Stevenson-Cotton v. Galveston County <font color="red">DO NOT DOCKET. CASE HAS BEEN REMANDED.</font>

In the United States District Court November 29, 2022

Nathan Ochsner, Clerk

for the Southern District of Texas

GALVESTON DIVISION

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No. 3:21-cv-98

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KELLY STEVENSON-COTTON, ET AL., PLAINTIFFS,

v.

GALVESTON COUNTY, ET AL., DEFENDANTS.

══════════════════════════════════════════

MEMORANDUM OPINION AND ORDER

══════════════════════════════════════════

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

The defendants, Galveston County and Sheriff Henry Trochesset (the

“County Defendants”) and Dr. Garry Killyon, Boon-Chapman Benefit

Administrators, Inc., Soluta, Inc., Soluta Health Inc., and Kathy White a/k/a

Kathy Jean Jordan (the “Healthcare Defendants”), have filed two motions

for summary judgment. Dkts. 45, 46. The court grants the defendants’

motions as to the plaintiff’s federal claims and, declining to exercise

supplemental jurisdiction over the state-law claims, remands the case to

state court.

BACKGROUND

This case arises from Ronald Cotton’s death on March 14, 2019. Dkt. 6

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at 2. The plaintiff is Cotton’s estranged widow, Kelly Stevenson-Cotton. Id.

In January 2019, Cotton was brought to the Galveston County Jail after

his arrest for assault, criminal mischief, unlicensed possession of a firearm,

and burglary. Dkt. 46-1. While there, Kelly alleges Cotton experienced severe

medical symptoms for which he received inadequate and delayed care. Dkt.

6 ¶¶ 18–46. Before his arrest, the plaintiff alleges that Cotton “was a healthy

man without any known medical or mental health issues.” Id. ¶ 15. At the

time he arrived, however, Cotton likely suffered from undiagnosed and

untreated diabetes. Dkt. 46 ¶ 12.

Cotton sought and received medical treatment twice during his first

month at the Galveston County Jail. Dkt. 48 at 9. On January 13, 2019,

Cotton complained to Registered Nurse Jennifer Lambright about

abdominal pain. Id. Nurse Lambright diagnosed Cotton with “an unrevealing

electrocardiograph” before discharging him back to his cell “in stable

condition without need for medical intervention.” Id. On January 25, Cotton

again complained of abdominal pain, this time to Licensed Vocational Nurse

(“LVN”) Maricela Lopez. Id. Nurse Lopez found “normal bowel sounds and

stable vital signs” and told Cotton to drink more fluids and to take milk of

magnesia (“MOM”) twice per day. Id.

The crux of Kelly’s complaint stems from the medical treatment Cotton

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sought in March 2019, in the days and hours leading to his death. The parties

agree on the following facts concerning Cotton’s treatment. See Dkt. 48 at 9–

12 (citing Dkt. 46 ¶ 13). On March 6, Cotton discussed constipation concerns

with LVN Jessica Durham. Id. at 9–10. Nurse Durham noted normal bowel

sounds and told Cotton to continue taking MOM, drink more fluids, and

notify the clinic if he did not have a bowel movement over the next three to

four days or if he experienced nausea, vomiting, pain, or fever. Id. at 10.

Cotton sought and received care twice on March 12. First, in the

morning, Cotton reported “upper sternum chest pain” and “concerns over

constipation” to LVN Sharon Gregory. Id. That morning, Cotton had stable

vital signs and a mild heartbeat. Id. A few minutes after he arrived at the jail’s

medical clinic, Cotton’s chest pain subsided, and he dismissed it as mere acid

reflex. Id.; Dkt. 48-1 at 42 That evening, however, Cotton saw LVN Jessica

Brooks and told her he had been constipated for ten days. Dkt. 48 at 10. A

deputy also reported seeing Cotton vomit. Id. These events led Nurse Brooks

to contact the physician on duty, Dr. Killyon, who prescribed two tablets of a

fiber supplement and Colace1 daily. Id. Dr. Killyon also asked Cotton to notify

1 Colace is an over-the-counter stool softener that can help with constipation.

COLACE -Docusate Sodium Capsule, Liquid Filled, Fed. Drug Admin.,

https://fda.report/DailyMed/a1591da0-a1a9-9583-3cf5-788b8fee3814 (last

visited Nov. 17, 2022).

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the clinic if he did not have a bowel movement in the next two days. Id.

The next day, March 13, Cotton’s health declined quickly. Cotton’s

medical chart indicates that a deputy called Nurse Gregory at 12:04 p.m. to

report seeing Cotton vomit “all morning.” Dkt. 46-7 at 1–2. The reporting

deputy immediately took Cotton to the prison clinic, where Cotton told Nurse

Gregory he had not eaten in days. Id. Nurse Gregory’s notes from that

interaction point out that Cotton’s claim conflicted with what he told clinic

staff the day prior: that he had eaten “soups and chili the night before.” Id. at

2. A separate entry on Cotton’s chart notes him reporting mid-abdominal

pain and continued constipation to LVN Melinda Amburn at 12:15 p.m. Id.

at 1. Nurse Amburn recorded Cotton’s elevated heartrate, tenderness around

his belly button, and otherwise normal vital signs. Dkt. 48 at 10–11. Nurse

Amburn also contacted Dr. Killyon to relay her findings, Cotton’s recent

visits, and Cotton’s continued complaints of constipation. Dkt. 46–7 at 1. Dr.

Killyon ordered an abdominal X-ray for the next day, March 14. Dkt. 48 at

11.

A few hours later, at 3:41 p.m., a deputy again called the clinic to report

that he saw Cotton spit or vomit a “small amount, [or] a ‘[t]aste’ size.” Dkt.

46-7 at 1. Dr. Killyon “ordered the deputy to bring the contents of any further

[vomit] to the clinic for further evaluation.” Dkt. 48 at 11. Just over an hour

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later, Nurse Gregory was called to Cotton’s cell, where he was laying on the

floor “puffing.” Dkt. 46-7 at 1. Cotton asked to go to UTMB2 and complained

of “10 out of 10 pain ‘all over his body.’” Dkt. 48 at 11; see also Dkt. 46-7 at 1.

Cotton said that his lips were dry and that he had not eaten or drank “in

days.” Dkt. 46-7 at 1. Gregory reminded Cotton that he had reported eating

“chili and soups” yesterday, which he denied. Id. Cotton also told Gregory he

had been throwing up blood, but Gregory did not see any blood. Id.

Nonetheless, Gregory quickly escorted Cotton to the clinic so Dr. Killyon

could treat him. Id.; see also Dkt. 48 at 11–12.

Less than fifteen minutes after Nurse Gregory went to Cotton’s cell, Dr.

Killyon gave Cotton magnesium citrate, started him on oxygen, and

performed a rectal exam, which “did not reveal any significant stool in the

rectal vault.” Id.; see also Dkt. 46-12 at 1. Dr. Killyon also tried “numerous

times” to start an IV and had Cotton drink several glasses of water, though it

appears from his medical records that Cotton eventually refused to drink

fluids. Dkt. 46-7 at 1. At 5:45 p.m., Dr. Killyon ordered Cotton’s non-

2 UTMB, the University of Texas Medical Branch at Galveston, operates an

acute-care hospital devoted to the care of Texas Department of Criminal Justice

inmates. It is “the first and only hospital specializing in offender care on the

campus of a major medical center and teaching institution.” UTMB TDCJ

Hospital, utmbHealth, https://www.utmb.edu/cmc/tdcj-hospital/ (last visited

Nov. 28, 2022).

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emergent transit to UTMB. Dkt. 48 at 12; see also Dkt. 46-7 at 1. Fifteen

minutes later, Cotton left for UTMB, where he arrived at 6:38 p.m. Dkts. 48

at 12; 48-2 at 1.

Upon Cotton’s arrival at UTMB, he told nurses he was “very thirsty”

and that he had suffered from “chest pain” for about “one week.” Dkt. 48-2

at 10. He also denied a history of diabetes, initially refused care, and asked

to leave, Id. at 9, because he was “just dehydrated.” Id. at 4. The UTMB staff

pleaded with him to stay at the hospital because they perceived him to be

“very sick.” Id. Eventually, Cotton agreed to lab tests. Id. At 9:20 p.m., UTMB

transferred Cotton to intensive care. Id. At 11:57 p.m., Cotton suddenly

started vomiting and was immediately moved to a trauma unit; he died less

than an hour later. Id. at 12; Dkt. 45-2 at 13. The cause of death was “Diabetic

Ketoacidosis.” Dkt. 48-8 at 1. Upon his arrival at the Galveston County Jail

in January and UTMB in March, Cotton disclaimed any history of diabetes.

Dkt. 48-2 at 4.

Kelly, individually and on behalf of Cotton’s heirs and as his estate’s

representative, initially brought this action in state court against Galveston

County, Sheriff Henry Trochesset, Dr. Erin Barnhart, Dr. Killyon, Boon-

Chapman Benefit Administrators, Inc., Soluta Health, Inc., Soluta, Inc.,

Teresa Becker, Kathy White, and Doe County Administrators, Physicians,

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Nurses, and “P.A.s.” See Dkt. 6 ¶¶ 3–10, 143. The defendants removed the

case to this court on April 23, 2021. Dkt. 1. Kelly amended her complaint on

May 10, 2021. Dkt. 6.

In the amended complaint, Kelly asserts the following federal claims:

(1) general violations of the Fourth, Eighth, and Fourteenth Amendments

pursuant to 42 U.S.C. § 1983, id. ¶¶ 81–90, (all defendants); (2) violations of

42 U.S.C. § 1985, id. ¶¶ 138–142 (all defendants); (3) delay of medical care,

id. ¶¶ 129–133 (all defendants); (4) conditions of confinement, id. ¶¶ 134–

137 (Galveston County, Sheriff Trochesset, and Dr. Killyon); and

(5) ratification of unconstitutional acts by a policymaker, id. ¶¶ 125–128

(Galveston County3). Kelly also alleges state-law claims4: (1) medical

negligence in violation of the Texas Healthcare Liability Act, id. ¶¶ 91–95

(the Healthcare Defendants); (2) failure to assess, monitor, supervise, and

train, id. ¶¶ 96–124 (Sherriff Trochesset, Dr. Killyon, and Nurse White).

Kelly seeks damages in her state and federal actions under Texas’s wrongful-

3 Kelly’s amended complaint also asserts this against Galveston County Jail.

Dkt. 48 at 23. Because Galveston County Jail is not a defendant in this action,

however, the court disregards this allegation.

4 Kelly’s amended complaint does not clearly identify these liability theories

as solely state-law claims. See generally Dkt. 6. The plaintiff’s response clarifies,

however, that these are “state[-]law claims” brought “in the alternative to the

constitutional claims.” Dkt. 48 at 31.

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death and survivorship statutes. Id. J] 134-144.

Since filing, Kelly has requested dismissal of all claims against Drs.

Becker and Barnhart, Dkts. 33, 34, and the court has granted those motions,

Dkts. 35, 36. The remaining defendants moved for summary judgment on all

claims. Dkts. 46 at 24; 45 at 22.

II. LEGAL STANDARD

Summary judgment is proper when “there is no genuine dispute as to

any material fact and the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The court must view the evidence in the light most

favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d

528, 533 (5th Cir. 1997). The movant bears the burden of presenting the basis

for the motion and the elements of the causes of action for which a genuine

dispute of material fact does not exist. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The burden then shifts to the nonmovant to offer specific facts

showing a genuine dispute for trial. See Fed. R. Civ. P. 56(c); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “A

dispute about a material fact is ‘genuine’ if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation

omitted). The court “may not make credibility determinations or weigh the

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evidence” in ruling on a summary-judgment motion. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

III. ANALYSIS

The defendants move for summary judgment on the following

grounds: (1) Kelly cannot establish deliberate indifference or substantial

harm to support her § 1983 claim, Dkts. 45 at 11-13; 46 §] 16-21, (2) she

cannot establish that the defendants’ acts or omissions caused Cotton’s

death, Dkts. 45 at 14-15; 46 9] 22-26, and (3) she lacks standing, Dkts. 45

at 15-17; 46 {1 27—37.5 The Healthcare Defendants also argue that Kelly’s

allegations raise no issue of material fact to support her § 1985 claim. Dkt.

45 at 20-21.

A. Section 1983 Claims

Though the amended complaint and response are not a model of

clarity, the court construes Kelly’s § 1983 allegations as raising both episodic-

acts-or-omissions claims and conditions-of-confinement claims.

5 The Healthcare Defendants raise other reasons for the court to grant

summary judgment on the plaintiffs state-law claims. See Dkt. 45 at 5. Because the

court declines to exercise supplemental jurisdiction over those claims, it does not

reach these arguments.

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Applicable Law

Cotton’s Constitutional Protections

Kelly alleges that the defendants’ actions violated Cotton’s Fourth,

Eighth, and Fourteenth Amendment rights. Dkt. 6 ¶¶ 81–90, 134–142; see

also Dkt. 48 at 26–31.

A pretrial detainee’s right to medical care “sounds not in the Fourth

Amendment but in the Fourteenth.” Hill v. Carroll Cnty., 587 F.3d 230, 237

(5th Cir. 2009) (citation omitted); see also Garza v. City of Donna, 922 F.3d

626, 632 (5th Cir. 2019). The Eighth Amendment ensures convicted

prisoners the right to medical care. Hare v. City of Corinth, 74 F.3d 633, 639

(5th Cir. 1996).

Kelly’s allegations under the Fourth and Eighth Amendments fail as a

matter of law because Cotton was a pretrial detainee at the time of the events

giving rise to this action. Accordingly, the court reviews Kelly’s § 1983 claim

as arising under the Fourteenth Amendment.6

6 States “owe[] the same duty under the [Fourteenth Amendment] Due

Process Clause and the Eighth Amendment to provide both pretrial detainees and

convicted inmates with basic human needs, including medical care.” Jacobs v. W.

Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir. 2000) (citing Hare, 74 F.3d

at 650). Therefore, the court considers Eighth Amendment law as relevant in

determining whether the defendants violated Cotton’s due-process rights.

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b. 42 U.S.C. § 1983

Section 1983 provides a private right of action for the deprivation of

rights, privileges, and immunities secured by the constitution or laws of the

United States. 42 U.S.C. § 1983. A complaint under § 1983 must allege that

the acts complained of occurred under color of state law and that the

complaining parties were deprived of rights guaranteed by the Constitution

or laws of the United States. Parratt v. Taylor, 451 U.S. 527 (1981), overruled

on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Piotrowski v.

City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).

A complaint under § 1983 must also allege that the constitutional or

statutory deprivation was intentional or due to deliberate indifference and

not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 835

(1994). Plaintiffs may bring a § 1983 suit against state actors in their

individual or official capacities or against a governmental entity. Goodman

v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (citing Bd. of Cnty.

Comm’s of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)). But “[u]nder

§ 1983, officials are not vicariously liable for the conduct of those under their

supervision.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420

(5th Cir. 2017) (citing Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir.

1992)).

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Application

The court reads Kelly’s pleadings as asserting liability against Dr.

Killyon for unconstitutional “episodic acts or omissions” and the other

defendants for unconstitutional conditions of confinement. The court

addresses each type in turn.

Episodic-Acts-or-Omissions Claim

An episodic-acts-or-omissions claim “faults specific [government]

officials for their acts or omissions.” Est. of Henson v. Wichita Cnty., 795

F.3d 456, 463 (5th Cir. 2015); see also Est. of Bonilla v. Orange Cnty., 982

F.3d 298, 304 (5th Cir. 2020) (“An episodic acts or omissions claim arises

where ‘the complained-of harm is a particular act or omission of one or more

officials.’”) (quoting Flores v. Cnty. of Hardeman, 124 F.3d 736, 738 (5th Cir.

1997)). A privately employed medical professional who treats an inmate or

detainee on behalf of a government entity “act[s] under color of state law for

purposes of § 1983.”7 Sanchez, 995 F.3d at 466 (citing West v. Atkins, 487

U.S. 42, 54 (1988)).

7 The court acknowledges that though Dr. Killyon and White are state actors,

they are not necessarily entitled to qualified immunity. Sanchez v. Oliver, 995 F.3d

461, 466 (5th Cir. 2021) (citing Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir. 2018),

and Brewer v. Hayne, 860 F.3d 819, 823 (5th Cir. 2017) (“A defendant may act

under color of state law for the purposes of § 1983 without receiving the related

protections of qualified immunity.”)). The court will not reach qualified immunity,

however, because no reasonable jury could find that the defendants deprived

Cotton of his Fourteenth Amendment rights.

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Dr. Killyon was the supervising physician for Boon-Chapman who

diagnosed and treated Cotton multiple times during the days at issue. Dkts.

48-6 at 2; 48 at 10–12. No other defendant is alleged to have directly

interacted with Cotton.

The defendants argue that, viewing the evidence in a light most

favorable to Kelly, Dr. Killyon did not treat Cotton with deliberate

indifference. Dkt 45 at 11–13. Without clearly styling her argument as one of

deliberate indifference, the court infers the plaintiff to argue that Dr. Killyon

was deliberately indifferent in at least one way:8 Dr. Killyon treated Cotton

for his perceived constipation issues with fiber, Colace, and fluid, and

ordered an x-ray for the next day, instead of realizing that Cotton suffered

from diabetes and ordering preventative measures like a blood-glucose test.

Dkt. 48 at 22, 27.

Deliberate Indifference

“A government official violates a Fourteenth Amendment right when

the official acts with deliberate indifference to a detainee’s serious medical

8 Kelly also seeks to hold Dr. Killyon directly liable for “delegating his duty

to LVNs” to diagnose and treat Cotton and for not transferring Cotton to UTMB

emergently. See Dkt. 48 at 22. Because other portions of the complaint and

response allege Dr. Killyon took these actions in accordance with the policies and

procedures of his employer and the Galveston County Jail, the court considers

them as a basis for deliberate indifference in the conditions-of-confinement

discussion.

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needs.” Est. of Bonilla, 982 F.3d at 305 (citation omitted). “Deliberate

indifference is an extremely high standard to meet.” Id. (quoting Domino v.

Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)); Cadena v. El

Paso Cnty., 946 F.3d 717, 728 (5th Cir. 2020) (citation omitted).

“Supervisory officials are accountable for their own acts of deliberate

indifference,” but they “are not vicariously liable” for their subordinates’ acts.

Alderson, 848 F.3d at 420.

To prove deliberate indifference, Kelly must show that Dr. Killyon

“knew of and disregarded a substantial risk of serious harm.” Id. (citing

Domino, 239 F.3d at 755). This might include citing evidence demonstrating

that Dr. Killyon “refused to treat [Cotton], ignored his complaints,

intentionally treated him incorrectly, or engaged in any similar conduct that

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

Perniciaro, 901 F.3d at 258 (quoting Johnson v. Treen, 759 F.2d 1236, 1238

(5th Cir. 1985)).

Deliberate indifference does not arise from unsuccessful medical

treatment, negligent treatment, medical malpractice, a prisoner’s

disagreement with is medical treatment, or a decision to not provide

additional medical treatment. Gobert v. Caldwell, 463 F.3d 339, 346 (5th

Cir. 2006). “[F]ailure to alleviate a significant risk that [a medical

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professional] should have perceived[] but did not” does not show deliberate

indifference. Domino, 239 F.3d at 756 (quoting Farmer, 511 U.S. at 838).

Finally, “[dJeliberate indifference is a degree of culpability beyond mere

negligence or even gross negligence; it must amount to an intentional choice,

not merely an unintentionally negligent oversight.” Alvarez v. City of

Brownsville, 904 F.3d 382, 391 (5th Cir. 2018) (citation omitted).

ii. Dr. Killyon’s Treatment

Dr. Killyon did not treat Cotton with deliberate indifference. Arguing

the contrary, Kelly cites Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006),

to contend that treating Cotton with “water, fiber supplements, and Colace

for constipation” constituted deliberate indifference. Dkt. 48 at 10, 26-28.

Easter does not support Kelly’s contention.

First, it is well-established that negligent treatment or even medical

malpractice does not amount to deliberate indifference. James v. Harris

Cty., 577 F.3d 612, 617-18 (5th Cir. 2009); Gobert v. Caldwell, 463 F.3d 339,

349 (5th Cir. 2006) (“[D]eliberate indifference exists wholly independent of

an optimal standard of care.”); Gibbs v. Grimmette, 254 F.3d 545, 549 (5th

Cir. 2001). Therefore, the sensibility of Dr. Killyon’s treatment does not

create a question of material fact to support Kelly’s claim of deliberate

indifference.

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Second, Easter is distinguishable from this case. In Easter, the Fifth

Circuit found deliberate indifference where a nurse refused to assist a patient

when she “knew that [the inmate] (1) had a heart condition, (2) was

experiencing severe chest pain, and (3) did not have his prescribed heart

medication.” Easter, 467 F.3d at 463–65. There, the inmate’s prior heart

problems were “well-documented in his medical chart,” indicating that the

nurse was aware that the inmate had heart disease and had suffered a heart

attack. Id. at 463. Here, the evidence shows that neither Dr. Killyon nor any

other defendant knew Cotton had a history of diabetes.

The plaintiff claims that the defendants knew of Cotton’s history of

diabetes because his UTMB medical record shows that a UTMB doctor had

diagnosed Cotton with diabetes and hypertension in December 2013.

Dkt. 48-2 at 2. Still, the plaintiff concedes that “[p]er available records, Mr.

Cotton did not have any active history of diabetes and was not on any

diabetic medications or insulin at the time of his incarceration.” Dkt. 48 at

7–8. Additionally, Cotton denied his history of diabetes upon intake at

Galveston County Jail in January 2019 and admission to UTMB on March

13, 2019. Dkt. 45 at 9 (citing Dkt. 45-2 at 5–6); id. at 13 (citing Dkt. 45-1 at

23–26). Cotton also did not report his history of diabetes when he was

admitted to Galveston County Jail in August 2016. Dkt. 46-10 at 2. Finally,

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Kelly testified at her deposition that Cotton never told her he had diabetes

and that Cotton’s “main healthcare provider,” Dr. Soleja, had tested Cotton

for diabetes and found him negative. Dkt. 45 at 13 (citing Dkt. 45-8, 63:14-

64:25).

In sum, a reasonable jury could not find that Dr. Killyon was

deliberately indifferent to Cotton’s medical needs. Accordingly, Dr. Killyon

is entitled to summary judgment on Kelly’s episodic-act-or-omission claim

against him.

b. Unconstitutional Conditions-of-Confinement Claim

Kelly expressly alleges that Galveston County, Sheriff Trochesset, and

Dr. Killyon are liable under a § 1983 conditions-of-confinement theory. Dkt.

6 {1 134-137. Kelly also asserts that all defendants set, sanctioned, approved

of, implemented, or knowingly consented to unconstitutional policies and

procedures. Dkts. 6 {1 63—64, 89 (Sheriff Trochesset); id. 11 65-70 (White);

9 The plaintiff did not attempt to allege a Monell claim. See generally Dkt. 6.

Monell provides an avenue for plaintiffs to hold municipalities liable under § 1983

for violating a plaintiffs constitutional rights. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978). The claims are also available against counties. See, e.g., Hill,

587 F.3d 230. Even if the court read the complaint to seek Monell liability, the

failed condition-of-confinement claim would be fatal to the plaintiffs Monell

claim. See Est. of Bonilla, 982 F.3d at 308 (citations omitted) (recognizing “no

meaningful difference” between the two types of claims that both hinge on whether

a municipalities’ policies or customs were “the moving force behind the

[constitutional] violation”).

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id. ¶¶ 71–75 (Dr. Killyon); id. ¶¶ 76–77 (Boon-Chapman); id. ¶¶ 78–79

(Soluta); id. ¶ 80 (Galveston County). Though not clearly distinguishable

from a general § 1983 claim in Kelly’s response, the court reads the evidence

and arguments in her response as extending the conditions-of-confinement

claim to all defendants.

Plaintiffs alleging unconstitutional conditions of confinement must

show:

(1) a rule or restriction or the existence of an identifiable

intended condition or practice or that the jail official’s acts or

omissions were sufficiently extended or pervasive;

(2) which was not reasonably related to a legitimate

governmental objective; and

(3) which caused the violation of the inmate’s constitutional

rights.

Cadena, 946 F.3d at 727 (internal quotations omitted). “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. at 727 (citation omitted). “[A] detainee

challenging jail conditions must demonstrate a pervasive pattern of serious

deficiencies in providing for his basic human needs” and “a pattern is a heavy

burden, one that has rarely been met in our caselaw.” Est. of Bonilla, 982

F.3d at 452 (citation omitted). In contrast, “isolated examples of illness,

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injury, or even death, standing alone, cannot prove that conditions of

confinement are constitutionally inadequate.” Id. at 309 (quotation omitted)

LVNs Policy

According to Kelly, “[t]here is no way to describe the defendants’

conduct in this case as anything other than deliberate indifference based on

their policy to allow LVNs to diagnose and treat patients.” Dkt. 48 at 28; see

also Dkt. 48 at 22 (linking Dr. Killyon’s alleged deliberate indifference to him

“delegat[ing] his duty to LVN nurses to diagnose and treat Mr. Cotton.”).10

Kelly describes LVNs as “gatekeepers” and “barrier[s]” to “qualified medical

personnel,” which the Fifth Circuit has “rebuked as deliberately indifferent

conduct.” Dkt. 48 at 28.

Tellingly, Kelly cites no Fifth Circuit cases to support her assertion that

a prison’s use of LVNs to triage medical care equates to deliberate

indifference. Dkt. 48 at 28–31. Instead, Kelly relies on unpublished cases

from the Eastern District of Texas. Dkt. 48 at 29–30 (discussing Mathis v.

10 This conclusory allegation, like most in the plaintiff’s response, is

supported by a string of citations to extensive exhibits without page numbers. The

court admonishes plaintiffs’ counsel to do better. de la O v. Hous. Auth. of City of

El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005) (noting that perfunctory and

conclusory assertions will not suffice because “judges are not like pigs, hunting for

truffles buried in briefs”); see also Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.

2003) (“Rule 56 does not impose upon the district court a duty to sift through the

record in search of evidence to support a party’s opposition to summary

judgment.”) (quotation omitted) (collecting cases).

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Sw. Corr., LLC, No. 5:20-cv-146-RWS-CMC, 2021 WL 5088276, at *28 (E.D.

Tex. June 15, 2021), and Sabbie v. Sw. Corr., LLC, No. 5:17-cv-113-RWS-

CMC, 2019 U.S. Dist. LEXIS 214463, at *124 (E.D. Tex. Mar. 6, 2019)).

Setting aside that these cases do not bind this court, they are readily

distinguishable. For instance, Kelly relies on Mathis for the proposition that

a failure by a licensed practical nurse to refer an inmate to the prison’s

medical doctor despite persistent complaints of extreme pain and symptoms

for over a week constituted deliberate indifference. Dkt. 48 at 29. That case

involved nurses’ treatment of an inmate who was visibly disabled,

malnourished, soiled, and dehydrated. Mathis, 2021 WL 5088276, at *22.

The complaint in that case described an abhorrent scene of an inmate sitting

alone in soiled clothing for over three days, receiving no food, begging for

water, and waiting alone in her cell for almost ten hours after a nurse tested

her vitals and found blood-pressure levels high enough to “indicate[] a

hypertensive crisis.” Id. *22–23 & n.20.

Sabbie is similarly distinguishable. Unlike Cotton, who denied a

history of diabetes when he was processed at Galveston County Jail, the

decedent–inmate in Sabbie informed jail intake staff that he suffered from

heart disease, asthma, hypertension, and diabetes, and that he used

medication to treat these ailments. Sabbie, LLC, 2019 U.S. Dist. LEXIS

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214463, at *13. Despite that, the Sabbie inmate was not given his medication

during confinement. Id. at * 14. Moreover, although the inmate exhibited

“classic sign[s] of congestive heart failure,” and the nurse–defendants

observed “alarming abnormalities,” they failed to take the inmate’s vitals,

check his blood sugar, follow protocols, contact the supervising physician,

document his visits, or even look at his chart when he repeatedly complained

of shortness of breath and exhibited a dangerously high heart rate. Id. At *

17–25, 123–24. Accordingly, the court there found that a reasonable jury

could find the nurses deliberately indifferent. Id. at * 124.

The Fifth Circuit has examined staffing policies like those in this case

and found them constitutional. See, e.g., Est. of Henson v. Wichita Cnty.,

795 F.3d 456, 469 (5th Cir. 2015) (“[T]he policy of hiring LVNs instead of

registered nurses and requiring LVNs to call the on-call doctor . . . does not

make the medical system unconstitutional.”); see also Cadena, 946 F.3d at

728 (finding that “the use of LVNs to perform medical intake procedures,”

among other policies, did not “amount[] to an unconstitutional condition of

confinement”).

Moreover, the LVNs who saw Cotton were not a “barrier” to Dr.

Killyon. After Cotton’s initial visit on March 12th, each LVN who interacted

with Cotton during the events leading to his death either called to consult

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with or directly led Cotton to Dr. Killyon. Dkt 48 at 10-11; see also Dkt. 48-1

at 41-42. Finally, Kelly has not alleged any other constitutional violations at

Galveston County Jail stemming from the use of LVNs. See Dkt. 6 1] 57-62.

In summary, there is no evidence that could lead a reasonable jury to

conclude that the LVNs’ interaction with Cotton amounted to deliberate

indifference.

ii. Non-Emergent-Transfer Policy

Kelly also alleges that the defendants have a policy of “not allowing

inmates who are in need of emergency care to [be] transported to the hospital

by ambulance while in the custody of the Galveston County jail” and instead

requiring them to “wait[] for a jail[-]transportation vehicle.” Dkt. 48 at 15;

see also id. at 22 (pointing out that Dr. Killyon “did not transfer Mr. Cotton

to UTMB emergently”). Kelly argues that the defendants were deliberately

indifferent because “delays in necessary medical care that include cursory or

grossly inadequate treatments constitute deliberate indifference.” Dkt. 48 at

27. These allegations fail for at least two reasons.

First, a reasonable jury could not find that Dr. Killyon’s decision flowed

from an official “policy” or de facto policy flowing from a pattern of acts or

omissions “sufficiently extended or pervasive.” Though Kelly identifies a

number of other inmates who allegedly experienced deliberate indifference

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during their time at Galveston County Jail, she offers no evidence to support

those instances and does not allege that those inmates’ alleged constitutional

injuries flowed from a policy of not transferring inmates emergently. Dkt. 6

¶¶ 57–62. Therefore, no reasonable jury could find that Dr. Killyon’s decision

to transfer Cotton to UTMB non-emergently flowed from an official or de

facto policy.

Even if such a policy existed, no reasonable jury could find that it

caused Cotton to suffer deliberate indifference. Taking into consideration

what the defendants knew at the time, the fifty-three-minute “delay” between

when Dr. Killyon ordered Cotton’s non-emergent transfer to UTMB and

when Cotton arrived at UTMB does not constitute deliberate indifference.

See Spikes v. McVea, 8 F.4th 428, 430–32 (5th Cir. 2021), on reh’g, 12 F.4th

833 (5th Cir. 2021), reh’g denied, No. 19-30019, 2021 WL 4978586 (5th Cir.

Oct. 13, 2021) (finding deliberate indifference where medical personnel

treating inmate complaining of intense pain and inability to walk prescribed

ibuprofen and muscle rub, neglected to order an x-ray, and punished the

inmate for seeking treatment multiple times over six weeks).11

11 See also Easter, 467 F.3d at 463–65 (holding that a four-hour delay in

administering medication was enough for deliberate indifference when medical

personnel knew of the inmate’s “well-documented” history of poor heart health,

severe chest pain, and lack of access to prescribed heart medication).

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In summary, Kelly has not met her burden to raise a genuine issue of

material fact as to whether a policy regarding non-emergent transfer even

existed, much less that such a policy violated Cotton’s Fourteenth

Amendment rights.

Doe Defendants

Kelly also asserts § 1983 liability against “Doe Nurses” and “Doe

Jailers.” Dkt. 6 ¶¶ 25, 131. No reasonable jury could find this group of

defendants liable under the federal civil-rights claims because “[p]ersonal

involvement is an essential element of a civil rights cause of action.”

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (citing Rizzo v. Goode,

423 U.S. 362, 371–72, 377 (1976)). Accordingly, the court grants summary

judgment as to all federal claims asserted against these defendants.

* * *

There is no question of material fact to support Kelly’s § 1983 episodic-

acts-or-omissions or unconstitutional-confinement claims against any of the

defendants. Accordingly, the court grants the defendants’ motions for

summary judgment on the § 1983 claims.

B. Section 1985 Claim

Kelly mentions 42 U.S.C. § 1985 twice in her complaint. Dkt. 6 at 1, 18.

But she does not offer facts or law to support her claim and does not tell the

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court which part of § 1985 the defendants violated. See 42 U.S.C. § 1985

(prohibiting three types of acts: “(1) Preventing officer[s] from performing

duties”; (2) “Obstructing justice; intimidating party, witness or juror”; or (3)

“Depriving persons of rights or privileges”). Reading the complaint

generously, the court could infer that the allegations of a “conspiracy of

silence” against Dr. Barnhart flow from 42 U.S.C. § 1985(3). But Dr. Barnhart

is no longer a defendant in this suit. Dkt. 36. Accordingly, the court finds

Kelly has abandoned her § 1985 claim. See Black v. N. Panola School Dist.,

461 F.3d 584, 588 n.1 (5th Cir. 2006). Therefore, the defendants are entitled

to summary judgment on that claim.

* * *

For the above reasons, the court grants the defendants’ motions for

summary judgment as to all federal claims and dismisses those claims with

prejudice. Dkts. 45, 46. Because the court lacks original jurisdiction over the

plaintiff’s state-law claims, the court declines to exercise supplemental

jurisdiction over these remaining claims. 28 U.S.C. § 1367(c)(3). The court

therefore remands this action to the 10th Judicial District Court of Galveston

County. All other pending motions are denied as moot. Dkts. 38, 39.

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Signed on Galveston Island this 29th day of November, 2022.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

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