 291 F.3d at
328 (internal citation omitted).
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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