Tamez Ex Rel. Estate of Tamez v. Manthey

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 2, 2009

No. 09-40310 Charles R. Fulbruge III

Summary Calendar Clerk

HERIBERTO TAMEZ, Individually and On behalf of the Estate of Daniel

Tamez; MARIA TRINIDAD TAMEZ, Individually; APRIL GARZA, as Next

Friend of E.E.T., a Minor,

Plaintiffs - Appellants

v.

GERALD MANTHEY, Individually and in his Official Capacity; PEDRO H.

IBARRA, Individually and in his Official Capacity; POLICE CHIEF DANIEL

CASTILLO, Individually and in his Official Capacity; MIGUEL BERNAL,

Individually and in his Official Capacity; JAIME RODRIGUEZ, Individually

and in his Official Capacity; THE CITY OF HARLINGEN; RICK ELIZONDO,

Individually and in his Official Capacity,

Defendants - Appellees

Appeal from the United States District Court

For the Southern District of Texas

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:

Daniel Tamez was a pretrial detainee of the City of Harlingen. He died

while in the custody of the city from acute cocaine intoxication when a bag of

cocaine that he swallowed before his arrest burst in his intestines. The Tamez

No. 09-40310

Family then brought this suit under 42 U.S.C. § 1983 on Tamez’s behalf, alleging

that various police officers and prison officials were deliberately indifferent to

Tamez’s need for medical care. Appellees’ moved for summary judgment on the

Tamez Family’s claim, and the district court granted their motion for summary

judgment. The Tamez Family then appealed the district court’s judgment. We

AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

On January 18, 2006, at approximately 1:30 a.m., an officer from the

Harlingen Police Department attempted to pull Daniel Tamez over after he

disregarded a stop sign at high speed. Although Tamez initially pulled over, he

decided to run from the police, causing multiple officers to pursue him for

approximately two and a half miles. The officers eventually caught Tamez and

arrested him.

After Tamez was arrested, he was transported to the Harlingen City Jail

(“City Jail”). Tamez was aggressive and combative during the trip to the City

Jail, and the transporting officers had to carry him into the jail. Once inside,

Tamez was searched, and the officers discovered a short straw commonly used

for cocaine in Tamez’s pants but no drugs. The police then filled out an intake

form for Tamez and asked him several health questions. In response to the

officers’ questions, Tamez told the officers that he was not on drugs, that he was

diabetic, and that he was currently under the care of a physician. Later that

same morning, during his appearance before a magistrate, Tamez appeared to

be aware of what was occurring, and he immediately answered all the questions

asked by the judge. After his appearance before the judge, Tamez was returned

to the City Jail. During this time, Tamez never advised any of his jailers that

he felt ill, that he needed any medical treatment, or that he was injured.

That afternoon, defendants Jaime Rodriguez (“Detective Rodriguez”) and

Pedro Ibarra (“Detective Ibarra”) transported Tamez to the Cameron County

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Carrizales-Rucker Detention Center (“County Jail”). While waiting to be booked,

Tamez complained to one of the county jailers that he wanted to see a doctor

because he felt tired. The jailer then summoned the county nurse on duty, who

came and examined Tamez. While waiting for the nurse to arrive, Tamez

informed the jailer and Detective Rodriguez that he might have a sexually

transmitted disease (“STD”).

Felipe Esquivel (“Nurse Esquivel”) was the county intake nurse on duty

on January 18, 2006, and he was the nurse that examined Tamez. County

intake nurses are tasked with screening detainees brought to the County Jail to

determine whether the detainees need a “medical clearance” before they can be

incarcerated in the jail. The term “medical clearance” is an administrative term

meaning that a detainee is medically cleared for incarceration. Nurse Esquivel

testified that if a nurse finds anything abnormal with a detainee they reject the

detainee pending medical clearance. Several officers and jailers testified that

a medical clearance can be requested for many reasons, including a cold, a

cough, cuts, or a hurt ankle or wrist; no evidence to the contrary was offered.

Harlingen Police Chief Daniel Castillo (“Chief Castillo”) testified that a rejection

pending medical clearance does not by itself tell officers that a detainee is in

need of immediate medical care. Nurse Esquivel also stated that, in addition to

rejecting a person pending medical clearance, a nurse may call 911 or summon

a County Jail physician if a detainee is in need of urgent or emergency medical

care.

Nurse Esquivel did not find that Tamez was in need of either urgent or

emergency medical care. He did, however, find that Tamez’s pupils were

maximally dilated, which was sufficient to reject him pending medical clearance.

Nurse Esquivel then informed Detectives Ibarra and Rodriguez of Tamez’s

rejection. Nurse Esquivel told the detectives that Tamez had dilated pupils and

needed to be medically cleared before the County Jail would incarcerate him.

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The nurse suggested that the detectives take Tamez to the Valley Regional

Medical Center (“VRMC”), because it was the closest 24-hour facility with a

physician on-call and an emergency room where Tamez could receive any

necessary medical treatment before returning to the County Jail. Nurse

Esquivel routinely referred every detainee pending medical clearance to VRMC.

During Nurse Esquivel’s examination of Tamez, he asked Tamez whether

he had taken drugs or was under the influence of drugs. Tamez denied taking

drugs. If he had admitted that he was under the influence of drugs, Nurse

Esquivel stated that he would not have rejected Tamez pending medical

clearance; instead, he would have placed Tamez in isolation and treated him

according to the county’s drug and alcohol protocol.

Nurse Esquivel testified that he expected the detectives to take Tamez to

the hospital immediately. However, he never testified that he told the

detectives to take him to the hospital immediately or that there was any urgency

to his instructions to take Tamez to the hospital.

The detective returned Tamez to the City Jail. The trip to jail was

unremarkable. The detectives turned Tamez over to the custody of Harlingen

jailers Rick Elizondo (“Jailer Elizondo”) and Miguel Bernal (“Jailer Bernal”), who

are both defendants in this action after informing the jailers that Tamez had

been rejected pending medical clearance. After they turned Tamez over, the

detectives no longer had any responsibility for Tamez.

Jailer Elizondo did not notice anything wrong with Tamez when he was

returned to the City Jail, so he placed Tamez in his cell. Both Jailers Elizondo

and Bernal checked on Tamez every twenty minutes. During their rounds, both

jailers observed Tamez talking on the phone, which was a normal activity.

Tamez did not sleep during their shift, and the jailers did not observe anything

wrong with Tamez. Tamez never told either jailer that he was ill or that he

needed to see a doctor. The only thing he requested was water, which was given

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No. 09-40310

to him. On Jailer Elizondo’s final round, he again observed nothing out of the

ordinary, and he told the jailers on the next shift that Tamez needed a medical

clearance.

After an uneventful night, Jailer Estela Lozano (“Jailer Lozano”) was on

duty during which she checked on Tamez every twenty minutes. Tamez was

asleep the first four times Jailer Lozano checked on him, and his clothes were

not wet at the time. During a later round, Jailer Lozano noticed that Tamez’s

clothes were wet and that he was awake. When Jailer Lozano asked Tamez why

his clothes were wet, he replied that he was hot. The wet clothes were the only

“strange” thing that Jailer Lozano noticed about Tamez.

Jailer Lozano then asked Tamez why he had been sent back from the

County Jail. Tamez responded that someone at the County Jail told him that he

needed some blood work done before they would admit him. Jailer Lozano then

asked one of her supervisors about obtaining a medical clearance for Tamez.

Her supervisor called Harlingen police officer Arturo Gonzalez (“Officer

Gonzalez”) to take Tamez to the hospital. Tamez was able to exit his cell without

any problem, and his trip to the hospital was without incident.

Officer Gonzalez drove Tamez to the Harlingen Medical Center (“HMC”)

to receive treatment. Nurse Marina Garza (“Nurse Garza”) triaged Tamez at

9:42 a.m. on January 19, 2006. Tamez was restless during Nurse Garza’s

examination, and he told her that he had chest pains from working out and that

the pain was a one on a scale of one to ten. He also denied using drugs. Tamez

was then examined by an emergency room doctor. Tamez was also sent to

radiology for x-rays, and he returned from radiology at approximately 10:35 a.m.

Around 11:00 a.m., Tamez began suffering seizures. Medical personnel

attempted to treat him and gave him medication. At 11:48 a.m. Tamez stopped

breathing. Doctors and nurses attempted to revive Tamez for approximately

fifty minutes, but he died at 12:29 p.m. After his death, an autopsy was

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No. 09-40310

performed. The autopsy found that Tamez died of acute cocaine intoxication.

A clear, open baggy was found in Tamez’s intestine, and the baggy tested

positive for cocaine.

After Tamez’s death, the Tamez Family brought this suit on Tamez’s

behalf under 42 U.S.C. § 1983, alleging that the Appellees were liable for

Tamez’s death. Appellees moved for summary judgment on the Tamez Family’s

§ 1983 claim, and the district court granted their motion. This appeal followed.

II. DISCUSSION

The Tamez Family contends that material fact issues concerning the

various defendants’ conduct require reversal of the summary judgment. In

addition to defending the summary judgment, the Appellees contest the

timeliness of the notice of appeal.

1. Notice of Appeal

Appellees argue that the appeal is untimely. The timely filing of an appeal

is “mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 210 (2007).

The question of timeliness turns on whether Texas Independence Day is a “legal

holiday” for the purposes of Federal Rule of Appellate Procedure 26(a)(4).1 We

conclude that it is; the notice of appeal was timely filed. TEX. GOV’T CODE §§

662.021, 662.003(b)(2).

2. Motion for Summary Judgment

The Tamez Family asserts that Appellees violated Tamez’s Fourteenth

Amendment right not to have his serious medical needs met with deliberate

1

The district court entered judgment on January 30, 2009. Under Federal Rule of

Appellate Procedure 4(a)(1)(A), a party must file a notice of appeal within thirty days of a

district court’s entry of judgment. Under Federal Rule of Appellate Procedure 26(a)(3), the last

day of the thirty-day period cannot be a Sunday or a legal holiday. Thirty days from January

30, 2009 was March 1, 2009, a Sunday. The next day, March 2, was Texas Independence Day.

The Tamez Family did not file the notice of appeal until March 3. Therefore, whether their

notice of appeal is timely filed turns on whether Texas Independence Day is a legal holiday.

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No. 09-40310

indifference. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)

(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). The district court granted

summary judgment, finding that, based on the evidence before it, no reasonable

jury could conclude that any of the defendants were deliberately indifferent to

Tamez’s need for medical care. We agree.

A. Standard of Review

Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(c). A genuine issue of material fact exists

when the evidence is such that a reasonable jury could return a verdict for the

non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

reviewing a grant of summary judgment, we view all facts and evidence in the

light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson

Bros., 453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment,

the non-movant must go beyond the pleadings and come forward with specific

facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom,

448 F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment

on any grounds supported by the record and presented to the court below.”

Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).

B. Selecting the Applicable Standard

The appropriate standard to apply in analyzing constitutional challenges

brought by pretrial detainees depends on whether the alleged unconstitutional

conduct is a “condition of confinement” or “episodic act or omission.” Scott v.

Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc). An “action is characterized

properly as an ‘episodic act or omission’ case” when “the complained-of harm is

a particular act or omission of one or more officials.” Id. If a case falls under the

“episodic act or omission” category, we apply the deliberate indifference

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No. 09-40310

standard. Id. at 54 (citing Hare v. City of Corinth, 74 F.3d 633, 649 n.4 (5th Cir.

1996) (en banc)). The Tamez Family’s complaint that the Appellees refused to

provide Tamez with immediate medical treatment qualifies as an “episodic act

or omission,” which triggers the deliberate indifference standard. See id.

C. Standard for Deliberate Indifference

In order to establish a constitutional violation, the Tamez Family had to

first show that each defendant acted with subjective deliberate indifference to

Tamez’s need for medical care. Scott, 114 F.3d at 54. For summary judgment

purposes, then, the Tamez Family must raise a material fact issue concerning

each Appellee’s subjective deliberate indifference. “Deliberate indifference

encompasses only unnecessary and wanton infliction of pain repugnant to the

conscience of mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1997). To show subjective deliberate indifference, a plaintiff must present

evidence: (1) that each defendant had subjective knowledge of “facts from which

an inference of substantial risk of serious harm could be drawn,” (2) that each

defendant actually drew that inference; and (3) that each defendant’s response

to the risk indicates that the appellee “subjectively intended that harm occur.”

Thompson, 245 F.3d at 458-59. In other words, the Tamez Family must present

evidence raising a material fact issue to the effect that the Appellees failed to act

when they “were either aware or should have been aware[, because it was so

obvious,] of an unjustifiably high risk” to Tamez’s health. See Sibley v. Lemaire,

184 F.3d 481, 489-90 (5th Cir. 1999) (finding summary judgment proper on the

basis of qualified immunity when the evidence did not show that the appellees

were aware of an “unjustifiably high risk” to a detainee).2

2

Appellees did not move for summary judgment on the basis of qualified immunity.

However, some issues overlap. See Sibley, 184 F.3d at 490. In making the determination of

qualified immunity, the courts in cases like Sibley examine the same “deliberate indifference”

standard addressed here, so we look to such cases for guidance. See also Thompson, 245 F.3d

at 459 (explaining that examples of what is deliberate indifference “are relevant in assessing

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No. 09-40310

D. Applying the Deliberate Indifference Standard

The Tamez Family claims that each appellee was deliberately indifferent

to Tamez’s need for medical care. The summary judgment evidence, however,

does not support this assertion.

(1) Detectives Rodriguez and Ibarra

The case against Detectives Rodriguez and Ibarra rises and falls on Nurse

Esquivel’s testimony, because nothing else in the record even potentially creates

a fact issue in this regard.3 On appeal, the Tamez Family’s brief argues that

Nurse Esquivel told the detectives to take Tamez to the hospital immediately.

Were this so, the case would be different. But, in fact, Nurse Esquivel says no

such thing. He said only that he expected logically that Tamez’s next stop would

be the hospital. He never testified that he conveyed this expectation to the

detectives or that he in any way indicated any temporal urgency about his

referral to the hospital to the detectives. The detectives’ knowledge that Tamez

th scope of clearly established law [for qualified immunity purposes],” but a plaintiff

responding to the defense of qualified immunity must also show “that all reasonable officials

similarly situated would have then know that the alleged acts of the defendants violated the

United States Constitution.”)

3

Other than the evidence from Nurse Esquivel, the Tamez Family points to the

detectives’ knowledge that Tamez was combative in the car; however, nothing about his

behavior indicated a need for immediate medical attention. The record shows that the

detectives also knew that Tamez was bipolar and that Detective Rodriguez knew that Tamez

might have an STD. Although the detectives knew that Tamez was bipolar, they were not

deliberately indifferent to any risk his condition might have posed, because they were not

aware of the symptoms or characteristics of the illness or any other facts that would indicate

some unjustifiably high risk to his health. See Whitt v. Stephens County, 529 F.3d 278, 284

(5th Cir. 2008) (finding that an officer who knew that a detainee might have a mental health

issue was not deliberately indifferent because the other facts did not indicate a substantial risk

of harm). While Detective Rodriguez knew that Tamez claimed to have an STD, he did not

know what kind of STD or any other fact that would indicate that the STD posed a substantial

risk of harm to Tamez’s health. The record also does not show that the risk posed by Tamez’s

mental illness or STD was so obvious that the detectives should have known about the risk.

The Tamez Family also argues that the detectives knew about Tamez’s criminal history and

that they knew he had a “short straw” on his person after he was arrested; the record,

however, does not support their assertions.

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No. 09-40310

had pupils that were maximally dilated and Tamez needed a medical clearance

do not show that the detectives were aware of an unjustifiably high risk to

Tamez’s health, nor do they show that the risk to Tamez’s health was so obvious

that they should have inferred such a risk.4 Because pupil dilation can mean “a

lot of things,”according to the evidence, and because the undisputed evidence is

that medical clearances were requested for even the most minor medical issues,

nothing about these facts suggested a need for immediate attention. Even Nurse

Esquivel’s suggestion to take Tamez to VRMC does not show that Tamez was at

a substantial risk of harm. The nurse did not tell the detectives to take Tamez

there immediately, and he did not tell the detectives that Tamez was in need of

urgent or emergency care. The record also shows that Nurse Esquivel always

suggested VRMC for medical clearances regardless of how serious or minor the

medical issue, which means the suggestion itself would not obviously indicate

the existence of any substantial risk to Tamez’s health.

Because the facts relied upon by the Tamez Family do not show that the

detectives were aware, or should have been aware, of any substantial risk to

Tamez’s health, the district court was correct in granting the detectives’ motion

for summary judgment. See Gibbs v. Grimmette, 254 F.3d 545, 550 (5th Cir.

2001) (affirming district court’s grant of summary judgment when the evidence

did not show that the appellees acted with deliberate indifference to a detainee’s

right to medical care).

(2) Jailers Bernal and Elizondo

4

Nurse Esquivel testified in his deposition that pupil dilation could indicate “a lot of

things.” This testimony does not show that Tamez’s pupil dilation obviously indicated the

existence of some substantial risk to his health. The Tamez Family also make much of the fact

that Nurse Esquivel considered Tamez’s pupil dilation a “red flag.” There is no evidence,

however, that Nurse Esquivel told the officers that he considered Tamez’s pupil dilation a “red

flag.”

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No. 09-40310

The Tamez Family argue that jailers Bernal and Elizondo knew that

Tamez was at a substantial risk of harm because they were told he needed a

medical clearance and that he had dilated pupils.5 These fact, however, do not

show that the jailers knew or should have known of a substantial risk to Tamez’s

health. See Gibbs, 254 F.3d at 550.

E. Liability of the Remaining Appellees

The record shows that the district court properly found that none of the

detectives or the jailers violated Tamez’s constitutional rights. This finding by

the court also means that summary judgment was properly granted as to both

Chief Castillo and Supervisor Gerald Manthey (“Supervisor Manthey”). The

Tamez Family argues on appeal that Chief Castillo and Supervisor Manthey are

liable under the theory of supervisor liability, but supervisor liability requires

an underlying constitutional violation before such liability can be imposed.6 See

Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997) (“[W]ithout an underlying

constitutional violation, there can be no § 1983 liability imposed on the school

district or the individual supervisors.”). Because no reasonable jury could find

that either the detectives or the jailers violated Tamez’s constitutional rights,

there can be no supervisor liability imposed on Chief Castillo or Supervisor

Manthey, so the district court properly granted them summary judgment.7

5

The district court noted that the record presents a dispute over whether the jailers

were told that Tamez’s pupils were dilated. We assume for the purposes of reviewing the grant

of summary judgment that the jailers were told that Tamez’s pupils were dilated.

6

Although the Tamez Family does not argue on appeal that Chief Castillo or Supervisor

Manthey were themselves deliberately indifferent to Tamez’s rights, the Tamez Family’s

complaint did assert that the chief and the supervisor were individually liable for Tamez’s

death. The record, however, does not show that Chief Castillo or Supervisor Manthey engaged

in any conduct that constituted deliberate indifference. Therefore, the district court was

correct in granting summary judgment on Tamez’s claim that Chief Castillo and Supervisor

Manthey were individually liable for violating his rights.

7

The Tamez Family also brought suit against the City of Harlingen, but no argument

on appeal is made that the city is liable for any alleged violation of Tamez’s rights. Even if

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No. 09-40310

III. CONCLUSION

The summary judgment record does not show that a reasonable jury

could find that the Appellees were deliberately indifferent to Tamez’s need for

medical care. For this reason, the district court’s grant of summary judgment

is AFFIRMED.

such an argument had been made, municipal liability could not be established here, because

the summary judgment evidence does not show that the any of the detectives or the jailers

violated Tamez’s rights. See Becerra, 105 F.3d at 1048.

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