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describing alleged failure of deputies and officers of the El Paso County Sherriff's Department to provide proper care, after a physical altercation, to Robert Gallegos, an individual whom the “Jail Annex psychologist [had] diagnosed” with a “cognitive disorder”; Mr. Gallegos died
Summary of this case from Disability Rights Tex. v. PacillasOpinion
EP-19-CV-277-KC
02-27-2020
Rosario FELIZ, Independent Administrator and Personal Representative of the Estate of Robert Gallegos, Deceased, Plaintiff, v. EL PASO COUNTY, Texas; and Unknown Deputies and Officers of the El Paso County Sheriff's Department, Defendants.
Daniela Labinoti, Law Firm of Daniela Labinoti, P.C., Brett Allen Duke, Brett Duke, P.C., El Paso, TX, for Plaintiff. Ruben Gabriel Duarte, El Paso County Attorney's Office, El Paso, TX, for Defendants.
Daniela Labinoti, Law Firm of Daniela Labinoti, P.C., Brett Allen Duke, Brett Duke, P.C., El Paso, TX, for Plaintiff.
Ruben Gabriel Duarte, El Paso County Attorney's Office, El Paso, TX, for Defendants.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered Defendant El Paso County, Texas's Motion to Dismiss for Failure to State a Claim, ECF No. 2. For the reasons set forth herein, the Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
This is a civil rights case filed by Plaintiff Rosario Felix, as the independent administrator and personal representative of the estate of Mr. Robert Gallegos, who died while in the custody of El Paso County, Texas (the "County"). Defendants are the County and unknown deputies and officers of the El Paso County Sheriff's Department. The following facts are derived from Plaintiff's Original Petition, ECF No. 1, which was filed in Texas state court, and are taken as true for the purposes of adjudicating the Motion to Dismiss. See Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002).
Plaintiff identifies herself as Rosario Felix. See, e.g. , Original Petition, ECF No. 1. However, Defendant El Paso County, Texas listed her name as Rosario Feliz when it removed the case to this Court. Notice of Removal, ECF No. 1. Therefore, while the caption reflects Rosario Feliz as the Plaintiff, the Court refers to her as Rosario Felix.
Plaintiff also alleges that "Richard D. Wiles is the El Paso County Sheriff ("Wiles") that commands the Jail Annex. Wiles is a policymaker of Defendant County and a policymaker and responsible for policy making at the Jail Annex." Original Pet. ¶ 3, ECF No. 1. Wiles is not initially identified as a Defendant, he is not included in the caption, and he does not appear to have been served with process. See id. Elsewhere in the Original Petition, however, he is referred to as "Defendant Wiles." See, e.g., id. ¶¶ 30, 33, 35. To the extent that Plaintiff has sued Wiles in his official capacity, "[a] claim against an officer in his official capacity is treated as a claim against the municipality." Jordan v. Brumfield , 687 F. App'x 408, 415 (5th Cir. 2017) (citing Brooks v. George County , 84 F.3d 157, 165 (5th Cir. 1996) ). And, none of Plaintiff's allegations suggest that Wiles has been sued in his individual capacity. The Court, therefore, does not construe the references to "Defendant Wiles" to bring any claims against him.
Mr. Gallegos was arrested on an unspecified date on unspecified charges and detained at the El Paso County Jail Annex, located at 12501 East Montana, El Paso, Texas 79938 (the "Jail Annex"). See Original Pet. ¶¶ 3, 8. On July 14, 2016, a Jail Annex psychologist diagnosed Gallegos with an "Unspecified Cognitive Disorder Due to Chronic Alcohol Use and Alcohol Dependence, in a Controlled Environment." Id. ¶ 9. On September 6, 2016, Gallegos was found incompetent to stand trial, and on January 26, 2017, his diagnosis was changed to "Mild Neurocognitive Disorder, brain injury, Depressive Disorder NOS; and Alcohol Dependence in a Controlled Environment." Id. ¶¶ 8, 11. On seven occasions between September 17, 2016, and June 10, 2017, "Defendants identified Gallegos as a special needs inmate with possible mental illness, developmental disability and/or suicidal tendencies/ideation." Id. ¶¶ 10, 12.
At some point during his detention, Gallegos was housed in the same cell as a man identified only as "Chacon," who is allegedly "schizophrenic." Id. ¶ 13. On September 7, 2017, Chacon initiated an altercation with Gallegos by flipping a food tray at him. Id. ¶ 14. Gallegos slapped Chacon, who then punched Gallegos. Id. After the fight, Defendants returned Gallegos and Chacon to the same jail cell. See id. ¶¶ 13–15. In the early hours of the following morning, Chacon attacked Gallegos while Gallegos slept. Id. ¶ 15. Gallegos was brought to the emergency room at University Medical Center in El Paso, and then returned to the Jail Annex, where he was placed in solitary confinement. Id. ¶ 17.
That day, September 8, 2017, Gallegos was prescribed Claritin, Tylenol 3, and Cephalexin. Id. ¶ 18. Defendants did not provide this medicine to Gallegos as prescribed or in accordance with the instructions of physicians, and at least some of the prescribed medicine was not given to Gallegos at all. Id. ¶¶ 21; 52. On September 11, 2017, Gallegos reported vomiting and abdominal pain, but Defendants refused to provide him with adequate treatment. Id. ¶¶ 19, 21–22, 52. Defendants also failed to observe Gallegos every thirty minutes, which is allegedly required by minimum jail standards for "inmates known to be assaultive, potentially suicidal, mentally ill, or who have demonstrated bizarre behavior." Id. ¶ 22. Defendants failed to conduct the required thirty-minute observations multiple times, on one occasion failing to observe Gallegos for over eleven hours. Id.
Then, on September 16, 2017, at 4:30 a.m., Gallegos was found without a pulse and declared dead shortly thereafter. Id. ¶¶ 20, 24. His cause of death was recorded as "Peritonitis due to Ruptured Bowel." Id. ¶ 20.
Plaintiff alleges that "Peritonitis is the inflammation of the peritoneum, typically caused by bacterial infection either via the blood or after rupture of an abdominal organ." Id.
Plaintiff alleges that on October 30, 2017, the Texas Commission on Jail Standards (the "TCJS") determined that the Jail Annex violated several of its standards in connection with its custody of Mr. Gallegos, including:
a. Failure to provide procedures for the distribution of prescriptions in accordance with written instructions from a physician by an appropriate person designated by the sheriff/operator;
b. Failure to follow medical instructions of designated physicians;
c. Failure to separate health records reflecting all subsequent findings, diagnosis, treatment, disposition, special housing assignments, medical isolation, distribution of medications, and the name of any institution to which the inmates' health records has [sic] been released;
d. Failure of observation that shall be performed at least every 30 minutes in areas where inmates known to be assaultive, potentially suicidal, mentally ill, or who have demonstrated bizarre behavior are to be confined. Defendants failed to conduct visual fact [sic] to face observation of inmates in separation cells in accordance with minimum jail standards. Regarding Gallegos, Defendants exceeding [sic] the observations by as few as 2 minutes and by as many as 11 hours and 7 minutes.
Id. ¶ 25.
Officers employed at the Jail Annex were allegedly arrested for tampering with records after Gallegos's death. Id. ¶ 26. The Jail Annex took corrective action in response to the findings of the TCJS, but as of January 30, 2018, still failed to comply with all state standards. Id. ¶¶ 28–29.
II. DISCUSSION
A. Standard
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun , 312 F.3d at 733 ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).
B. Analysis
Plaintiff seeks to hold the County liable for Gallegos's death through three sets of claims: 1) for violation of Gallegos's Eighth and Fourteenth Amendment rights, under 42 U.S.C. § 1983 ; 2) for discrimination against Gallegos as a disabled individual under the Rehabilitation Act, 29 U.S.C. § 794, and the Americans With Disabilities Act (the "ADA"), 42 U.S.C. §§ 12131 et seq. ; and 3) for the negligent use of tangible personal and real property, under the Texas Tort Claims Act (the "TTCA"), Tex. Civ. Prac. & Rem. Code § 101.001 et seq. (West 2019). The County seeks dismissal of all three causes of action, and the Court considers the County's arguments with respect to each claim in turn.
1. Plaintiff's constitutional claims under § 1983
The County makes two arguments for dismissal of Plaintiff's § 1983 claims. First, it argues that Plaintiff has not adequately alleged that Gallegos's Eighth or Fourteenth Amendment rights were violated. Specifically, the County argues that Plaintiff fails to adequately allege that any individual Defendant officers acted with deliberate indifference to Gallegos's medical needs, and that Gallegos simply had no constitutional right not to be housed with Chacon or placed in solitary confinement. Mot. ¶¶ 12–14. Second, the County argues that even if Gallegos's rights were violated, Plaintiff has not identified a municipal policy or a nexus between any such policy and Gallegos's death. Id. ¶¶ 15–21. Plaintiff responds that the factual allegations in her Original Petition describe cognizable constitutional violations and identify the specific municipal policies and practices pursuant to which they were carried out. Resp. 4–8.
As a preliminary matter, while "[t]he standard is the same as that for a prisoner under the Eighth Amendment," § 1983 claims brought on behalf of pretrial detainees invoke the protections of the Fourteenth Amendment. Cadena v. El Paso County , 946 F.3d 717, 727 (5th Cir. 2020). Thus, to the extent that Plaintiff brings a separate Eighth Amendment claim, the County's Motion to Dismiss is granted as to that claim.
Fourteenth Amendment "[c]onstitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a ‘condition of confinement’ or as an ‘episodic act or omission.’ " Shepherd v. Dallas County , 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare v. City of Corinth , 74 F.3d 633, 644–45 (5th Cir. 1996) ). The conditions-of-confinement test applies where "the wrong of which the detainee complains is a general condition of confinement." Scott v. Moore , 114 F.3d 51, 53 (5th Cir. 1997). "Prior conditions cases have concerned durable restraints or impositions on inmates' lives like overcrowding, deprivation of phone or mail privileges, the use of disciplinary segregation, or excessive heat." Garza v. City of Donna , 922 F.3d 626, 633–34 (5th Cir. 2019).
Episodic-acts-or-omissions cases, on the other hand, seek to redress harms arising from the "particular act or omission of one or more officials," rather than harms that result directly from an unconstitutional policy, practice, or rule of the institution. Id. at 632 (quoting Scott , 114 F.3d at 53 ). Whereas conditions-of-confinement claims challenge the constitutionality of pervasive, systemic policies and customs themselves; episodic-acts-or-omissions claims challenge the constitutionality of the way in which a policy or custom was applied by a jail official in a particular instance. See Estate of Henson v. Wichita County , 795 F.3d 456, 466–67 (5th Cir. 2015).
Plaintiff alleges five § 1983 claims, some of which fall under a conditions-of-confinement theory, and others under an episodic-acts theory. See Original Pet. ¶¶ 30–40, 50–56. These five claims include 1) a conditions-of-confinement claim for the failure to conduct regular observations; 2) a conditions-of-confinement claim for the failure to provide prescription medication; 3) an episodic-acts-or-omissions claim for failing to respond adequately to Gallegos's complaints of pain and vomiting; 4) an episodic-acts-or-omissions claim for failing to protect Gallegos from Chacon; and 5) a claim for placing Gallegos in solitary confinement that does not fall under either theory.
a. Conditions-of-confinement claims
As pertains to Plaintiff's conditions-of-confinement claims, the County argues that Plaintiff's allegations do not adequately attribute Gallegos's death to any identifiable County policy or custom. Mot. ¶¶ 15–21.
Because pre-trial detainees have not been convicted of a crime, conditions of confinement that "amount to punishment of the detainee" are unconstitutional. See Cadena , 946 F.3d at 727 (quoting Bell v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ). And, "if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment." Garza , 922 F.3d at 632 (quoting Bell , 441 U.S. at 539, 99 S.Ct. 1861 ). That is, in order to prevail on a conditions-of-confinement claim, a plaintiff does not need to show that any individual state actor or municipal entity acted knowingly or intentionally. See Estate of Henson , 795 F.3d at 463. An actionable condition may be an explicit policy or "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.’ " Shepherd , 591 F.3d at 452 (quoting Hare , 74 F.3d at 645 ). Altogether, then, to succeed on a conditions-of-confinement claim, a plaintiff must satisfy a three-element test, proving:
(1) a rule or restriction or the existence of an identifiable intended condition or practice or that the jail official's acts or omissions were sufficiently extended or pervasive; (2) which was not reasonably related to a legitimate governmental objective; and (3) which caused the violation of the inmate's constitutional rights.
Cadena , 946 F.3d at 727 (cleaned up) (quoting Duvall v. Dallas County , 631 F.3d 203, 207 (5th Cir. 2011) ); accord Montano v. Orange County , 842 F.3d 865, 874 (5th Cir. 2016).
The County argues that it "can only speculate as to the informal custom and practice utilized by the detention officers." Mot. ¶ 21. However, Plaintiff's Original Petition describes the alleged practices in considerable detail. Specifically, two of Plaintiff's sets of allegations sound in the conditions-of-confinement theory. First, she alleges that officials routinely failed to provide detainees at the Jail Annex with medicine as prescribed and ordered by medical professionals. Second, Plaintiff alleges that jail officials routinely failed to make face-to-face observations with high-risk detainees every thirty minutes, as required by state jail standards. In both cases, Plaintiff alleges that various jail officials pervasively failed to properly medicate and observe detainees at the Jail Annex, not just that one or more individual Defendants failed to properly medicate or observe Gallegos.
Plaintiff's allegations of unconstitutional de facto policies are corroborated by her identification of the Texas Commission on Jail Standards October 30, 2017, report (the "TCJS Report"), as well as the case of Plecas-Perrin v. El Paso County , No. 3:19-cv-165-FM, Order, ECF No. 17 (W.D. Tex. Sept. 30, 2019). The TCJS report allegedly found that Jail Annex staff routinely failed to follow the medical instructions of designated physicians and failed to perform adequate face-to-face observation of inmates. Original Pet. ¶ 25(b), (d). The Fifth Circuit has found that Government reports that identify pervasively inadequate jail conditions are precisely the sort of evidence that enables conditions-of-confinement claims to proceed past the summary judgement stage. See Shepherd , 591 F.3d at 450–53.
And, the Plecas-Perrin case represents an example of another recent death of a Jail Annex inmate with mental-health-related disabilities, which allegedly involved the County's failure to perform adequate observations and provide adequate medical services. See Plecas-Perrin , No 3:19-cv-165-FM, September 30, 2019, Order 11. While "specific examples of other instances of detainees who suffered [the same] fate.... are not required to meet the ‘condition or practice’ element," Montano , 842 F.3d at 876, the Plecas-Perrin case serves to further corroborate the allegation that Gallegos's death was not merely an isolated incident. See Shepherd , 591 F.3d at 454 ; cf. Sanchez v. Young County , 866 F.3d 274, 280 (5th Cir. 2017) (upholding summary judgment dismissal where "[p]laintiffs offered no evidence about the alleged mistreatment of any other detainees at [the jail]").
Moreover, district courts in the Fifth Circuit have denied Rule 12(b)(6) motions to dismiss conditions-of-confinement claims based on the inadequate provision of medical services, even where the plaintiff identifies neither a report nor an example of similar conduct to corroborate the existence of a pervasive practice. See, e.g. , Borden v. Fort Bend County , No. H-19-551, 2019 WL 6344473, at *19 (S.D. Tex. Nov. 17, 2019) ; Rodriguez v. Bexar County , No. SA-18-CV-248-XR, 2018 WL 4431433, at *11–12 (W.D. Tex. Sept. 17, 2018). Plaintiff's well-pleaded allegations satisfy the first element of her two conditions-of-confinement claims because, if true, they demonstrate that Gallegos's death was symptomatic of pervasive practices, and not just an isolated incident. See Cadena , 946 F.3d at 727.
Second, the County's de facto policies are not reasonably related to any legitimate governmental objective. See id. Certainly, the County has a valid interest in ensuring that detainees are available for trial, as well as in effectively managing and maintaining secure, orderly facilities. Bell , 441 U.S. at 534, 540, 555–60, 99 S.Ct. 1861. However, pre-trial detainees have the "right to be free from punishment [and] an understandable desire to be as comfortable as possible during [their] confinement, both of which may conceivably coalesce at some point." Id. Furthermore, "detainment itself ... requires that the State provide for inmates' basic human needs." Shepherd , 591 F.3d at 453. Thus, a "jail's gross inattention to the needs of [its] inmates ... [i]n the absence of any legitimate penological or administrative goal, [ ] amounts to punishment." Id. at 454. More specifically, "pretrial detainees are entitled to reasonable medical care unless the failure to supply that care is reasonably related to a legitimate governmental objective." Hare , 74 F.3d at 642 (quoting Cupit v. Jones , 835 F.2d 82, 85 (5th Cir. 1987) ).
Here, Plaintiff alleges that the County's pervasive failure to adequately observe high-risk inmates and its failure to provide medication as prescribed amounted to punishment. See Original Pet. ¶¶ 51, 54. The County does not argue that its alleged failures were justified by any legitimate governmental objective. See generally Mot. Moreover, that the Jail Annex was apparently censured in the TCJS report for both de facto policies supports Plaintiff's position that they were unjustified. See Original Pet. ¶¶ 25, 27–28. A jail's unexplained failure to provide adequate medical care, including its failure to provide detainees with their prescription medication, may fall short of serving a legitimate governmental objective. See Shepherd , 591 F.3d at 450–51, 455 & n.3 (affirming jury verdict finding the same). Plaintiff's well-pleaded allegations satisfy the second element of her conditions-of-confinement claim because, if true, they demonstrate that the County's pervasive practices served no legitimate governmental objective. See Cadena , 946 F.3d at 727.
Lastly, the County's de facto policies caused the deprivation of Gallegos's constitutional rights; namely, his death. See id. The causation element is often what distinguishes conditions-of-confinement claims from episodic-acts-or-omissions claims. See Estate of Henson , 795 F.3d at 464. For instance, in Scott , an episodic-acts-or-omissions claim, a pretrial detainee was sexually assaulted by a jailer. 114 F.3d at 53–54. The Fifth Circuit found that the officer who assaulted her was the direct cause of the plaintiff's constitutional injury. See id. at 53. While inadequate staffing policies created the "general conditions" that enabled the assault, the plaintiff "did not suffer from the mere existence of the alleged inadequate staffing, but only from [the jailer's] specific sexual assaults." Id. On the other hand, in Shepherd , a conditions-of-confinement case, "the jail's evaluation, monitoring, and treatment of inmates with chronic illness was, at the time of [the plaintiff's] stroke, grossly inadequate due to poor or non-existent procedures and understaffing of guards and medical personnel, and these deficiencies caused his injury." 591 F.3d at 453. In Shepherd , no individual jailer was "interposed" between the detainee's injury and the municipality; instead, the plaintiff suffered a stroke because of the confluence of various systemic failures. See id. at 452–53.
Here, as in Shepherd , Plaintiff alleges that Gallegos died as a result of a series of systemic failures at the Jail Annex; namely, repeated failures to provide him with prescribed medication and repeated failures to observe him at the interval mandated by TCJS. As in Shepherd , these allegations implicate the Jail Annex's broader "evaluation, monitoring, and treatment" of its inmates. See 591 F.3d at 453. Unlike Scott , no one jailer is plainly interposed between the detainee's injury and the municipality. See 114 F.3d at 53.
At this stage, taking Plaintiff's well-pleaded allegations as true, she has plausibly alleged that the shortcomings of a diffuse system, rather than the misconduct of any individuals, caused Gallegos's death. See Shepherd , 591 F.3d at 453. Therefore, she has adequately alleged causation. See Cadena , 946 F.3d at 727. And, because Plaintiff has satisfied all three elements, the County's motion to dismiss is denied as to her conditions-of-confinement claims. See id.
b. Episodic-acts-or-omissions claims
Unlike a conditions-of-confinement claim, an episodic-acts-or-omissions claim "faults specific jail officials for their acts or omissions." Estate of Henson , 795 F.3d at 463 (quoting Shepherd , 591 F.3d at 452 ). "To establish municipal liability in an episodic-act case, a plaintiff must show ‘(1) that the municipal employee violated the pretrial detainee's clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference.’ " Garza , 922 F.3d at 633 (quoting Brumfield v. Hollins , 551 F.3d 322, 331 (5th Cir. 2008) ).
On the first element, "[a] jail official violates a pretrial detainee's constitutional right to be secure in his basic human needs only when the official had ‘subjective knowledge of a substantial risk of serious harm’ to the detainee and responded to that risk with deliberate indifference." Estate of Henson , 795 F.3d at 463 (quoting Hare , 74 F.3d at 650 ). Deliberate indifference presents a high bar; "[n]egligence or even gross negligence is not enough." Campos v. Webb County , 597 F. App'x 787, 792 (5th Cir. 2015). Rather, "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." Garza , 922 F.3d at 634–35 (quoting Farmer v. Brennan , 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). The official need not intend to harm the plaintiff in order to be liable. Id.
As to the second element, in order to attribute liability for the episodic acts or omissions of a jail employee to the municipality, the plaintiff must first identify a policy. Id. at 633 (quoting Brumfield , 551 F.3d at 331 ). A policy need not be embodied in an official, written statement. Id. at 637. Instead, a policy may take the form of "a widespread practice that is ‘so common and well-settled as to constitute a custom.’ " James v. Harris County , 577 F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski v. City of Houston , 237 F.3d 567, 579 (5th Cir. 2001) ). Second, the plaintiff must identify a policymaker. Brumfield , 551 F.3d at 331. Third, the plaintiff must show that the policymaker adopted or maintained the policy with objective deliberate indifference. Garza , 922 F.3d at 633. Unlike the subjective deliberate indifference standard applied to the conduct of the individual officers, "[t]he objective deliberate indifference standard ‘considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the [pretrial detainee's] rights.’ " Brumfield , 551 F.3d at 331 (alteration in original) (quoting Lawson v. Dallas County , 286 F.3d 257, 264 (5th Cir. 2002) ). Lastly, the plaintiff must satisfy a causation requirement, by showing that the policy was the " ‘moving force’ behind the municipal employee's allegedly unconstitutional act." Brumfield , 551 F.3d at 331 (quoting Piotrowski , 237 F.3d at 578 ).
Plaintiff brings two episodic-acts-or-omissions claims. The first hinges on allegations that unknown Defendants failed to protect Gallegos from Chacon, by returning the two to the same cell after Chacon had attacked Gallegos earlier that day. The second is rooted in the allegation that unknown Defendants denied Gallegos adequate medical treatment after he complained of pain and vomiting.
i. Failure-to-protect
Plaintiff's claim that Defendants unconstitutionally housed Gallegos with Chacon when they knew that Gallegos would thus be placed in danger of further assault falls within the sub-category of "failure-to-protect claim[s]." See Neals v. Norwood , 59 F.3d 530, 533 (5th Cir. 1995). Prison and jail officials have a duty to protect prisoners and detainees from violence at the hands of other inmates. Leal v. Wiles , 734 F. App'x 905, 909 (5th Cir. 2018) (citing Farmer , 511 U.S. at 833–34, 114 S.Ct. 1970 ). In order to prevail on a failure-to-protect claim, a plaintiff "must show that he [was] incarcerated under conditions posing a substantial risk of serious harm and that [jail] officials were deliberately indifferent to his need for protection." Id.
Plaintiff alleges that Gallegos suffered serious injuries requiring treatment at a hospital when Chacon attacked him in his sleep. This meets the first requirement for a failure-to-protect claim; namely, that Gallegos was exposed to a substantial risk of serious harm. See Jason v. Tanner , 938 F.3d 191, 195 (5th Cir. 2019) ("[The plaintiff] sustained a serious head wound [, s]o his injury meets the first requirement of the Farmer standard.").
As to the second requirement, the Fifth Circuit has stated that where one inmate is "a known enemy of the other," it evinces subjective deliberate indifference for an officer to house the two together. See Branch v. Jacobs , 334 F. App'x 648, 649 (5th Cir. 2009). In Horton v. Cockrell , 70 F.3d 397 (5th Cir. 1995), another inmate attempted to extort the plaintiff through threats of violence. Id. at 399. The plaintiff refused, and the two fought. Id. The warden and a correctional officer were aware of the altercation but returned the two to the same wing of the prison. Id. Several days later, the other inmate attacked the plaintiff. Id. The Fifth Circuit held that a finder of fact could conclude that the defendant officer was deliberately indifferent to a serious risk of harm to the plaintiff. Id. at 401. Similarly, here, Plaintiff's allegation that unknown Defendants were aware of the fight between Chacon and Gallegos but nevertheless returned the two to the same room—not just the same wing—is sufficient to establish subjective deliberate indifference. See id.
Furthermore, failure-to-protect decisions finding that officers were not deliberately indifferent are distinguishable from the present allegations. In Alford v. Ward , 79 F. App'x 689 (5th Cir. 2003), the plaintiff was transferred to the same cell block as a prisoner with whom he had fought more than a year earlier. Id. at 691. The Fifth Circuit held that the officers could not be tasked with remembering the year-old complaints and perceiving a risk of harm to the plaintiff. Id. Here, by contrast, Defendants allegedly placed Gallegos and Chacon back in the same cell the very same day that the two exchanged blows. Original Pet. ¶ 14–15. Taking Plaintiff's allegations as true, the Court finds that Defendants were deliberately indifferent to a serious risk of harm to Gallegos. See Garza , 922 F.3d at 634–35.
However, Plaintiff's failure-to-protect claim fails to adequately attribute the officers' deliberate indifference to a policy or practice of the municipality. See id. Plaintiff alleges that the Jail Annex maintained a policy or widespread practice of "failing to assign cellmates to afford some degree of protection from attacks by fellow inmates." Id. ¶ 37(a). This conclusory allegation, without more, is insufficient. See Henderson v. Anderson , 463 F. App'x 247, 250 (5th Cir. 2012) (quoting Spiller v. Texas City Police Dep't , 130 F.3d 162, 167 (5th Cir. 1997) ) ("The description of a policy or custom and its relationship to the underlying constitutional violation ... cannot be conclusory; it must contain specific facts."). Neither the Plecas-Perrin case nor the TCJS report corroborate the existence of a policy of failing to protect inmates through reckless cellmate assignments. Without identifying any affirmative policy statement, and without any concrete factual allegations regarding the findings of an investigation, the statements of officers, or similar previous incidents to corroborate the existence of a pattern, Plaintiff's conclusory allegation that a policy or custom existed is inadequate. See Henderson , 463 F. App'x at 250. Therefore, while Plaintiff has stated a failure-to-protect claim against certain unnamed Defendants, the failure-to-protect claim against the County must be dismissed. See id.
ii. Denial of medical treatment
Plaintiff's second episodic-acts claim is based on the allegation that unnamed Jail Annex officers failed to provide Gallegos with medical care after he complained to them of vomiting and abdominal pain. "For an episodic act claim relying on an alleged denial or delay of medical care, [a detainee] can show deliberate indifference by demonstrating that an official ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.’ " Baughman v. Hickman , 935 F.3d 302, 309 (5th Cir. 2019) (quoting Perniciaro v. Lea , 901 F.3d 241, 258 (5th Cir. 2018) ). "A disagreement about the recommended medical treatment is generally not sufficient to show deliberate indifference, but the denial of recommended medical treatment is often sufficient to show deliberate indifference." Carlucci v. Chapa , 884 F.3d 534, 538 (5th Cir. 2018). A denial of medical care is only actionable if it results in substantial harm. Easter v. Powell , 467 F.3d 459, 464 (5th Cir. 2006).
Plaintiff alleges that Defendants refused to provide him with adequate medical care, despite his complaints of vomiting and abdominal pain. These allegations are, essentially, that unnamed Defendants "ignored his complaints." See Baughman , 935 F.3d at 309. Taking these allegations as true, Defendants were deliberately indifferent to a serious risk of harm to Gallegos. See Coleman v. Sweetin , 745 F.3d 756, 760–61, 766 (5th Cir. 2014) (finding that plaintiff showed deliberate indifference by alleging he was denied treatment and medication when he complained of severe pain). And, their deliberate indifference allegedly resulted in substantial harm to Gallegos because it caused his death. See Easter , 467 F.3d at 464. Thus, Plaintiff's allegations satisfy the first element of an episodic-acts-or-omissions claim against the County based on the denial of medical care. See Baughman , 935 F.3d at 309.
Turning to the second element, Plaintiff's allegations must satisfy four requirements, as described above: a policy, a policymaker, culpability, and causation. See Brumfield , 551 F.3d at 331. Plaintiff alleges the existence of a slew of different policies, in the form of both official policy statements and persistent, widespread practices. Original Pet. ¶¶ 35–37. As applies to the claim that Defendants ignored Gallegos's complaints of pain and vomiting, Plaintiff alleges that there was a policy or widespread practice at the Jail Annex of "failing to provide care to inmates with disabilities." Id. ¶ 37(j). Plaintiff also alleges that there was a policy of failing to properly train employees at the Jail Annex to recognize and respond to the needs of detainees with mental illness and medical conditions. Id. ¶ 37(l )–(o ). These allegations are bolstered by the Plecas-Perrin case, which also involved improper medical care of a detainee with mental-health-related disabilities. See Plecas-Perrin , No 3:19-cv-165-FM, September 30, 2019, Order 16–17. It is further corroborated by the TCJS report, which allegedly found pervasive failures in the Jail Annex's provision of health care and its treatment of inmates with disabilities. See Original Pet. ¶ 25.
"[A] plausible [municipal liability] claim requires more than a recitation of the incident in which the plaintiff was personally involved." Pena v. City of Rio Grande City , 879 F.3d 613, 622 n.14 (5th Cir. 2018). By pointing to the Plecas-Perrin case and the TCJS report, Plaintiff's allegations go beyond the incident in which Gallegos was personally involved. Therefore, they suffice to make the existence of a widespread practice plausible for the purposes of adjudicating the present Motion. See Pena , 879 F.3d at 622 n.14.
For a policymaker, Plaintiff identifies El Paso County Sheriff Richard D. Wiles. "Texas law is clear that a sheriff is a county's ‘final policymaker in the area of law enforcement,’ including county jails." Jimenez v. Brown , No. 5:13-cv-877-DAE, 2014 WL 7499451 at *12 (W.D. Tex. Jan. 8, 2014) (quoting Colle v. Brazos County , 981 F.2d 237, 244 (5th Cir. 1993) ); see also Tex. Loc. Gov. Code § 351.041 (West 2020) ("The sheriff of each county is the keeper of the county jail."). As the El Paso County Sheriff, Wiles is the policymaker for the Jail Annex. See Jimenez , 2014 WL 7499451, at *12.
Plaintiff also alleges that Wiles had the requisite level of culpability, "objective deliberate indifference," which "considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy." Brumfield , 551 F.3d at 331 (quoting Lawson , 286 F.3d at 264 ). Plaintiff alleges that Wiles knew or should have known that there was a pervasive practice of denying adequate medical treatment to disabled and mentally ill detainees at the Jail Annex. See Original Pet. ¶¶ 50, 52, 54. Where pervasive practices at a jail become so widespread and problematic that they attract the attention of outside actors, "farther removed from the jail than the Sheriff," it is plausible that the Sheriff should have been aware of such practices. See Alves v. Harrison County , No. 1:06-cv-912-LG-JMR, 2009 WL 10721162, at *6 (S.D. Miss. Feb. 23, 2009). Here, the allegations show that problems at the Jail Annex became sufficiently pervasive for TCJS, an outside actor from the state government, to conduct an investigation. This makes the allegation that Sheriff Wiles knew, or at the very least should have known, about the pervasive failure to provide medical care to disabled inmates at the Jail Annex, all the more plausible. See Brumfield , 551 F.3d at 331.
Furthermore, at the 12(b)(6) stage, at least one district court in the Fifth Circuit has held that plaintiffs need not allege any additional specific facts in support of an objective deliberate indifference allegation; deliberate indifference may be inferred from well-pleaded factual allegations of a widespread practice. See Quatroy v. Jefferson Par. Sheriff's Office , 2009 WL 1380196, at *8 (E.D. La. May 14, 2009) (citing Atchinson v. District of Columbia , 73 F.3d 418, 423 (D.C. Cir. 1996) ). While Plaintiff will ultimately need to prove that Sheriff Wiles maintained the policy with objective deliberate indifference, she has pleaded enough facts for the Court to infer as much at this stage. See id.
Lastly, Plaintiff has adequately alleged that the County's de facto policy of denying medical care to Gallegos and other mentally ill detainees was the moving force behind Gallegos's death. See Original Pet. ¶ 38. The moving force causation standard for municipal liability under § 1983 requires that the policy at issue " ‘be closely related to the ultimate injury’ and have ‘actually caused’ the constitutional violation complained of." Johnson v. Deep E. Tex. Regional Narcotics Trafficking Task Force , 379 F.3d 293, 310 (5th Cir. 2004) (quoting City of Canton v. Harris , 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). Thus, where an individual officer violates someone's constitutional rights for "[no] reason other than that he thought [the] decision to be appropriate in the light of his own training and experience," the municipality may not be held liable. See id. at 310–11.
Here, Plaintiff has alleged in detail that the unknown officers who ignored Gallegos's requests for treatment did so because of a pervasive practice within the Jail Annex of neglecting to provide adequate medical treatment to detainees with mental-health-related disabilities. Taking this allegation as true, the officers deferred to Jail Annex practice, rather than relying on their own judgment and experience, in deciding to deny medical care to Gallegos. See id. Thus, Plaintiff has adequately alleged that the County's de facto policy was the moving force behind Gallegos's death. See id. ; see also Sanchez v. Gomez , 283 F. Supp. 3d 524, 539 (W.D. Tex. 2017) ("It does not strike the Court as implausible that the widespread practice of excessive force against those exhibiting signs of mental illness directly caused this particular case of excessive force against a man exhibiting signs of mental illness."). And, because Plaintiff has alleged facts that make plausible each element of an episodic-acts claim for the denial of medical treatment, the County's Motion is denied as to that claim.
c. Placement in solitary confinement
Plaintiff's last § 1983 claim is based on the allegation that Gallegos was placed in solitary confinement as a matter of disciplinary segregation after the second altercation with Chacon. "With respect to placement in solitary confinement, it is settled law that disciplinary segregation .... does not give rise to a constitutional claim." Dehghani v. Vogelgesang , 229 F. App'x 282, 283–84 (5th Cir. 2007) (citing Sandin v. Conner , 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ). Because Plaintiff provides no allegations that would take this case out of the ambit of this well-settled rule, Plaintiff's § 1983 claim predicated upon the placement of Gallegos in solitary confinement is dismissed. See id.
In sum, the County's Motion to Dismiss is denied as to Plaintiff's § 1983 conditions-of-confinement claims based on the failure to provide prescription medications and the failure to conduct regular observations. The Motion is also denied as to Plaintiff's § 1983 episodic-acts claim based on the failure to provide medical treatment to Gallegos when he complained of pain and vomiting. The Motion is granted, however, as to Plaintiff's § 1983 claims predicated on the failure to protect Gallegos from Chacon and the placement of Gallegos in solitary confinement.
2. Disability discrimination
Next, the County argues that Plaintiff's disability discrimination claim must be dismissed because she has not sufficiently alleged that Gallegos was discriminated against nor that any discrimination occurred because of his disability. Mot. ¶¶ 26–27. Plaintiff brings this claim under both Title II of the ADA and the Rehabilitation Act. Original Pet. ¶¶ 57–58. The same three-element test applies to make out a prima facie case under either statute. Cadena , 946 F.3d at 723 & n.1.
Plaintiffs need not make out a prima facie case in order for their discrimination claims to withstand Rule 12(b)(6) motions to dismiss. See Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511–15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; Johnson v. Halstead , 916 F.3d 410, 421 n.4 (5th Cir. 2019). In any event, Plaintiff has done so in this case.
[U]nder Title II or the Rehabilitation Act, a plaintiff must show ‘(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits or discrimination is by reason of his disability.’
Id. at 723.
The County does not dispute that Plaintiff qualifies as a disabled individual under the ADA. See Mot. ¶ 27. As to the second element, the County argues that "Plaintiff's pleading has not provided this Court with any support that Defendant denied decedent the benefits of jail services under its control." Id. Plaintiff alleges that Gallegos was denied services when he was not given the medicine that he had been prescribed and when he was denied medical care after complaining of pain and vomiting. Medical services provided by jails and prisons fall within the definition of "services" under the ADA and Rehabilitation Act. Cadena , 946 F.3d at 723 (citing Penn. Dep't of Corr. v. Yeskey , 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) ). Thus, Plaintiff's concrete, non-conclusory allegations that Gallegos was denied such services are sufficient to satisfy the second element of her disability discrimination claim at this stage of the litigation. See id.
On the third element, the County asserts that "Plaintiff does not allege that discrimination occurred because of decedent's disability." Mot. ¶ 27. Plaintiff does, however, allege that Defendants "intentionally discriminated against Gallegos because of his disability." Original Pet. ¶ 45. This concrete allegation is made plausible by the other factual contentions in Plaintiff's Original Petition. Jail Annex psychologists and other staff frequently identified and documented Gallegos as an inmate with "possible mental illness [or] development [sic] disability." Id. ¶ 12. When he was found incompetent to stand trial, the psychologist noted that Gallegos was unaware of his age or the current year. Id. ¶ 9. The Jail Annex's extensive record of Gallegos's disability, as well the more obvious manifestations of his disability, makes plausible the allegation that Jail Annex officers interacting with him knew about his disability.
Moreover, the TCJS report's findings of pervasive failures to properly treat and observe mentally ill inmates, including but not limited to Gallegos himself, further corroborates the allegation that he was denied medication and treatment because of his mental illness. See id. ¶ 25. The Plecas-Perrin case represents a similar, contemporaneous allegation of intentional discrimination against a mentally ill Jail Annex detainee, which also serves to enhance the plausibility of Plaintiff's allegations. See No 3:19-cv-165-FM, September 30, 2019, Order 16–17.
Plaintiff has adequately alleged that the County denied Gallegos medication and treatment because of his disability. See Hale v. King , 642 F.3d 492, 498–99 (5th Cir. 2011). Therefore, the County's motion to dismiss Plaintiff's claim under the ADA and the Rehabilitation Act is denied. See id.
3. The TTCA
The County next argues that Plaintiff's TTCA claim must be dismissed because it does not fall within the limited waiver of sovereign immunity effectuated by the TTCA. "A municipality, as a political subdivision of the state, is not liable for the acts or conduct of its officers or employees unless the municipality's common law immunity is waived by the [TTCA]." City of Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994). The TTCA waives a municipality's sovereign immunity for death or other injury "so caused by a condition or use of tangible personal or real property." Tex. Civ. Prac. & Rem. Code § 101.021(2) ; San Antonio State Hosp. v. Cowan , 128 S.W.3d 244, 245 (Tex. 2004) (holding that TTCA waiver covers claims for wrongful death); County of El Paso v. Dorado , 33 S.W.3d 44, 46–47 (Tex. App. 2000) (explaining that while counties are excluded from liability under the Wrongful Death Act, they may nevertheless be sued for wrongful death under the TTCA).
Plaintiff alleges that the County used tangible personal property—medication, food, food containers, cartons, pills, surveillance cameras, and clothing—as well as real property—the jail cell and surrounding area—in negligently causing Gallegos's death. See Original Pet. ¶¶ 49, 70–71. First, under Texas law, which this Court is bound to apply to Plaintiff's TTCA claim, the failure to administer medication amounts to a non-use, rather than a use, of tangible personal property. Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584–85 (Tex. 1996). A municipality therefore does not waive its sovereign immunity for such a claim. Id. ("We hold that [defendant's] failure to administer an injectionable drug is non-use of tangible personal property and therefore does not fall under the waiver provisions of the Act."); Kassen v. Hatley , 887 S.W.2d 4, 14 (Tex. 1994) (same). As to surveillance cameras, the Court infers that Plaintiff is referring to the County's failure to adequately monitor Gallegos. This is also, however, a non-use of property, and fails for the same reason as Plaintiff's claim for the failure to administer medication. See Kassen , 887 S.W.2d at 14.
As to the allegation that "Defendant County was negligent in the use of ... food, food containers, cartons ... and clothing," Original Pet. ¶ 49, Plaintiff provides no explanation or context as to how the County is alleged to have negligently misused such items to cause Gallegos's death. Nowhere else apart from this one sentence does the Original Petition mention food or clothing. Without any allegation as to how the County used food or clothing to injure Gallegos, Plaintiff has not stated a plausible claim that the County did so negligently.
Plaintiff's claim that Defendants used real property—the jail cell—to injure Gallegos when they negligently housed him in the same cell as Chacon, also fails under well-established Texas law. Where a detainee is injured by some intervening action that takes place after the detainee is locked in a jail cell, and not directly because of a negligently maintained physical condition of the jail cell itself, no cognizable TTCA claim arises. See Hardin Cty. Sheriff's Dep't v. Smith , 290 S.W.3d 550, 553 (Tex. App. 2009) ("Because a jail cell that confines its occupant is operating as intended, its use to confine a person lacks the required causal nexus if the cell merely provides the condition that made a personal injury possible."); Ordonez v. El Paso County , 224 S.W.3d 240, 244 (Tex. App. 2005) ("While not placing [the plaintiff] in the tank may have prevented him from being beaten, the tank itself was not the proximate cause of his injuries."). Because the cell merely provided the condition that made it possible for Chacon to attack Gallegos, the property was not a proximate cause of Gallegos's injuries within the meaning of the TTCA. See Smith , 290 S.W.3d at 553. Plaintiff does not allege that Gallegos was injured through the use of tangible or real property, as those terms are construed by Texas courts. See Kassen , 887 S.W.2d at 14 ; Smith , 290 S.W.3d at 553. Therefore, Plaintiff's TTCA claims must be dismissed.
4. Punitive Damages
The County also seeks an order that Plaintiff is not entitled to recover punitive damages. Mot. ¶¶ 28–29. Plaintiff seeks punitive damages only for her § 1983 claims. Original Pet. ¶ 76; Resp. 11 ("Plaintiff is not seeking punitive damages under the ADA."). In any event, punitive damages may not be awarded for claims under the relevant provisions of the ADA or Rehabilitation Act. Barnes v. Gorman , 536 U.S. 181, 189, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) ; McMillen v. New Caney Indep. Sch. Dist. , 939 F.3d 640, 647 n.1 (5th Cir. 2019). Nor are punitive damages available in lawsuits brought against municipal entities under § 1983. City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ; McMillen , 939 F.3d at 647 n.1. Plaintiff is not entitled to recover punitive damages from the County in this matter. See McMillen , 939 F.3d at 647 n.1. III. CONCLUSION
Punitive damages may, however, be levied against individual officers in a § 1983 action, under certain circumstances. Cowart v. Erwin , 837 F.3d 444, 455–56 (5th Cir. 2016).
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For the foregoing reasons, Defendant El Paso County, Texas's Motion to Dismiss, ECF No. 2, is GRANTED in part and DENIED in part. The Motion is GRANTED as to Plaintiff's TTCA claim, Plaintiff's § 1983 claim predicated upon his placement in solitary confinement, and Plaintiff's § 1983 failure-to-protect claim. The Motion is also GRANTED as to Plaintiff's Eight Amendment claims and any claims against Sheriff Wiles in his official capacity, to the extent that such claims have been brought. The Motion is DENIED as to the § 1983 conditions-of-confinement claim for the failure to conduct regular observations, the § 1983 conditions-of-confinement claim for the failure to administer prescription medication, and the § 1983 episodic-acts claim for the denial of medical treatment, as well as Plaintiff's claim under the ADA and the Rehabilitation Act.
IT IS FURTHER ORDERED that Plaintiff is not entitled to recover punitive damages from Defendant El Paso County, Texas, in this matter.