Borden v. Fort Bend County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

TACOMA BORDEN and ATTALIA BORDEN, §

§

Plaintiffs, §

§

v. § CIVIL ACTION H-19-551

§

FORT BEND COUNTY, TEXAS, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to dismiss filed by defendants Kloeber, Narinsingh,

Rains, Rabius, Luckstead and Garza (collectively, the “Medical Defendants”).1 Dkt. 33. After

reviewing the motion and applicable law, the court is of the opinion that it should be GRANTED

IN PART AND DENIED IN PART.

I. BACKGROUND

The case involves alleged constitutional violations associated with Tacoma Borden’s time

as an inmate in the Fort Bend County Jail. Tacoma Borden, who suffers from epilepsy and severe

seizures, alleges that while she was incarcerated the Medical Defendants deprived her of needed

medical care, subjected her to inequitable treatment, and subjected her to punitive conditions of

confinement, resulting in compensable injuries to herself and her husband, Attalia Borden. Dkt. 32.

The Bordens seek a remedy under 42 U.S.C. § 1983 for alleged constitutional violations. Id. The

1 The complaint provides only surnames for these defendants. See Dkt. 32.

Bordens additionally allege that Tacoma Borden’s treatment while under the care of the defendants

gives rise to claims under the Americans with Disabilities Act (ADA) and state tort claims.2 Id.

The Bordens filed their original complaint in February 2019 against Fort Bend County,

individuals employed in policymaking or correction officers roles for Fort Bend County (collectively

“FBC Defendants”), as well as the Medical Defendants. Dkt. 1. The Medical Defendants filed a

motion to dismiss. Dkt. 4. In July 2019, the Bordens filed an amended complaint that included

similar allegations. Dkt. 7. In August 2019, the FBC Defendants filled a Rule 12(b)(6) motion to

dismiss for failure to state a claim, and alternatively a Rule 12(e) motion for a more definite

statement. Dkt. 13. The court granted the motion to dismiss the Bordens’ Fifth Amendment claim

and their state-law claims against all of the FBC Defendants. The court also granted the motion to

dismiss the ADA claim against the individual FBC Defendants, the § 1983 claim against defendant

James, and the punitive damages claim against Fort Bend County. Dkt. 28. The court denied the

motion to dismiss the § 1983 claim as to other individual FBC Defendants and Fort Bend County.

Dkt. 28.

In September, the Medical Defendants filed a Rule 12(b)(6) motion to dismiss the amended

complaint and alternatively a Rule 12(e) motion for a more definite statement. Dkt 23. The court

denied the Rule 12(b)(6) motion without prejudice and granted the motion for the more definite

statement, ordering the Bordens to “amend their complaint to provide more information about how

each of the Medical Defendants allegedly deprived Tacoma Borden of her constitutional rights.”

Dkt. 29. In December, the Bordens filed their second amended complaint. Dkt. 32. The Medical

Defendants responded with another Rule 12(b)(6) motion to dismiss, addressed here. Dkt. 33.

2 A prior opinion of this court included a more detailed summary of the alleged facts.

See Dkt. 28.

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The plaintiffs did not file a response.

This Medical Defendants’ motion to dismiss is now ripe for disposition.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts

generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum

& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The court

does not look beyond the face of the pleadings in determining whether the plaintiff has stated a claim

under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “[A] complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citations omitted). The “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Id. The supporting facts must be plausible—enough to

raise a reasonable expectation that discovery will reveal further supporting evidence. Id. at 556.

III. ANALYSIS

The court will first address the Fifth Amendment claim, the state law claims, and the ADA

claim with respect to all Medical Defendants. The court will then address the § 1983 conditions-of-

confinement claims with respect to all Medical Defendants. Next, the court will consider the § 1983

acts-and-omissions claims with respect to each Medical Defendant. Finally, the court will address

whether the plaintiffs’ punitive damages claims should be dismissed.

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A. The Fifth Amendment Claim

The Bordens contend that the Medical Defendants deprived Tacoma Borden of her clearly

established rights under both the Fifth and the Fourteenth Amendments to the U.S. Constitution.

Dkt. 32. The Medical Defendants argue that the plaintiffs failed to state a constitutional claim.

Dkt. 33. The Fifth Amendment only applies to violations of one’s constitutional rights by the United

States or federal actors. Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). The plaintiffs

fail to allege that any of the Medical Defendants are federal actors.3 The Medical Defendants motion

to dismiss the Fifth Amendment claim is therefore GRANTED.

B. The ADA Claim

The Bordens assert a claim under Title II of the ADA against all individual defendants,

including the Medical Defendants, claiming that they discriminated and retaliated against Tacoma

Borden on the basis of her medical disability. Dkt. 32. The Medical Defendants argue that

individuals cannot be sued in their official capacity under the ADA, citing Navarette v. Isbell, No.

H-13-2678, 2015 WL 926559, at *3 (S.D. Tex. Mar. 4, 2015). Dkt. 33. The Medical Defendants

also argue that the Bordens failed to state with enough specificity what acts by the individual

defendants led to compensable harm under the ADA. Id.

3The Bordens state that Fort Bend County Jail receives funding from the federal government.

Dkt. 32 ¶ 141. However, the plaintiffs fail to allege that the Medical Defendants in their individual

capacities were acting under the authority and control of the federal government at the time that they

allegedly violated Tacoma Borden’s constitutional rights. Cf. Boney v. Valline, 597 F. Supp. 2d

1167, 1174 ( D. Nev. 2009) (determining that, although the tribal police department received funding

from the federal government, the officer was not a federal actor because the actions of the police

officer were not traditionally the exclusive prerogative of the federal government and there was no

symbiotic relationship between the officer and the DOJ) (applying factors set forth in Rendall-Baker

v. Kohn, 457 U.S. 830, 842 102 S.Ct. 2764 (1982)).

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Under Title II of the ADA, “[n]o 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 term “public entity” includes state or local governments, “any department,

agency, special purpose district, or other instrumentality of a State or States or local government,”

and the National Railroad Passenger Corporation (and any commuter authority). 42 U.S.C. § 12131.

Courts in this district have interpreted this to mean that the statute does not apply to officials sued

in their individual capacities, particularly since the Fifth Circuit has interpreted similar language in

the Rehabilitation Act to preclude suit against officials in their individual capacities. See Eustice v.

Tex. A&M Univ., No. 4:15-CV-03180, 2016 WL 8710444, at *8 (S.D. Tex. Sept. 30, 2016) (Harmon,

J.) (collecting cases) (“[C]ourts have concluded that individuals sued only in their individual

capacities cannot be considered proper defendants under either Title II of the ADA or the

[Rehabilitation Act].”); Navarette, 2015 WL 926559, at *3(“It is well established that individuals

cannot be sued under the ADA in their individual capacities.”); Estate of A.R. v. Grier, No. H-10-

0533, 2011 WL 3813253, at * 7 (S.D. Tex. Aug. 26, 2011) (Rosenthal, J.) (“The ADA and

Rehabilitation Act do not provide for damages against individuals.”); DeLeon v. City of Alvin Police

Dep’t, No. H-09-1022, 2009 WL 3762688, at *3 (S.D. Tex. Nov. 9, 2009) (Hoyt, J.); Gonzales v.

City of Corpus Christi, No. C.A. C-05-280, 2006 WL 1517507, at *5 (S.D. Tex. May 31, 2006)

(Jack, J.); see also Lollar v. Baker, 196 F.3d 603 (5th Cir. 1999) (interpreting the Rehabilitation

Act). The motion to dismiss the ADA claims against the Medical Defendants is therefore

GRANTED.

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C. State Tort Claims

The Bordens assert common law claims under Texas law for loss of consortium4 and

retaliation. Dkt.32. The Medical Defendants argue that the Bordens failed to identify sufficient facts

that would support any theory of state tort liability. The Medical Defendants also point out that the

plaintiffs failed to allege tort claims against the defendants in their official capacities. Dkt. 33.

“[U]nder the common-law doctrine of sovereign immunity, a municipality is immune from tort

liability for its own acts or the acts of its agents unless the Texas Tort Claims Act [(“TTCA”)]

waives immunity.” City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998). The Bordens fail

to state why their state tort claims against the Medical Defendants should survive a sovereign

immunity defense, or to claim a waiver under the TTCA. See Dkt. 32. Accordingly, the Medical

Defendants’ motion to dismiss the plaintiffs’ claims for loss of consortium and retaliation is

GRANTED.

D. Section 1983 Claims

The Bordens assert various § 1983 claims. Dkt. 32. They allege that each defendant violated

Tacoma Borden’s constitutional rights, including her right to be free from unreasonable seizure and

inhumane conditions of confinement, and her right to receive adequate medical care while in pretrial

detention. Id. The plaintiffs contend that Tacoma Borden suffered under unconstitutional conditions

of confinement as a result of Fort Bend County policies. Only two of the plaintiffs’ conditions-of-

confinement theories potentially relate to the Medical Defendants. First, the plaintiffs allege that

pursuant to Fort Bend County policy, the Medical Defendants failed to adequately provide medical

4The plaintiffs titled the third claim “Loss of Services, Consortium, Companionship, and

Society of Mr. Borden; Retaliation.” Dkt. 32. Under Texas common law, loss of a spouse’s

services, companionship, or society following that spouse’s personal injury give rise to a loss of

consortium claim. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).

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care to inmates with imminent risk of medical emergency. Id. ¶¶ 96–98, 113. Second, the plaintiffs

contend that pursuant to County policy, the Medical Defendants failed to provide for Tacoma

Borden’s basic needs including access to feminine hygiene products, clean underwear, and shower

facilities. Id. ¶¶ 101, 188–23. Specifically, the plaintiffs contend that the Medical Defendants failed

to respond to Tacoma Borden’s repeated requests for clean clothes and feminine hygiene products.

Id.

The Medical Defendants contend that the second amended complaint, like the first, lacks

specific factual allegations of how each Medical Defendant violated Tacoma Borden’s constitutional

rights, which relates to the plausibility of an acts-or-omissions claim under § 1983. Dkt. 33. The

Medical Defendants also argue that the plaintiffs failed to state what policies governed the behavior

of the Medical Defendants at the time of Tacoma Borden’s incarceration, which relates to the

adequacy of a conditions-of-confinement claim under § 1983. Id.

1. Legal Standard

Under 42 U.S.C. § 1983,

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a

judicial officer for an act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.

In a lawsuit brought against an individual defendant in his or her personal capacity, “‘it is

enough to show that the official, acting under the color of state law, caused the deprivation of a

federal right.’” Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009). “The constitutional

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rights of a pretrial detainee are found in the procedural and substantive due process guarantees of the

Fourteenth Amendment.” Estate of Henson v. Wichita Cty., 795 F.3d 456, 462 (5th Cir. 2015). “The

Fourteenth Amendment requires that state officials not disregard the ‘basic human needs of pretrial

detainees, including medical care.’” Estate of Henson v. Krajca, 440 F. App’x 341, 343 (5th Cir.

2011) (quoting Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc)); see also Estate

of Henson, 795 F.3d at 462 (quoting this language from Krajca). “[T]he substantive limits on state

action set by the Due Process Clause provide that the state cannot punish a pretrial detainee.” Id.

In the Fifth Circuit, the court’s analysis depends on whether a plaintiff is alleging an episodic act or

omission of an individual state official or the constitutionality of the conditions of confinement.

Estate of Henson, 795 F.3d at 462. “A challenge to a condition of confinement is a challenge to

‘general conditions, practices, rules, or restrictions of pretrial confinement.’” Id. at 463 (quoting

Hare, 74 F.3d at 644). “An episodic-acts-or-omissions claim, by contrast, ‘faults specific jail

officials for their acts or omissions.’” Id. (quoting Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th

Cir. 2009)). “[T]here is no rule barring a plaintiff from pleading both alternative theories, and a

court may properly evaluate each separately.” Id. at 464.

Courts apply the test found in Bell v. Wolfish in conditions-of-confinement cases. Id. at 463.

The question under Bell v. Wolfish is “whether those conditions amount to punishment of the

detainee.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861 (1979). If an act is reasonably related

to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’”

Id. at 539. Sometimes challenged conditions are explicit, and sometimes they reflect a de facto

policy. Estate of Henson, 795 F.3d at 463.

In an episodic-acts-or-omissions claim, the plaintiff points to specific jail officials for their

acts or omissions. Estate of Henson, 795 F.3d at 463. The plaintiff complains first of a certain act

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or omission and then “‘derivatively to a policy, custom, or rule (or lack thereof) of the municipality

that permitted or caused the act or omission.’” Id. (quoting Scott v. Moore, 114 F.3d 51, 53 (5th Cir.

1997) (en banc)). Intentionality is not presumed for episodic-acts-or-omissions claims, and a jail

official violates the pretrial detainee’s constitutional rights “when the official had ‘subjective

knowledge of a substantial risk of serious harm’ to the detainee and responded to that risk with

deliberate indifference.” Id. at 464 (quoting Hare, 74 F.3d at 650). “In other words, the state official

must know of and disregard an excessive risk to inmate health and safety.” Id. In order to

demonstrate deliberate indifference in the context of a medical professional failing to adequately

treat a pretrial detainee the plaintiff must show that the medical professional “refused to treat him[or

her], ignored his[or her] complaints, intentionally treated him[or her] incorrectly or engaged in

similar conduct that would clearly evince a wanton disregard for any serious medical needs.”

Domino v. Tex. Dept. of Crim. Jusitice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v.

Treen, 759 F.2d 1236 (5th Cir. 1985).

In Scott v. Moore, the Fifth Circuit distinguished between conditions-of-confinement and

episodic-acts-and-omissions cases by noting that in conditions-of-confinement cases the detainee

complains of a “general condition of confinement,” where it is generally the conditions themselves

that constitute the harm, “for example, where inadequate food, heating, or sanitary conditions

themselves constitute miserable conditions.” 114 F.3d at 53. In contrast, in episodic-acts-or-

omissions cases, “an actor usually is interposed between the detainee and the municipality, such that

the detainee complains first of a particular act of, or omission by, the actor and then points

derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused

the act or omission.” Id. In Scott, the Fifth Circuit determined that the facts, which included an

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allegation of sexual assaults due to inadequate staffing, bore a “closer resemblance to cases regarding

episodic acts by prison employees.” Id.

Similarly, in In re Estate of Henson, the Fifth Circuit determined that claims against a

physician in charge of the jail who the plaintiffs claimed acted with deliberate indifference in failing

to provide appropriate medical evaluation or transport the detainee, who ended up dying in custody,

were “properly characterized . . . as attacking episodic acts or omissions rather than conditions of

[the detainee’s] confinement.” 795 F.3d at 464–65. The court further explained that for the

conditions-of-confinement “test to apply, a jailer’s act or omission must implement a rule or

restriction or otherwise demonstrate the existence of an identifiable practice. . . .[I]n the absence of

such a condition, practice, rule or restriction, a jail official’s acts or omission can give rise to

constitutional liability only if he was culpable.” Id.

The court first evaluates the plaintiffs’ claim that the Medical Defendants caused Tacoma

Borden to suffer under unconstitutional conditions of confinement and then evaluates whether or not

the plaintiffs properly alleged any specific constitutional violations resulting from each Medical

Defendants’ acts or omissions.

2. Conditions of Confinement

The plaintiffs’ statements regarding the conditions-of-confinement claims are generalized

and conclusory. Id. ¶¶ 96–98, 101, 113, 188–23. The complaint alleges that each defendant was

“personally involved in the inhuman and unsanitary conditions of confinement,”Id ¶ 19–23.However,

the plaintiffs fail to identify a rule or restriction of Fort Bend County that compelled the Medical

Defendants to allegedly deny Tacoma Borden access to medically necessary care, or point to an

intended condition or practice that led to the constitutionally inadequate provision of medical care.

Without an idea of which policies or practices the plaintiffs are challenging and how each defendant

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was involved in the implementation of the allegedly unconstitutional policies or practices, the court

cannot assess whether or not the allegations plausibly meet the Bell standard. The plaintiffs therefore

fail to state a § 1983 claim against the Medical Defendants under a conditions-of-confinement

theory. Instead, the allegations against the Medical Defendants are similar to allegations in cases

where the Fifth Circuit has construed the allegations as an episodic-acts-or-omissions claim. See In

re Estate of Henson, 795 F.3d at 464–65. The court thus now turns to whether the alleged acts or

omissions of each Medical Defendant amounted to deliberate indifference towards Tacoma Borden’s

Fourteenth Amendment right to adequate medical treatment.

3. Acts or Omissions – Kloeber

In the second amended complaint, the Bordens conclusorily contend that Kloeber “was

personally involved in the denial and delay of the medical care and treatment of Tacoma Thompson

Borden.” Dkt. 32 ¶ 18. They additionally make the following generalized statements against all

Medical Defendants: “Despite her request and warning that she was at imminent risk of having a

seizure, the Jail Medical Defendants refused to provide Mrs. Borden with her prescribed

Medication.” Dkt. 32 ¶ 49; see also Dkt. 39 ¶¶ 48, 55, 60. The Bordens do not state what acts or

omissions are attributable to Kloeber, and thus fail to allege any facts to support the claim that

Kloeber knew that Tacoma Borden was at risk of serious harm as a result of her untreated epilepsy

or that Kloeber acted with deliberate indifference by failing to provide Tacoma Borden with her

medication. Thus, they do not plausibly allege an episodic-acts-or-omissions claim against Kloeber.

The motion to dismiss the § 1983 claim against Kloeber is therefore GRANTED.

4. Acts or Omissions – Narinsingh

In the second amended complaint, the Bordens allege that Narinsingh was “personally

involved in the . . . denial and delay of medical care of Tacoma Thompson Borden.” Dkt 32 ¶ 21.

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Like Kloeber, all facts alleged against Narinsingh are generalized statements against all Medical

Defendants. Dkt. 32 ¶ 49; see also Dkt. 39 ¶¶ 48, 55, 60. The second amended complaint fails to

allege any facts to support the claim that Narinsingh knew that Tacoma Borden was at risk of serious

harm as a result of her untreated epilepsy or that he or she acted with deliberate indifference by

failing to provide Borden with her medication. Without allegations of how Narinsingh personally

acted with deliberate indifference to Tacoma Borden’s risk of seizure, the plaintiffs fail to make out

a plausible episodic-acts-or-omissions claim. The motion to dismiss the § 1983 claim against

Narinsingh is therefore GRANTED.

5. Acts or Omissions – Rains

In the second amended complaint, the plaintiffs allege that Rains was “personally involved

in the . . .denial and delay of the medical care and treatment of Tacoma Thompson-Borden.”

Dkt. 32 ¶ 20. Specifically, the Bordens allege that “After [Tacoma] Borden’s first seizure. . . Rains

and Luckstead sent Borden back to her cell and instructed Deputy Bain who upon information and

belief does not have any medical training to monitor Mrs. Borden.” Dkt. 32 ¶ 54. The first seizure

is alleged to have occurred on April 30, 2018. Id.¶ 52. The complaint also alleges that Tacoma

Borden did not receive medication or a more detailed medical evaluation regarding her risk of

seizure until sometime between the evening of May 1 and the afternoon of May 3. Dkt. 32 ¶¶ 57–66.

The facts alleged can lead to a plausible inference that after Rains encountered Tacoma

Borden, Rains failed to take steps to immediately medicate Tacoma Borden or immediately escalate

the information to an individual who could further assess Tacoma Borden’s risk. However, in order

to plead deliberate indifference, the plaintiff must allege facts that go beyond mere negligence and

indicate either deliberate intent to deprive the plaintiff of medical care or a “wanton disregard for

any serious medical needs.” Domino, 239 F.3d at 756 (5th Cir. 2001) (quoting Johnson v. Treen,

759 F.2d 1236 (5th Cir. 1985)). “Unsuccessful medical treatment, acts of negligence, or medical

malpractice do not constitute deliberate indifference, nor does a prisoner's disagreement with his

medical treatment, absent exceptional circumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th

Cir. 2006). The plaintiffs fail to allege that Rains reacted with deliberate indifference to Tacoma

Borden’s risk of seizure. The facts alleged, if taken as true, would not amount to an actionable act

or omission under §1983. The motion to dismiss the § 1983 claim against Rains is therefore

GRANTED.

6. Acts or Omissions – Luckstead

From the face of the pleadings, it is unclear whether or not the Bordens intended to assert a

claims against Luckstead. In the initial and both subsequently amended complaints, Luckstead’s

name appears in the “Parties” section followed by a general statement that he or she was involved.

Dkts. 1, 7, 32. Luckstead’s name also appears once in the body of the second amended complaint,

where the plaintiffs claim “[a]fter Borden’s first seizure Nurse Rains and Luckstead sent Borden

back to her cell.” Dkt. 32 ¶ 54. However, Luckstead is not listed in the caption, the initial

paragraph, or in the final prayer. Dkts. 1, 7, 32. Additionally, the court has no record that Luckstead

was served or that service was waived on his or her behalf in relation to this case. Dkts. 2, 3, 38.

In their motion to dismiss, the Medical Defendants argue that the plaintiffs fail to allege facts

sufficient to support a claim against Luckstead and that their failure to list Luckstead in the

appropriate sections amounts to an abandonment of the claims against Luckstead. Dkt. 33. The

plaintiffs failed to respond to the motion to dismiss. Under Local Rule 7.4, failure to respond to a

motion is taken as a statement of no opposition. S.D. Tex. R. 7.4. Given the inconsistencies

throughout the plaintiffs’ pleadings regarding Luckstead’s status as a defendant and the plaintiffs’

failure to respond to the defendants’ argument that the plaintiffs have abandoned their claims against

Luckstead, the court must conclude that the plaintiff no longer wishes to pursue a cause of action

against Luckstead.

Moreover, even if Luckstead had been properly included in the complaint, the plaintiffs still

fail to allege facts against Luckstead to support a claim under § 1983. The factual allegations against

Luckstead are identical to those against Rains. The plaintiffs fail to allege that Luckstead acted with

deliberate indifference to Tacoma Borden’s constitutional rights. The motion to dismiss the § 1983

claim against Luckstead is therefore GRANTED.

7. Acts or Omissions – Rabius

The plaintiffs allege that Rabius was “personally involved in the . . . denial and delay of the

medical care of Tacoma Thompson Borden.” Dkt. 32 ¶ 19. Specifically, the Bordens allege that

Rabius failed to adequately treat Tacoma Borden following her third seizure and that she falsified

Borden’s medical records. Id. ¶¶ 65–71. The plaintiffs allege that Tacoma Borden’s third seizure

occurred at 7:30 pm on Thursday, May 3, 2018, that during her third seizure she sustained injuries

to her leg, and that shortly after her third seizure her condition deteriorated enough to require the use

of a wheel chair. Id. The plaintiffs allege that following the seizure Rabius took Tacoma Borden’s

blood pressure in her cell, but did not provide any further medical care. Id. The plaintiffs also allege

that Tacoma Borden’s medical records were falsified to reflect that the seizure took place at 1:00 am

rather than 7:30 pm, and that Tacoma Borden’s blood pressure was falsified, plausibly to justify the

extended delay in subsequent medical care. Id. The plaintiffs’ allegations support the inference that

following the third seizure on the evening of May 3rd, of which Rabius was aware, despite serious

symptoms of complications, the plaintiff was not offered appropriate medical assistance until she

returned from court on May 4. Id. ¶¶ 78–81. After Tacoma Borden refused medical care because

of the purported falsifications in her medical records, she allegedly did not receive any additional

medical evaluation until May 6. Id.

The plaintiffs plausibly allege that Rabius knew that Tacoma Borden was at risk of serious

harm as a result of complications following her seizures, and that Rabius responded with deliberate

indifference by failing to provide Borden with constitutionally adequate and timely medical

treatment. The plaintiffs’ plausibly allege a § 1983 claim against Rabius for his or her individual

acts and omissions, therefore the motion to dismiss the § 1983 claim against Rabius is DENIED.

8. Acts or Omissions – Garza

In the second amended complaint, the plaintiffs restate claims against defendant Garza,

claiming that he or she was personally involved in the denial and delay of Tacoma Borden’s medical

care. The plaintiffs also claim that Garza served in a policymaking and leadership role. Dkt. 33.

The court denied a previous motion to invoke qualified immunity and dismiss the § 1983 claims

against FBC Defendant Garza. Dkt 28. In the instant motion, the Medical Defendants note that there

is some confusion as to the identity of defendant Garza, stating that “Medical Defendant[s’] Counsel

is filing a response on behalf of Defendant Garza as both Counsel [Medical Defendants’ Counsel

and FBC Defendants’ Counsel] represent an individual named Garza.” Dkt. 33 n.1. Counsel for the

Medical Defendants thereby filed a motion to dismiss the § 1983 against Garza to the extent that

Garza is a Medical Defendant.

The description of Garza in the second amended complaint describes him or her as “duly

appointed to provide medical services at the county jail.” Dkt 32 ¶ 23. In the body of the complaint,

the plaintiffs state that Tacoma Borden asked for “the supervisor in medical (Garza) and she was told

that Garza wasn’t there.” Dkt 32 ¶ 79. The plaintiffs also identify Garza as a policymaker.

Dkt 32 ¶ 123. The references to Garza in the second amended complaint are identical to those in the

initial and subsequently amended complaints. Dkts. 1,7,32. Those references were used as the basis

for the denial of the motion to dismiss the § 1983 claims against a defendant named Garza in the

motion to dismiss claims against the FBC Defendants. Dkt. 28.

The primary source of confusion appears to be the identity a defendant named Garza included

in the initial complaint, against whom service of process was waived by Fort Bend County, and as

to whom this court has already denied a motion to dismiss. Nothing in the pleadings indicate that

the plaintiffs intended to sue multiple individuals named Garza, but the confusion regarding Garza’s

identity needs to be resolved. The court therefore ORDERS the parties to meet and confer regarding

the identity of Garza.

The plaintiffs shall file a clarification with the court immediately thereafter and advise

whether they intended to sue one or two individuals with the surname Garza. The court DEFERS

ruling on the motion to dismiss claims against a potential Medical Defendant named Garza until the

parties advise if one actually exists.

E. Punitive Damages Claim

The Bordens seek punitive damages in their second amended complaint. A jury may assess

punitive damages against an individual for a § 1983 claim when “the defendant’s conduct is shown

to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the

federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983);

see Stokes v. Delcambre, 710 F.2d 1120, 1126 (5th Cir. 1983) (finding no error in the lower court’s

assessment of punitive damages against jailers for their reckless acts and omissions under § 1983).

Here, the plaintiffs have sufficiently asserted a § 1983 claim against Rabius, an individual

defendant. Based on the facts alleged, the plaintiffs could plausibly make out a claim for punitive

damages under the Smith standard. The Medical Defendants’ motion to dismiss the claim for

punitive damages is therefore DENIED with respect to Rabius. It is otherwise GRANTED.

TV. CONCLUSION

The Medical Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN

PART. It is GRANTED with respect to the following:

(1) the Fifth Amendment claims against all of the Medical Defendants;

(2) the ADA claims against all of the Medical Defendants;

(3) the state-law claims against all of the Medical Defendants;

(5) the § 1983 claims against Kloeber, Narinsingh, Rains and Luckstead; and

(4) the punitive damage claims against Kloeber, Narinsingh, Rains and Luckstead.

The court DEFERS ruling on a potential claim against a Medical Defendant with the surname

Garza.

The motion to dismiss is otherwise DENIED.

Signed at Houston, Texas on March 17, 2020. /

Gray H. Miller

Senior (ot Sine Judge

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