# Borden v. Fort Bend County

> District Court, S.D. Texas · March 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10673159

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10673159

## How later opinions describe it (automated extraction)

- finding no error in the lower court’s assessment of punitive damages against jailers for their reckless acts and omissions under § 1983

## Opinion text

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.
2
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.

3
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)).
4
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.

5
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).
6
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
7
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
8
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

9
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
10
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.
11
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673159. Public record. Not legal advice.