Forgan Ex Rel. Estate of Allen v. Howard County

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

July 26, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

06-10472

GLENN FORGAN, JR., Individually and as Executor and/or

Representative of the Estate of Richard Dunn Allen;

GLENDA FORGAN, Individually as the Mother of the

Deceased; ROBERT ALLEN, Individually as the Father of

the Deceased

Plaintiffs-Appellants,

v.

HOWARD COUNTY TEXAS; ET AL.

Defendants,

HOWARD COUNTY TEXAS; HOWARD COUNTY SHERIFF’S DEPARTMENT

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit

Judges.

BENAVIDES, Circuit Judge:

Richard Allen was arrested and taken to Howard County Jail for

driving while intoxicated and possession of marijuana. During the

booking process, Allen indicated that he was medicated for a number

of mental ailments, including depression, but that he was not

1

thinking about killing himself at the time. Based on this and

other information, jailer Adam Dunlap classified Allen as a “risk”

for suicide, meaning that he would be checked every fifteen

minutes. Dunlap issued Allen a pair of trousers and a shirt to

wear, and he was placed in a holding cell. After approximately one

hour, Allen was found hanging from his jail-issued trousers.

Attempts to resuscitate Allen failed, and he died.

Allen’s family (“Appellants”) brought this suit against Howard

County, Howard County Sheriff’s Department, and several individual

defendants under the Texas Tort Claims Act (“TTCA”) and 42 U.S.C.

§ 1983. They argued that Allen should have been classified as a

“high risk” on continuous watch, as opposed to a mere “risk.” By

ignoring Allen’s obvious predisposition for suicide, Appellants

argue, the defendants were deliberately indifferent by failing to

protect Allen from his suicidal tendencies, furnishing him with the

means to commit suicide, and failing to properly train County

employees.

The individual defendants were granted summary judgment on

qualified immunity grounds, and that judgment is not on appeal.

The district court subsequently granted summary judgment in favor

of Howard County and its Sheriff’s Department (collectively “Howard

County”), and Allen’s family appeals that judgment. We AFFIRM the

district court’s judgment.

I. DISCUSSION

A. The Texas Tort Claims Act and the “Use of Property”

2

A Texas governmental unit is generally immune from tort

liability unless the legislature has somehow waived immunity.

Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 586–87 (Tex.

2001). The TTCA has a limited immunity-waiver provision, removing

governmental immunity for “personal injury and death so caused by

a condition or use of tangible personal 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 §

101.021(2) (emphasis added).

Thus, in evaluating the TTCA claim, the threshold question is

whether issuing a suicidal inmate trousers qualifies as a condition

or use of property sufficient to waive governmental immunity. The

district court found that “[m]erely providing Decedent with the

trousers does not equate to ‘use’ by [Howard County].” This is a

pure question of statutory interpretation which this Court reviews

de novo. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir.

2002).

Appellants argue that “use” means “to put or bring [personal

property] into action or service,” and the trousers were put into

service by Howard County when they were issued. See Miller, 51

S.W.3d at 588. Howard County counters that the injury must be a

direct result of the County’s use of the property, and merely

allowing another person to use it, even if he harms himself with

it, is insufficient under the TTCA.

3

Neither party adequately captures the caselaw. This is not

entirely their fault, as Justice Hecht of the Texas Supreme Court

has observed, repeated attempts to clarify this issue “have done so

little to infuse the Act’s use-of-property standard with meaning

that the task now appears hopeless. The [TTCA] does not define

‘use,’ and nothing in the history of its passage provides a clue as

to the standard’s intended meaning.” Miller, 51 S.W.3d at 590

(Hecht, J., concurring).1 Justice Hecht furthered, in summarizing

the caselaw:

We have held that failing to provide a hospital patient

a bed with rails or a football player a properly

protective uniform or an epileptic swimmer with a life

preserver is a use of property within the statutory

waiver of immunity, but failing to give a patient an

injectionable drug or to install a pump to dissipate gas

fumes is but a non-use of property outside the waiver.

We have held that misreading an electrocardiogram is a

use of property, but misreading medical records is not.

Id. at 590 (Hecht, J., concurring).

The best reading of the Texas Supreme Court cases is that a

waiver occurs if death or injury results from (1) the direct use of

property by a state actor, or (2) a defective condition of state-

issued property, even if actively employed by a third-party at the

time of injury. That is, when there is some intervening non-state

1

These concerns are often followed by requests that the

legislature clarify this portion of the TTCA. See, e.g., Miller,

51 S.W.3d at 590 (Hecht, J., concurring); Robinson v. Cent. Texas

MHMR Ctr., 780 S.W.2d 169, 170 (Tex. 1989); Lowe v. Texas Tech.

Univ., 540 S.W.2d 297, 301 (Tex. 1976) (Greenhill, C.J.,

concurring).

4

actor that proximately causes the harm, such as Allen in this case,

there must be a defective condition in the property itself for a

waiver of immunity under the TTCA. This rule generally captures

the caselaw2 and the TTCA’s language regarding either a “condition

or use” of the property.

San Antonio State Hosp. v. Cowan makes it fairly clear that

merely issuing non-defective trousers to Allen is not sufficient to

waive immunity under the TTCA. 128 S.W.3d 244 (Tex. 2004). In

that case, the Texas Supreme Court found that allowing a state

hospital patient to keep his walker and suspenders, which he later

used to hang himself, did not constitute the use of property under

the TTCA. Id. at 246. The court reasoned that, “[i]f all ‘use’

meant were ‘to make available,’ the statutory restriction would

have little force.” Id.; see also Bossley, 51 S.W.2d at 343

(“Requiring only that a condition or use of property be involved

would conflict with the [TTCA’s] basic purpose of waiving immunity

only to a limited degree.”).

Appellants’ attempt to distinguish Cowan on the basis that the

walker and suspenders were owned by the patient, whereas here the

2

There are some scenarios where this rule would not do much

to inform the analysis. For instance, where a suicidal hospital

patient escapes out of an unlocked door and kills himself, whether

the door being unlocked qualifies as a “defective condition” is

difficult to answer, but the Texas Supreme Court found that there

was no waiver of immunity in such a case. Dallas County Mental

Health & Mental Retardation v. Bossley, 51 S.W.2d 339 (Tex. 1998).

5

trousers were state owned. This distinction is unavailing for

several reasons. First, Cowan’s analysis places absolutely no

reliance on the fact that the walker and suspenders belonged to the

patient rather than the state. Second, the TTCA’s waiver provision

is entirely indifferent as to whether the property in use is state

or privately owned. See TEX. CIV. PRAC. & REM. CODE § 101.021(2).

Finally, the cases Appellant relies on all involve inherently

defective property, and none of them relied on the state-owned

nature of the property in finding a waiver. See Lowe, 540 S.W.2d

at 300 (involving state-issued football “equipment, uniforms and

pads which were defective”); Mcguire v. Overton Mem’l Hosp., 514

S.W.2d 79 (Tex. Civ. App. 1979) (involving defective hospital bed

plaintiff fell out of because it lacked side railings).

Because it was Allen’s use of the state-issued trousers that

caused his death, and there is no allegation that the trousers were

in a defective condition, we agree with the district court that the

TTCA’s waiver provision does not apply. Howard County is immune

from the TTCA claim.3

B. Appellants’ Deliberate Indifference Claim

The Appellants next complain that the district court

inappropriately granted Howard County’s summary judgment motion on

3

We agree with the district court on this ground, so we do

not address Howard County’s alternative argument that Appellants

could not maintain their TTCA action because the state officials

involved have official immunity.

6

their § 1983 deliberate indifference claim. We review a district

court’s summary judgment ruling de novo. N.W. Enters., Inc. v.

City of Houston, 352 F.3d 162, 172 (5th Cir. 2003).

The district court granted its § 1983 summary judgment on a

number of independent grounds. For instance, it found that

Appellants never properly pled their deliberate indifference claim

as a due process violation. It also found that any deliberate

indifference claim is foreclosed by its earlier unappealed summary

judgment in favor of the individual defendants. Appellants now

argue that they did raise this as a due process claim and that the

earlier summary judgment has no preclusive effect as to the

County’s liability.4

Assuming without deciding that Appellants properly raised this

due process claim and that it is not precluded by the earlier

summary judgment order, we still find that they raised no genuine

issue of material fact sufficient to survive summary judgment. To

4

Because a deliberate indifference claim against a County

requires the plaintiff to first “show that the municipal employee

violated his clearly established constitutional rights with

subjective deliberate indifference,” and the summary judgment in

favor of the individual defendants found that none of them acted

with such deliberate indifference, the district court found that

this claim was foreclosed. Appellants take issue with this line of

reasoning and the district court’s application of Flores v. County

of Hardeman, 124 F.3d 736 (5th Cir. 1997). They persuasively argue

that the earlier judgment came when discovery was limited to

qualified immunity questions, before the deliberate indifference

issue could be fully litigated, and therefore should not have

preclusive effect as to the County’s liability. This is an

interesting argument, but we need not decide the issue in this

appeal.

7

establish a county’s liability on a § 1983 claim, a plaintiff must

show that the County had some inadequate custom or policy that

acted as the moving force behind a constitutional violation.

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–91

(1978). Appellants never presented anything more than conclusory

statements to attack Howard County’s suicide prevention policies.

They also never showed how any such inadequate policy was the

moving force behind classifying Allen as a suicide “risk” as

opposed to a “high risk.”

It is undisputed that Dunlap, the jailer on duty, received

training in suicide prevention and performed the required

screening. The primary evidence of inadequate training Appellants

point to is the deposition of Dunlap, who stated—contrary to

Appellants’ description of the record—that the jailers were

repeatedly trained, essentially on a daily basis.5 Appellants’

conclusory statements that Dunlap could have been trained better

are insufficient to raise a genuine issue of fact. See Douglass v.

United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).

Proof of a single incident generally will not support a finding of

5

Appellants curiously rely on Dunlap’s statement that, as a

jailer, he “never had any in-house training.” Looking at the cited

portion of the record, Dunlap is asked if he received “in-house

training,” and Dunlap answered, “I would say yes, because we do

that on a daily basis.” Rec. Ex. at 1828. While Appellants

complain that all of his training was on-the-job training, they

never indicate how that constitutes a constitutionally infirm

custom or policy.

8

inadequate training as a matter of custom or policy. Snyder v.

Trepagnier, 142 F.3d 791, 798–99 (5th Cir. 1998). Moreover, as the

district court pointed out, Appellants seem to concede that Howard

County had an adequate suicide policy as they repeatedly pointed

out how Dunlap’s deviations from that policy caused Allen’s

suicide.

Appellants have not directed us to any competent evidence that

shows Howard County Jail’s training policies are inadequate or that

they led to Allen’s death. We find that Appellants raised no

genuine issue of fact as to their deliberate indifference claim and

that the district court correctly found that Howard County was

entitled to summary judgment.

II. CONCLUSION

We agree with the district court’s conclusions on both the

TTCA and the § 1983 claims, and AFFIRM its summary judgment.

9