“[W]e accord the officials at the [jail] deference in their determination of an appropriate accommodation.”
How later courts described this case
- “[W]e accord the officials at the [jail] deference in their determination of an appropriate accommodation.”
- “The TTCA is . . . not the appropriate vehicle for claims of negligent failure to train or supervise.”
- holding that claims against a government entity pertaining to the “misuse or non-use of information” are barred by immunity
- “Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.”
Written by the judges who cited it.
The opinion
Case: 23-50777 Document: 58-1 Page: 1 Date Filed: 08/15/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50777
____________ FILED
August 15, 2024
Bernardo Acosta, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Williamson County, Texas; Alyssa Hoffman,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-CV-615
______________________________
Before King, Stewart, and Higginson, Circuit Judges.
Per Curiam: *
On the evening of May 27, 2021, Plaintiff-Appellant Bernardo Acosta
was booked at Williamson County Jail after being arrested on suspicion of
driving while intoxicated. He spent the night in jail and bonded out the next
morning. Acosta claims that during his detention, Williamson County Jail
Officer Alyssa Hoffman deliberately slammed a holding cell door on his finger
around midnight. He further claims that Williamson County officers
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50777 Document: 58-1 Page: 2 Date Filed: 08/15/2024
No. 23-50777
withheld his medications for post-traumatic stress disorder and failed to
provide him with a CPAP machine for the evening. Acosta brought claims
under 42 U.S.C. § 1983, the Americans with Disabilities Act, the
Rehabilitation Act, and Texas tort law. The district court dismissed Acosta’s
§ 1983 municipal liability claims against Williamson County and granted
summary judgment for Defendants-Appellees Hoffman and Williamson
County on all remaining claims. We AFFIRM.
I.
A.
Plaintiff-Appellant Bernardo Acosta is an Air Force veteran who
suffers from post-traumatic stress disorder (“PTSD”), for which he has
been prescribed several medications. Acosta also has sleep apnea, and he
sleeps with the assistance of a CPAP machine. 1
At around 8:40 p.m. on May 27, 2021, Acosta was arrested in
Williamson County, Texas, on suspicion of driving while intoxicated. Acosta
was booked at Williamson County Jail for pretrial detention. At around 9:39
p.m., Acosta completed a medical intake with Medical Sergeant Ariel
Gibson. During the intake, Acosta informed Gibson that he suffers from
mental illness, including PTSD, and that he takes prescription medications.
However, in their depositions, neither Acosta nor Gibson could recall Acosta
informing Gibson that he would need any of those medications immediately.
Furthermore, according to Gibson, Acosta appeared upset about being
arrested, but he was not exhibiting signs of a mental health crisis at that time.
_____________________
1
A CPAP (continuous positive airway pressure) machine delivers air through the
user’s mouth and/or nose during sleep.
2
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No. 23-50777
At some point following his booking, Acosta was placed in a holding
cell, along with several other detainees. Around midnight, County Jail Officer
Alyssa Hoffman approached the holding cell to give a blanket to a detainee.
Acosta and Hoffman have differing accounts of the events that transpired.
Each party’s version of the events is described below:
Acosta recalls “pleading” with Hoffman that he needed his
medications and CPAP machine. He also requested a phone call. According
to Acosta, Hoffman replied that Acosta could use the phone inside the
holding cell to request that someone bring his medications to the jail. But
because he “wasn’t comfortable” with using the phone in the holding cell,
Acosta continued to request to use the phone in the booking area. Hoffman
repeatedly denied these requests and began to close the cell door. Hoffman
shut the cell door while Acosta’s left hand was in the door jamb, resulting in
an injury to Acosta’s left ring finger. Acosta speculates that Hoffman clearly
could have seen that his hand was in the door jamb, though he does not recall
Hoffman expressly indicating that she knowingly closed the door on his hand.
Acosta denies providing any resistance to Hoffman closing the door.
Hoffman, in her deposition, admitted that Acosta told her that he
needed his medications and CPAP machine. Hoffman responded that the
jail did not have his medications, but that Acosta could call someone to have
his belongings brought to the jail. According to Hoffman, Acosta replied that
“he did not want to call his wife and make her wake up his kids just to bring
him medication.” Hoffman then told Acosta that she was not “going to keep
giving [him] the same information,” and she informed him that she was going
to close the door. Acosta purportedly responded by placing his right hand and
right foot on the door to block it from shutting. Because Acosta was providing
this resistance, Hoffman pushed her hip and shoulder against the door to
ensure that it closed. Hoffman claims that she did not see Acosta’s left hand
in the door jamb.
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No. 23-50777
The record contains a video of the incident between Acosta and
Hoffman. The camera is located in a common area, across the room from the
holding cell, and the footage only shows the outside of the door (i.e.,
Hoffman’s side). At around 12:05 a.m., Hoffman approaches the door with a
blanket. After initially walking away, Hoffman circles back to the cell. She
appears engaged in conversation, presumably with Acosta, for about two
minutes. During the conversation, Hoffman stands totally still and holds the
door open; nothing in her body language indicates that she is acting in a
combative manner. Hoffman then closes the door slowly for two seconds.
Once the door appears closed or nearly closed, Hoffman secures the door by
keeping her left hand on the door, and then pushing the door with her left hip
and left shoulder. Hoffman takes approximately three seconds to secure the
door in this manner. After securing the door, Hoffman walks away from the
holding cell without taking any further notice of Acosta.
About nine seconds after Hoffman walks away, Acosta raises his left
hand near the holding cell window. For the next three minutes, Acosta
unsuccessfully attempts to get officers’ attention. Acosta wipes blood on the
holding cell window to alert nearby correctional officers, and he claimed in
his deposition that a few officers saw him and were “chuckling.” 2 However,
in the video recording, it is not clear that any officers took notice of Acosta.
Finally, after about three minutes, a correctional officer walks by the holding
cell and notices that Acosta needs medical attention.
About four minutes later, several officers, including Medical Sergeant
Gibson and Medical Officer Jose Garza, arrive at the holding cell to tend to
Acosta’s injury. Acosta clearly appears agitated, but the situation appears to
_____________________
2
The blood is not visible in the video recording, but it is undisputed that Acosta
smeared his blood on the window around this time.
4
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No. 23-50777
be under control, and Acosta sits down outside the holding cell to receive
treatment for his finger. For the next four minutes, Garza examines, cleans,
and bandages Acosta’s finger. Acosta receives treatment without resistance,
though during this period he appears to speak in a frustrated manner with the
correctional officers at the scene.
The accounts in the record of the extent of Acosta’s injury and the
treatment provided to his finger are consistent. Gibson testified that Acosta’s
finger “wasn’t bleeding profusely,” and that it had a small laceration that did
not require stitches. There were no bones protruding, and Acosta “still had
full range of motion in his hand and his fingers.” 3 Garza treated Acosta’s
finger by cleaning the wound and applying gauze to stop the bleeding.
After receiving treatment for his finger, Acosta called his wife using
the phone in the booking area. During this call, Acosta asked his wife to bring
his medications and CPAP machine to the jail. Acosta’s wife delivered his
medications to the jail sometime after 2:00 a.m., but she did not bring his
CPAP machine. However, according to the jail’s medical staff, Acosta was
not provided his medications after delivery because Acosta’s medications are
not considered “life sustaining,” (i.e., prescribed for chronic disabilities or
conditions such as seizures, hypertension, or diabetes). Instead, as Medical
Lieutenant Douglas Wheless explained in his deposition, Acosta would have
to wait until jail staff could verify his prescriptions with an outside physician
or pharmacist, which could not feasibly occur until normal business hours
_____________________
3
With the benefit of hindsight, we know that Acosta appears to have suffered a
fracture at the tip of his ring finger. But the record does not contain indication that any
officers knew, or should have known, that the tip of Acosta’s finger was fractured.
Regardless, the video clearly indicates that Acosta received prompt medical care and was
attended to by several officers, which plainly contradicts the operative complaint’s
allegations that Acosta “pleaded for help and received none for an extended period of
time,” and that he was “denied basic medical care.”
5
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No. 23-50777
(i.e., the next morning), unless he were to experience a medical emergency
requiring hospitalization. This explanation is consistent with Williamson
County’s written policies, which state that jail staff is to “[c]all the
[prescribing] physician and verify the medication, dosage, and patient
information” before distributing medications that are brought to the jail by
an outside source.
After Acosta called his wife in the booking area, he was taken to a
single cell for one detainee. At around 9:00 a.m. the next morning, Acosta
met with Lieutenant Wheless for a follow-up evaluation. According to
Wheless’s deposition testimony, Acosta’s finger did not appear to be visibly
injured, but Wheless offered Acosta a saline solution and hydrogen peroxide.
Wheless claims that Acosta declined this treatment, since he was “fixing to
bond out.” Acosta ultimately never received his medications or a CPAP
machine, but he purportedly bonded out of jail shortly after speaking with
Wheless in the morning.
After leaving the jail, Acosta received an x-ray showing that his bone
was fractured at the tip of his finger. During his deposition, Acosta reported
that he continues to feel numbness and discomfort in his injured finger.
B.
Acosta filed a lawsuit against Williamson County and several
“Unknown Jailers” in federal court on July 12, 2021. In his operative second
amended complaint, Acosta raised municipal liability claims against
Williamson County under 42 U.S.C. § 1983, alleging that the County’s
policies and/or practices resulted in violations of Acosta’s constitutional
rights under the Fourth, Eighth, and Fourteenth Amendments. Acosta
further alleged that Williamson County violated his rights under the
Americans with Disabilities Act (“ADA”) and Rehabilitation Act by failing
to accommodate his disabilities during his detention. Acosta asserted claims
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No. 23-50777
of negligence and gross negligence against Williamson County and individual
officers Alyssa Hoffman, Jose Garza, Ariel Gibson, Ruben Vela, and
Fernando Morales for injuring Acosta’s finger and then failing to provide him
with adequate care. Finally, Acosta asserted against Hoffman claims of
excessive force, assault, and battery.
After multiple defendants filed motions to dismiss, the district court
dismissed several of Acosta’s claims, including his § 1983 municipal liability
claims against Williamson County. Following these dismissals, the claims
that remained before the court were: (1) Acosta’s ADA, Rehabilitation Act,
and negligence claims against Williamson County; and (2) Acosta’s excessive
force, assault, and battery claims against Hoffman.
On May 10, 2023, Williamson County and Hoffman jointly moved for
summary judgment on all remaining claims. On August 21, 2023, the
magistrate judge recommended granting the motion for summary judgment
in full. On September 1, 2023, Acosta filed objections to the magistrate
judge’s report and recommendations. Notwithstanding these objections, the
district court adopted the magistrate judge’s report and recommendations.
The district court closed the case on October 10, 2023, and a notice of appeal
followed.
II.
We review grants of summary judgment de novo. Moore v. LaSalle
Mgmt. Co., 41 F.4th 493, 502 (5th Cir. 2022). Summary judgment is
appropriate 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). A dispute regarding a material fact is “genuine” if
“the evidence is such that a reasonable jury could return a verdict in favor of
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). We view all evidence and draw all justifiable inferences in favor of the
7
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No. 23-50777
nonmovant. Moore, 41 F.4th at 502. That said, “a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions,
or ‘only a scintilla of evidence.’” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins., 530 F.3d 395, 399 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
“When opposing parties tell two different stories, one of which is
blatantly contradicted” by video evidence, courts are to “view[] the facts in
the light depicted by the videotape.” See Scott v. Harris, 550 U.S. 372, 380–
81 (2007). But this standard “is a demanding one: a court should not discount
the nonmoving party’s story unless the video evidence provides so much
clarity that a reasonable jury could not believe his account.” Darden v. City
of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018).
Defendant-Appellee Hoffman has asserted the defense of qualified
immunity. 4 “A qualified immunity defense alters the usual summary
judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.
2010). “Once an official pleads the defense, the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as
to whether the official’s allegedly wrongful conduct violated clearly
established law.” Id. To overcome the defense of qualified immunity, a
plaintiff must establish that: (1) the official violated the plaintiff’s statutory
or constitutional right; and (2) the right was clearly established at the time of
the violation. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For a right to be
clearly established, “the contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that
_____________________
4
Acosta argues that the doctrine of qualified immunity should be abolished.
However, “‘[a]s middle-management circuit judges,’ we cannot overrule the Supreme
Court.” See Rogers v. Jarrett, 63 F.4th 971, 981 (5th Cir. 2023) (Willett, J., concurring)
(quoting Sims v. Griffin, 35 F.4th 945, 951 n.17 (5th Cir. 2022)).
8
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No. 23-50777
right.” Brown, 623 F.3d at 253. Although this does not mean that “a case
directly on point” is required, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at
741.
III.
We begin with Acosta’s excessive force claim against Officer Hoffman
brought pursuant to § 1983. Acosta claims that “Hoffman knowingly and
intentionally used her entire body weight, with force, in slamming the door,
to which she had full control of, on [Acosta’s] hand, causing him serious
bodily injury.” Hoffman, on the other hand, insists that she did not intend to
close the cell door on the tip of Acosta’s finger.
“Pretrial detainees are protected by the Due Process Clause of the
Fourteenth Amendment.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d
415, 419 (5th Cir. 2017). In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the
Supreme Court outlined the proper analytical framework for adjudicating a
pretrial detainee’s excessive force claim. The Court noted that a Fourteenth
Amendment excessive force claim contains “two separate state-of-mind
questions.” Id. at 395. “The first concerns the defendant’s state of mind with
respect to his physical acts—i.e., his state of mind with respect to the bringing
about of certain physical consequences in the world.” Id. “The second
question concerns the defendant’s state of mind with respect to whether his
use of force was ‘excessive.’” Id.
Addressing this first question, the Court held that “the defendant
must possess a purposeful, a knowing, or possibly a reckless state of mind”
for a plaintiff to establish a viable excessive force claim under the Fourteenth
Amendment. Id. at 396. As the Court explained, “liability for negligently
inflicted harm is categorically beneath the threshold of constitutional due
process.” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849
9
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(1998)); see also Daniels v. Williams, 474 U.S. 327, 331 (1986) (“Historically,
this guarantee of due process has been applied to deliberate decisions of
government officials to deprive a person of life, liberty, or property.”).
Therefore, a pretrial detainee can succeed on an excessive force claim where
the defendant’s “use of force is deliberate—i.e., purposeful or knowing.”
Kingsley, 576 U.S. at 396.
Addressing the second question, the Court held that “[i]n deciding
whether the force deliberately used is, constitutionally speaking,
‘excessive,’” courts should apply an objective reasonableness standard. Id.
at 396–97. This determination of objective reasonableness must be made
“from the perspective of a reasonable officer on the scene, including what
the officer knew at the time, not with the 20/20 vision of hindsight.” Id. at
397. While the Court noted that objective reasonableness turns on the facts
and circumstances of each particular case, it provided a few relevant
considerations:
[T]he relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the amount
of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.
Id. at 397.
In sum, a Fourteenth Amendment excessive force inquiry under
Kingsley has two steps. At step one, courts must determine whether the
defendant’s use of force was deliberate. If the use of force was deliberate,
then at step two, courts must determine whether the defendant’s use of force
was objectively reasonable, considering the specific circumstances of the
case.
10
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No. 23-50777
Acosta’s case primarily hinges on Kingsley step one. If Acosta’s
version of the facts is accepted as true, i.e., Hoffman deliberately slammed a
cell door on the hand of a non-resisting detainee, such a use of force would
have violated Acosta’s clearly established rights. We have held that a broken
finger is a cognizable injury in an excessive force case, and noted that “as long
as a plaintiff has suffered some injury, even relatively insignificant injuries . . .
will prove cognizable when resulting from an officer’s unreasonably
excessive force.” Scott v. White, 810 F. App’x 297, 299, 301 (5th Cir. 2020)
(quoting Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018)). And, as Acosta
notes, it was clearly established at the time of the incident that “violently
slamming or striking” a non-resisting individual constitutes excessive force.
See Darden, 880 F.3d at 733. 5
However, if Hoffman did not deliberately slam the cell door on
Acosta’s finger, then Acosta’s excessive force claim fails at Kingsley step one.
It is true, as Acosta notes repeatedly, that Hoffman did potentially admit to
knowingly applying some force to Acosta; Hoffman consistently testified that
Acosta had his right hand and right foot on the door while it closed. But a
Fourteenth Amendment excessive force claim is analyzed under an objective
reasonableness standard that takes into account “what the [defendant] knew
at the time.” Kingsley, 576 U.S. at 397. And the Due Process Clause is not
implicated by “an official causing unintended injury to life, liberty or
property.” Davidson v. Cannon, 474 U.S. 344, 347 (1986). Therefore, we find
that if Hoffman did not know that Acosta’s left hand was in the door jamb,
_____________________
5
Though Darden, and the cases it cites, are excessive force cases finding violations
of the Fourth Amendment, this court has held that constitutional principles articulated in
Fourth Amendment excessive force cases (e.g., the unlawfulness of continuing to apply
force to a restrained and subdued subject), can clearly establish the rights of pretrial
detainees in Fourteenth Amendment excessive force cases. See Fairchild v. Coryell County,
40 F.4th 359, 368 (5th Cir. 2022).
11
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securing the cell door using her hip and shoulder would not be objectively
unreasonable, nor would it constitute a clearly established violation of
Acosta’s Fourteenth Amendment rights. 6
In light of this analysis, Acosta’s case turns on whether Hoffman’s act
of closing the door on Acosta’s finger was deliberate or accidental.
Therefore, we must determine whether there is sufficient evidence for a jury
to conclude that Hoffman acted deliberately.
There are essentially three sources of information in the record related
to this incident: Acosta’s testimony, Hoffman’s testimony, and the video of
the incident. The evidence from Acosta’s testimony that the act was
deliberate is essentially speculative; Acosta testified that “[Hoffman] clearly
could have seen [his] hand there [in the door jamb], cause . . . [his] hand is
rather large.” Acosta’s testimony also indicates that Hoffman may have been
frustrated with Acosta because of his repeated requests to use the phone in
the booking area.
Hoffman, on the other hand, testified that she did not see Acosta’s left
hand in the door jamb. Hoffman claims that Acosta pressed against the door
with his right hand and right foot, which is why she used her body weight to
secure the door.
The video of the incident, frankly, does not help Acosta’s case. It is
difficult to find any details in the video that support Acosta’s claim that
_____________________
6
If Hoffman did not know that Acosta’s left hand was in the door jamb, and, per
Hoffman’s version of the facts, Acosta provided resistance by putting his right hand and
right foot on the door, Hoffman’s brief use of force in securing the door to overcome this
resistance would not be objectively unreasonable. If Hoffman did not know that Acosta’s
left hand was in the door jamb, and, per Acosta’s version of the facts, Acosta did not provide
any resistance against the door, then any force exerted on Acosta would have been entirely
unintentional, and, accordingly, no constitutional violation would have occurred.
12
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Hoffman deliberately slammed the cell door on his finger. For instance,
nothing in Hoffman’s body language during her two-minute conversation
with Acosta indicates that Hoffman was preparing to engage in a deliberate
strike; she remained totally still the entire time, and the interaction appeared
noncombative. Furthermore, if Hoffman deliberately shut the cell door on
Acosta’s finger, one might expect the video to show Hoffman slamming the
door quickly. But Hoffman closed the door—which was only partially open
to begin with—quite slowly over the course of five seconds. And the
“slamming” portion of the incident, in which Hoffman briefly placed her
body weight against the door with her shoulder and hip, lasted three seconds.
This incident failed to garner the attention of a detainee sitting in the
common area, just a few meters away from the holding cell. And nothing in
Hoffman’s body language after the incident, in which she casually walked
back to the processing area without taking any further notice of Acosta,
indicates an awareness that she had just injured Acosta’s finger.
This is not to say that Acosta’s version of events is “blatantly
contradicted” by the video. Scott, 550 U.S. at 380. The video does show
Hoffman securing the door with her body weight, and the camera is too far
away from the incident to definitively determine whether Hoffman did, in
fact, see Acosta’s hand in the door jamb. But even viewing the video in the
light most favorable to Acosta, we cannot find in this footage any details that
lend credence to Acosta’s claim that Hoffman “deliberately and callously”
struck his finger.
In sum, viewing the evidence in Acosta’s favor, we must assume that:
(1) Acosta was not providing resistance against the door; (2) Acosta and
Hoffman had a somewhat contentious conversation regarding Acosta’s
ability to use the phone in the booking area; and (3) Hoffman used her body
weight to secure the door. For Acosta’s excessive force claim to survive
summary judgment, we must be able to conclude, based on these premises,
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that a reasonable jury could find by a preponderance of the evidence that
Acosta is entitled to a verdict in his favor. See Anderson, 477 U.S. at 252.
We cannot draw such a conclusion here—there is insufficient
evidence to elevate Acosta’s claim of a deliberate attack beyond speculation.
We have noted that “[s]ummary judgment is appropriate where critical
evidence is so weak or tenuous on an essential fact that it could not support a
judgment in favor of the nonmovant,” and this principle applies here. See
Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993); see also Anderson,
477 U.S. at 249–50 (noting that summary judgment is appropriate where the
evidence presented is “merely colorable” or “not significantly probative”).
We find that the summary judgment evidence, which notably includes a video
showing Hoffman during the entire incident at issue, does not support a
finding that Hoffman deliberately struck Acosta’s finger. Because there is
insufficient evidence for a reasonable jury to conclude that Hoffman violated
Acosta’s constitutional rights, we AFFIRM the district court’s grant of
summary judgment for Hoffman on Acosta’s Fourteenth Amendment
excessive force claim.
IV.
We turn next to Acosta’s ADA/Rehabilitation Act claim. Acosta
claims that there are genuine issues of material fact as to the lack of
reasonable accommodations provided for him at Williamson County Jail,
despite County officers’ knowledge of his disabilities and medical needs.
Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. The Rehabilitation Act protects any “otherwise qualified individual
with a disability in the United States” from being “excluded from the
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participation in, be[ing] denied the benefits of, or be[ing] subjected to
discrimination under any program or activity receiving Federal financial
assistance,” including any instrumentality of a local government. 29 U.S.C.
§ 794. “The remedies, procedures, and rights available under the
Rehabilitation Act parallel those available under the ADA.” Cadena v. El
Paso County, 946 F.3d 717, 723 (5th Cir. 2020). Thus, this court “equate[s]
liability standards under [the Rehabilitation Act] and the ADA.” D.A. ex rel.
Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010).
To establish a prima facie case under either statute, a plaintiff must
demonstrate:
(1) that he is a qualified individual within the meaning of the
ADA; (2) that he is being excluded from participation in, or
being denied benefits of, services, programs, or activities for
which the public entity is responsible, or is otherwise being
discriminated against by the public entity; and (3) that such
exclusion, denial of benefits, or discrimination is by reason of
his disability.
Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).
“In addition to their respective prohibitions of disability-based
discrimination, both the ADA and the Rehabilitation Act impose upon public
entities an affirmative obligation to make reasonable accommodations for
disabled individuals.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454
(5th Cir. 2005). A requested accommodation is reasonable if “it does not
impose undue financial or administrative burdens or ‘fundamentally alter the
nature of the service, program, or activity.’” Cadena, 946 F.3d at 724
(quoting 28 C.F.R. § 35.130(b)(7)). “To succeed on a failure-to-
accommodate claim, a plaintiff must prove: (1) he is a qualified individual
with a disability; (2) the disability and its consequential limitations were
known by the covered entity; and (3) the entity failed to make reasonable
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accommodations.” Ball v. LeBlanc, 792 F.3d 584, 596 n.9 (5th Cir. 2015).
“Plaintiffs ordinarily satisfy the knowledge element by showing that they
identified their disabilities as well as the resulting limitations to a public entity
or its employees and requested an accommodation in direct and specific
terms.” Smith v. Harris County, 956 F.3d 311, 317 (5th Cir. 2020). “When a
plaintiff fails to request an accommodation in this manner, he can only prevail
by showing that ‘the disability, resulting limitation, and necessary reasonable
accommodation’ were ‘open, obvious, and apparent’ to the entity’s relevant
agents.” Windham v. Harris County, 875 F.3d 229, 237 (5th Cir. 2017)
(quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996)).
For a plaintiff to recover compensatory damages for an ADA claim,
he must also prove that he was subjected to intentional discrimination.
Cadena, 946 F.3d at 724. “This court has hesitated to delineate the precise
contours of the standard for showing intentionality, . . . [b]ut the cases to
have touched on the issue require something more than deliberate
indifference, despite most other circuits defining the requirement as
equivalent to deliberate indifference.” Id. (internal quotations omitted). “If
a defendant attempts to accommodate a disability, then intentional
discrimination requires knowledge ‘that further accommodation was
necessary.’” Smith, 956 F.3d at 319 (quoting Cadena, 946 F.3d at 726).
Acosta’s ADA/Rehabilitation Act claim has two components. First,
Acosta claims that Williamson County violated the ADA/Rehabilitation Act
by failing to provide him with his prescription medications for PTSD.
Second, he claims that Williamson County violated the ADA/Rehabilitation
Act by failing to provide him access to a CPAP machine during his night at
the jail.
Even assuming that Acosta was a qualified individual with a disability
and that Williamson County officers knew of Acosta’s disability and related
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No. 23-50777
limitations, Acosta’s ADA/Rehabilitation Act claim fails because the
summary judgment evidence does not indicate that officers at Williamson
County Jail failed to make reasonable accommodations for Acosta. Instead,
the record indicates that the officers undertook the practical steps they could
achieve—given the circumstances—to ensure that Acosta’s needs would be
accommodated.
For instance, with respect to Acosta’s request for his prescription
medications, it is undisputed that Acosta was told that he could call an
outside individual to have his medications brought to the jail. Acosta called
his wife, who arrived at the jail with his medications sometime after 2:00 a.m.
However, because Acosta’s medications were not considered “life
sustaining” (a description he does not dispute), medical staff followed a
seemingly sensible policy of holding off on distributing these medications
until the prescriptions could be verified by a physician or pharmacist. And,
because it was the middle of the night, verifying Acosta’s medications would
have to wait until the morning, when his physician or pharmacist could
feasibly be reached. 7
Acosta also claims that Williamson County officers should have
administered emergency treatment, since Acosta was experiencing a “manic
or [PTSD] episode.” While Acosta testified that he may have been
_____________________
7
Acosta speculates that there may have been a way for medical staff to provide him
with his medications immediately. For instance, he notes that physicians are available
telephonically 24 hours a day, but that this service was not utilized to verify his
prescriptions. But while Lieutenant Wheless testified, in the context of discussing the
treatment of Acosta’s finger, that physicians are available telephonically 24 hours a day, he
did not testify that a physician is available 24 hours a day to swiftly verify any prescription
for any detainee. Acosta also points to a jail policy indicating that, in some instances, certain
inmates may be permitted to self-administer medication. However, in context, it seems
relatively clear that this policy is intended to apply only after those medications are verified
by a physician or pharmacist.
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No. 23-50777
experiencing a PTSD episode when speaking with Hoffman in the holding
cell, the district court appears correct in its conclusion that “nothing [else]
in the record suggests that Acosta experienced a medical emergency
requiring life-sustaining medication” or hospitalization. Even if Acosta was
experiencing an emergency PTSD episode, the record does not indicate that
Williamson County officers knew or should have known that such an episode
was occurring. The officers involved consistently report that Acosta was
clearly agitated after his finger was slammed in the cell door, but that he
remained lucid and was treated without issue. In other words, there is
insufficient evidence to conclude that Acosta requested emergency
treatment, or that his need for emergency accommodations was “‘open,
obvious, and apparent’ to the entity’s relevant agents.” See Smith, 956 F.3d
at 318 (quoting Windham, 875 F.3d at 237).
In sum, even viewing the record in the light most favorable to Acosta,
the summary judgment evidence does not indicate that Williamson County
officers failed to make a reasonable accommodation for Acosta by failing to
administer his medications during the middle of the night. Even if Acosta
requested for his medications to be provided immediately, the County was
“not required to acquiesce to [Acosta’s] choice of accommodations merely
because [he] requested them.” See Cadena, 946 F.3d at 725; see also Wells v.
Thaler, 460 F. App’x 303, 313 (5th Cir. 2012) (“[W]e accord the officials at
the [jail] deference in their determination of an appropriate
accommodation.”). And, even if the Williamson County officers were not as
prompt as Acosta desired, under the relevant circumstances—i.e., a request
for non-life-sustaining prescription medications in the middle of the night
from a detainee who had just been booked—we fail to see how the officers’
failure to immediately provide these medications constituted an
ADA/Rehabilitation Act violation.
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No. 23-50777
Acosta’s claim that Williamson County violated the ADA by failing
to provide him with a CPAP machine fares similarly. The issue with this
claim, again, is that Williamson County officers seemingly took practical
steps to provide Acosta with this accommodation, given the circumstances.
They allowed Acosta to call his wife in the booking area, and Acosta
requested that she bring his CPAP machine to the jail. While hindsight tells
us that Acosta’s wife ultimately did not bring the CPAP machine when she
dropped off his medications, the jail officers had no reason to believe that this
accommodation would be inadequate. See Smith, 956 F.3d at 319.
At bottom, the record indicates that Williamson County officers took
practical steps to ensure that Acosta’s medical needs would be
accommodated. Granted, Acosta’s needs were not actually accommodated.
However, this result is more reflective of the brief length of Acosta’s
detention—one night—and factors beyond the jail officers’ control, rather
than the officers’ failings. Of course, had Acosta not bonded out the following
morning, the jail officers would have had a duty to administer his medications
as soon as reasonably possible, and to follow up on the CPAP machine issue
from the prior night. Under the circumstances presented here, however, we
cannot conclude that Williamson County failed to provide reasonable
accommodations, much less intentionally discriminated against Acosta.
Accordingly, we AFFIRM the district court’s grant of summary judgment
for Williamson County on Acosta’s ADA/Rehabilitation Act claim.
V.
We next address Acosta’s tort claims. The district court’s reasoning
in granting summary judgment for Hoffman and Williamson County on
Acosta’s tort claims is straightforward and amply supported by authority,
and Acosta’s appellate brief does not clearly articulate how the district court
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No. 23-50777
erred. In our own de novo review, we find no error in the district court’s
holdings, which we review briefly.
Acosta brought assault and battery claims against Hoffman, but these
claims are squarely foreclosed by statutory immunity. Namely, the Texas
Tort Claims Act (“TTCA”) “bars tort claims against government
employees when (1) the alleged tort occurred ‘within the general scope of
that employee’s employment’ and (2) ‘it could have been brought under [the
TTCA] against the governmental unit.’” Espinal v. City of Houston, 96 F.4th
741, 749 (5th Cir. 2024) (quoting Tex. Civ. Prac. & Rem. Code
§ 101.106(f)). Here, it is undisputed that this first requirement for immunity
is met; Acosta claims that Hoffman “acted in her scope of employment by
intentionally, knowingly and recklessly slamming the door on [his] finger out
of spite.” The second requirement for immunity is also met; although the
TTCA does not waive governmental immunity for claims arising out of
intentional torts such as assault and battery, see Tex. Civ. Prac. & Rem.
Code § 101.057(2), the Texas Supreme Court has held that “any tort
claim . . . ‘could have been brought’ under the [TTCA] against the
government regardless of whether the [TTCA] waives immunity” with
respect to it, Espinal, 96 F.4th at 749 (quoting Franka v. Velasquez, 332
S.W.3d 367, 375, 385 (Tex. 2011)). Therefore, as the district court concluded,
Acosta’s tort claims against Hoffman are squarely foreclosed by Texas law.
Acosta also brought negligence claims against Williamson County.
Because governmental units are immune from suit under Texas law, Acosta
bears the burden of establishing that the County’s immunity has been waived.
Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); see also
Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009) (noting that a
county is a “governmental unit”). To establish waiver of immunity, Acosta
notes that the TTCA provides that governmental units may be held liable
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for injuries “caused by a condition or use of tangible personal or real
property.” Tex. Civ. Prac. & Rem. Code § 101.021(2).
Acosta’s attempts to circumvent the County’s immunity fail as a
matter of law. First, any claim of negligence arising out of Hoffman’s alleged
use of excessive force is foreclosed. As noted above, governmental units do
not waive immunity for claims arising out of intentional torts. Tex. Civ.
Prac. & Rem. Code § 101.057(2). And, as the district court noted, “[a]
plaintiff cannot avoid a governmental unit’s sovereign immunity by pleading
an intentional tort claim as a negligence claim.” See Aguirre v. City of San
Antonio, 995 F.3d 395, 422 (5th Cir. 2021) (“[I]ntentional conduct, no matter
how it is pled, falls under the TTCA’s sovereign immunity waiver
exception.” (internal quotation omitted)); id. (“Texas courts have
repeatedly rejected the argument that intentional conduct . . . that also forms
the basis of excessive force claims . . . can give rise to cognizable claims under
the [TTCA].”).
We agree with the district court that Acosta’s excessive force claim
sounds in intentional tort. Acosta characterizes Hoffman’s use of force as
intentional, both in his second amended complaint and in his appellate brief.
Because Acosta alleges that Hoffman used excessive force, “a claim that
arises out of a battery, his pleadings do not state a claim for which
governmental immunity has been waived under the [TTCA].” City of
Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014).
Acosta’s other attempts to establish waiver of the County’s liability
via § 101.021(2), which requires an injury “caused by a condition or use of
tangible personal or real property,” are also unsuccessful. For instance,
Acosta claims that Williamson County negligently failed to train and
discipline Hoffman. In Texas Department of Criminal Justice-Community
Justice Assistance Division v. Campos, 384 S.W.3d 810, 815 (Tex. 2012), the
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Supreme Court of Texas addressed a group of plaintiffs’ claims that the
defendant government entity “failed to discipline prior inappropriate
conduct by . . . employees, failed to properly hire, train, and supervise
[officers], and failed to screen, educate, train, supervise, investigate, or
otherwise direct employees.” The court held that the defendant’s immunity
was not waived, since the plaintiffs had not alleged that a use of tangible
property was involved in any of these alleged failures. Id.; see also Goodman,
571 F.3d at 394 (“The TTCA is . . . not the appropriate vehicle for claims of
negligent failure to train or supervise.”).
The same conclusion is warranted in Acosta’s case. Acosta repeatedly
references the cell door as the tangible property utilized in the County’s
negligent conduct. But the use of the cell door is only salient with respect to
Acosta’s excessive force claim; Acosta has not explained how the County’s
alleged negligence in failing to train or discipline Hoffman involved a use of
tangible property. See Campos, 384 S.W.3d at 815; Tex. Dep’t of Pub. Safety v.
Petta, 44 S.W.3d 575, 581 (Tex. 2001) (holding that claims against a
government entity pertaining to the “misuse or non-use of information” are
barred by immunity). Similarly, Acosta’s claim that the County was negligent
for providing inadequate medical care is also foreclosed, since the Supreme
Court of Texas has held that a claim of inadequate medical care does not
involve the use of tangible property under the TTCA. See Tex. Dep’t of Corr.
v. Herring, 513 S.W.2d 6, 9 (Tex. 1974).
As noted above, Acosta has not provided any compelling arguments
to counter the district court’s comprehensive, well-supported conclusions of
law on this issue. We therefore AFFIRM the district court’s grant of
summary judgment for Defendants-Appellees Hoffman and Williamson
County on Acosta’s state tort claims.
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No. 23-50777
VI.
Finally, we address the district court’s dismissal of Acosta’s § 1983
municipal liability claims against Williamson County, which occurred before
the summary judgment stage. This court reviews de novo the grant of a Rule
12(b)(6) motion to dismiss. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir.
2011). However, when a magistrate judge first issues a report and
recommendations, a party is entitled to de novo review of proposed findings
accepted by the district court only if the party filed timely objections to the
report and recommendations. Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir.
2017); Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012). If the magistrate judge
specifically advises the parties that objections must be so filed, and the parties
then fail to file objections, we review only for plain error. Quinn, 863 F.3d at
358.
Here, the magistrate judge issued a report and recommendations
advising the district court to grant Williamson County’s partial motion to
dismiss. At the end of this report, the magistrate judge warned the parties of
the consequences of failing to file written objections. No objections were
filed. We therefore review for plain error. To succeed under plain error
review, Acosta must show: “(1) an error; (2) that is plain or obvious; (3) that
affects his substantial rights.” Id. at 358. If these three elements are satisfied,
this court has discretion to correct the error if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)).
But regardless of the standard of review, we find no error on this issue.
The only argument raised in the section of Acosta’s opening brief addressing
municipal liability is Acosta’s contention that Williamson County failed to
reprimand or discharge Hoffman after the alleged incident of excessive force.
Since we hold that Acosta has proffered insufficient evidence for a reasonable
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No. 23-50777
jury to conclude that Hoffman committed a constitutional violation, we can
summarily affirm the dismissal of Acosta’s policy-based claims related to
excessive force, since the County cannot be held liable for a policy failure if
the plaintiff has not proved an underlying constitutional violation. See Brown
v. Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001).
Plus, Acosta appears to press on appeal a ratification theory of
municipal liability, which generally provides that if “authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification [is]
chargeable to the municipality because their decision is final.” Sligh v. City of
Conroe, 87 F.4th 290, 303 (5th Cir. 2023) (quoting World Wide Street
Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009)).
This court has consistently held that a municipality failing to investigate an
incident or failing to discipline an officer, absent additional allegations
indicating that superiors approved of the conduct at issue or deemed the
officer’s actions consistent with municipal policy, does not adequately
establish a ratification claim. See, e.g., Peterson v. City of Fort Worth, 588 F.3d
838, 848 & n.2 (5th Cir. 2009); Milam v. City of San Antonio, 113 F. App’x
622, 628 (5th Cir. 2004).
Additionally, Acosta claims that Williamson County “acted with
deliberate indifference to his serious medical needs,” referencing this court’s
standard for adjudicating a pretrial detainee’s claim of inadequate medical
care under the Fourteenth Amendment. See Cope v. Cogdill, 3 F.4th 198, 206–
07 (5th Cir. 2021). Acosta did raise a Fourteenth Amendment claim against
Williamson County alleging that the County failed to provide adequate
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No. 23-50777
medical care, but the district court dismissed this claim per the magistrate
judge’s recommendation. 8 We find no error in the district court’s decision.
“To establish municipal liability under 42 U.S.C. § 1983, a plaintiff
must 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).’” Ford v. Anderson
County, 102 F.4th 292, 319 (5th Cir. 2024) (quoting Newbury v. City of
Windcrest, 991 F.3d 672, 680 (5th Cir. 2021)). “Generally, a plaintiff must
show that the policy was implemented with ‘deliberate indifference’ to the
‘known or obvious consequences’ that a constitutional violation would
result.” Id. (quoting Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir.
2018)). “Proving deliberate indifference in a municipal liability action
generally requires showing that a policy caused a pattern of constitutional
violations, and proving deliberate indifference based on a single incident
requires showing that the injury suffered was a ‘highly predictable’
consequence of the policy.” Id. at 320 (quoting Valle v. City of Houston, 613
F.3d 536, 547, 549 (5th Cir. 2010)). “In order to find a municipality liable for
a policy based on a pattern, that pattern ‘must have occurred for so long or
so frequently that the course of conduct warrants the attribution to the
governing body of knowledge that the objectionable conduct is the expected,
accepted practice of city employees.’” Davidson v. City of Stafford, 848 F.3d
384, 396 (5th Cir. 2017) (quoting Peterson, 588 F.3d at 850). “A pattern
requires similarity, specificity, and sufficiently numerous prior incidents.”
Id.
_____________________
8
Acosta’s appellate brief also appears to allege that Hoffman exhibited deliberate
indifference by “ignoring [his] requests for his prescribed medicines and CPAP machine,”
but Acosta never brought a Fourteenth Amendment claim against Hoffman alleging a
failure to provide adequate medical care.
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No. 23-50777
Acosta’s second amended complaint only notes one other instance of
an individual receiving purportedly inadequate medical care at Williamson
County Jail, which is insufficient to establish a pattern. Cf. Pineda v. City of
Houston, 291 F.3d 325, 329 (5th Cir. 2002) (concluding that eleven instances
of warrantless searches were insufficient evidence of a pattern). The
complaint also fails to point to an obvious infirmity in Williamson County’s
policies indicating that constitutional violations would be a “highly
predictable consequence.” Acosta’s policy-based allegations related to
medical care are highly generalized; he broadly speculates, inter alia, that
Williamson County has inadequate funding for medical care and inadequate
training/supervision. He has not pointed to any specific, official County
policies that are obviously constitutionally infirm, nor has he provided any
explanation as to how the County’s policies are obviously inadequate. These
conclusory generalizations are insufficient to plead a municipal liability claim
under § 1983. See Sligh, 87 F.4th at 303; Calhoun v. City of Hous. Police Dep’t,
855 F. App’x 917, 922 (5th Cir. 2021). Thus, Acosta’s complaint fails to
adequately allege that a Williamson County policy was a “moving force”
behind any constitutionally inadequate medical care he may have received.
Acosta’s other arguments related to municipal liability, which were
raised for the first time in his reply brief, have been forfeited. See Guillot ex
rel. T.A.G. v. Russell, 59 F.4th 743, 751 (5th Cir. 2023). Regardless, we find
these additional arguments to be meritless. These arguments primarily
pertain to policies that were purportedly a “moving force” behind
Hoffman’s use of excessive force. We find these arguments unpersuasive,
because: (1) as noted above, Acosta has failed to establish that Hoffman
utilized excessive force; (2) Acosta failed to allege a pattern of similar
incidents of excessive force; and (3) Acosta’s policy-based claims related to
excessive force consist entirely of conclusory generalizations, and Acosta
does not point to any obvious infirmities in Williamson County’s policies
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indicating that constitutional violations would be a “highly predictable
consequence.” 9
We find no error in the district court’s thorough and well-reasoned
holding on this issue, much less the plain error that Acosta is required to
establish. We accordingly AFFIRM the dismissal of Acosta’s § 1983
municipal liability claims.
VII.
Finding no reversible error in the district court’s proceedings, we
AFFIRM the dismissal of Acosta’s § 1983 municipal liability claims against
Williamson County, as well as the grant of summary judgment for
Defendants-Appellees Hoffman and Williamson County on all remaining
claims.
_____________________
9
For example, Acosta alleges that Williamson County had policies of “[e]ngaging
in use of excessive force on pre-trial detainees” and “[e]ncouraging escalation rather than
de-escalation.” Obviously, these are not written County policies, but Acosta can establish
that a custom exists by showing “a persistent, widespread practice of [County] 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.” Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)). But Acosta has not sufficiently alleged
a pattern to establish a “persistent, widespread practice.” Nor has he pointed to an official
County policy that is so obviously infirm that it would provide notice to municipal
policymakers that a constitutional violation would be a “highly predictable consequence.”
Therefore, we find that these conclusory policy-based allegations are insufficient to support
a § 1983 claim against Williamson County.
27