noting that the district court should have considered a qualified immunity defense “because the jailers asserted this defense in both their motions to dismiss and their objections” (emphasis added to show the contrast to this case)
How later courts described this case
- noting that the district court should have considered a qualified immunity defense “because the jailers asserted this defense in both their motions to dismiss and their objections” (emphasis added to show the contrast to this case)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CYNTHIA NICHOLS, individually, §
and as representative of the §
ESTATE OF JASON LEJUNIE, §
§
Plaintiffs, §
§
v. § CIVIL ACTION H-19-2820
§
BRAZOS COUNTY and CHRISTOPHER C. KIRK, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to dismiss plaintiff Cynthia Nichols’s first amended
complaint filed by defendants Brazos County (the “County”) and Sheriff Christopher C. Kirk.
Dkt. 13. After considering the motion, response, reply, amended complaint, and the applicable law,
the court is of the opinion that the motion should be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
This lawsuit relates to the death of plaintiff Cynthia Nichols’s son, Jason LeJunie,
approximately four days, or 84 hours, after LeJunie was released from Brazos County Detention
Center (“BCDC”). Prior to his detention, LeJunie had been diagnosed with several different medical
conditions, including blood clots in both of his legs, high blood pressure, one kidney, EFIDS, a back
injury, gout, anxiety, and phlebitis, which is also known a deep vein thrombosis (“DVT”). Dkt. 11.
Nichols contends that LeJunie always took the medicine that was prescribed for his medical
conditions and that DVT is a chronic illness that may cause complications if medication is not taken.
Id. Nichols alleges that LeJunie was arrested on May 3, 2018, for past-due child support after a
traffic stop and that after intake LeJunie was released into the general jail population despite the
medical personnel at the jail knowing that LeJunie had several medical conditions. Id. The BCDC
allegedly contacted LeJunie’s primary care physician to request medical records the day after
LeJunie’s arrest.1 Id. Nichols contends that she did not hear from LeJunie until three days after his
arrest—after she had filed a missing person report because it was rare for him not to call her. Id.
According to Nichols, the BCDC did not allow LeJunie to make a telephone call the first three days
of his detention. Id.
Nichols states that she informed the BCDC about LeJunie’s serious health conditions as soon
as she found out where LeJunie was and let the BCDC know that LeJunie was likely suffering from
Xanax withdrawal, which she contends limited his ability to recall all of his medication history. Id.
Nichols asserts that LeJunie called her on May 6 and informed her that the jail officials refused to
give him his medication. Id. Nichols alleges that she called the BCDC again and reminded them
about LeJunie’s health conditions. Id. Nichols asserts that LeJunie received a “white pill” that day,
but the medical supervisor, nurse, and jail physician would not tell LeJunie what the pill was when
he inquired. Id. The BCDC did not receive LeJunie’s medical records until May 8, 2018 – five days
after LeJunie was incarcerated. Id.
According to Nichols, LeJunie complained of leg pain and swelling but was never given his
prescribed medications while in custody. Id. Nichols contends that by May 10, 2018, she was so
worried about LeJunie that she again contacted the jail and also contacted Texas Governor Gregg
Abbott. Id. She informed the Governor about LeJunie’s health problems, that he had been in jail
for seven days for back child support, and that the jail had received his medical records on May 8
1 Nichols contends that the medical records indicate that LeJunie was prescribed 2 mg of
Alprazolam (or Xanax) three times a day, 325 mg of Aspirin one time per day, 20 mg of Lisinopril
10 mg once a day with 25 mg hydrochlorothiazide, warfarin 5 mg tablet, 1 tablet every day, and 10
mg Oxycodone every four to six hours.
2
before lunch but had still failed to give LeJunie his medications; she also advised the Governor that
the blood clot in LeJunie’s leg could travel up and kill him at any time. Id. On the same day that
Nichols contacted the Governor, the BCDC placed LeJunie in a holding cell all day and then released
him that evening. Id. LeJunie called his mother and advised her that he was never given his
medicine. Id. Nichols picked LeJunie up at 9:22 p.m. and gave him his medications, which he
immediately took as they were driving home. Id. However, Nichols contends the damage was
already done. Id.
On May 14, 2018, LeJunie was pronounced dead in his home. Id. The autopsy report states
that the death was a result of a pulmonary embolism due to DVT. Id. Nichols contends that the
DVT and other medical conditions were exacerbated due to the failure to administer medications
during LeJunie’s incarceration and that the failure to provide medication during incarceration caused
LeJunie’s death. Id. Nichols explains that one of LeJunie’s essential medications, Warfarin, helps
keep clots from growing or breaking off and traveling and prevents new clots from forming; she
asserts that if LeJunie had been given this medication while he was being detained, and if he had
been issued a bottom rather than top bunk, he would still be alive today. Id.
On July 31, 2019, Nichols filed a complaint in this court asserting claims against the County
and Kirk under 42 U.S.C. § 1983, alleging that LeJunie’s death was caused by the defendants’
violations of LeJunie’s constitutional rights of due process, freedom from unreasonable search and
seizure, and the privileges and immunities and rights guaranteed by the Fourteenth Amendment.
Dkt. 1. She additionally asserted claims as LeJunie’s survivor under the Texas wrongful death
statute. Id.
Kirk and the County filed a motion to dismiss on November 11, 2019, and Nichols amended
her complaint on December 2, 2019. Dkts. 9, 11. In the amended complaint, Nichols added claims
3
against an unnamed medical supervisor, jail physician, and jail nurse. Dkt. 11. The court denied the
original motion to dismiss as moot. Dkt. 14. Nichols and the County filed a motion to dismiss the
amended complaint on December 16, 2019. Dkt. 13. Nichols filed a response, and the defendants
filed a reply. Dkts. 15, 17. The motion to dismiss the amended complaint 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 defendants argue that (1) Nichols has not stated a claim against Kirk in his individual
or official capacities; (2)she does not assert a claim for which the County can be liable under Monell;
(3) she has not adequately alleged a conditions of confinement or episodic act or omission claim
4
under § 1983; (4) she does not state a claim under the Fourth Amendment; and (5) any claims for
state-law negligence are barred by governmental immunity. Dkt. 13. The defendants invoke
governmental immunity in the motion with regard to the state-law claims, but they do not invoke
immunity with regard to the constitutional claims. The court will therefore analyze the constitutional
claims under the plausibility standard from Twombly and Iqbal but will not consider a potential
qualified immunity defense.2 Cf. Randle v. Lockwood, 666 F. App’x 333, 336 (5th Cir. 2016)
(noting that the district court should have considered a qualified immunity defense “because the
jailers asserted this defense in both their motions to dismiss and their objections” (emphasis added
to show the contrast to this case)). The court will first address the legal standard for constitutional
challenges relating to pretrial detention, in general, and then it will address each of the defendants’
arguments in seriatim.
A. The Constitutional Rights of a Pretrial Detainee
A pretrial detainee has not been convicted of a crime and thus retains “at least [the]
constitutional rights that [the U.S. Supreme Court has] held are enjoyed by convicted prisoners.”
Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861 (1979). However, a “detainee . . . does not possess
the full range of freedoms of an unincarcerated individual,” as the “fact of confinement as well as
the legitimate goals and policies of the penal institution limits these retained constitutional rights.”
Id. at 546.
2 “When a defendant invokes qualified immunity, the burden is on the plaintiff to
demonstrate the inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314, 323
(5th Cir. 2002) (en banc). An officer is “entitled to qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088 (2012)).
5
“The constitutional 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 Wichita Cty., 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.” Wichita Cty., 795 F.3d at 462. When a pretrial detainee contends that his or her
rights were violated due to general conditions, practices, rules, or restrictions of confinement, courts
must consider whether the restriction on rights “was reasonably related to a legitimate governmental
interest.” Hare, 74 F.3d at 641. When the detainee contends that the deprivation was due to
episodic acts or omissions of a state jail official, the detainee must demonstrate “that the official
acted or failed to act with deliberate indifference to the detainee’s needs.” Id. at 648.
Here, Nichols, as the representative of LeJunie’s estate and on her own behalf, has elected
to sue the County, the County’s alleged policymaker, Kirk, in his individual capacity, and various
unnamed personnel for what she contends are violations of LeJunie’s rights during his detention in
BCDC. Dkt. 11. A person who believes his or her constitutional rights were violated during pretrial
detention may sue any “person who, under color of any statute, ordinance, regulation, custom, or
usage, or any State or Territory or the District of Columbia” subjected them to the deprivation under
42 U.S.C. § 1983. 42 U.S.C. § 1983. The U.S. Supreme Court has held that Congress intended for
“municipalities and other local government units to be included among those persons to whom
§ 1983 applies.” Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 690, 98 S. Ct. 2018
(1978). This means that municipalities “can be sued directly under § 1983 for monetary, declaratory,
6
or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers.” Id. Additionally, municipalities “may be sued for constitutional deprivations
visited pursuant to governmental ‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking channels.” Id. The municipality, however,
cannot be held liable solely because it employed a tortfeasor. Id. Rather, it is only liable “when
execution of government’s policy or custom, whether made by its lawmakers or those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Id.
In addition to her claim against the municipality, Nichols asserts claims against Kirk and
other unnamed officials. If an official is sued in his or her “official capacity,” this is just “another
way of pleading an action against [the] entity of which an officer is an agent.” Burge v. Parish of
St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (citing Monell, 436 U.S. at 691 n.55). Therefore,
“[s]uits against state officials in their official capacity . . . should be treated as suits against the
State.” Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358 (1991). If the official is instead sued in his
or her individual capacity, “it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099
(1985). However, an official who is a “supervisor is not personally liable for his [or her]
subordinate’s actions in which he [or she] had no involvement.” James v. Tex. Collin Cty., 535 F.3d
365, 373 (5th Cir. 2008). Instead, a “plaintiff must show either the supervisor personally was
involved in the constitutional violation or that there is a ‘sufficient causal connection’ between the
supervisor’s conduct and the constitutional violation.” Evett v. DETNTFF, 330 F.3d 681, 689 (5th
Cir. 2003). This requires a finding of “deliberate indifference,” meaning the supervisor
7
“‘disregarded a known or obvious consequence of his [or her] action.’” Id. (quoting Southard v. Tex.
Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997)). Negligence is insufficient. Hare, 74
F.3d at 649–50.
B. Claims Against Kirk in His Individual Capacity
Nichols alleges that Kirk, the policymaker for BCDC, was tasked with the duty of providing
adequate healthcare to the inmates of BCDC and failed to supervise and properly train the medical
providers at the jail.3 Dkt. 11. She contends that Kirk’s policies allowed medical personnel to ignore
serious medical needs because a doctor never personally and independently assessed LeJunie during
or after intake. Id. She additionally contends that the policies were inadequate because they did not
require follow up or monitoring even after receiving medical records that indicated the inmate had
several chronic illnesses. Id. The defendants move for dismissal of the claims against Kirk in his
individual capacity under Rule 12(b)(6), arguing that Nichols has not sufficiently stated a § 1983
claim against him.4 Dkt. 13.
Under § 1983, supervisory officials cannot be held liable for the actions of subordinates on
any theory of vicarious or respondeat superior liability. Estate of Davis ex rel. McCully v. City of
N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). When the plaintiff alleges “a failure to train
or supervise, ‘the plaintiff must show that: (1) the supervisor either failed to supervise or train the
subordinate official; (2) a causal link exists between the failure to train or supervise and the violation
of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference.’”
3 She also asserts these claims against an unknown medical supervisor. See Dkt. 11 at 17.
4 The defendants additionally move for dismissal of any claims against Kirk in his official
capacity, to the extent Nichols asserts them. Dkt. 13. However, the complaint states that the claims
against Kirk are in his individual capacity, and Nichols reiterates that the claims are only in Kirk’s
individual capacity in the response to the motion to dismiss. Dkts. 11, 15.
8
Id. (quoting Smith v. Brenoettsy, 158 F.3d 908, 911–12 (5th Cir. 1998)). “‘For an official to act with
deliberate indifference, the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” Id.
(quoting Smith, 158 F.3d at 912).
The defendants argue that Kirk, as a supervisor, is not liable for actions of his subordinates
under § 1983 and that Nichols must therefore bring an individual capacity claim that Kirk was
personally involved in the alleged deprivation of rights or that his allegedly wrongful actions are
causally connected to the deprivation of rights. Dkt. 13. Nichols contends that she pled that Kirk
is a policymaker who failed to train or supervise his employees on how to properly assess inmates
and that this failure to train or supervise showed deliberate indifference to inmates’ health and led
to LeJunie’s death. Dkt. 13. She asserts in the complaint that Kirk knew that the Sandra Bland Act
(the “Act”) applied to him and the BCDC and that Kirk allowed the Act to be violated by failing to
train medical providers at the jail and that Kirk was aware that inmates who had chronic illnesses
needed medical attention. Dkt. 11. Nichols additionally urges the court to follow an objective rather
than subjective standard in determining whether Kirk acted with deliberate indifference, arguing that
a reasonable person in Kirk’s position should have known that inmates with serious medical needs
would require care by a physician and that inmates who had prescriptions would need them. Dkt. 15.
She contends that discontinuing life-saving medication without consulting LeJunie’s physician or
at least other physicians amounts to deliberate indifference. Id.
The court finds that Nichols’s allegations are sufficient to plausibly state a claim against
Kirk. Nichols does not assert claims under the Act, but she points to its existence as evidence of
Kirk’s knowledge. The Act was effective in Texas starting on September 1, 2017, and Nichols
alleges that Kirk knew about it. Dkt. 11. The Act relates to a law enforcement agencies’ efforts
9
when a person is “suffering a mental health crisis or suffering from the effects of substance abuse.”
Tex. Code of Crim. P. Art. 16.23(a). Nichols alleges that LeJunie was likely suffering from
withdrawal from Xanax, which may have caused him to not remember his entire medication history.
Dkt. 11. It is unlikely that the Act would have applied under the facts of this case because the Act
requires that the mental health crisis or substance abuse issue potentially was the reason the person
committed the alleged offense. See Art. 16.23(a)(4). However, the allegation about Kirk’s
knowledge of the Act’s requirements makes it plausible that Kirk knew inmates should be evaluated
regarding psychological issues and associated medications by a physician in accordance with the Act,
and a policy of waiting for days until receipt of medical records, not following up, and then not
having a physician review medications in the medical records when they do show up, seems to run
afoul of the requirements of the Act and thus is probative of deliberate indifference to medical needs
in general. While it is uncertain if such evidence will be sufficient to prove deliberate indifference
at the summary judgment stage, it meets the plausibility threshold. The defendants’ motion to
dismiss the § 1983 claim made against Kirk in his individual capacity is DENIED.
C. Claims Against the County Under Monell
The court now turns to the defendants’ argument that Nichols fails to state a claim for which
the County could be held liable under Monell. The Fifth Circuits sums up Monell’s requirements
as follows: “[M]unicipal liability under section 1983 requires proof of three elements: a policymaker;
an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or
custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). The Fifth Circuit points
out that “the unconstitutional conduct must be directly attributable to the municipality through some
sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will
almost never trigger liability.” Id. If the official policy is facially innocuous, it will still “support
10
liability if it was promulgated with deliberate indifference to the ‘known or obvious consequences’
that constitutional violations would result.” Id. (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okla.
v. Brown, 520 U.S. 397, 407, 117 S. Ct. 1382 (1997)). “[E]ach and any policy which allegedly
caused constitutional violations must be specifically identified by a plaintiff, and it must be
determined whether each one is facially constitutional or unconstitutional.” Id. at 580.
The defendants argue that the § 1983 claim against the County fails because there are no
allegations of an official policy or custom that was the moving force behind any alleged violation
of LeJunie’s rights. Dkt. 13. They contend that the policy or custom and its relationship to the
underlying constitutional violation must be pled with specificity, and Nichols merely alleges that the
policies and practices do not require follow up or monitoring even after receiving an inmate’s
medical records that reflect several chronic illnesses. Id. The defendants argue that there are no
actual allegations to support the claim and no evidence of any written policies or customs or
practices. Id.
Nichols argues that the County is liable under Monell because the policies and practices that
Kirk implemented caused LeJunie’s death. Dkt. 15. She contends that Monell and its progeny are
designed to guard against precisely the kind of municipal acquiescence to officer misconduct that
happened at BCDC. Id. She points out that the question is whether the denial of medical care was
committed pursuant to a policy or custom of the county that was the moving force behind the denial,
and that an official policy may be shown through persistent and widespread practices; she contends
that she shows this through the repeated denial of medical care throughout LeJunie’s confinement.
Id.
The court first notes that courts may not apply a heightened pleading standard to Monell
claims. Ratliff v. Aransas Cty., Tex., 948 F.3d 281, 284 (5th Cir. 2020) (citing Leatherman v.
11
Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160
(1993)). However, courts are not required “to accept ‘generic or boilerplate’ pleadings,” and “the
Twombly standard applies to municipal liability claims.” Id. Thus, “Monell pleadings ‘must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(quoting Iqbal, 556 U.S. at 678). “[P]lausibly to plead a practice ‘so persistent and widespread as
to practically have the force of law,’ . . . a plaintiff must do more than describe the incident that gave
rise to his [or her] injury.” Pena v. City of Rio Grande City, 870 F.3d 613, 622 (5th Cir. 2018)
(quoting Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350 (2011)).
In her complaint, Nichols alleges that Kirk, the policymaker, “implemented an inadequate
policy and practice of supervising medical care of inmates and to allow the medical personnel to
ignore the serious medical needs because a doctor never personally and independently assess[ed]
[LeJunie] during or after intake, which amounted to a failure to provide adequate medical care
policy.” Dkt. 11. She further alleges that Kirk’s “policies and practices do not require any follow
up or monitoring even after receiving an inmate’s medical records reflecting several chronic
illnesses.” Id.
She alleges a policymaker, and she alleges a policy of not requiring that physicians assess
medical needs and follow up, and she contends that this policy resulted in LeJunie not receiving
needed medication, which ultimately led to his death. Theses allegations are sufficient at the
pleading stage to assert a Monell claim, so long as there is a violation of a constitutional right. The
court now turns to whether the allegations relating to failure to provide medication are plausibly
unconstitutional.
D. Conditions of Confinement
Nichols asserts that her claims are based on unconstitutional conditions of confinement.
12
Dkt. 15. In the amended complaint, she alleges that medical personnel could have prescribed a lower
bunk, blood thinners, a compression sleeve, or tested for DVT, but they did not do so. Dkt. 11.
Instead, they allegedly disregarded LeJunie’s serious medical needs by denying access to medical
care and failing to administer treatment even after they received LeJunie’s medical records. Id.
Nichols argues that the County “maintains a de facto policy and practices of providing inadequate
medical care” as the nurses are not allowed to perform exams and can only report findings to
physicians. Dkt. 15. She contends that the outright denial or delay of access to a physician is not
reasonably related to a legitimate government objective, and an inmate’s basic human needs include
access to medical care. Id.
The defendants move for dismissal of Nichols’s claims to the extent they are based on a
conditions-of-confinement theory. Dkt. 13. They assert that Nichols does not state a claim under
this theory because all harm allegedly resulted from acts or omissions and not the general conditions,
practices, rules, or restrictions of the detention center. Id. They argue that to the extent Nichols
attempts to point to county policies or an alleged failure to train, these issues are unequivocally based
on alleged omissions by individuals and thus fail. Id. (citing Anderson v. Dall. Cty. Tex., 286 F.
App’x 850, 59 (5th Cir. 2008)). Thus, they argue that Nichols’s allegations fit into the acts-or-
omissions framework and are not a constitutional attack on the general conditions, practices, rules,
or restrictions of pretrial confinement. Dkt. 17.
In the Fifth Circuit, as the parties’ arguments suggest, the court’s analysis in § 1983 cases
varies depending on whether a plaintiff is alleging that an alleged deprivation of rights was caused
by an episodic act or omission of an individual state official or by the conditions of confinement.
Wichita Cty., 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
13
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. Dall. 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.
The Fifth Circuit distinguishes 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.” Scott, 114 F.3d at 53. In contrast, in 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 Hare, the Fifth Circuit extensively considered its “peripatetic route in invoking different
measures of the constitutional rights of pretrial detainees to medical care and protection from harm”
while “visit[ing] the measure of liability under the U.S. Constitution for failing to prevent a suicide
by a pretrial detainee.” 74 F.3d at 635, 643. The decedent’s husband sued the city and individual
defendants under § 1983, and the district court denied the individual defendants’ motion for
summary judgment based on qualified immunity. Id. at 635–36. An en banc Fifth Circuit
determined that the district court had applied the incorrect legal standard and remanded the case for
a review of the qualified immunity claims under the correct standard. Id. at 636. The court
concluded “that both medical care and failure-to-protect cases should be treated the same for
purposes of measuring constitutional liability,” that the conditions-of-confinement test applied “only
when a pretrial detainee attacks general conditions, practices, rules, or restrictions of pretrial
14
confinement,” and that it is inapplicable when “a pretrial detainee’s claim is based on a jail official’s
episodic acts or omissions,” as in such cases “the proper inquiry is whether the official had a
culpable state of mind in acting or failing to act.” Id. at 643. 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 intended condition or practice.
. . . [I]n the absence of such a condition, practice, rule, or restriction, a jail official’s act or omission
can give rise to constitutional liability only if he was culpable . . . .” Id. The court then extensively
discussed the deliberate indifference standard for such acts or omissions claims. Id.
If the facts of a case are appropriately considered under a conditions-of-confinement
framework, courts apply the test found in Bell v. Wolfish. Wichita Cty., 795 F.3d at 463. The
question under Bell v. Wolfish is “whether those conditions amount to punishment of the detainee.”
441 U.S. at 535. The court must therefore determine “whether the [conditions or restrictions were]
imposed for the purpose of punishment or whether [they were] but incident to some other legitimate
governmental purpose.” Id. at 538. “[I]f a particular condition or restriction of pretrial detention is
reasonably related to a legitimate governmental objective, it does not, without more, amount to
‘punishment.’” Id. at 539. If the condition is instead “arbitrary or purposeless,” a court may infer
that it is “punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id.
Thus, the plaintiff does not have to demonstrate that the state actor or municipality acted with intent
to punish. Wichita Cty., 795 F.3d at 463. In determining whether an interest is legitimate, courts
must keep in mind that the government’s interests include not only its need to insure the detainee’s
presence at trial but also its legitimate interests in managing the facility. Bell, 441 U.S. at 540.
Sometimes challenged conditions are explicit, and sometimes they reflect a de facto policy. Wichita
Cty., 795 F.3d at 463.
15
Here, since the parties dispute whether the Bell test should apply or whether, like in Hare,
the court must find deliberate indifference for discrete acts or omissions, it is helpful to review the
facts and legal conclusions of the primary cases upon which they rely. The defendants rely on Scott
v. Moore, Flores v. County of Hardeman, Texas, and Olabisiomotosho v. City of Houston. In Scott
v. Moore, 114 F.3d 51 (1997), an en banc Fifth Circuit considered a complaint by a pretrial detainee
that she was sexually assaulted while she was a pretrial detainee and that the assault was a result of
improper staffing procedures at the jail. The plaintiff argued that adequate staffing would require
at least one female jail official or, if male, two officials on duty at a time when a female detainee is
in custody. 114 F.3d at 52. The district court granted summary judgment in favor of the city
defendant. Id. Eventually, the en banc Fifth Circuit considered the plaintiff’s case in light of Hare.
The court pointed out that in an episodic act-or-omission case, “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. at 53. The court noted that in
many cases “the conditions themselves constitute harm,” but that the plaintiff in Scott suffered
because of the jailer’s specific sexual assaults, and the case therefore did “not fit well within the
conditions-of-confinement category” and bore a “closer resemblance to cases regarding episodic acts
by prison employees.”5 Id. at 54. The defendants here argue that this case, likewise, does not fit well
5 Similarly, in In re Estate of Henson v. Wichita County, 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. Conversely, it treated the
claims that the county did not have adequate facilities, equipment, or trained staff to treat detainees
who had serious illnesses as a conditions-of-confinement claim. Id. at 466–67.
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into the conditions-of-confinement framework.
The other two cases relied upon by the defendants likewise involve a decision by the Fifth
Circuit that the cases did not “fit” into the conditions-of-confinement framework. In Flores, the
plaintiff’s decedent committed suicide while he was a pretrial trainee. Flores v. Cty. of Hardeman,
Tex., 124 F.3d 736, 737 (5th Cir. 1997). The detainee was a male, and the custodial officer was a
female. Id. at 737. When the officer could not see the detainee and he did not answer when she
called out to him, she got another officer, who was outside, to go into the cell with her because
female officers were not allowed to enter the cells of male inmates alone. Id. The family brought
a § 1983 claim, alleging both episodic acts-or-omissions and conditions-of-confinement claims. Id.
at 738. They based their conditions-of-confinement claim on the training and staffing policies of the
jail and the acts-or-omissions claim on the acts and omissions of the Sheriff. Id. The Fifth Circuit
determined that the case was similar to the jail suicide in Hare, which it had construed as an acts-or-
omissions case, and it thus analyzed the plaintiff’s claims under that theory. Id.
In Olabisiomotosho v. City of Houston, the Fifth Circuit considered a case where the
plaintiff’s case turned on the alleged failure of specific defendants to “take better care of [the
plaintiff,]” and the alleged failure to medically screen her and secure treatment. 185 F.3d 521, 526
(5th Cir. 1999). The plaintiff suffered from severe chronic asthma and needed a prescription inhaler.
Id. at 524. She had allegedly requested to take her inhaler before she was transported to jail, and one
of the officers allowed her to retrieve it from her car and use it. Id. However, she was coughing,
wheezing, and short of breath by the time she got to the jail, and she told officers she needed to see
a doctor. Id. She was eventually taken to a cell, where she stayed until the next morning. Id. She
contended that she asked two officials if she could see a doctor and was told the clinic was closed.
Id. She also contended that she was not medically screened during the booking process. Id. When
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the plaintiff appeared at her initial hearing the next day, she told the judge that she was having an
asthma attack and the jail clinic was closed; the judge ordered the guard to take the plaintiff to the
jail clinic for treatment. Id. Eventually, after the plaintiff fainted, jail personnel treated her for an
asthma attack and transported her to a hospital, but she lapsed into a coma and even temporarily lost
her eyesight. Id. She sued and alleged a deliberate denial of medical treatment. Id. at 525. The
Fifth Circuit considered whether her claims were best characterized as a condition of confinement
or an act or omission, and it concluded that her complaint “perfectly [fit] the definition of the
episodic omission.” Id. at 526.
Nichols relies, primarily, on Shepherd v. Dallas County. In Shepherd, a pretrial detainee
suffered a stroke when the Dallas County Jail failed to administer medication for his chronic
hypertension, and the district court held that the failure to provide the medication was the result of
a de facto policy that denied adequate care for inmates with chronic conditions. 591 F.3d at 449.
The plaintiff in Shepherd informed a nurse that he had hypertension and needed his medication twice
daily, and he requested the medication several times during his first two weeks in jail. Id. After the
plaintiff’s blood pressure reading was high, ten days after booking, a nurse practitioner noted on the
plaintiff’s chart that he wanted a specific medication and then prescribed a different medication. Id.
The Shepherd plaintiff “waited weeks between doses, was not monitored, and received no other
medical treatment.” Id. After he had been in jail almost two months, he went to the jail clinic
because he had a severe headache, and his blood pressure was again high. Id. A physician gave him
one dose of the medication the plaintiff had originally requested and ordered that his blood pressure
be checked again in three days. Id. Four days later, his blood pressure was at a level considered a
hypertensive emergency, and he was provided nitroglycerine and finally a prescription for the
medication he originally requested, twice a day. Id. Two days later, he again had extremely high
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blood pressure and the nurse noted that he had not received his medication as ordered. Id.
Unfortunately, the plaintiff again did not receive his medication for several weeks, despite
complaints by him and his wife, and he had a stroke that left him permanently confined to a
wheelchair, and he lost most of his left-side functions, including left-side hearing and sight, and
slurred speech. Id. at 450.
The Shepherd plaintiff filed claims under both conditions-of-confinement and acts-or-
omissions theories, and the district court granted summary judgment on the episodic acts claim
because the plaintiff had been unable to provide evidence that any specific employee was
deliberately indifferent. Id. At trial, the plaintiff presented evidence of the treatment of other
inmates with chronic illnesses, including evidence that the medical program was understaffed, at
times there was no medical personnel at the jail, and that fifty percent or more of prescriptions
regularly went undelivered to inmates. Id. A jury found in favor of the plaintiff, and both parties
appealed. Id.
One of the issues on appeal was whether the district court erred in classifying the case as an
attack on conditions of confinement. Id. at 452. The Fifth Circuit noted that in “some cases, a
condition may reflect an unstated or de facto policy, as evidenced by a pattern of acts or omissions
‘sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct by
[jail] officials, to prove an intended condition or practice.’” Id. (quoting Hare, 74 F.3d at 645). The
court noted that this is a heavy burden, as the condition must be “arbitrary or purposeless” and not
“related to a legitimate goal.” Id. (citing Bell, 441 U.S. at 539). The court determined that to the
plaintiff’s original complaint contained “the full theory of the case”—that the jail’s treatment of
inmates with chronic illnesses was grossly inadequate—and that these deficiencies caused the
plaintiff’s injury. Id. at 453. To survive summary judgment, the plaintiff provided “extensive
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independent evidence on the jail’s treatment of inmates with chronic illness.” Id. The Fifth Circuit
determined that the district “court could reasonably infer a de facto jail policy of failing properly to
treat inmates with chronic illness.” Id. The Fifth Circuit clarified that “isolated examples of illness,
injury, or even death, standing alone, cannot prove that conditions of confinement are
constitutionally inadequate.” Id. at 454. Instead, “a detainee challenging jail conditions must
demonstrate a pervasive pattern of serious deficiencies in providing for [the plaintiff’s] basic human
needs; any lesser showing cannot prove punishment in violation of the detainee’s Due Process
rights.” Id.
Here, the case is at the motion to dismiss stage, and the allegations in the amended complaint
indicate that a policy, or lack thereof, is to blame for the failure of the nurses to give LeJunie his
medication, even after receiving his medical records, or refer him to a physician to get the
medication. This seems to be an attack the “general conditions, practices, rules, or restrictions of
pretrial confinement.” Whether the evidence rises to the type of pervasive pattern the Fifth Circuit
required in Shepherd or should only be analyzed under the acts-or-omissions framework like in Scott,
Flores, and Olabisiomotosho will likely be determined at the summary judgment stage. The court
finds that Nichols has plausibly pled that arbitrary and purposeless conditions-of-confinement led
to LeJunie’s death. The motion to dismiss this claim for failure to state a claim is DENIED.
E. Acts or Omissions
In episodic-acts-or-omissions claims, the plaintiff points to the acts or omissions of specific
jail officials. Estate of Henson, 795 F.3d at 463. The plaintiff complains first of a certain act 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
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official violates the pretrial detainees 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.
The defendants argue that Nichols has failed to plead a plausible acts-or-omissions claim for
failure to provide adequate medical treatment because none of her allegations supports a claim that
the BCDC staff acted with deliberate indifference when they failed to provide LeJunie with his
prescription medication. Dkt. 13. The defendants point out that an inmate’s disagreement with his
medical treatment alone is insufficient to show deliberate indifference. Id. They note that the first
amended complaint does not point to any specific members of the BCDC staff who allegedly had
subjective knowledge that LeJunie would be harmed if he did not receive his medication. Id. They
contend that the first amended complaint indicates that LeJunie was treated by nurses and EMTs and
was given a white pill and that the BCDC did not even receive LeJunie’s medical records until he
had been there four days, which was two days before he was released. Id. They assert that the first
amended complaint’s allegations show that the BCDC made efforts to obtain medical records and
provided LeJunie with some medical treatment and medication, and they argue that this means they
did not refuse to treat LeJunie, ignore him, or intentionally treat him incorrectly. Id.
The defendants further argue that even if the first amended complaint adequately alleged
deliberate indifference, it contains no allegations to support causation between the denial of the
medication and LeJunie’s death. Id. They contend that there is no information in the first amended
complaint regarding what LeJunie did during the four days between his release and his passing, and
thus no connection between the delay in receiving medication while he was incarcerated and his
death. Id.
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Nichols argues that the BCDC was deliberately indifferent to LeJunie’s medical needs
because the BCDC staff failed to treat LeJunie for a serious medical condition requiring medication
even though he disclosed the condition upon arrival and his mother told the staff about it. Id.
Nichols points out that the only effort the BCDC made after being alerted of LeJunie’s conditions
was to order his medical records. Id. She additionally argues that she sufficiently alleged causation
because the first amended complaint states that the autopsy report demonstrates the cause of
LeJunie’s death was one of the serious medical conditions that the BCDC refused to treat LeJunie
for. Id. That report indicates that LeJunie died of a pulmonary embolism due to DVT, and the
purpose of the Warfarin LeJunie’s physician had prescribed was to prevent the blood clots that killed
LeJunie from forming. Id.
In reply, the defendants reiterate that the first amended complaint does not say what LeJunie
did during the 84 hours between his release and death, including whether he took his medication
during that time, sought medical treatment, or consumed any illegal or legal substances that may
have impacted his health. Dkt. 17.
First, the court finds that it is inappropriate to wrestle with the causation issue at this point
in the litigation since there is no expert testimony. At the motion to dismiss stage, the court must
determine plausibility, and it is plausible that not receiving an essential medication that prevents
blood clots caused a death by a blood clot 84 hours, or approximately four days, later. The
possibility that there may have been an intervening or superseding cause does not negate plausibility
in this case.
As to deliberate indifference, the court finds that the allegations in the complaint that the
BCDC knew about LeJunie’s condition, including the fact that his medical records were received
three days before release, but he still only received one white pill during his stay notwithstanding his
22
extensive medication requirements, and he never saw a doctor who could make sure that he had the
medication and other medical care he needed for reported serious medical conditions, plausibly
assert deliberate indifference. Nichols will, of course, need evidence of subjective intent to maintain
her acts or omissions claim at the summary judgment stage. The defendants’ motion to dismiss the
§ 1983 claim against BCDC to the extent it is an acts or omissions claim is DENIED.
F. Fourth Amendment
Nichols contends in her first amended complaint that the defendants’ acts or omissions
violated LeJunie’s right to be free from an unreasonable search and seizure. Dkt. 11. The
defendants argue that there are no explanations or details regarding how LeJunie’s Fourth
Amendment rights were allegedly violated. Dkt. 13. They point out that the only seizure mentioned
is LeJunie’s arrest, and LeJunie was not arrested by a Brazos County officer. Id.
It is unclear from Nichols’s complaint why she is bringing a Fourth Amendment claim. See
Dkt. 11. In her response, she invokes Justice Alito’s dissent in Kingsley v. Hendrickson, 135 S. Ct.
2466, 2479 (2015) (Alito, dissenting), to argue that a pretrial detainee should be able to bring a
Fourth Amendment claim based on excessive force by a detention facility employee. Dkt. 15. She
also argues that the standard should be objective, not subjective. See id. (also citing the Kingsley
dissent). In reply, the defendants assert that the passing reference to the Fourth Amendment in the
first amended complaint is insufficient to satisfy the pleading standard and that the response’s
reference to excessive force does not allow the court to read that into the complaint. Dkt. 17.
In Kingsley, the U.S. Supreme Court considered a claim in which a pretrial detainee alleged
that jail officers used excessive force against him in violation of the Fourteenth Amendment’s Due
Process Clause. 135 S. Ct. at 2470. The Court determined that the legal standard to prove an
excessive force claim is objective, not subjective. Id. It is unclear what application this case has to
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Nichols’s seeming attempt to plead a Fourth Amendment violation other than that Nichols is
requesting an objective standard. Since there are no claims in the amended complaint that relate to
excessive force or to an unreasonable search and seizure, the case is not relevant to the motion to
dismiss the Fourth Amendment claim. The defendants’ motion to dismiss the Fourth Amendment
claim, to the extent Nichols is attempting to assert one, is GRANTED.
G. State Law Claims
In the first amended complaint, Nichols asserts that each defendant is liable to her for
LeJunie’s death resulting from the defendants’ deliberate indifference, reckless, wrongful acts or
omissions. Dkt. 11 (citing Tex. Civ. Prac. & Remedies Code §§ 71.002, 71.004(c)), 71.021).
The defendants argue that the state-law claims are barred by governmental immunity and that
Nichols also has not alleged any facts involving the use of tangible personal or real property
sufficient to invoke waiver of immunity under the Texas Tort Claims Act (“TTCA”). Dkt. 13 (citing
Tex. Civ. Prac. & Remedies Code Ann. § 101.021(2); Univ. of Tex. Med. Branch v. Kai Hui Qi, 402
S.W.3d 374. 390 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Holland v. City of Houston, 41
F. Supp. 2d 678, 711 (S.D. Tex. 1999)). Additionally, they argue that while a waiver possibly could
be invoked if the claim involved real property, see Nunez v. City of Samsom Park, 197 S.W.3d 837,
842–43 (Tex. App.—Fort Worth 2006, no pet.), Nichols has not brought a premises defect claim or
alleged any shortcomings or imperfections at BCDC. Id. The defendants additionally contend that
Nichols’s claims for negligence and wrongful death and survivorship fail because the substance of
the claims is failure to act or non-use of property, and the tort claim waiver is inapplicable. Id.
(citing Qi, 402 S.W.3d at 389).
Nichols argues that the state law claims cannot be barred by the TTCA because there is no
allegation of state law negligence in the pending complaint. Dkt. 15.
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“[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); see, e.g., Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.051–.067. The TTCA creates a limited waiver of sovereign
immunity for “certain negligent conduct, but it does not waive immunity for claims arising out of
intentional torts.” Saenz v. City of El Paso, 637 F. App’x 828, 830 (5th Cir. 2016) (quoting City of
Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014)). Thus, “[i]f a plaintiff pleads facts which
amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is
for an intentional tort and is barred by the TTCA.” Id. However, the TTCA waives immunity for
death caused by an employee acting within the scope of his or her employment if the death (1) arose
from the use of a motor vehicle or equipment and the employee would be personally liable under
Texas law; or (2) was “caused by a condition or use of tangible personal property or real property
if the governmental unit would, were it a private person, be liable to the claimant according to Texas
law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021.
Nichols does not argue that the state has waived its immunity with regard to the wrongful
death statute or the survivorship statute, and courts generally find that there is no waiver of immunity
under Chapter 71. See Boyd v. City of River Oaks, Tex., Nos. 4:13-CV-443-A, 4:13-CV-511-A, 2014
WL 201704, at *6 (N.D. Tex. Jan. 16, 2014) (collecting cases for the proposition that “[o]ther courts
to consider the issue have failed to find waiver of immunity as to claims under Chapter 71”). Since
there is no waiver of immunity, Nichols may not sue the County under these statutes for LeJunie’s
death. The defendants’ motion to dismiss the wrongful death and survivorship claims against the
County is GRANTED.
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IV. CONCLUSION
The defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART. It is
GRANTED with regard to Nichols’s claims against the County under Texas state law and any
potential claims against the defendants relating to the Fourth Amendment. These claims or potential
claims are DISMISSED WITH PREJUDICE. The motion to dismiss is otherwise DENIED.
Signed at Houston, Texas on February 26, 2020.
Ade St
(a .
Senior Wnited Statys District Judge
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