Opinion

Wynn v. Harris County

Court
Court of Appeals for the Fifth Circuit
Filed
Aug 15, 2024
Status
Unpublished
Nature of suit
Civil Rights
Cited by
0 cases
Authority
More cited than 30.5%

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

______________________________

Case: 23-20502 Document: 84-1 Page: 2 Date Filed: 08/15/2024

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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No. 23-20502

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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No. 23-20502

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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