# Randy Rene Lozano v. William French Smith, Elton Faught

> Court of Appeals for the Fifth Circuit · November 3, 1983 · 718 F.2d 756

URL: https://www.frixlaw.com/law-library/cases/9471265

## Case

- **Full name:** Randy Rene LOZANO, Et Al., Plaintiffs-Appellants, v. William French SMITH, Et Al., Defendants, Elton Faught, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 3, 1983
- **Citations:** 718 F.2d 756; 1983 U.S. App. LEXIS 15574
- **Precedential status:** Published
- **Opinion:** Concurring in part by Garza
- **Judges:** Garwood, Garza, Reavley, Gar-Wood
- **Cited by:** 195 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/9471265

## How later opinions describe it (automated extraction)

- stating that to be liable under § 1983, a defendant “must be either personally involved in the acts causing the deprivation of a person’s constitutional rights, or there must be a causal connection between an act of the [defendant] and the constitutional violation sought to be…
- explaining that a defendant “must be either personally involved in the acts causing the deprivation of a person’s constitutional rights, or there must be a causal connection between an act of the [defendant] and the constitutional violation sought to be redressed.”
- stating a defendant “must be either personally involved in the acts causing the deprivation of a person’s constitutional rights, or there must be a causal connection between an act of the [defendant] and the constitutional violation sought to be redressed.”

## Opinion text

GARZA, Circuit Judge,
concurring in part and dissenting in part.
I concur in that part of the opinion of the majority that the jury findings in respect to officers Tenney and Perkins are in irreconcilable conflict and that the case as to them must be reversed and remanded for a new trial. However, I must respectfully dissent from the affirmance of the action taken by the court below that there was insufficient evidence to support the jury findings that the Sheriff wrongfully failed to supervise his facilities and personnel.
*776 I will not repeat the bizarre facts of this case for they are fully set out in the majority opinion. I differ with the majority in the effect of the evidence that was before the jury and the inferences that the jury could have drawn from the same.
Texas law is clear that a Sheriff is fully responsible for the care of those placed in his custody.
From the facts as we know them, Lozano’s condition was such that he should not have been kept in a Texas county jail but in a mental institution. Two things kept Lozano from being transferred to a mental institution; (1) was the pending charges of aggravated assault on a peace officer brought by the Sheriff’s own deputies. The evidence tends to show that it was the district attorney who refused to dismiss the felony charges and he unfortunately was not a party to this lawsuit. There is no evidence that the Sheriff himself intervened in any way to see that these charges were dismissed as to Lozano. Everyone should have realized that because of his condition, Lozano could never be convicted of the felony charges against him, and (2) the evidence shows that the MHMR facility in Odessa was willing to keep Lozano in their facility but they wanted a guard with him at all times and the Sheriff’s office made the decision that they could not spare the personnel for this purpose. I am sure that the Sheriff was made aware of this. If his budget was such that he could not hire people to guard Lozano at the MHMR facility, he could have easily approached the county commissioner’s court for an amendment to his budget, but there is no evidence that he even attempted to do so. I agree with the appellants that the Sheriff’s failure to supervise those under his care in this case was gross negligence and a manifestation of his deliberate indifference. While there was no actual finding by the jury in this regard, such a finding is implicit in the finding that it made and the same should not have been set aside by the court below.
The trouble with the majority opinion is that it focuses on what happened on the fatal night of January 22 and the actions of the Sheriff himself on that occasion. I firmly believe that what happened on January 22 would never have happened if the Sheriff had taken the necessary steps to have Lozano put in a mental institution where he could have been kept under medication to avoid the necessity of having to subdue him because of his condition. This is why I would not have set aside the finding against the Sheriff. The finding of the jury of no damages is clearly erroneous. A violation of a constitutional right always causes at least nominal damages which also entail the granting of costs and attorneys fees.
I would therefore reverse as the majority the case against officers Tenney and Perkins both on the issue of liability and damages. I would reverse the court below and let the jury verdict against the Sheriff stand and remand it as to him on the issue of damages.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471265. Public record. Not legal advice.