Huber v. Galveston County

UNITED STATES DISTRICT COURT April 16, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

ENRIQUE COURTNEY HUBER, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 3:21-cv-00089

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GALVESTON COUNTY, et al., §

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Defendants. §

OPINION AND ORDER

Plaintiff Enrique Courtney Huber (“Huber”) originally sued Galveston

County, Galveston County Sheriff Deputy Toan-Khoa Huu Tran (“Tran”), and

Galveston County Sheriff Henry Trochesset (“Trochesset”) (collectively,

“Defendants”) in Texas state court for civil rights violations pursuant to 42 U.S.C.

§ 1983.1 After this case was removed to federal court, Huber filed an amended

complaint. See Dkt. 13. Huber asserts constitutional claims against Defendants for

(1) excessive force; (2) condition of confinement; (3) inadequate medical care; and

(4) failure to train or supervise. As an alternative to his constitutional claims,

Huber asserts a negligence cause of action against Galveston County. Tran and

Trochesset are sued in their individual capacities. Defendants have moved for

summary judgment. See Dkt. 40. Having reviewed the briefing, the record, and the

applicable law, I DENY IN PART and GRANT IN PART Defendants’ Motion

for Summary Judgment.

1 Judge Jeffrey V. Brown dismissed Huber’s claims against two other defendants—

CoreCivic, Inc. and CoreCivic of Tennessee, LLC—on July 27, 2021. See Dkt. 28. On

October 17, 2022, Judge Brown granted Huber’s voluntary dismissal of Soluta, Inc., and

Boon-Chapman Benefit Administrators, Inc. See Dkt. 35. Huber’s claims against a

defendant identified as “Nurse Pittman” were dismissed on October 5, 2023. See Dkt. 45.

BACKGROUND

On June 11, 2018, law enforcement arrested Huber for criminal trespass at

the South Shore Harbor Resort in League City, Texas. After spending some time at

the League City Jail, Huber was transported to the Galveston County Jail. What

occurred at the Galveston County Jail is hotly disputed.

Defendants claim that Huber, who is not a United States citizen and has

bipolar disorder, was “combative and uncooperative.” Dkt. 40 at 7. For his part,

Huber asserts that, upon his arrival at the Galveston County Jail, jail staff did not

perform a proper medical intake on him. He says he needed that initial medical

intake to obtain medication for bipolar disorder. Defendants counter by arguing

that the summary judgment evidence conclusively establishes that Galveston

County Jail staff performed seven medical evaluations or wellness checks on Huber

while he was at the jail. Two additional evaluation attempts on Huber were

unsuccessful due to Huber’s unwillingness to cooperate.

Huber claims that after he informed Galveston County Jail staff that he had

thoughts of suicide, they punitively placed him in solitary confinement. Once there,

Huber claims, he “was forced to strip naked and placed in a cold cell with no

windows”; “[t]he cell contained no sink, toilet, or bed”; and “[t]he cell lights were

on 24 hours per day each day, making it impossible for [him] to sleep.” Dkt. 13 at

7. Huber alleges “[h]e was given a small blanket that was not large enough to cover

up his entire body in a fetal position; thus, he could not escape the constant light

or seek warmth in the ice cold room.” Id. Huber further claims he “was required to

use a small hole in the middle of the cell on the floor to urinate, vomit, and

defecate.” Id. He avers that he did not have access to a sink, toilet, toilet paper,

shower, or phone. Huber says that after he “suffered for days in solitary

confinement,” jail staff placed him in another cell block. Id.

Huber alleges that in his new cell, Tran, accompanied by an “unknown

amount of jailers,” entered the cell and used “a hand-held rigid plastic riot

shield . . . to slam Mr. Huber to the concrete floor.” Id. at 8. Tran then allegedly

handcuffed Huber and slammed his head on the floor again. Huber claims that jail

staff sent him back to solitary confinement after this incident without providing

him with medical treatment.

On June 22, 2018, Huber was convicted of criminal mischief, released from

Galveston County Jail, and turned over to the U.S. Department of Homeland

Security on an immigration detainer. Huber claims that while he “was in a cell

getting ready to be transferred out of Galveston County Jail, Tran hit him [from]

behind” and then struck him in the face with a blunt object. Id. at 9. This attack,

Huber alleges, left him unconscious.2

LEGAL STANDARDS

A. SUMMARY JUDGMENT

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(a). A fact issue is material “if its resolution could

affect the outcome of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409

(5th Cir. 2002). A genuine dispute of material fact exists if “a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

“To satisfy its burden, the party opposing summary judgment is required to

identify specific evidence in the record, and to articulate the precise manner in

which that evidence supports their claim.” Willis v. Cleco Corp., 749 F.3d 314, 317

(5th Cir. 2014) (cleaned up). At this stage, I “consider all of the evidence in the

record, but [I] do not make credibility determinations or weigh the evidence.”

Austin v. Will-Burt Co., 361 F.3d 862, 866 (5th Cir. 2004). I “view all facts and

inferences in the light most favorable to the nonmoving party.” Treme v. St. John

the Baptist Par. Council, 93 F.4th 792, 796 (5th Cir. 2024) (quotation omitted).

2 I will not recount the remainder of Huber’s allegations because they concern only

defendants who have been dismissed from this case.

B. 42 U.S.C. § 1983

“Section 1983 provides a remedy against any person who, under color of

state law, deprives another of rights protected by the Constitution.” Collins v. City

of Harker Heights, 503 U.S. 115, 120 (1992) (quotation omitted). “To state a

section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the

Constitution or laws of the United States and (2) demonstrate that the alleged

deprivation was committed by a person acting under color of state law.” Whitley v.

Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quotations omitted).

C. QUALIFIED IMMUNITY

Tran and Trochesset claim they are entitled to qualified immunity.

“Qualified immunity shields a government official from liability based on his

performance of discretionary functions.” Mote v. Walthall, 902 F.3d 500, 505 (5th

Cir. 2018) (quotation omitted). “Qualified immunity gives government officials

breathing room to make reasonable but mistaken judgments about open legal

questions. When properly applied, it protects all but the plainly incompetent or

those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(quotation omitted).

“A good-faith assertion of qualified immunity alters the usual summary

judgment burden of proof, shifting it to the plaintiff to show that the defense is not

available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (quotations

omitted). The plaintiff “must rebut the defense by establishing a genuine fact

dispute as to whether the official’s allegedly wrongful conduct violated clearly

established law.” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (cleaned up).

“To negate a defense of qualified immunity and avoid summary judgment, the

plaintiff need not present absolute proof, but must offer more than mere

allegations.” King, 821 F.3d at 654 (quotation omitted).

“There are two aspects to qualified immunity: whether the plaintiff has

alleged a violation of a constitutional right and whether the right at issue was

‘clearly established’ at the time of the alleged violation.” Cope v. Cogdill, 3 F.4th

198, 204 (5th Cir. 2021) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

D. MONELL LIABILITY

In Monell v. New York City Department of Social Services, 436 U.S. 658

(1978), “the Supreme Court held that Congress intended § 1983 to apply to local

government entities as well as to persons.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d

443, 452 (5th Cir. 1994). The Fifth Circuit has defined the contours of Monell

liability:

Under the decisions of the Supreme Court and this court,

municipal 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.

Monell and later decisions reject municipal liability predicated on

respondeat superior, because the text of section 1983 will not bear

such a reading. Consequently, 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. The three attribution

principles identified here—a policymaker, an official policy, and the

moving force of the policy—are necessary to distinguish individual

violations perpetrated by local government employees from those that

can be fairly identified as actions of the government itself. Mistakes in

analyzing section 1983 municipal liability cases frequently begin with

a failure to separate the three attribution principles and to consider

each in light of relevant case law.

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (cleaned up).

Official policy exists in two forms. “First, a plaintiff may point to a policy

statement formally announced by an official policymaker.” Zarnow v. City of

Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010). Second, an official policy may

“arise in the form of a widespread practice that is ‘so common and well-settled as

to constitute a custom that fairly represents municipal policy.’” Peterson v. City of

Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at

579). “A customary policy consists of actions that have occurred for so long and

with such frequency that the course of conduct demonstrates the governing body’s

knowledge and acceptance of the disputed conduct.” Zarnow, 614 F.3d at 169.

“Consistent with the commonly understood meaning of custom, proof of random

acts or isolated incidents is not sufficient to show the existence of a custom or

policy.” Paz v. Weir, 137 F. Supp. 2d 782, 799 (S.D. Tex. 2001).

OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

As a preliminary matter, I must address Huber’s objections to a piece of

summary judgment evidence offered by Defendants. Attached to Defendants’

Motion for Summary Judgment is the Affidavit of Major Kevin Walker (“Walker”),

a Major Sheriff in the Corrections Division of the Galveston County Sheriff’s Office

(the “Affidavit”). See Dkt. 40-7.

Huber objects to the following statements in the Affidavit:

1. [When placed in] solitary confinement, inmates reside in padded

cells that meet jail-standard requirements as governed by the

Texas Jail Commission (the “Commission”).

2. The Commission has evaluated Galveston County Jail’s solitary

confinement cells, and they passed inspection.

3. All conditions to which Enrique Courtney Huber was subjected

during his stay in solitary confinement meet the Commission’s

standards.

4. All Jail protocols were followed with respect to the placement of

Enrique Courtney Huber . . . in solitary confinement during his

stay in the Jail, spanning from June 11, 2018 to June 22, 2018.

Dkt. 42 at 3 (quoting Dkt. 40-7 at 1–2). Huber argues Walker has no personal

knowledge of these statements and the statements are hearsay, conclusory, and

speculative. Huber further argues the Affidavit “does not set forth the standard,

nor does his statement even detail what cell Mr. Huber was assigned to and which

of the various cells he was referring to meets the jail commission standards.” Dkt.

42 at 4.

“An affidavit or declaration used to support . . . a motion must be made on

personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the matters stated.” FED. R.

CIV. P. 56(c)(4). “The substance of an affidavit must demonstrate the affiant has

personal knowledge of the facts contained therein.” Wojciechowski v. Nat’l Oilwell

Varco, L.P., 763 F. Supp. 2d 832, 846 (S.D. Tex. 2011) (emphasis added). The Fifth

Circuit has approvingly quoted the Ninth Circuit for the proposition that affiants’

“‘personal knowledge and competence to testify are reasonably inferred from their

positions and the nature of their participation in the matters to which they swore.’”

DIRECTV, Inc. v. Budden, c, 530 (5th Cir. 2005) (quoting Barthelemy v. Air Lines

Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990)). Yet even though the Fifth Circuit

allows a reasonable inference of an affiant’s personal knowledge based on position,

it is still well established that “conclusory assertions cannot be used in an affidavit

on summary judgment.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992).

“Affidavits asserting personal knowledge must include enough factual support to

show that the affiant possesses that knowledge.” Amie v. El Paso Indep. Sch. Dist.,

253 F. App’x 447, 451 (5th Cir. 2007) (quotation omitted).

Walker has not demonstrated his personal knowledge or the relevance of the

statements to which Huber objects. Regarding the first two challenged statements

about the Commission’s standards for solitary confinement and Galveston County

Jail’s compliance with those standards, Walker does not specify the substance of

those standards or when the Commission’s inspection occurred. Regarding the

other challenged statements about the Galveston County Jail’s conditions while

Huber was there, Walker does not specify how long he has worked with the

Galveston County Sheriff’s Office or if he even held his position while Huber was

detained. See Truvia v. Connick, 577 F. App’x. 317, 323 (5th Cir. 2014) (affirming

district court’s exclusion of an affidavit that purported to address a policy that

predated his tenure); Amie, 253 F. App’x at 451 (affirming district court’s striking

of statements in an affidavit because there was “no indication [affiant] was ever

involved” in the policies at issue or “possess[ed] any specialized knowledge” of

those policies).

Because of this lack of detail about Walker’s employment with Galveston

County and his alleged knowledge of Huber’s experience in Galveston County Jail,

I cannot find that Walker has personal knowledge of the challenged statements. As

such, I SUSTAIN Huber’s objections and will not consider the challenged

statements in determining whether Defendants are entitled to summary judgment.

ANALYSIS

I now turn to Huber’s claims for: (1) excessive force against Defendants;

(2) condition of confinement against Galveston County; (3) inadequate medical

care against Defendants; (4) failure to train or supervise against Trochesset and

Galveston County; and (5) negligence against Galveston County.

A. EXCESSIVE FORCE

Huber brings an excessive force claim against each Defendant.3 “Force

against a pretrial detainee is ‘excessive’ and a violation of the Fourteenth

Amendment when the force was objectively unreasonable.” Austin v. City of

Pasadena, 74 F.4th 312, 322 (5th Cir. 2023). To determine reasonableness, district

courts weigh the following factors:

the relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; any effort made by

the officer to temper or to limit the amount of force; the severity of the

security problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting.

Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). “The

‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Austin, 74 F.4th at 322–23 (quoting Graham, 490 U.S. at 396).

1. Tran

Huber describes two occurrences of excessive force by Tran: (1) handcuffing

and slamming Huber to the ground in solitary confinement (the “First

3 Huber claims that Defendants violated “his Fourth Amendment Constitutional right to

be free from excessive force.” Dkt. 13 at 14. Because Huber was a pretrial detainee,

however, the relevant test is borne out of the Fourteenth Amendment. See Johnson v.

Hill, 514 F. Supp. 3d 958, 966 (S.D. Tex. 2021) (“[P]retrial detainees are protected by the

Fourteenth Amendment Due Process Clause ‘from the use of excessive force that amounts

to punishment.’” (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989))).

Occurrence”), and (2) hitting Huber from behind and striking him in the face (the

“Second Occurrence”). Tran asserts that he is entitled to qualified immunity. Thus,

I must determine whether (1) Tran violated Huber’s constitutional rights; and

(2) Tran’s actions were objectively unreasonable in light of clearly established law

at the time of the violation. See Pearson, 555 U.S. at 232.

a. Violation of Constitutional Rights

I first must examine whether Tran’s alleged conduct violated the

Constitution. See Cope, 3 F.4th at 204. In the context of an excessive force claim, I

am required to assess whether Tran’s alleged use of force was objectively

unreasonable. See Austin, 74 F.4th at 322.

(1) The First Occurrence

Huber makes the following allegations about the First Occurrence: Tran

“injured [Huber’s] shoulder and head due to his body’s combined impact, hitting

the . . . shield and force of being slammed to the floor by Tran and several other

jailers”; “Tran handcuffed Mr. Huber and slammed Mr. Huber’s already injured

head to the concrete floor”; and the officers, including Tran, “continued to pin his

head and body to the floor.” Dkt. 13 at 8. In his deposition, Huber said the following

about the First Occurrence:

Well, the first time Officer Tran hurt me was while I was in my

cell, and as you mentioned, I flooded my cell with toilet paper and he

formed a human freight train along with another two or three other

officers. And when that door opened, they ran in and they hit me with

a protective riot shield. I was standing on top of my bunk and they ran

in projecting me through the wall. I had first – I fell head first between

the bunk and the toilet. Officer Tran dragged me out from my legs and

he put his knee to my crotch repeatedly hitting me. I said, “You are

hurting me.” And he replied, “I know.”

Dkt. 42-1 at 2.

In their Motion for Summary Judgment, Defendants make the conclusory

assertion that Huber “has failed to plead facts showing that . . . Officer Tran acted

in a way that was objectively unreasonable or knowingly violated the law.” Dkt. 40

at 28. Tran does not provide his own explanation of what happened during this

alleged incident, or offer any justifications for his use of force. Tran fails to provide

any competent summary judgment evidence describing what Huber actually did

or whether Huber created safety or security concerns. Tran “alleges no facts from

which [I] can determine what actions he took . . . . The absence of such facts makes

it impossible for [me] to determine what happened in the [cell] and whether

[Tran]’s actions were, or were not, objectively reasonable in light of those facts.”

Hill v. Oguzie, No. 3:19-cv-00021, ECF No. 38 at 12 (S.D. Tex. July 14, 2021)

(denying summary judgment in § 1983 excessive force case). The Fifth Circuit has

reversed the grant of summary judgment on similar facts. See Fairchild v. Coryell

Cnty., 40 F.4th 359, 362 (5th Cir. 2022) (holding summary judgment improper

when guards allegedly used pepper spray against pretrial detainee in her cell four

times; slammed her to the floor; handcuffed her while guard placed knee on her

back; and held her face down for two minutes); Rankin v. Klevenhagen, 5 F.3d

103, 105 (5th Cir. 1993) (holding summary judgment improper when guards

allegedly “slammed [plaintiff] against a wall and the jail’s floor, handcuffed him

and stomped on his back and legs” (quotations omitted)).

In sum, the record before me shows that genuine disputes of material fact

exist regarding the Kingsley factors: the relationship between the need for the use

of force and the amount of force used; the extent of Huber’s injury;4 any effort

made by Tran to limit the force; the severity of the security problem; the threat

reasonably perceived by Tran; and whether Huber was actively resisting. “These

4 A plaintiff bringing an excessive force claim must show more than a de minimis injury.

See Hanks v. Rogers, 853 F.3d 738, 744–45 (5th Cir. 2017). “However, the Supreme Court

shifted the core judicial inquiry from the extent of the injury to the nature of the force

used.” Contreras v. Wauson, No. 5:21-cv-00038, 2023 WL 9508831, at *6 (N.D. Tex. July

5, 2023); see also Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“Injury and force . . . are only

imperfectly correlated, and it is the latter that ultimately counts. A[ pretrial detainee] who

is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim

merely because he has the good fortune to escape without serious injury.”). Because there

is a genuine dispute of material fact as to the nature of force Tran used against Huber, the

same is true of the extent of Huber’s injuries.

fact disputes preclude the entry of summary judgment on [Tran]’s defense of

qualified immunity.” Hill, No. 3:19-cv-00021, ECF No. 38 at 13.

(2) The Second Occurrence

Regarding the Second Occurrence, Huber alleges Tran “hit him [from]

behind” while Huber was in a holding cell awaiting release. Dkt. 13 at 9. Huber

alleges Tran then struck him in the face with a blunt object. See id. Again, Tran

does not refute this allegation. He asserts only: “Regarding Officer Tran, [Huber]

complains of excessive force because he was allegedly slammed to the ground by

Officer Tran and hit in the face with a blunt force object while [Huber] was

aggressive, combative, and in a suicidal state.” Dkt. 40 at 24. In response, Huber

argues “[t]he amount of force used against [him] does not balance out with the

need to transfer him to enter his cell.” Dkt. 42 at 9.

As with the First Occurrence, Tran did not respond to Huber’s allegations

about the Second Occurrence. The record before me, which contains allegations

that Tran hit Huber from behind and struck him in the face with a blunt object,

does not show the objective reasonableness of Tran’s actions. It does not appear

that Tran’s use of force furthered some legitimate governmental goal. See

Contreras, 2023 WL 9508831, at *5–6 (granting summary judgment where

uncontroverted evidence showed “Plaintiff actively struggling against officers’

attempts to contain him, and even breaking away from officers and fleeing toward

a perpendicular hallway”); Johnson, 514 F. Supp. 3d at 970 (finding use of force

against pretrial detainee objectively reasonable “for the legitimate purpose of

obtaining Johnson’s compliance with repeated orders to maintain institutional

order and security”). Tran argues that Huber was “aggressive, combative, and in a

suicidal state” at the time, Dkt. 40 at 24, but points to no evidence. In contrast to

Contreras and Johnson, issues of material fact regarding Huber’s behavior exist.

In the Motion for Summary Judgment, Tran presents a timeline of Huber’s stay at

Galveston County Jail. That timeline includes notations of multiple “Jail

Incidents,” but does not specify what occurred during those incidents. See id. at 8–

12. Because I view all facts in the light most favorable to Huber, I cannot grant

summary judgment on this excessive force claim because there are genuine

disputes of material fact regarding the Second Occurrence. See McIntosh v. Smith,

690 F. Supp. 2d 515, 527 (S.D. Tex. 2010) (“[Tran]’s motion for summary judgment

on [Huber]’s Fourteenth Amendment claim for [excessive force] must be denied

because the legal question of whether Officer [Tran] is entitled to qualified

immunity depends upon the resolution of genuine issues of material fact.”).

b. Clearly Established Law

There is no question that the law protecting pretrial detainees such as Huber

from excessive force had been clearly established during his stay in Galveston

County Jail. See Graham, 490 U.S. at 395 n.10 (“It is clear . . . that the Due Process

Clause protects a pretrial detainee from the use of excessive force that amounts to

punishment.”); Fairchild, 40 F.4th at 368 (“Within the Fifth Circuit, the law has

long been clearly established that an officer’s continued use of force on a restrained

and subdued subject is objectively unreasonable.” (quoting Timpa v. Dillard, 20

F.4th 1020, 1034 (5th Cir. 2021))). In sum, there are genuine issues of material fact

regarding whether Tran violated Huber’s Fourteenth Amendment right to be free

from excessive force as a pretrial detainee as to both the First and Second

Occurrences. Thus, Tran is not entitled to qualified immunity at this stage on

Huber’s excessive force claim.

2. Trochesset

Huber also brings an excessive force claim against Trochesset, claiming

Trochesset “was aware there would be inmates, like Mr. Huber, who had pre-

existing conditions requiring medication, supervision, and additional medical

care” and “was personally involved in Mr. Huber’s constitutional deprivation

because he was responsible for the inmates’ medical care, namely, their health,

safety, and welfare.” Dkt. 13 at 14. “[A] plaintiff seeking to overcome qualified

immunity must plead specific facts that both allow the court to draw the reasonable

inference that the defendant is liable for the harm he has alleged and that defeat a

qualified immunity defense with equal specificity.” Arnold v. Williams, 979 F.3d

262, 267 (5th Cir. 2020) (quotation omitted). At this stage, Huber points no

specific facts that would support an excessive force claim against Trochesset.

Accordingly, Trochesset is entitled to qualified immunity and Huber’s excessive

force claim against Trochesset is dismissed.

3. Galveston County

Huber raises an excessive force claim against Galveston County. As stated,

Huber must show “a policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski, 237

F.3d at 578 (quoting Monell, 436 U.S. at 694).

Huber states: “Galveston County violated Mr. Huber’s right to be free from

the use of excessive force because it promoted, adopted, and promulgated a policy

or custom of allowing it’s [sic] detention officers, including Tran, to utilize

excessive force based on the inadequate training and supervision of his [sic]

officers.” Dkt. 13 at 15. But Huber points to no evidence of such a policy allowing

officers to use excessive force. To “plead a practice so persistent and widespread as

to practically have the force of law, [Huber] must do more than describe the

incident that gave rise to his injury.” Ratliff v. Aransas Cnty., 948 F.3d 281, 285

(5th Cir. 2020) (cleaned up). All Huber does here is describe his own experience,

and no evidence in the summary judgment record points to a policy of excessive

force by Galveston County. “In order for municipal liability to attach, [Huber] must

offer evidence of not simply a decision, but a decision by [Galveston County] itself

to violate the Constitution.” Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir.

1998) (cleaned up). As such, Huber’s excessive force claim against Galveston

County fails at the summary judgment stage.

B. CONDITION OF CONFINEMENT

Huber also brings a condition of confinement claim against Defendants. “A

condition of confinement case is a constitutional attack on general conditions,

practices, rules, or restrictions of pretrial confinement.” Scott v. Moore, 114 F.3d

51, 53 (5th Cir. 1997) (cleaned up).5 When a plaintiff like Huber challenges his

condition of confinement, “‘the proper inquiry is whether those conditions amount

to punishment of the detainee.’” Garza v. City of Donna, 922 F.3d 626, 632 (5th

Cir. 2019) (quoting Bell, 441 U.S. at 535). “[C]onditions of confinement may be

aggregated to rise to the level of a constitutional violation ‘when they have a

mutually enforcing effect that produces the deprivation of a single, identifiable

human need such as food, warmth, or exercise.’” Hope v. Harris, 861 F. App’x 571,

582–83 (5th Cir. 2021) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).

An unconstitutional condition of confinement of a pretrial detainee

is usually the manifestation of an explicit policy or restriction: the

number of bunks per cell, mail privileges, disciplinary segregation,

etc. 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. Proving a pattern is a heavy burden, one that has rarely been

met in our caselaw. Further, to constitute impermissible punishment,

the condition must be one that is arbitrary or purposeless, or put

differently, not reasonably related to a legitimate goal.

Shepherd v. Dall. Cnty., 591 F.3d 445, 452 (5th Cir. 2009) (cleaned up).

To prove a condition of confinement claim, Huber “must show that:

“(1) some rule, restriction, identifiable intended condition or practice, or a

pervasive pattern of acts or omissions committed by a jail official exists, (2) that is

not reasonably related to a legitimate governmental objective, and (3) that causes

a violation of a detainee’s constitutional rights.” Stevenson-Cotton v. Galveston

Cnty., No. 22-40841, 2024 WL 138631, at *5 (5th Cir. Jan. 12, 2024) (citing Duvall

v. Dall. Cnty., 631 F.3d 203, 207 (5th Cir. 2011)).

5 Because pretrial detainees—who are presumed innocent until proven guilty—may not be

punished, they “retain at least those constitutional rights that . . . are enjoyed by

convicted prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979) (emphasis added). In other

words, precedent regarding an Eighth Amendment condition of confinement claim

applies with full force to a Fourteenth Amendment condition of confinement claim, if not

more.

Huber’s condition of confinement claim stems from his stint in solitary

confinement at the Galveston County Jail. In their Motion for Summary Judgment,

Defendants point to their policy of placing inmates “exhibiting signs of substance

withdrawal or mental illness” into solitary confinement. Dkt. 40 at 17. The policy’s

justifications include “protection of the impaired inmate from other inmates,

suicide prevention, and giving the inmate a closer physical proximity to the

medical team.” Id.

Huber alleges that when placed in solitary confinement, he was “forced to

strip naked and placed in a cold cell with no windows.” Dkt. 13 at 7. “The freezing

cell only contained a hole in the ground for inmates such as Mr. Huber to use as a

bathroom,” Huber did not receive toilet paper, and he “was not allowed to take a

shower.” Id. at 16. He also alleges that a constant light prevented him from

sleeping. The cell did not contain a bed, and Huber “was given a small blanket that

was not large enough to cover up his entire body in a fetal position.” Id. at 7. The

record does not make clear how long Huber spent in solitary confinement, but he

alleges he “suffered [there] for days.” Id.

1. Tran and Trochesset

To the extent Huber advances a condition of confinement claim against Tran

and Trochesset in their individual capacities, it does not survive summary

judgment. “Personal involvement is an essential element of a civil rights cause of

action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Huber does not

allege and points to no evidence showing that Tran or Trochesset had personal

knowledge or involvement in the condition of his confinement at Galveston County

Jail. See Weber v. Stevens, No. C.A. C-04-378, 2005 WL 2076280, at *5–7 (S.D.

Tex. Aug. 26, 2005) (granting summary judgment where plaintiff did not allege

that prison director and warden had personal knowledge of plaintiff’s condition of

confinement or authority to make improvements). Thus, any condition of

confinement claim against Tran or Trochesset fails.

2. Galveston County

It is critical to remember that to establish a condition of confinement claim

against Galveston County, Huber “has two burdens: to show (1) that a

constitutional violation occurred and (2) that a municipal policy was the moving

force behind the violation.” Sanchez v. Young Cnty., 956 F.3d 785, 791 (5th Cir.

2020). As the Fifth Circuit has explained:

Under Monell, a plaintiff must show either an official policy or

persistent and widespread customs. Under [a condition of

confinement claim], the plaintiff must show an intended condition or

practice, or show that jail officials’ acts are sufficiently extended or

pervasive to prove an intended condition or practice. We see no

meaningful difference between these showings.

Duvall, 631 F.3d at 208 (cleaned up).

In this case, even if I assume the condition of Huber’s confinement was

unconstitutional, Huber has completely failed to allege—much less create a

genuine issue of material fact—that a Galveston County policy, practice, or custom

was the moving force behind the constitutional violation. I can infer from the

record that Galveston County has a policy of placing inmates exhibiting signs of

withdrawal or suicidal ideations in solitary confinement. See Dkt. 40 at 17. And I

can infer that Galveston County has a policy of denying inmates in solitary

confinement a bed, sink, or toilet—objects on which a suicidal inmates could

attempt to harm themselves. But these conditions are obviously related to the

legitimate government objective of protecting inmates from themselves, and

Huber has not argued or pointed to evidence suggesting otherwise.

To the extent the lighting, temperature, lack of access to a shower, and being

forced to strip naked are the conditions of which Huber complains, he has failed to

allege—or present evidence creating a genuine issue of material fact—that these

intended conditions or practices were pervasive and systemic. Tellingly, Huber’s

response to Defendants’ Motion for Summary Judgment does not even address the

condition of confinement claim. Because there is no genuine issue of material fact

concerning the condition of confinement claim, it should be dismissed.

C. INADEQUATE MEDICAL CARE

Next, Huber asserts claims of inadequate medical care against each

Defendant. Huber “may succeed on a claim under 42 U.S.C. § 1983 for inadequate

medical care only if he demonstrates ‘deliberate indifference to serious medical

needs’ on the part of prison officials or other state actors.” Estrada v. Nehls, 524

F. Supp. 3d 578, 594 (S.D. Tex. 2021) (quoting Estelle v. Gamble, 429 U.S. 97, 104

(1976)). “[A] prison official is deliberately indifferent to a pre-trial detainee’s

serious medical needs in violation of the Fourteenth Amendment if he (1) was

subjectively aware of the risk and (2) disregarded the risk by failing to take

reasonable measures to abate it.” Burton v. Owens, 511 F. App’x. 385, 389 (5th Cir.

2013). “The conduct alleged must ‘constitute an unnecessary and wanton infliction

of pain’ or ‘be repugnant to the conscience of mankind.’” Estrada, 524 F. Supp. 3d

at 594 (quoting Estelle, 429 U.S. at 104–06). Huber must prove both “objective

exposure to a substantial risk of serious harm” and “subjective deliberate

indifference to that risk.” Estrada, 524 F. Supp. 3d at 594. To satisfy the subjective

prong, Huber “must show both: (1) that the defendant was aware of facts from

which the inference of an excessive risk to [Huber]’s health or safety could be

drawn; and (2) that the defendant actually drew the inference that such potential

for harm existed.” Id. “An incorrect diagnosis, unsuccessful medical treatment,

acts of negligence, medical malpractice, or [Huber]’s disagreement with his

medical treatment are insufficient.” Id. In sum, “[d]eliberate indifference is an

extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d

752, 756 (5th Cir. 2001).

Huber alleges Defendants “were deliberately indifferent to [his] serious

medical needs and denied adequate medical care to [him].” Dkt. 13 at 17. He alleges

he never underwent a medical intake or received medication for his bipolar

disorder, “nor [was he treated] while he was in a suicidal state, despite actual

knowledge of his medical condition based on [his] statements.” Id.

The summary judgment record includes medical records showing that

Huber did, in fact, receive medical care throughout his time at Galveston County

Jail. In his roughly 10 days there, medical staff performed an evaluation or wellness

check on Huber seven times. See Dkt. 40 at 9–12 (quoting medical reports by the

jail’s medical staff on June 12, 13, 14, 15, 17, and 22); see also Dkt. 41-1 (Huber’s

medical records from his stay at Galveston County Jail). Additionally, on June 16

and 21, medical staff attempted to evaluate Huber, but could not, due to Huber’s

erratic behavior. See Dkt. 40 at 11–12. Further, Huber did undergo a medical intake

screening, at which Huber indicated he did not have “any medical problems that

require immediate attention” or “any medical problems that [the Galveston County

Jail] should know about to provide [Huber] care.” Dkt. 41-2 at 1.

Even further, the summary judgment record indicates that medical

personnel at the Galveston County Jail prescribed medication to Huber. See Dkt.

41-1 at 22 (“[Patient] was advised psychiatrist Dr. [Mireya] Hansen has started him

on Lithium (300mg, [twice a day]) to address his Bipolar Disorder”); see id.

(“[Patient] was educated on the importance of medication compliance, to which he

stated he would refuse the medication.”). Dr. Hansen indicated that Huber took

the medication daily, with only two exceptions. See Dkt. 41-5 at 1.

“Medical records of sick calls, examinations, diagnoses, and medications

may rebut an inmate’s allegations of deliberate indifference.” Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Because the summary judgment

record is clear that Huber underwent medical evaluations and took medication

prescribed to him, Huber’s allegations do not even approach the stout deliberate

indifference standard. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)

(multiple examinations and administered medications do not constitute deliberate

indifference); Bejaran v. Cruz, 79 F. App’x 73, 74 (5th Cir. 2003) (x-rays and

administration of generic medications refute allegations of deliberate

indifference); Hall v. Thomas, 190 F.3d 693, 698 (5th Cir. 1999) (inmate’s refusal

to take medication does not constitute deliberate indifference). Huber’s mere

disagreement with any treatment provided to him does not satisfy the standard,.

See Tijerina v. Stanley, 804 F. App’x 277, 278 (5th Cir. 2020).

As such, Huber’s claim of inadequate medical care against Tran and

Trochesset does not survive summary judgment. His claim against Galveston

County also fails, as he has not brought forth evidence of a policy or custom of

inadequate medical care. See Valle v. City of Houston, 613 F.3d 536, 541–42 (5th

Cir. 2010).

D. FAILURE TO TRAIN OR SUPERVISE

1. Trochesset

To survive summary judgment on this claim against Trochesset, Huber must

show that “(1) [Trochesset] 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 [Huber]’s rights; and (3) the failure to train or supervise amounts to

deliberate indifference.” Est. of Davis ex rel. McCully v. City of N. Richland Hills,

406 F.3d 375, 381 (5th Cir. 2005) (quotation omitted). The deliberate indifference

prong requires Huber to “demonstrate a pattern of violations and that the

inadequacy of the training is obvious and obviously likely to result in a

constitutional violation.” Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003)

(quotation omitted).

Huber alleges that Trochesset “failed to train or supervise Galveston County

Jail and medical staff responsible for [his] care.” Dkt. 13 at 18. Huber also makes

the following allegations: Trochesset “allowed jail staff, including Tran, to use

excessive force to detain inmates who suffered from mental illnesses”; “did not

verify whether appropriate procedures were administered or whether the policies

were followed by jail staff”; “did not enforce any disciplinary procedures for jail

staff that failed to administer or follow written policies and procedures”; “failed to

train the jail staff and nurses that were responsible for the care of Mr. Huber”;

“failed to train the intake staff to properly screen and administer medication to Mr.

Huber as he had a known medical condition”; “failed to train the jailers to monitor

and care for inmates with medical conditions”; “allowed untrained personnel

without proper medical credentials and training to monitor inmates with known

medical issues”; and “failed to adequately train jail and medical staff on properly

recognizing inmates with serious medical conditions and at risk of injury.” Id. at

18–19.

This claim for failure to train or supervise does not survive the summary

judgment stage. First, the summary judgment record does not include evidence

that would satisfy the deliberate indifference standard. See Smith v. Brenoettsy,

158 F.3d 908, 912 (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.’” (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “A pattern

of similar constitutional violations by untrained employees is ordinarily necessary

to demonstrate deliberate indifference for purposes of failure to train.” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (quotation omitted). Huber does not allege or

present evidence of the requisite pattern of constitutional violations. Instead, he

describes only his own experiences. The Fifth Circuit has “rejected attempts by

plaintiffs to present evidence of isolated violations and ascribe those violations to

a failure to train.” Zarnow, 614 F.3d at 170.

Additionally, a supervisor may be liable only when he “affirmatively

participates in the acts that cause the constitutional deprivation, or [he]

implements unconstitutional policies that causally result in the constitutional

injury.” Pena v. City of Rio Grande City, 879 F.3d 613, 620 (5th Cir. 2018). There

is simply no factual basis in the summary judgment record for holding Trochesset

liable in his individual capacity. Thus, Huber’s failure to train or supervise claim

against Trochesset does not survive summary judgment.

2. Galveston County

Huber brings the same failure to train or supervise claim against Galveston

County. The elements of municipal liability under a failure to train or supervise

theory are identical. Huber must show “that (1) [Galveston County] adopted

inadequate training policy procedures, (2) acted with deliberate indifference in

doing so, and (3) the inadequate training policy directly caused [Huber]’s injury.”

Speck v. Wiginton, 606 F. App’x 733, 736 (5th Cir. 2015). Huber cannot point to

evidence in the record “related to [Galveston County]’s actual training program.”

Id. Because Huber has not established a constitutional violation relating to his

failure to train or supervise claims, he certainly cannot establish a custom that

would give rise to Galveston County’s liability. This claim against Galveston County

for failure to train or supervise fails.

E. NEGLIGENCE

Defendants argue they “are entitled to judgment as a matter of law on

Plaintiff’s claims,” but fail to address Huber’s negligence claim at all. Dkt. 40 at 1.

Because Defendants fail to explain why summary judgment should be entered in

their favor on the negligence claim, I am unwilling to grant summary judgment at

this time.

I do, however, note that it “is well-settled that a district court may grant

summary judgment sua sponte, so long as the losing party has ten days notice to

come forward with all of its evidence in opposition to summary judgment.” Love v.

Nat’l Med. Enters., 230 F.3d 765, 770 (5th Cir. 2000) (quotation omitted). The

Texas Tort Claims Act requires that Galveston County have received notice of

Huber’s negligence claim “not later than six months after the day that the incident

giving rise to the claim occurred.” TEX. CIV. PRAC. & REM. CODE § 101.101(a). It does

not appear as if that happened here. Huber’s last day at the Galveston County Jail

was June 22, 2018. According to the Notice of Removal, Huber “first served . . .

Galveston County . . . on October 30, 2020.” Dkt. 1 at 3. October 30, 2020 is far

more than six months after June 22, 2018. I will give Huber 10 days to explain in

writing why summary judgment should not be awarded to Galveston County on

the negligence claim.

F. LEAVE TO REPLEAD

There is one final issue to address. In his response to the Motion for

Summary Judgment, Huber “requests the right to replead the facts” because he

claims he did not have access to certain Galveston County Jail records. Dkt. 42 at

4. Huber makes this request more than a month after the discovery period ended.

Compare Dkt. 37 (discovery deadline was March 13, 2023), with Dkt. 42 (Huber’s

response filed on April 19, 2023).

Although district courts “should freely give leave [to amend] when justice so

requires,” FED. R. CIV. P. 15(a)(2), leave to amend is by no means automatic. See

Avatar Expl., Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). I

consider the following factors when exercising discretion to allow or deny leave to

amend: “the futility of amending, the party’s repeated failure to cure deficiencies

by previous amendments, undue delay, or bad faith.” U.S. ex rel. Marcy v. Rowan

Cos., 520 F.3d 384, 392 (5th Cir. 2008).

Huber’s request is futile because he “fails to apprise the district court of the

facts that he would plead in an amended complaint.”6 Edionwe v. Bailey, 860 F.3d

287, 295 (5th Cir. 2017) (cleaned up); see also Rombaugh v. Bailey, 733 F. App’x

160, 165 (5th Cir. 2018) (affirming district court’s denial of motion to amend when

Plaintiff “failed to apprise the court of the facts she would plead in her amended

complaint”). Accordingly, Huber’s request to replead the facts is denied.

CONCLUSION

The Defendants’ Motion for Summary Judgment is DENIED IN PART and

GRANTED IN PART. It is DENIED with respect to Huber’s excessive force

claim against Tran, and his negligence claim against Galveston County. It is

GRANTED as to Huber’s excessive force claim against Trochesset and Galveston

County; and his condition of confinement, inadequate medical care, and failure to

6 Huber alleges he “was subjected to the same conditions as Jesse C. Jacobs, who died in

the Galveston County Jail FSP after he was sent there to detox from his medications

instead of the medical unit.” Dkt. 42 at 5. Yet Huber does not offer any other pertinent

facts like when this alleged death occurred or how it is related to Huber’s claims.

train or supervise claims against all Defendants. Huber has 10 days to explain in

writing why summary judgment should not be awarded to Galveston County on

the negligence claim for Huber’s failure to timely provide notice under TEX. CIV.

PRAC. & REM. CODE § 101.101(a).

SIGNED this 16th day of April 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE