# Colle v. Brazos County, Tex.

> Court of Appeals for the Fifth Circuit · January 19, 1993 · 981 F.2d 237

URL: https://www.frixlaw.com/law-library/cases/5373

## Case

- **Full name:** Ruby COLLE, Individually Etc., Et Al., Plaintiffs-Appellants, v. BRAZOS COUNTY, TEXAS, Ronnie Miller, Individually and in His Official Capacity as Sheriff of Brazos County, Texas, and Unnamed Employees of the Brazos County Sheriff's Department, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 19, 1993
- **Citations:** 981 F.2d 237; 1993 WL 658
- **Precedential status:** Published
- **Opinion:** Opinion by Brown
- **Judges:** Politz, Brown, Jones
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5373

## How later opinions describe it (automated extraction)

- explaining that the sheriff "clearly set the goals for the county and determined how those goals would be achieved"
- holding that the plaintiffs have adequately stated a claim against the defendants under Section 1983

## Opinion text

United States Court of Appeals,

Fifth Circuit.

No. 90-2476.

Ruby COLLE, Individually etc., et al., Plaintiffs-Appellants,

v.

BRAZOS COUNTY, TEXAS, Ronnie Miller, Individually and in his Official Capacity as Sheriff
of Brazos County, Texas, and Unnamed Employees of the Brazos County Sheriff's Department,
Defendants-Appellees.

Jan. 20, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, BROWN and JONES, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Alleging violations of 42 U.S.C. § 1983, pretrial detainee's survivors appeal the 12(b)(6)

dismissal of their claims against Brazos County, its Sheriff and "unnamed employees." For the

following reasons, we (1) hold that we do not have jurisdiction over all Plaintiffs on appeal, (2) affirm

the dismissal of the unnamed defendants, (3) reverse the dismissal of Brazos County and Sheriff

Ronnie Miller in his capacity as Sheriff, and (4) reverse the dismissal of Sheriff Ronnie Miller,

individually.

How It All Began

The complaint filed by Richard Lee Colle's survivors alleges the following facts. On February

20, 1985, Colle was arrested pursuant to a felony warrant and confined as a pretrial detainee in the

Brazos County Jail in Bryan, Texas. Colle was visibly intoxicated. Two days later, Colle slipped and

fell in the jail. A physician examined him at St. Joseph's Hospital in Bryan and determined that the

injuries were minor. The doctor advised the jail personnel to monitor Colle's condition because of

his alcoholism, cirrhosis of the liver and possible onset of delirium tremens.

During the evening of February 23 and the early morning of February 24, the jailers observed

that Colle was unable to take his prescribed medication and communicate coherently. The

midnight-shift supervisor contacted his superior regarding Colle's condition, and was told to contact
the day-shift supervisor. The day-shift supervisor advised that when he came on duty later that day

he would attempt to have Colle moved from the jail. Between 7:45 a.m. and 8:50 a.m. on the 24th,

jailers observed Colle hitting his fist and face on the concrete floor of the cell while his whole body

was shaking. They noticed blood on his hand. His breathing was forced and eventually stopped. At

approximately 9:00 a.m., a jail officer began administering CPR, but became ill and turned over the

resuscitation to a jail trustee. Emergency medical service personnel arrived and transported Colle to

the hospital where he was pronounced dead on arrival.

Colle's survivors1 filed suit against Brazos County; Ronnie Miller, individually and in his

official capacity as Sheriff; and "unnamed employees of the Brazos County Sheriff's Department."

The survivors alleged violations of 42 U.S.C. § 1983 and state law claims for negligence and gross

negligence.

The Second Original Amended Complaint asserted in part that policies of Sheriff Miller

caused a deprivation of Colle's Fourteenth Amendment right, which included the right to adequate

medical treatment.

On February 7, 1990, the trial judge by order dismissed Plaintiffs' claims against Brazos

County for failure to state a federal claim upon which relief can be granted and against Sheriff Miller

for failure to allege facts that would deny Miller qualified immunity.2 The court further directed that

a Joint Pretrial Order with all required attachments be filed by April 6, 1990.

On April 7, 1990, Plaintiffs filed a motion for continuance and to extend the time for filing the

joint pretrial order. At an April 16 hearing, Plaintiffs moved for a continuance. The trial judge stated

that the case had been on file for three years and that the "unnamed employees" had not yet been

identified or served. To this Plaintiffs' counsel suggested, "the Court might want to consider

dismissing as to those two remaining Defendants. I, quite honestly, don't see any problems with

1
Plaintiff's Original Complaint indicates that the following persons brought suit: "Ruby Colle
[surviving wife], individually and on behalf of Ricky Samuel Colle; Edna Colle [mother],
individually and on behalf of the estate of Richard Lee Colle, deceased; Judy Davidson [sister],
on behalf of Tara Rose Colle, Charles E. Colle, and Ruth Marie Craft."
2
The district court dismissed the state law claims without prejudice to being litigated in state
court.
doing that." The court responded:

That's what I'm going to do. I'm going to dismiss the case for want of prosecution.
I've bent over backwards to indulge the Plaintiff in this case.

Even though the original two complaints, as I recall, were inadequate, I allowed you
to assist in filing a further amended complaint; and the failure to do anything in the case over
the last two months, including filing a joint pretrial order, the failure to take any action to
identify or to seek service of the two unnamed Defendants, shows a lack of interest in the
case; and I'm going to dismiss the case for want of prosecution.

Plaintiffs' counsel failed to object, and the dismissal order was filed on April 18, 1990.

A Stumbling Block of Jurisdictional Proportion

The initial issue before this court is jurisdictional. We raise the question sua sponte because

we have an independent duty to determine our jurisdiction over any case presented to us for decision.3

The Notice of Appeal (NA) caption designates the prospective appellants only as "Ruby Colle, et al."

Moreover, the body of the NA never refers to Colle's survivors by name, but only by the term

"Plaintiffs."4 We must determine whether we have jurisdiction over all plaintiffs including those

designated by "et al." or whether our jurisdiction is limited to the party specifically named in the NA.

We hold that our jurisdiction is limited to Ruby Colle, who sued individually and on behalf of Ricky

Samuel Colle, a minor.5

Fed.R.App.P. 3(c) provides in pertinent part that a notice of appeal "shall specify the party

or parties taking the appeal." The Supreme Court has made clear that the language "et al." in a notice

of appeal fails to provide the required notice under Rule 3(c).6 In Torres, the Court reasoned that:

The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the

3
Persyn v. U.S., 935 F.2d 69, 71 (5th Cir.1991) (citing Morales v. Pan Am. Life Ins. Co., 914
F.2d 83, 85 (5th Cir.1990)).
4
The NA provided: "Plaintiffs give notice of appeal to the United States Court of Appeals for
the Fifth Circuit from the final judgment entered in this case on April 18, 1990."
5
The plaintiffs identified and remaining at the district court's final judgment of dismissal of
April 18, 1990 were Ruby Colle, individually and on behalf of Ricky Samuel Colle, a minor; Edna
Colle, individually and on behalf of the Estate of Richard Lee Colle, deceased; and Judy
Davidson, on behalf of Tara Rose Colle, a minor.
6
Barnhardt Marine Ins., Inc. v. New England Surety of America, Inc., 961 F.2d 529, 536 (5th
Cir.1992) (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d
285 (1988)).
opposition and to the court of the identity of the appellant or appel lants. The use of the
phrase "et al.," which literally means "and others," utterly fails to provide such notice to either
intended recipient.7

The Court concluded that the failure to include the name of a petitioner in the notice

constituted a jurisdictional bar to the appeal on behalf of the unidentified party.8 Following the same

rationale, we hold that we have no jurisdiction over the following undesignated parties: Edna Colle,

individually and on behalf of the Estate of Richard Lee Colle, deceased; and Judy Davidson, on

behalf of Tara Rose Colle, a minor.

The NA, however, was adequate with respect to Ruby Colle and Ricky Samuel Colle, a

minor, on whose behalf Ruby Colle jointly sued. After Torres, the Fifth Circuit has recognized four

situations in which failure to name a party in a notice of appeal is not fatal to gaining jurisdiction.9

The last exception applies in this case. When parents sue on their own behalf and on behalf of their

children, the children's appeal is preserved despite the parents' failure to name the children in the

notice. In King v. Otasco, Inc., a father failed to specify in a notice of appeal that he appealed both

individually and on behalf of his children as their next friend.10 There we held that the deletion did

not deprive the court of jurisdiction over the children's appeal.11 Likewise, in this case we have

7
Torres, 487 U.S. at 318, 108 S.Ct. at 2409.
8
Id. at 317-18, 108 S.Ct. at 2409. The fact that the parties do not dispute who intended to
appeal is of no consequence. Hartford Cas. Ins. Co. v. Borg-Warner Corp., 913 F.2d 419, 422
(7th Cir.1990).
9
First, "et al." appropriately names a party when only two parties filed suit in district court.
Griffith v. Johnston, 899 F.2d 1427, 1430 (5th Cir.1990) (citing Pope v. Mississippi Real Estate
Comm'n, 872 F.2d 127, 129 (5th Cir.1989)). Second, in a class action suit, the "et al."
designation adequately identifies the members of the class not specifically named in the notice.
Third, appellants may cure an inappropriate use of "et al." by filing a "Memorandum in Support of
Appellants' Motion for Injunction Pending Appeal" listing all plaintiffs within the 30-day deadline.
Id. (citing Brotherhood of Ry. Carmen v. Atchison, Topeka & Santa Fe Ry. Co., 894 F.2d 1463,
1465 (5th Cir.1990)). Finally, when parents sue on their behalf and on behalf of their children, the
children's appeal is preserved despite the parents' failure to name the children in the notice. Id.
(citing King v. Otasco, Inc., 861 F.2d 438, 443 (5th Cir.1988)).
10
861 F.2d 438, 442-43 (5th Cir.1988).
11
Id. King is distinguishable from Torres for two reasons. In Torres, a lawyer's secretary
inadvertently omitted Torres's name from the notice of appeal. The notice correctly listed fifteen
other petitioners and concluded with "et al." We determined that the first distinction from Torres
was that King concerned not the omission of a party from a notice of appeal, but rather "a party's
jurisdiction to review the appeal of Ruby Colle, individually and on behalf of Ricky Samuel Colle, a

minor.

Other Circuits recognize additional exceptions to Torres.12 For example, the Ninth Circuit

in several decisions held that a notice of appeal need not list the names of all appealing parties if a

generic term, such as "plaintiffs" or "defendants," adequately identifies them.13 The Ninth Circuit

reasoned that these terms normally mean all plaintiffs or defendants and t hat if only some of the

parties intended to appeal, the body of the notice should have stated that certain plaintiffs or

failure to designate all of the capacities in which he brought suit." The second distinction we
recognized was that the appellee in Torres could not have known of Torres's appeal except by
construing "et al." to include him. In King, however, "the notice warns even without the ["et al."]
abbreviation that King ... desired to appeal."
12
See, e.g., Albedyll v. Wisconsin Porcelain Co. Rev. Ret. Plan, 947 F.2d 246, 252-54 (7th
Cir.1991) (finding jurisdiction on the basis of excusable neglect where the named appellant [a
retirement plan] could not in practicality appeal without the unnamed parties [trustees of the
retirement plan] and the appellee was aware of this); Hubbert v. City of Moore, Okla., 923 F.2d
769, 772 (10th Cir.1991) (holding that adequate notice existed where the appealing party attached
to the notice of appeal a docketing statement listing all parties. However, where the lower court,
rather than the appellant, files the docketing statement, the defect is not cured); Persyn v. U.S.,
935 F.2d 69, 71 (5th Cir.1991).
13
Benally v. Hodel, 940 F.2d 1194, 1197 (9th Cir.1990) (listing several Ninth Circuit cases
recognizing adequate notice through the use of a generic term); National Center for Immigrants'
Rights v. Immigration & Naturalization Serv., 892 F.2d 814, 816 (9th Cir.1989); cf. Adkins v.
United Mine Workers, 941 F.2d 392, 397-98 (6th Cir.1991) (holding that "all of the Plaintiffs"
was sufficient notice for the unnamed plaintiffs); Baylis v. Marriott, 906 F.2d 874, 876-77 (2d
Cir.1990) (concluding that "all the plaintiffs" was the functional equivalent of naming each of
nearly 200 appellants); Ford v. Nicks, 866 F.2d 865, 870 (6th Cir.1989) (holding that "the
defendants" gave fair notice). But cf. Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 316-17
(1st Cir.1989) (holding that use of "plaintiffs" did not effect notice); Santos-Martinez v. Soto-
Santiago, 863 F.2d 174, 176 (1st Cir.1988) (finding that "all plaintiffs" did not satisfy the
requirement of naming each appellant); Cotton v. U.S. Pipe & Foundry Co., 856 F.2d 158, 161-
62 (11th Cir.1988) (holding that appellate jurisdiction was limited to named appellants
notwithstanding the statement in the NA that "named Plaintiffs ... and all others similarly situated,
hereby appeal").

The evolving interpretations of adequate notice after Torres generate extensive
research responsibilities for practitioners and the judiciary. A search of Shepard's citation
service yields at least twenty opinions that address situations distinguishable from Torres.
We join the Sixth and the Seventh Circuits in endorsing a revision of Rule 3(c) to identify
all valid exceptions after Torres. See Hartford Cas. Ins. Co. v. Borg-Warner Corp., 913
F.2d 419, 424 n. 3 (7th Cir.1990); Minority Employees of Tenn. Dep't of Employment
Sec. v. Tennessee, 901 F.2d 1327, 1335 n. 4 (6th Cir.1990).
defendants appeal.14 The body of the Notice in this case contains the term "Plaintiffs."

The Fifth Circuit, however, has not reached the same conclusion as the Ninth Circuit on the

use of generic terms. In Resolution Trust v. Sonny's Old Land Corp., we held that our jurisdiction

was limited to the only named defendant since "defendants" did not indicate with any degree of

certainty which of the other defendants below joined in the appeal.15 Because the NA resembles that

in Sonny's Old Land, we hold that use of the term "Plaintiffs" in the body does not provide notice for

plaintiffs other than Ruby Colle, in her several capacities.

The Unnamed Defendants

In addition to the other defendants, Plaintiffs brought suit against "unnamed employees of

the Brazos County Sheriff's Department." Because Plaintiffs failed to further identify who these

employees were, the district court's dismissed the "unnamed employees" for want of prosecution. We

conclude that the dismissal was proper.

A dismissal with prejudice for failure to prosecute operates as an adjudication on the merits16

and is reversible only when the court has abused its discretion.17 Fed.R.Civ.P. 41(b) provides that

a defendant may move to dismiss a claim for plaintiff's failure to prosecute. The court may also

dismiss a case on its own motion.18 Although dismissal with prejudice is a discretionary matter, this

Circuit has "generally permitted it only in the face of a clear record of delay or contumacious conduct

by the plaintiff."19

14
INS, 892 F.2d at 817.
15
937 F.2d 128, 129 (5th Cir.1991).
16
F.R.Civ.P. 41(b) ("Unless the court ... otherwise specifies, a dismissal under [41(b) ] ...
operates as an adjudication upon the merits.").
17
Ramsey v. Bailey, 531 F.2d 706, 707-08 (5th Cir.1976).
18
Lopez v. Aransas County Ind. Sch. Dist., 570 F.2d 541, 544 (5th Cir.1978); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962).
19
Durham v. Florida E. Coast Ry. Co., 385 F.2d 366, 367 (5th Cir.1967).
Plaintiffs' failure to further identify or serve the "unnamed employees" after three years,20

along with their failure to file the joint pretrial order, is sufficient to warrant dismissal. Indeed,

Plaintiffs' counsel suggested the dismissal of the "unnamed employees" and did not "see any problems

with doing that." The suggestion illustrates that the plaintiffs lacked interest in those defendants and

that any further proceedings were pointless.21 These factors combined convince us that the district

court did not abuse its discretion in dismissing the unnamed defendants.

12(b)(6): Failure to State a Claim

We now consider whether the district judge properly dismissed claims against Brazos County

and Ronnie Miller, in his official capacity as Sheriff, pursuant to Fed.R.Civ.P. 12(b)(6). Under

12(b)(6), a defendant may move for dismissal for the failure of the plaintiff's complaint to state a claim

upon which relief can be granted. When reviewing a 12(b)(6) dismissal,

we may not go outside the pleadings. We accept all well-pleaded facts as true and view them
in the light most favorable to the plaintiff.22 We cannot uphold the dismissal "unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief."23

A plaintiff's complaint ordinarily need only be a short and plain statement that gives the

defendant notice of what the claim is and the grounds upon which it rests.24 In most cases, challenges

20
Cf. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). "As a general rule, the use of
"John Doe" to identify a defendant is not favored. However, ... plaintiff should be given an
opportunity through discovery to identify the unknown defendants...." Id. (citations omitted).
Colle's survivors had three years in which to discover the unnamed defendants' identities.
21
Cf. Theilmann v. Rutland Hosp., 455 F.2d 853, 856 (2d Cir.1972) (finding no abuse of
discretion for dismissal with prejudice based on factors including delays and plaintiff counsel's
refusal to continue); Thompson v. Fleming, 402 F.2d 266, 266-67 (5th Cir.1968) (finding no
abuse of discretion for dismissal without prejudice when plaintiff's counsel declined to proceed).
22
Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1185-86 (5th
Cir.1986) (citing Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 500
(5th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983)).
23
Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80
(1957)).
24
Conley v. Gibson, 355 U.S. at 47-48, 78 S.Ct. at 102-03 (stating the validity of "notice
pleadings.")
to "barebones pleadings" are doomed with respect to an attack based on a failure to state a claim.25

This Circuit, however, maintains a heightened pleading requirement for complaints charging violations

of 42 U.S.C. § 1983.26 We require pleadings to state specific facts, not mere conclusory allegations.27

(i) County Liability under § 1983

Plaintiffs bring suit against Brazos County and Sheriff Miller in his official capacity for the

injuries incurred by Colle. Section 1983 imposes civil liabilities for depriving a person of

constitutionally protected rights. First, we address whether Plaintiffs' claim is sufficient to allege a

constitutional deprivation under § 1983.

Plaintiffs charge t hat Colle's death was the direct result of Brazos County's deliberate

indifference toward his medical needs. The right of convicted prisoners not to have serious medical

needs treated with deliberate indifference was established in Estelle v. Gamble.28 Gamble holds that

deliberate indifference to serious medical needs of prisoners constitutes "unnecessary and wanton

infliction of pain" proscribed by the Eighth Amendment. Gamble applied this standard of medical care

to prisoners who had actually been convicted. A pretrial detainee like Colle, however, has a

Fourteenth Amendment Due Process right to be free from punishment altogether.29 Thus, the

25
See Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506-07 (5th Cir.1971) (citing
numerous reversals of claims dismissed on "barebones pleadings" alone).
26
In Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), this circuit adopted the heightened
pleading requirement for cases against government officials in their individual capacities. In
Palmer v. City of San Antonio, 810 F.2d 514, 516-17 (5th Cir.1987), and, most recently, in
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 954 F.2d 1054,
1057-58 (5th Cir.1992), cert. granted, --- U.S. ----, 112 S.Ct. 2989, 120 L.Ed.2d 867 (1992), we
extended the heightened pleading requirement to the municipality context. Thus, under this line
of cases, the heightened pleading requirement governs all § 1983 complaints brought in this
circuit.
27
Elliott v. Perez, 751 F.2d at 1479 & n. 20. Elliott provides that in § 1983 cases, "we
consistently require the claimant to state specific facts, not merely conclusory allegations." The
opinion cites numerous opinions following this practice in this and other circuits.
28
Burns v. City of Galveston, 905 F.2d 100, 103 (5th Cir.1990) (citing Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
29
Partridge v. Two Unknown Police Officers, 791 F.2d at 1186 (citing Bell v. Wolfish, 441
U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). See also Cupit v. Jones, 835 F.2d 82, 85 (5th
Cir.1987):
inadequate medical care of Colle alleged by Plaintiffs falls within the broad scope of reasonable

medical care and is actionable under § 1983.

To establish county/municipality30 liability under § 1983, however, a plaintiff must

demonstrate a policy or custom which caused the constitutional deprivation.31 A municipality may

not be held strictly liable for the acts of its non-policy-making employees under a respondeat superior

theory.32 It cannot be held liable solely because it employs a tortfeasor. 33 Rather, only when the

execution of a county's policies or its customs deprives an individual of constitutional or federal

rights, does liability under § 1983 result.34 The sheriff is without question the county's final

policymaker in the area of law enforcement.35 Thus, a municipality like Brazos County can be held

accountable for the illegal or unconstitutional actions of Sheriff Miller. He clearly set the goals for

the county and determined how those goals would be achieved.36

Plaintiffs' detailed complaint identifies several policies which they allege caused the denial of

Pretrial detainees, as opposed to convicted prisoners, are those individuals who
have been charged with a crime but who have not yet been tried on the charge....
We highlight the distinction between pretrial detainees and convicted prisoners
because the due process clause of the fourteenth amendment accords pretrial
detainees rights not enjoyed by convicted inmates under the eighth amendment
prohibition against cruel and unusual punishment.

Id. at 84.
30
Brummett v. Camble, 946 F.2d 1178, 1182-83 (5th Cir.1991). Brummett uses "county" and
"municipality" interchangeably in discussing lack of immunity under § 1983. See id.
31
Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978).
32
Oklahoma City v. Tuttle, 471 U.S. 808, 817-18, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791
(1985).
33
See id., 436 U.S. at 691, 98 S.Ct. at 2036.
34
See id., 436 U.S. at 694, 98 S.Ct. at 2037.
35
"[I]t has long been recognized that, in Texas, the county sheriff is the county's final
policymaker in the area of law enforcement" by virtue of the sheriff's election to office. Turner v.
Upton County, 915 F.2d 133, 136 (5th Cir.1990) (citing Familias Unidas v. Briscoe, 619 F.2d
391, 404 (5th Cir.1980)).
36
Turner, 915 F.2d at 136. We add that a county enjoys no § 1983 immunity regardless of any
qualified immunity that might be afforded its officials.
reasonable medical care to Colle.37 An official policy is "[a] policy statement, ordinance, regulation,

or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by

an official to whom the lawmakers have delegated policy-making authority."38 A plaintiff may not

infer a policy merely because harm resulted from some interaction with a governmental entity.39 For

example, even though an arresting police officer uses excessive force, it does not necessarily follow

37
The Second Amended Complaint alleged the following:

Richard Lee Colle's death was directly and proximately caused by a number
of official policies, customs, and practices of Brazos County, the Brazos County
Sheriff's Department, and Defendant Ronnie Miller with respect to the
maintenance of prisoners within the jail.

Such official policies, customs, and practices manifested deliberate
indifference to or conscious or callous disregard for the safety security, physical
well-being, and serious medical needs of prisoners within the jail.

Specifically, such official policies, customs, and practices were as follows:

1. Allowing inmates to go through severe alcohol withdrawal in a steel and
concrete cell inherently unsuitable and unsafe for a person in that condition;

2. Requiring inmates to acquire and pay for their own medical treatment for
serious and urgent illness or injury;

3. Maintaining an on-duty jail supervisory staff that did not include anyone
with authority to transfer an inmate to a medical facility when that inmate's
condition warranted such a transfer;

4. Maintaining an on-duty jail supervisory staff that did not include anyone
adequately trained to monitor or treat the serious medical needs of inmates;

5. Allowing inmate trustees to administer cardiopulmonary resuscitation to
other inmates;

6. Ignoring specific advice from an examining physician to closely observe
and provide follow-up medical attention to an inmate with a diagnosed medical
condition likely to cause serious injury without such observation and attention.

Since there is nothing pled to support the existence of policy number two, we
dismiss it. In addition, policies one, five, and six are facts of the case, not official policy.
38
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc).
39
See Oklahoma City v. Tuttle, 471 U.S. at 820-24, 105 S.Ct. at 2434-37) (holding as
improper jury instructions that permitted jurors to infer the existence of improper policies from a
single unconstitutional act).
that the city adopted a policy endorsing such acts.40 Nevertheless, if a policy exists and is violated

to cause a constitutional violation, a single application of that policy can result in liability.41

In this case, we need not decide whether all of the stated policies were sufficient to allege a

cause of action under § 1983 since we find that at least two of the alleged policies were sufficiently

pleaded. Specifically, Plaintiffs complain that Brazos County, through its delegated policymaker,

Sheriff Miller, had a policy of maintaining an on-duty jail supervisory staff that did not include anyone

with authority to transfer an inmate to a medical facility. Plaintiffs also allege a policy of inadequate

monitoring of pretrial detainees which amounted to a denial of medical care.

That Colle has pleaded the existence of policies that might fasten liability on Brazos County

does not, however, suffice to create a jury question. Although plaintiffs have cited with excruciating

detail the events leading up to Colle's death, as well as the alleged po licies responsible for the

inattention to Colle's steadily declining physical state, more facts will be needed ultimately to establish

liability. As we recently stated in Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992).

A municipal "policy" must be a deliberate and conscious choice by a municipality's
policy-maker. (citation omitted). While the municipal policy-maker's failure to adopt a
precaution can be the basis for § 1983 liability, such omission must amount to an intentional
choice, not merely an unintentionally negligent oversight. (citation omitted).

The Supreme Court has held that municipal failure to adopt a policy does not
constitute such an intentional choice unless it can be said to have been "deliberately
indifferent." City of Canton [Ohio v. Harris ], 489 U.S. [378] at 390, 109 S.Ct. [1197] at
1205 [103 L.Ed.2d 412]. A failure to adopt a policy can be deliberately indifferent when it
is obvious that the likely consequences of not adopting a policy will be deprivation of rights.

As Rhyne holds, the ultimate jury question in this case is whether Brazos County adopted

policies creating an obvious risk that pretrial detainees' constitutional rights would be violated. While

the facts pleaded by Colle could support an inference that unconstitutional county policies were the

"moving force" behind the carelessness that led to Colle's death, the facts as presently pleaded only

set the stage for further discovery. Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct.

2018, 2036, 56 L.Ed.2d 611 (1978).

40
Cf. id.
41
Oklahoma City v. Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435.
(ii) Sheriff Miller Stands Alone

Ruby Colle's complaint also states a claim against Sheriff Miller in his individual capacity.

We reiterate that § 1983 claims require allegations of specific facts, not mere conclusions. Further,

when government officials are likely to invoke qualified immunity, we demand that a complaint state

factual detail and particularity including why the defendant -official cannot maintain the immunity

defense.42

Government officials are shielded by qualified immunity from liability for damages under §

1983 so long, but only so long, as their conduct has not violated "clearly established statutory or

constitutional rights of which a reasonable person would have known."43 Thus, Miller is immune

from liability unless his alleged policy of inadequate staffing and monitoring violated Colle's

constitutional rights of which he reasonably should have been aware.

A constitutional right to minimally adequate care and treatment is not a novel proposition.

We are persuaded that Sheriff Miller knew of or should have known that if he staffed the jail with

persons having no authority to transfer a seriously ill detainee to a hospital, and if he pursued a policy

of failing to monitor the critical medical condition of a detainee, these actions would be

constitutionally impermissible. If the allegations in Plaintiffs' complaint are true, and they must be

accepted as true, Miller should have known that such a policy would result in the deprivation of a

detainee's right to reasonable medical care. At this stage of the proceeding, Miller is not entitled to

a 12(b)(6) dismissal.

Accordingly, we hold that Plaintiffs have adequately stated a claim against Brazos County,

and Sheriff Miller in both his official and individual capacity under § 1983. We dismiss for lack of

jurisdiction claims brought by Plaintiffs Edna Colle, Judy Davidson, and Tara Rose Colle; affirm the

district court's dismissal of the unnamed defendants; and reverse the court's dismissal of Plaintiffs'

claims against Brazos County and Sheriff Miller.

AFFIRMED IN PART AND REVERSED IN PART.

42
Elliott v. Perez, 751 F.2d at 1473.
43
Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5373. Public record. Not legal advice.