Forgan v. Howard County

Full title: GLENN FORGAN, JR., Individually and As Executor and/or Representative of…

Court: United States District Court, N.D. Texas, Abilene Division

Date published: Jul 29, 2005

Civil Action No. 1:04-CV-233-C (N.D. Tex. Jul. 29, 2005)

Opinion

Civil Action No. 1:04-CV-233-C.

July 29, 2005

ORDER

SAMUEL CUMMINGS, District Judge

On this date the Court considered:

(1) the Motion for Summary Judgment, filed May 2, 2005, by Defendants Sheriff Dale Walker, Mike Smith, and Adam Dunlap (collectively "Howard County Defendants" or "Defendants");

(2) Plaintiffs' Response, filed May 23, 2005, by Glenn Forgan, Jr., Glenda Forgan, and Robert Allen ("Plaintiffs");

(3) Defendants' Reply, titled Defendants' Objections to Plaintiffs' Response to Defendants' Motion for Summary Judgment Evidence and Reply to Response, filed on June 6, 2006;

(4) Plaintiffs' Sur-Reply, filed June 23, 2005; and

(5) Plaintiffs' Opposed Motion for Continuance on Ruling on Defendants' Motion for Summary Judgment, filed July 19, 2005.

I. PROCEDURAL HISTORY

Plaintiffs filed their Original Complaint on October 18, 2004. The Howard County Defendants filed their Original Answer on November 8, 2004. After a review of that Original Answer, the Court determined that Defendants Smith, Walker, and Dunlap had raised the issue of qualified immunity. The Court issued an Order on November 15, 2004, requiring the Plaintiffs to file a Rule 7(a) Reply to the assertion of qualified immunity by Defendants Smith, Walker, and Dunlap. Within the Court's November 15, 2004 Order, the Court ordered that "[a]ll discovery is stayed until further order of the Court" because the issue of qualified immunity had been raised.

Plaintiffs filed their Rule 7(a) Reply to Defendant Smith, Walker, and Dunlap's assertion of qualified immunity on December 6, 2004; however, on December 10, 2004, the Court issued a Notice of Deficiency and ordered that the Reply be unfiled for failure to contain the original signature of Plaintiffs' attorney of record. On December 28, 2004, Plaintiffs filed a Motion for Leave to Refile Plaintiffs' Reply to Defendants' Allegation of Qualified Immunity, which was granted on December 30, 2004, and Plaintiffs' Reply was filed that same date.

The Court is to review Plaintiffs' Reply to determine whether Plaintiffs have alleged facts within the Reply that, when viewed in a light most favorable to the Plaintiffs, if true, would overcome the defense of qualified immunity. See Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987). This heightened-pleading requirement required Plaintiffs to allege the particular facts forming the basis of their claim, including those facts that would prevent Defendants Smith, Walker, and Dunlap from successfully maintaining a qualified immunity defense. See Wicks v. Mississippi State Employment Serv., 41 F.3d 991, 995 (5th Cir. 1995). The Court found that, when taken as true, Plaintiffs had alleged conduct which, if proved, would defeat Defendants' qualified immunity. Thus, the Court permitted limited discovery "tailored to the issue of qualified immunity regarding Defendants Smith, Walker, and Dunlap." See Order dated January 10, 2005 (citing Geter v. Fortenberry (Geter I), 849 F.2d 1550, 1554 (5th Cir. 1988); Wicks, 41 F.3d at 995).

The Court also ordered that "[a]ny motion to dismiss or motion for summary judgment relating to the issue of qualified immunity shall be filed within thirty (30) days from the date of th[at] order, with any responses thereto to be filed in accordance with the Local Rules for the Northern District of Texas." See Order dated January 10, 2005. The Court went on to state that "[t]he Court will not consider a motion to dismiss or motion for summary judgment on the issue of qualified immunity that is not filed on or before such deadline." Id. ¹

1 The Court's order also stated that "[a]fter the issue of qualified immunity is resolved, an additional summary judgment motion on any or all remaining issues may be filed if need be." See Order dated January 10, 2005 (citing LR 56.2(b)); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("Even if the Plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts."); Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) ("Even if such limited discovery is allowed, at its end, the court can again determine whether the case can proceed and consider any motions for summary judgment under Rule 56.") (emphasis added). Thus, after being allowed time to conduct limited discovery on the issue of qualified immunity, the issue may be revisited on summary judgment. Such time for presenting motions to dismiss or for summary judgment are generally limited to 30 days after the Court's order allowing limited discovery so that the qualified immunity issue may be resolved at the earliest possible time in the litigation. See Crawford-El v. Britton, 523 U.S. 574, 599-600 (1998) ("Of course, the judge should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the official actually took, since that defense should be resolved as early as possible.").

The Howard County Defendants filed a motion for summary judgment on February 9, 2005. Plaintiffs filed a response to said motion on March 1, 2005, and did not file a motion for continuance prior to filing their Response. The Howard County Defendants filed Objections to Plaintiffs' Motion for Summary Judgment Evidence and Reply on March 14, 2005.

Plaintiffs also moved, on March 1, 2005, to file Plaintiffs' First Amended Original Complaint. On March 22, 2005, the Court ruled on said motion to amend by granting in part and denying in part Plaintiffs' request. The Court's denial in part went to the fact that Plaintiffs were attempting to continue to assert claims against Defendant Trooper Weldon Jones, named in the Original Complaint and dismissed by prior orders of the Court. See Order and J. dated February 1, 2005. Plaintiffs failed to timely appeal the Court's dismissal of claims against Defendant Jones. Thus, the Court directed Plaintiffs that they would be allowed to file their First Amended Original Complaint, but only as to the Howard County Defendants. Plaintiffs were ordered to prepare a First Amended Original Complaint and file it on or before 9:00 a.m. on April 1, 2005. The Court's March 22, 2005 Order also denied as moot the Howard County Defendants' Motion for Summary Judgment filed on February 9, 2005, because it addressed the Original Complaint, which was no longer the live pleading. The Court also denied as moot Defendants' Objections to Plaintiffs' Summary Judgment Evidence. The Howard County Defendants were instructed that they would have thirty (30) days after the filing of Plaintiffs' First Amended Complaint to re-file a motion for summary judgment addressing the live pleadings.

On April 1, 2005, Plaintiffs filed their First Amended Original Complaint, which added claims under the Texas Tort Claims Act and claims for equal protection violations under the Fourteenth Amendment to the Constitution of the United States. Defendants filed their Answer to the First Amended Original Complaint on April 18, 2005, again raising the defense of qualified immunity. On April 25, 2005, Defendants moved to file their Supplemental Answer to Plaintiffs' First Amended Original Complaint to add a defense under Section 101.106 of the Texas Civil Practice Remedies Code, applicable to Plaintiffs' Texas Tort Claims Act claims. The Court granted the Howard County Defendants' Motion to File Supplemental Answer by Order dated April 25, 2005.

On April 27, 2005, Plaintiffs filed their Unopposed Motion to Enlarge/Extend Deadline for Defendants to Re-file Their Motion for Summary Judgment. The Court reviewed said motion and denied it as moot because Plaintiffs' only request was for the opposing party's deadline to be extended, i.e., the Defendants' deadline to re-file their Motion for Summary Judgment. Within Plaintiffs' request, they stated that discussion and agreement had occurred to schedule the depositions of Defendants Walker and Smith for "the second and third weeks of May." See Pl. Mot. at ¶ 6. Thus, the Court concluded that the depositions would be completed prior to the date Plaintiffs' response would be due and therefore the request was moot.²

2 Moreover, Plaintiffs failed to make any mention of why the depositions had not been taken at an earlier date, as the issue of qualified immunity had been raised as early as November 8, 2004, in the Howard County Defendants' Original Answer. Nor did Plaintiffs indicate what information they sought to obtain by way of these depositions or how it might create a genuine issue of material fact. See, e.g., Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) ("[t]o obtain a continuance of a motion for summary judgment in order to obtain further discovery, a party must indicate to the court by some statement, preferably in writing (but not necessarily in the form of an affidavit), why he needs additional discovery and how the additional discovery will create a genuine issue of material fact.") (emphasis added). In addition, one deadline had already passed for a motion for summary judgment on the issue of qualified immunity because Defendants' (1st) Motion for Summary Judgment was mooted by way of the Court allowing Plaintiffs to amend their complaint. Thus, Plaintiffs had failed to complete the requested discovery which should have been completed prior to March 1, 2005 — the due date for filing Plaintiffs' Response to Defendants' (1st) Summary Judgment Motion. Plaintiffs' March 1, 2005 Response clearly shows that they were on notice because within that filing, Plaintiffs state that the depositions of Defendants Walker and Smith had not yet been taken. Only by the granting of Plaintiffs' Motion to Amend pleadings did Plaintiffs surreptitiously obtain more time to complete the depositions of Defendants Walker and Smith on the issue of qualified immunity. Plaintiffs were clearly on notice even as late as the Court's January 10, 2005 Order stating that summary judgment motions or motions to dismiss on the issue of qualified immunity would be due in 30 days. As of January 10, 2005, Plaintiffs had a full 50 days to complete discovery on the issue of qualified immunity before their response would be due (30 days for motion and 20 days for response). Moreover, by allowing Plaintiffs to amend their complaint and requiring Defendants to re-file their (2nd) Motion for Summary Judgment within 30 days after the filing of the amended complaint, Plaintiffs' response to said re-filed motion would not be due until May 23, 2005. Thus, Plaintiffs again were on notice by way of the Court's March 22, 2005 Order that discovery on the issue of qualified immunity should be completed prior to May 23, 2005 — the date Plaintiffs' response to the re-filed motion for summary judgment would be due.
Therefore, Plaintiffs were clearly on notice at several intervals regarding the issue of qualified immunity and thus the need for an expeditious discovery schedule as to that issue. A request for extension or continuance could not be said to have been made in good faith because the Plaintiffs were not diligent. Additionally, Plaintiffs had the resources available to them by way of the Federal Rules of Civil Procedure, which they failed to utilize, to obtain the depositions and any other discovery. See Walters v. City of Ocean Springs, 626 F.2d 1317, 1320-22 (5th Cir. 1980) (not abuse of trial court's discretion to deny continuance when non-diligent party failed to make use of various discovery mechanisms that are at his disposal); 10B Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2741 at 431-37 (3d ed. 1998). Finally, on May 3, 2005, the Court denied as moot Plaintiffs' request to extend the Defendants' deadline for re-filing the motion for summary judgment, and Plaintiffs' response to the motion was not due until May 23, 2005. Thus, Plaintiff still had 20 days to complete the discovery even after denial of the motion. The Fifth Circuit has determined that the period of time between the denial of a continuance and the actual time of a hearing on summary judgment presented sufficient time to complete the discovery. See Cormier v. Pennzoil Exploration Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (month period between denial of continuance and actual hearing sufficient time to have completed the discovery). As of the date of this Order, almost three months have passed since the Court's May 3, 2005 denial of Plaintiffs' request.

Defendants filed the pending Motion for Summary Judgment on May 2, 2005. Plaintiffs filed their Response on May 23, 2005, along with their attached Appendix in Support. On June 6, 2005, Defendants filed their Motion for Leave to File a Reply with attached Objections to Plaintiffs' Response to Defendants' Motion for Summary Judgment Evidence and Reply to Response, which was granted by Order dated June 7, 2005, also allowing Plaintiffs to file a surreply within 15 days of the order. Plaintiffs filed their Surreply on June 23, 2005, along with a Supplemental Appendix to Plaintiffs' Response to Defendants' Motion for Summary Judgment. The Supplemental Appendix was filed in an effort to correct an inadvertent failure to attach an exhibit to Plaintiffs' Appendix to Response. On July 19, 2005, Plaintiffs filed their Opposed Motion for Continuance of Ruling on Defendants' Motion for Summary Judgment. Defendants filed their Response to Plaintiffs' Motion for Continuance on July 28, 2005.

II. BACKGROUND

Plaintiffs filed suit arising out of the death of Richard Dunn Allen. Plaintiffs brought suit against Defendants Howard County, Howard County Sheriff's Department, Chief Jailer Mike Smith, Adam Dunlap, Sheriff Dale Walker, and Texas Department of Public Safety Trooper Weldon Jones,³ under 42 U.S.C. §§ 1983 and 1981, for the allegedly wrongful death of Richard Dunn Allen ("Mr. Allen" or "the Deceased"). Plaintiffs Glenda Forgan and Robert Allen bring their action as parents of the Deceased.⁴ Plaintiff Glenn Forgan, Jr. brings his action as the executor and/or representative of the estate of the Deceased. He also purports to bring his claims individually, although he has failed to clarify his standing to bring the claims individually.

3 The Court, by prior orders and judgments, has dismissed the claims against Texas Department of Public Safety Officer Weldon Jones.
The Court also notes that Plaintiffs' First Amended Original Complaint refers to Defendant Dunlap as a Deputy Sheriff. Defendant Dunlap's Affidavit states that such a title is incorrect and that he is in fact employed as a licensed jailer. See Def. App. in Supp. Mot. Summ. J. at p. 2.

4 The Fifth Circuit recognizes a parent's right to a cause of action under § 1983 to recover for injuries caused by the deprivation of a child's constitutional rights. See Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992).

Specifically, Plaintiffs allege deliberate indifference by the Defendants in that Defendants allegedly acted intentionally and with conscious indifference to Mr. Allen's rights guaranteed by the Fourteenth Amendment to the Constitution of the United States. Plaintiffs bring their constitutional claims solely under the Fourteenth Amendment to the Constitution of the United States. See Pl. First Amend. Orig. Compl. at ¶ 7. ("Pursuant to the Fourteenth Amendment to the United States Constitution, Plaintiffs were/are entitled to equal protection of all laws, which include the enforcement and implementation of all laws of the state of Texas. Defendants violated Plaintiffs constitutional rights through conscious and deliberate indifference to same.").⁵

5 Plaintiffs' Original Complaint contained claims pursuant to the Fifth and Eighth Amendments to the United States Constitution; however, those claims are no longer specifically included in Plaintiffs' First Amended Original Complaint. Compare Pl. Orig. Compl. at ¶ 35 (listing Eighth Amendment as well as Fifth and Fourteenth Amendments) with Pl. First Amend. Orig. Compl. (making no mention of the Eighth or Fifth Amendment). Thus, it is unclear if Plaintiffs are now attempting to advance only an equal protection claim or if they wish to also proceed with a safety and medical needs claim.

On or about January 25, 2004, Texas Department of Public Safety Officer Weldon Jones ("Defendant Jones") identified a vehicle on Interstate Highway 20 in Howard County, Texas, being driven and operated in a peculiar and confusing manner. The vehicle driven by Mr. Allen continued to back up, stop momentarily, and then pull forward a few feet. Mr. Allen repeated this process several times while being observed by Defendant Jones. After pulling behind the vehicle and approaching the driver, Defendant Jones observed that Mr. Allen's speech was slurred, his clothes were in disarray, and he was unsteady on his feet. Defendant Jones detected the smell of alcohol and attempted to administer a balance test, which Defendant Jones did not complete upon determining that Mr. Allen was too unsteady, while standing, to safely complete the test.

Mr. Allen was taken to Big Spring Jail, at which point he was asked to take a breathalyzer test. Mr. Allen was apparently confused and did not actually refuse to take the breathalyzer test; however, he could not make up his mind, and after a period of time, Defendant Jones interpreted Mr. Allen's indecision as a refusal to take the test. Mr. Allen was placed under arrest. Shortly after midnight, Mr. Allen was taken to Howard County Jail for booking and processing.

Defendant Jones asked Mr. Allen a series of questions. Mr. Allen disclosed the following to Trooper Jones when initially taken into custody: (1) when asked if he was ill, he responded by saying "very much so" and specifically stated that he suffered from anxiety, depression, panic disorder, and bipolar disorder; (2) when asked if he had had any injections or pills recently, Mr. Allen stated that he had recently taken Xanax and/or Paxil earlier that morning. See Pl. App. at p. 44.1; Pl. First Amend. Orig. Compl. at ¶¶ 13, 15 and 18.

Plaintiffs further allege that despite knowing this information, Defendant Jones failed to communicate to other Defendants that Mr. Allen was at high risk for suicide and that he should be continually monitored. Plaintiffs alternatively allege that Defendant Jones did communicate this information to the Howard County Sheriff's Department but the information was carelessly ignored. Mr. Allen was placed in a detoxification cell at the Howard County Jail at approximately 12:45 a.m. and remained there for approximately 30 minutes.

Defendant Dunlap, a jailer, then removed Mr. Allen from the detoxification cell at approximately 1:15 a.m. and continued the booking process. Plaintiffs allege that during the time Mr. Allen was being booked, he disclosed the following information to Defendant Dunlap indicating that Mr. Allen should have been considered a high risk for attempted suicide:

(1) He had received mental health services in the past for bipolar disorder.

(2) Mr. Allen said that he heard voices of family members when they were not present.

(3) Mr. Allen was listed as an individual who acted or talked in a strange manner.

(4) When asked if he had ever attempted suicide or had thoughts about killing himself, Mr. Allen replied, "Yes." When asked when, Mr. Allen replied, "Constantly." When asked why, he replied, "Why not?" When asked how, he replied, "Overdose."

(5) When asked if he had ever been so down that he could not do anything for more than a week, Mr. Allen stated, "Yes." And when followed up by the question "Do you feel that way now?" Mr. Allen replied, "Yes."

(6) Mr. Allen was asked if when not on drugs or drinking, did he ever go for days without sleep or had a long period in his life when he felt very energetic or excited. Mr. Allen replied, "Yes."

See Pl. App. at p. 42; Pl. First Amend. Orig. Compl. at ¶¶ 17-18; Def. App. at p. 11.

However, the following information was also noted during the booking process by Defendant Dunlap:

(1) When questioned as to whether he was "thinking about killing [him]self today," Mr. Allen specifically answered, "No."

(2) The arresting or transporting officer did not believe that Mr. Allen was a medical, mental health, or suicide risk.

(3) Mr. Allen also knew where he was, what season of the year it was, and how many months there are in a year.

(4) Mr. Allen did not seem unusually confused or preoccupied.

(5) Mr. Allen did not talk rapidly or seem to be in an unusually good mood or believe that he was a famous person or fictional figure.

(6) Mr. Allen's vocabulary did not seem limited, nor did he seem to have difficulty coming up with words to express himself.

(7) When asked if he had experienced a recent loss or death of a family member or friend or if he was worried about major problems other than his legal situation, Mr. Allen responded, "No."

(8) Mr. Allen was not observed as being extremely sad, apathetic, helpless, or hopeless.

See Pl. App. at p. 42; Def. App. at p. 11.

Defendant Dunlap also testified that Mr. Allen was laughing and wanting to make jokes. See Pl. App. at 44.88. Defendant Dunlap testified that, considering all the factors, he would classify Mr. Allen as a "risk" for suicide rather than as a "high risk" for committing suicide. See Pl. App. at p. 76. Defendant Dunlap placed Mr. Allen on a 15-minute watch. See Def. App. at p. 12 (showing the intervals between checks). Plaintiffs disagree with Defendant Dunlap's determination to place Mr. Allen on a 15-minute watch and allege that Mr. Allen should have been under a continuous watch and considered a "high risk" for suicide.

Mr. Allen was then placed in a "J-cell" next to the jailers' office so that he could be easily monitored. Mr. Allen questioned Defendant Dunlap about when a) he would get his money back that was taken from him during the booking process, b) he would be released the next morning, and c) he would be able to eat and take a shower. See Pl. First Amend. Orig. Compl. at ¶ 19; Def. App. at pp. 4 ¶ N, 6 ¶¶ Q-R, 8 ¶ Y. Mr. Allen also requested some reading material, either "a comedy or a Bible," and Defendant Dunlap provided him with a Bible. See Def. App. at p. 6 ¶ R. Defendant Dunlap removed the shower curtain from Mr. Allen's cell prior to placing him there. After being placed in his cell, Mr. Allen was checked on at least three occasions prior to the fourth check (at around 2:30 a.m.), in which he was found hanging in his cell. Mr. Allen had hanged himself with his jail clothes — the jail-issued trousers.

Defendant Dunlap attempted to cut Decedent loose with the help of another officer, Deputy Carter. See Pl. App. at pp. 44.4, 44.6 An attempt to take the pulse was performed and no pulse was found. Id. at p. 44.6. The other jailer, Irene Buchanan, at Deputy Carter's direction, released an inmate who stated that he knew how to perform CPR to help. Id. at pp. 44.4, 44.6. Defendant Dunlap and Deputy Carter went to retrieve a CPR mask from the jailers' office and place a medical emergency call for assistance. Id. The time to place the phone call and retrieve the CPR mask took approximately anywhere from "a matter of 10 seconds of getting back to the office to get right back out to the . . .," id. at p. 78, to "I wouldn't say it took me more than a minute. . . ." Id. at p. 92. Deputy Carter attempted to blow air into the lungs through the mask while the other inmate continued to do chest compressions until the EMS arrived. Id. at p. 44.6. A team of emergency medical technicians arrived at approximately 2:38 a.m. and attempted final resuscitation efforts, which were also unsuccessful. Id.

Defendant Jones's report following the incident states that "when he told me that he was under a doctor's care for bipolar, depression, and anxiety disorder, I thought to my self [sic] that if this guy has all these problems, I couldn't tell it." See Pl. App. at p. 44.3. Defendant Jones also states in his report that "[d]uring the booking process[,] he had a happy go lucky [sic] attitude and was even making jokes and laughing." Id. Defendant Jones "did not say that Mr. Allen needed any sort of special attention or treatment." See Def. App. at p. 3.

Defendants Sheriff Walker and Smith were not present on the night of Mr. Allen's incarceration and had no knowledge of the situation until they were notified after the fact. However, Plaintiffs allege that Defendants Walker and Smith were "personal[ly] involve[ed]" in Mr. Allen's death by way of the jail conditions, training, licensing, intake, screening, evaluation, detainment, and monitoring of Mr. Allen. See Pl. First Amend. Orig. Compl. at ¶ 28. Defendant Sheriff Walker is alleged to have failed to establish and teach the proper policies and procedure regarding potential high-risk suicides and also to have failed to ensure that jail personnel were trained to perform CPR. See id. at ¶¶ 38 and 45.

Plaintiffs also allege that the jail was overcrowded and inadequately staffed on the night of Mr. Allen's death. Defendant Dunlap had been employed as a jailer for approximately eight months. Defendant Dunlap attended an 80-hour course to obtain his jailers' certification. The other jailer on duty that night, Ms. Irene Buchanan, was beginning her first night on the job.

Plaintiffs allege violations of the Texas Commission on Jail Standards, the Texas Commission on Law Enforcement Officer's Standards and Education ("TCLEOSE"), and the Texas Council on Offenders with Mental Impairments ("TCOMI"). Defendant Howard County did maintain a policy regarding the booking of detainees, which included suicide-risk assessment factors and procedures. See, e.g., Pl. App. at pp. 35-39. Defendant Walker's predecessor apparently implemented the policy and Defendant Walker did not have a personal role in the drafting or formulation of the policy. Id. at 65; Def. App. at p. 17. Defendant Smith did not have a role in the development of the policy either. See Def. App. at p. 20. The policy was in place at the time of Decedent's suicide.

Plaintiffs allege that Howard County

(1) failed to ensure that its jail and/or jailer was following the Texas Jail Commission Standards;

(2) allowed the jail to be inadequately staffed and overcrowded;

(3) implemented a plan that allowed high-risk suicide detainees to be monitored on fifteen minute basis and be given clothes which are known to be used as a tool for suicide;

(4) failed to implement and train employees on the proper suicide protocols;

(5) failed to follow high-risk protocol; and

(6) failed to follow the TCLEOSE standards for having equipment related to resuscitation of individuals immediately available as well as having personnel trained to use the equipment.

See Pl. First Amend. Compl. at ¶¶ 40 and 43.

Finally, Plaintiffs allege claims by way of the Texas Tort Claims Act, Texas Civil Practice and Remedies Code § 101.021(2), in that Mr. Allen used his jail clothes issued to him by Howard County to commit suicide.

III. STANDARD

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. Absent such a showing, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas, 843 F.2d 172, 173-74 (5th Cir. 1988); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). If no factual showing is made in opposition to a motion for summary judgment, the district court is not required to search the record sua sponte for some genuine issue of material fact. In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims).

In cases where the defense of qualified immunity is raised, the moving party is not required to put forth evidence to meet its summary judgment burden for a claim of immunity. Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000). "It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity." Id. The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).

IV. DISCUSSION

A. Motion for Continuance

On July 19, 2005, Plaintiffs filed their Opposed Motion for Continuance of Ruling on Defendants' Motion for Summary Judgment and Brief in Support. Plaintiffs cite only one case in their Motion as a basis for granting a continuance. See Pl. Mot. Cont. at ¶¶ 8 and 13 (citing Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999)). In Bauer, the Fifth Circuit quoted prior precedence stating that "[t]o obtain a continuance of a motion for summary judgment in order to obtain further discovery, a party must indicate to the court by some statement, preferably in writing (but not necessarily in the form of an affidavit), why he needs additional discovery and how the additional discovery will create a genuine issue of material fact." Bauer, 169 F.3d at 968 (quoting Stultz v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir. 1996) (emphasis in original)). Although Federal Rule of Civil Procedure 56(f) states that "[s]hould it appear from the affidavits of a party opposing the motion . . .," the Fifth Circuit precedent quoted above apparently does not require the opposing party to file an affidavit in support of a request for continuance. Compare Bauer, 169 F.3d at 968 ("but not necessarily in the form of an affidavit") with Fed.R.Civ.P. 56(f) ("appear from the affidavits"). Thus, even though Plaintiffs failed to include an affidavit in support of their request, such a deficiency is apparently not fatal. See Bauer, 169 F.3d at 968.

The parties' comparative access to the witnesses or material relevant to the disposition of the Rule 56(f) motion is a particularly salient factor for the trial court to consider in exercising its discretion. Walters v. City of Ocean Springs, 626 F.2d 1317, 1321 (5th Cir. 1980). When an attorney evidently considers testimony to be absolutely crucial to the lawsuit and knows from the time that the defendants filed for summary judgment that he would have to proffer controverting summary judgment evidence, the attorney should use the devices available under the Federal Rules of Civil Procedure to ensure a form of evidence that is competent to raise a genuine issue of fact in a summary judgment proceeding. Id. at 1322. Moreover, if an attorney fails to take the depositions or subpoena the witnesses, Rule 56(f) will not be applied to aid the non-diligent party even when the nonmovant has complied with Rule 56(f)'s procedure for requesting a continuance. Id. This is because the nonmoving party has failed to make use of the various discovery mechanisms that were at its disposal. Id.

Plaintiffs request a continuance so that the depositions of Defendants Sheriff Dale Walker, Chief Jailer Mike Smith, Ms. Irene Buchanan, and Mike Averette may be taken "to discover information regarding the subjective awareness of facts and circumstances applicable to this case." See Pl. Mot. Cont. at ¶ 10.⁶ However, as Plaintiffs point out in the procedural history of this case included within their Motion for Continuance, and as the Court has specifically noted in footnote 2 supra, the issues of qualified immunity and summary judgment have been apparent in this case from at least January 10, 2005. Thus, pursuant to Walters, 626 F.2d at 1321, and the reasons cited above in the Court's denial of the Plaintiffs' prior request for more time in order to depose witnesses and conduct more discovery relevant to the issue of qualified immunity, see n. 2 supra, Plaintiffs' Motion is DENIED.

6 Plaintiffs are now requesting additional time to depose two new witnesses, Ms. Buchanan and Mr. Averette. Plaintiffs' prior requests and statements regarded only the depositions of Defendants Walker and Smith. Regardless of whom Plaintiffs now wish to depose, the Court's reasons are the same — Plaintiffs have had more than ample time and notice to complete discovery regarding the issue of qualified immunity.

Specifically, Plaintiffs have been dilatory and failed to use the resources available to them to obtain the discovery in a timely fashion. Plaintiffs have not offered any justifiable reason for such a delay in securing the depositions — especially since the procedural history and Plaintiffs' prior filings with this Court clearly indicate that Plaintiffs were aptly cognizant that the issue of qualified immunity might require Plaintiffs to conduct discovery relevant to meeting their burden of overcoming the proffered defense. See Order dated January 10, 2005 (citing Geter v. Fortenberry (Geter I), 849 F.2d 1550, 1554 (5th Cir. 1988); Wicks, 41 F.3d at 995; and ordering that "[a]ny motion to dismiss or motion for summary judgment relating to the issue of qualified immunity shall be filed within thirty (30) days from the date of this order, with any responses thereto to be filed in accordance with the Local Rules for the Northern District of Texas."); Anderson v. Creighton, 483 U.S. 635, 646 (1987) ("we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation") (emphasis added); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Moreover, the Court finds that Plaintiffs' dilatory tactics are not taken in good faith and to allow a continuance at this juncture would prejudice Defendants. The discovery pertinent to the issue of qualified immunity should have been completed by March 1, 2005 — the date Plaintiffs' response was due per the Court's January 10, 2005 Order.

Finally, "[i]t is the established law of this circuit that a plaintiff's entitlement to discovery prior to a ruling on a summary judgment motion may be cut off when, within the trial court's discretion, the record indicates that further discovery will not likely produce facts necessary to defeat the motion." See, e.g., Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990) (citing Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017 (5th Cir. 1983)).

B. Objections to Response ⁷ 1. Incomplete Appendix

7 Although it is not necessary to rule on the objections, the Court will review and make rulings on Defendants' objections. See, e.g., Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001) (a court should hold that it "need not rule on these challenges, because . . . even when this disputed evidence is admitted against [Defendants], and the disputed facts are viewed in favor of [the Plaintiffs], [it is obvious] that [Defendants] did not act with deliberate indifference to [Decedent's] serious medical needs").

As a preliminary matter, the Court will address Defendants' Objections to Plaintiffs' Response. Defendants' first objection deals with Plaintiffs' Appendix to their Response filed May 23, 2005. Specifically, Defendants contend that they were never properly served with the documents. Rather, Defendants assert that the documents had to be retrieved off PACER by the Defendants and that Plaintiffs' Appendix was still deficient in that Exhibit B, as referenced in the Response and Supporting Brief, was clearly not contained in PACER or served upon Defendants. A careful review of Plaintiffs' Appendix filed on May 23, 2005, shows Defendants' contentions to have merit. Plaintiffs' May 23, 2005 Appendix clearly was incomplete according to what was being referred to in Plaintiffs' Response and Brief. However, following this Court's grant of Defendants' request to file their Reply, which included the objections to Plaintiffs' Response and Appendix, Plaintiffs filed a Surreply and Supplemental Appendix on June 23, 2005. Plaintiffs' Supplemental Appendix to Plaintiffs' Response contained the inadvertently omitted Exhibit B, App. pp. 45-93, and left unchanged Exhibit A (Affidavit of Dr. Kiekbusch, App. pp. 1-44.90). Thus, Defendants' objection to Plaintiffs' Response on grounds that the Response and Brief in Support refer to an omitted Exhibit B are hereby OVERRULED. Plaintiffs have corrected their Appendix to include a copy of the referenced Exhibit B and have served a copy of Plaintiffs' Supplemental Appendix on the Defendants' counsel according to the Certificate of Service attached to the Supplemental Appendix.

2. Affidavit of Dr. Kiekbusch

Defendants also objected to the Exhibit A, the Affidavit of Dr. Richard G. Kiekbusch. See Def. Reply at pp. 2-3, on several grounds. The Court will address in turn each ground raised by Defendants in their Reply.

The Court notes that "the admissibility of expert testimony is governed by the same rules, whether at trial or on summary judgment." First United Financial Corp. v. United States Fidelity Guar. Co., 96 F.3d 135, 136-37 (5th Cir. 1996) (per curiam). Expert testimony will not salvage a plaintiff's case from summary judgment unless that testimony would be admissible into evidence. Viterbo v. Dow Chemical Co., 646 F. Supp. 1420, 1424 (E.D. Tex. 1986), aff'd, 826 F.2d 420 (5th Cir. 1987); Fed.R.Civ.P. 56(e). The fact that Federal Rule of Evidence 703 broadens the acceptable bases of expert opinion, "does not extend to `make summary judgment impossible whenever a party has produced an expert to support its position.'" Viterbo, 826 F.2d at 422 (quoting Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir. 1977)). This is because Federal Rule of Civil Procedure 56(e) is pertinent to situations in which expert opinion is used to combat a motion for summary judgment and provides in relevant part:

Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. . . .

See Fed.R.Civ.P. 56(e).

Thus, conclusory opinions by qualified experts are insufficient to defeat a motion for summary judgment. Viterbo v. Dow Chemical Co., 826 F.2d 420, 421 (5th Cir. 1987) ("Without more than credentials and a subjective opinion, an expert's testimony that `it is so' is not admissible."). In this instance, "the primary focus of [the Court's] analysis is not Rule 703 of the Federal Rules of Evidence, but rather Rule 56 of the Federal Rules of Civil Procedure." First United Financial Corp. v. U.S. Fidelity Guar. Co., 96 F.3d 135, 139 (5th Cir. 1996) (per curiam) (Garza, J., concurring). An opinion not published in the Federal Reporter also took a look at the issue:

"Rule 56(e) further limits the matter to be properly included in an affidavit to facts, and the facts introduced must be alleged on personal knowledge. Thus, ultimate or conclusory facts and conclusions of law, as well as statements made on belief or `on information and belief,' cannot be utilized on a summary-judgment motion." Wright, Miller Kane, Federal Practice Procedure: Civil 3d § 2738 (1998). This circuit adopted Wright, Miller Kane's reasoning in Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985), and reiterated the same point in Orthopedic Sports Injury Clinic v. Wang Laboratories, Inc., 922 F.2d 220 (5th Cir. 1991). [Expert]'s legal conclusions, therefore, were not valid summary judgment evidence. Because the court excluded only those portions of the affidavit that were useless at the summary judgment stage, the district court did not abuse its discretion. We affirm that ruling.

Crosby Memorial Hosp. v. Abdallah, 48 Fed. Appx. 102 (5th Cir. 2002).

"Rule 56(e) would not require that all materials relied on by expert witnesses be included in the summary judgment record. Rather, a party opposing a motion for summary judgment with an expert affidavit need only set forth in that affidavit ` specific facts showing that there is a genuine issue for trial.'" First United Financial Corp., 96 F.3d at 141 n. 10 (per curium) (Garza, J., concurring) (emphasis added). However, "an expert's opinion does not establish reasonableness as a matter of law." Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998). Thus, an expert's opinion cannot be used to establish "unreasonableness" as a matter of law either. But cf. id. (stating the opposite proposition). With all this in mind, the Court will address Defendants' specific objections to Dr. Kiekbusch's affidavit and attached exhibits.

First, Defendants object that the attachments to the Affidavit are not authenticated in any way. Specifically, Defendants argue that the documents numbered from page 22 to page 44.7 of Exhibit A are not authenticated. Federal Rule of Civil Procedure 56(e) requires that all papers or parts thereof referred to in an affidavit must be sworn or certified copies. See Def. Reply at 2; Fed.R.Civ.P. 56(e). Plaintiffs rebut that the documents objected to as unauthenticated are either "public records" or "authenticated as true and correct by Dr. Kiekbusch himself, based upon his personal knowledge as an expert and professor of/on issues regarding jail operation and administration, his personal knowledge of guidelines, policies and procedures contained in said documents." See Pl. Surreply at 5 (citing to Perez v. Alcoa Fujikura, Ltd., 969 F. Supp. 991 (W.D. Tex. 1997)). Although the issue is a close one on some of the documents, the Court finds that the attached documents which are public records have sufficient indicia of reliability. Thus, Defendants' objections based on authentication are OVERRULED. ⁸

8 The Court notes that Defendants did not object to Plaintiffs' submissions of deposition testimony on grounds of not being properly authenticated.

Second, Defendants argue that Rule 56(e) also requires that affidavits shall be made on personal knowledge and should state the basis for the personal knowledge. Defendants assert that while the Affidavit contains recitations that it is made on personal knowledge, a simple review indicates that it was not made on personal knowledge but based on things he read rather than on things of which he had personal knowledge. Defendants further contend that the Affidavit sets forth no facts whatsoever of which the affiant has personal knowledge. Plaintiffs counter that "[t]he opinions are based upon Dr. Kiekbusch's own expertise on issues regarding jail operations and administration, his personal knowledge of guidelines, policies and procedures at issue, a review of documents related to this case (most of which are public records), and their application to the facts of this case." See Pl. Surreply at 5.

The Court finds that Dr. Kiekbusch's affidavit cannot create a genuine issue of material fact as to the facts that occurred on the night of Mr. Allen's death. Dr. Kiekbusch was not present and cannot offer any testimony to create a genuine issue as to the facts that occurred that night. Thus, his affidavit is not relevant in that context. Rather, his affidavit is only relevant to assist the trier of fact with his knowledge and expertise on guidelines, policies, and procedures in jail operations and administration. Thus, to the extent that Plaintiffs are attempting to offer Dr. Kiekbusch's affidavit to create a genuine issue of material fact as to the facts that occurred on the night of Mr. Allen's suicide, Defendants' objection is SUSTAINED.

Third, Defendants argue that the Affidavit merely reaches a legal conclusion with no analysis or basis for reaching the conclusion that Defendant Dunlap's actions were objectively unreasonable. Defendants also contend within their third argument that the affidavit does not address the issue of deliberate indifference. Defendants concede that the affidavit does list documents that the affiant reviewed and the facts he considered. However, Defendants argue that there is no analysis whatsoever to support Dr. Kiekbusch's conclusion that the conduct of Defendant Dunlap was objectively unreasonable. Specifically, Defendants argue that there is too great an analytical gap between the data reviewed and the opinion proffered by the expert.

Defendants' third argument goes to the issue of Dr. Kiekbusch reaching the ultimate conclusion that Defendant Dunlap's conduct and the steps he took on the night of Mr. Allen's death were objectively unreasonable. When the parties do not dispute the material facts of what occurred, as is the case here, the question of whether an official's conduct was objectively reasonable is a question of law to be decided by the court. Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir. 1994); Hart v. O'Brien, 127 F.3d 424, 436 (5th Cir. 1997) (explaining that because "[t]he parties did not disagree over whether the officials had engaged in [the] conduct," the court could consider whether that conduct was unreasonable as a matter of law.). Here, neither party disputes 1) what questions were asked of Mr. Allen in the booking process or the answers he gave, 2) that he was placed on 15-minute watch, 3) that he was placed in the cell closest to the jailers' office, 4) that the shower curtain was in fact removed from his cell, 5) that his demeanor did not appear to be that of a depressed individual during the booking process, 6) that he asked questions regarding the next morning and his meals, 7) that he was found hanging in his cell during the 2:30 a.m. check, 8) that resuscitation efforts were commenced and they were unsuccessful, and 9) that emergency technicians arrived on the scene and also failed to revive Mr. Allen.

The evidence presented by the parties does not conflict as to the actions taken by Defendant Dunlap on the night of Mr. Allen's arrest and detention. Thus, there is no genuine issue of material fact as to the actions taken by Defendant Dunlap. See Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001). In fact, both parties agree that Defendant Dunlap took some steps that should have been taken in regard to Mr. Allen's safety and medical needs. Hart v. O'Brien, 127 F.3d 424, 436 (5th Cir. 1997) (explaining that because "[t]he parties did not disagree over whether the officials had engaged in [the] conduct," the court could consider whether that conduct was unreasonable as a matter of law.). The fact is that certain actions were taken and certain conduct occurred, and the parties do not dispute as much. Rather, the dispute lies around whether additional preventative steps should have been taken by Defendant Dunlap. To the extent that Dr. Kiekbusch's affidavit is offered to show whether or not Defendant Dunlap's actual actions were objectively unreasonable, the affidavit intrudes upon the purview of the Court to determine objective reasonableness in the absence of disputed material facts. Thus, Defendants' objections are SUSTAINED as to Dr. Kiekbusch's affidavit's determination of reasonableness.

Fourth, Defendants argue that Plaintiffs have failed to establish that Dr. Kiekbusch is qualified to offer opinions with regard to whether an individual is suicidal. Defendants contend that such an opinion would be a medical or psychiatric opinion and not one Dr. Kiekbusch is qualified to make. Plaintiffs fail to specifically rebut this argument in their Surreply. However, expert opinions exceeding the scope of an expert's expertise are properly excluded under this circuit's precedence. See First United Fin. Corp. v. United States Fidelity Guar. Co., 96 F.3d 135, 136 (5th Cir. 1996) (expert opinion exceeding scope of expert's expertise properly excluded). The Court finds that although Dr. Kiekbusch may be qualified on jail administration and standards to offer expert opinions on those areas, he is not qualified to offer expert opinions on the medical condition of a detainee. Thus, to the extent that his affidavit offers medical or psychiatric opinion on Mr. Allen's mental health or condition, such opinion is excluded; and therefore Defendants' objections to the affidavit being offered as to the medical condition of the detainee are SUSTAINED. 3. Facts in Plaintiffs' Introduction

Defendants also object to Plaintiffs' asserted facts contained in the Introduction to Plaintiffs' Response. Specifically, Defendants contend that the appendix pages referred to in support of the asserted facts do not in fact contain the language contained in the introduction. Defendants argue that references to Exhibit B are improper because said pages were never served upon Defendants. However, because Defendants' Reply, including this argument, was filed before Plaintiffs filed their Supplemental Appendix, this specific argument is moot. Plaintiffs have now filed an Exhibit B by way of supplementing their Appendix. Thus, Defendants' objections based on an incomplete Exhibit B are OVERRULED.

Defendants also argue that Plaintiffs' Introduction at pages 1-4 of Plaintiffs' Response cites to language that is not supported by the exhibits cited or cites to pages that do not exist in the Appendix at all. See Def. Reply at p. 4 (listing Pl. App. pp. 44.8 and 44.9 as being non-existent). The Court agrees as to the missing pages, 44.8 and 44.9, and finds that the citations to those two specific pages do not support the referenced facts because no such pages exist in the Plaintiffs' Appendix or Supplemental Appendix. Thus, Defendants' objections to Plaintiffs' referenced "facts" contained in the Introduction to Plaintiffs' Response, specifically those "facts" relying on pages 44.8 and 44.9, are SUSTAINED.

Defendants also object to Plaintiffs' Appendix in its entirety because of the failure of citations in the Response to be supported by the actual language contained in the portions of the Appendix. Although the Court will not strike Plaintiffs' Appendix in its entirety as requested, the Court reminds the parties that in reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims). In addition, the pages and specific portions cited must support the alleged facts for which they are cited. See LR 56.6(c) ("A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence."). To the extent that a citation does not support the proposed facts for which it is cited, neither those proposed facts nor the cited page of the Appendix will be considered (unless the page is properly cited to in another instance within the Response or Brief).

42 U.S.C. § 1983

Plaintiffs sued Defendants under § 1983 seeking redress for Defendants' alleged violations of Mr. Allen's constitutional rights by those acting under color of state law. Section 1983 is not itself a source of substantive rights but merely provides "a method of vindicating federal rights conferred elsewhere." Albright v. Oliver, 510 U.S. 266, 271 (1984) (internal quotations omitted).

To establish a claim under § 1983, a plaintiff must prove that a person acting under the color of state law deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Martin v. Thomas, 973 F.2d 449, 452-53 (5th Cir. 1992); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984). A plaintiff must further prove that the alleged constitutional deprivation was not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 835 (1994). The negligent deprivation of life, liberty, or property is not a constitutional violation. Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995).

Individual Capacity Under § 1983 and Qualified Immunity

Government officials performing discretionary functions are protected from civil liability under § 1983 pursuant to the doctrine of qualified immunity if their conduct violates no "clearly established statutory or constitutional rights of which a reasonable person would have known." Beck v. Texas State Bd. Dental Exam'rs, 204 F.3d 629, 638 (5th Cir. 2000). The United States Supreme Court has characterized the doctrine of qualified immunity as protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). If the law does not put an official on notice that his conduct would clearly be unlawful, then summary judgment based on qualified immunity is appropriate. Id. Accordingly, "even law enforcement officials who reasonably but mistakenly [commit a constitutional violation] are entitled to immunity." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).

Officials sued in their individual capacity may assert a defense of qualified immunity. See Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified immunity serves to shield a government official as "an immunity from suit rather than a mere defense to liability[.]" Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Because qualified immunity is an immunity from suit, the affirmative defense should be resolved at the earliest possible stage of litigation. Saucier, 121 S. Ct. at 2156.

In analyzing whether an individual defendant is entitled to qualified immunity, the Court must ask a threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant]'s conduct violated a constitutional right?" Saucier, 121 S. Ct. at 2156. The Fifth Circuit does "not require that an official demonstrate that he did not violate clearly established federal rights; [precedence] places that burden upon plaintiffs." Thompson v. Upshur, 245 F.3d 447, 456 (5th Cir. 2001). "[I]f a [constitutional] violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. (alterations added). In other words, the Court should examine whether it would be clear to a reasonable defendant that his conduct is unlawful in the situation he confronted. Wilson v. Layne, 526 U.S. 603, 615 (1999).

To the extent that the plaintiff is able to show that a violation of a clearly established constitutional right occurred, the Court must then make an additional inquiry and determine whether the defendant official's alleged conduct was objectively reasonable in light of the constitutional right allegedly violated. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). However, if the plaintiff is unable to show a constitutional violation or that such a right was clearly established at the time, the inquiry ceases and there is no need to address the next step of the analysis of objective reasonableness. Nunez v. Simms, 341 F.3d 385, 392 (5th Cir. 2003). "The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known" that the defendant's conduct violated the plaintiff's asserted constitutional rights or a federal statute. Thompson, 245 F.3d at 457 (emphasis in original). The "defendant's circumstances" include facts known to the defendant at the time, id., and the particulars of the challenged conduct. Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997). However, a particular defendant's subjective state of mind has no bearing on whether he is entitled to qualified immunity. Id. at 871 n. 5. If defendants "of reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341(1986).

The issue of whether and when a right is clearly established is typically treated as a question of law. Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). "The first part of the qualified immunity test — whether [a plaintiff] has alleged a violation of a clearly established constitutional right — depends on whether the summary judgment evidence, viewed in a light favorable to [the plaintiff], demonstrates that [the defendant] was deliberately indifferent to [Decedent's] serious medical needs." Domino, 239 F.3d at 755 (emphasis added). At the summary judgment stage of litigation, mere allegations contained in the pleading must be supported by evidence in the record. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046 (5th Cir. 1996). Plaintiffs must direct the Court to properly admissible evidence within the record that could create a genuine issue of material fact as to whether the Defendants violated a clearly established constitutional right as alleged in the First Amended Complaint. Id. Although courts must resolve factual controversies in favor of the nonmoving party, there must an actual controversy; that is, both parties must have properly submitted and directed the court to evidence of contradictory facts. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075.

The law is well settled that "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 198 (1989). When a person is taken into custody and held against his will, "the Constitution imposes . . . a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200. Because a "special relationship" exists between the State and prisoners who have been deprived of their liberty to care for themselves, the State is obligated to ensure their "reasonable safety" from themselves and others. Id. at 199. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200. "[W]hile . . . the law is clearly established that jailers must take measures to prevent inmate suicides once they know of the suicide risk, we cannot say that the law is established with any clarity as to what those measures must be." Hare v. City of Corinth, 135 F.3d 320, 328-29 (5th Cir. 1998) (opinion following remand).

Whether an individual's conduct is objectively unreasonable must be considered against the subjective deliberate indifference standard. Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 394 (5th Cir. 2000). An official acts with subjective deliberate indifference if he "had subjective knowledge of a substantial risk of serious harm to [an inmate] but responded with deliberate indifference to that risk." Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996). Deliberate indifference is a state of mind more blameworthy than negligent. Farmer v. Brennan, 511 U.S. 825, 835 (1994). "Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and thus do not divest the official of qualified immunity." Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (N.D. Tex. 1998). This is especially true because an erroneous or mistaken judgment does not constitute a valid § 1983 claim to begin with. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 2001). Because suicide is inherently difficult to predict, the failure of an official to perceive and alleviate a significant risk for suicide is insufficient to show deliberate indifference. See Domino v. Texas Dep't Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). As the Supreme Court has offered, the situation should not be decided based upon the "20/20 vision of hindsight" but rather should be decided in deference to the judgment of reasonable officers on the scene. See Saucier, 533 U.S. at 205. This is because the standard is not whether another reasonable, or more reasonable, course of action can be conceived after the fact. See Hunter v. Bryant, 502 U.S. 224, 228 (1991). Defendant Dunlap

Here, neither party disputes the material facts of what occurred on the night of Mr. Allen's suicide. Also, Defendant Dunlap has properly pleaded the defense of qualified immunity in his Answer and the uncontroverted evidence shows that the decisions on classifying inmates for suicide risk and handling a particular situation were in some degree discretionary. See Def. App. at 2, 9 ¶ DD. Plaintiffs failed to direct the Court to evidence that would controvert the discretionary function of assessing suicide risks and classification of inmates for observation. The burden then falls to the Plaintiffs to show that Defendant Dunlap is not entitled to qualified immunity. See Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).

The evidence presented by the parties does not conflict as to the actions taken by Defendant Dunlap on the night of Mr. Allen's arrest and detention. While the parties dispute how the information, Mr. Allen's behavior, and the circumstances at the time should have been interpreted as to the classification of Mr. Allen regarding suicide risk, the question is whether the facts that occurred support a finding of unreasonableness and deliberate indifference.

A pretrial detainee's constitutional right to medical care, whether in prison or other custody, flows from the procedural and substantive due process guarantees of the Fourteenth Amendment. Liability for failing to provide such care attaches if the plaintiff can show that a state official acted with deliberate indifference to a substantial risk of serious medical harm and that injuries resulted. Hare, 74 F.3d at 647-48. "Deliberate indifference" requires that the official have subjective knowledge of the risk of harm. Id. at 650. Mere negligence will not suffice, and "[d]eliberate indifference, i.e., the subjective intent to cause harm, cannot be inferred from a . . . failure to act reasonably." Id. at 649 (citations omitted)."

Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000). "Deliberate indifference is an extremely high standard to meet." Domino, 239 F.3d at 756.

Although Plaintiffs specifically raise only an equal protection claim (without clarifying), the Court will analyze Plaintiffs' claims as if they also asserted claims for deliberate indifference to Mr. Allen's safety and serious medical needs. Plaintiffs clearly have not directed the Court to any evidence that could be construed as Mr. Allen having been treated in a manner different from other inmates at the Howard County Jail. Moreover, as to evidence for an equal protection claim, Defendants have provided evidence that all inmates go through the same process when coming into the Howard County Jail. See Def. App. at 9-10. Plaintiffs have failed to direct the Court to any evidence to controvert or create a genuine issue of material fact as to whether Mr. Allen was not treated equally in this regard.

Hence, Plaintiffs' contention, and the crux of their argument, lie with claims for deliberate indifference to safety and serious medical needs in that, although some steps were taken on the night of Mr. Allen's death, Plaintiffs allege that those steps were inadequate or ineffectual in preventing his suicide. Such claims cannot form the basis for deliberate indifference. See, e.g., Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 554 (5th Cir. 1997) (discussing why a defendant could successfully assert qualified immunity, the Fifth Circuit noted that he "took some steps. . . . Even if those steps were `ineffectual,' they do not demonstrate deliberate indifference.") (emphasis added). In essence, Plaintiffs are alleging that Defendant Dunlap was incorrect and/or negligent in his duties to recognize Mr. Allen as a higher classification of suicide risk. Although Plaintiffs use the phraseology of "deliberate indifference" in their First Amended Complaint, they have failed to direct the Court to genuine issues of material fact that are in dispute regarding the actions taken by Defendant Dunlap that night which a reasonable jury could conclude amounted to deliberate indifference. Rather, the undisputed evidence shows that Defendant Dunlap testified that he considered Mr. Allen to be "a risk," see Pl. App. at 76, although Plaintiffs allege that he should have been considered a "high risk." The policy in place at the time of these incidents allowed for a detainee or prisoner to be classified as a low, moderate, or high suicide risk. See, e.g., Pl. App. at p. 37 (observations defined as continuous for high risk, 15-minute for moderate risk, and 30-minute for low risk). It is undisputed that Mr. Allen was placed under a 15-minute watch. Beyond the fact that such a determination is clearly based in some degree upon the discretion of the officer, see Pl. App. at p. 37 (listing the three possible levels of suicide supervision and specifically stating that "inmates that have a prior history of suicidal behavior, but no apparent intent at this time," fall within the moderate or 15-minute level of observation) negligence cannot form the basis for a § 1983 claim. See, e.g., Farmer v. Brennan, 511 U.S. 825, 835 (1994). Mr. Allen had indicated in the question asked of him at booking that he had attempted suicide in the past but was not thinking about killing himself today. See Pl. App. at p. 42; Def. App. at pp. 5, 11.

In order to demonstrate deliberate indifference, "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 draw the inference." Domino, 239 F.3d at 755 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). As in this case, "an incorrect diagnosis [or risk classification] does not amount to deliberate indifference." Id. at 756. The fact that Mr. Allen was under some level of watch in itself may not necessarily indicate that he was a substantial risk for suicide. See Collignon v. Milwaukee County, 163F.3d 982, 990 (7th Cir. 1998) ("Placing a pretrial detainee on some level of suicide watch, even the highest level, does not demonstrate a subjective awareness of a substantial risk of imminent suicide.").

Plaintiffs have failed to direct the Court to specific facts that could be interpreted by a reasonable jury as showing that Defendant Dunlap in fact drew the inference that Decedent was at "high" risk for suicide (requiring an even higher level of care and observation than that which was being given him) or that Defendant Dunlap deliberately ignored this higher level of risk. Moreover, the undisputed evidence in the record shows that the arresting officer, Texas State Trooper Weldon Jones, did not consider Mr. Allen to be a suicide risk of any degree, much less a "high" risk requiring continuous monitoring. See Def. App. at p. 15; Pl. App. at p. 44.3. One of the hurdles to overcoming the defense of qualified immunity is to show that "all reasonable" officers under similar circumstances would have considered Mr. Allen to be a high risk for suicide. See, e.g., Thompson, 245 F.3d at 457 (emphasizing the word "all"). Though not conclusive, the arresting officer felt that Mr. Allen was "happy go lucky." See Pl. App. at p. 44.3 ("he gave me no reason to believe he would kill himself. . . . [I]f this guy has all these problems, I couldn't tell it"). Additionally, nothing Mr. Allen did or said "so clearly indicated an intent to harm himself that the [officers] caring for him could have only concluded that he posed a serious risk of harm to himself." Sibley v. Lemaire, 184 F.3d 481, 489 (5th Cir. 1999).

Therefore, this Court finds that Plaintiffs have failed to offer evidence of a violation by Defendant Dunlap of a clearly established constitutional right because Plaintiffs have failed to offer evidence that might reasonably be interpreted as evidence of deliberate indifference and thus failed to offer evidence that Defendant Dunlap's conduct was objectively unreasonable. A non-movant's conclusory allegation that a factual dispute exists between the parties will not defeat an otherwise properly supported motion for summary judgment. Hanks v. Transcontinental Gas Pipeline Corp., 953 F.2d 996, 997 (5th Cir. 1992).

Defendants Walker and Smith

It is not enough to allege that government officials with no direct contact with a plaintiff were responsible for acts of their subordinates. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439 (5th Cir. 1999). Such allegations border on allegations of respondeat superior, which are clearly not a basis for a § 1983 cause of action. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). Keeping in mind that Plaintiffs do not allege that Defendants Walker and Smith were present at the time of the booking or detainment of Mr. Allen, "supervisory officials may be held liable only if: (1) they affirmatively participate in the acts that cause constitutional deprivations; or (2) implement unconstitutional policies that causally result in plaintiff's injury." Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992); Tompkins v. Belt, 828 F.2d 298 (5th Cir. 1987). Generally, a supervisor may be held liable only if he was personally involved in the constitutional deprivation or there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Id. As to a sheriff in particular, the standard is the same. Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988).

However, in Thompson v. Upshur, the Fifth Circuit determined that

[a] sheriff not personally involved in the acts that deprived the plaintiff of his constitutional rights is liable under section 1983 if: 1) the sheriff failed to train or supervise the officers involved; 2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and 3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights.

Thompson v. Upshur, 245 F.3d 447, 459 (5th Cir. 2001).

Finally, "the [supervisory] inadequacy must be obvious and obviously likely to result in a constitutional violation." Thompson v. Upshur, 245 F.3d 447, 459 (5th Cir. 2001). Although in some instances supervisory officials may be held liable for acts of omission, such as a failure to train or supervise, the deprivation must have been caused by intentional, rather than negligent, conduct. See Daniels v. Williams, 474 U.S. 327, 328 (1986) ("Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property."); see also Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986). "Thus, supervisors who are merely negligent in failing to detect and prevent a subordinates' [sic] misconduct cannot be held liable under § 1983." Hurd v. Doe, WL 21640569, *7 (N.D. Tex. July 10, 2003).

Plaintiffs have produced no evidence of any personal involvement by Defendant Walker or Smith which caused Decedent's death. Indeed, the evidence and Plaintiffs' own filings not only acknowledged that Defendants Walker and Smith were not present at the time of the alleged constitutional violations, but the evidence also shows that Defendants Walker and Smith were unaware that Decedent had been detained in the Howard County Jail until after Decedent's death. See Def. App. at pp. 9, 17, and 20. Plaintiffs have failed to direct the Court (1) to any evidence which shows that Walker or Smith ultimately demonstrated a subjective and deliberate indifference to Decedent's right to adequate medical care and safety or equal protection or (2) to any evidence that Walker's and Smith's supervisory inadequacies, if any, were "obvious and obviously likely to result in a constitutional violation." Actually, the evidence regarding training and supervision shows that Defendant Dunlap was in fact sent to a course for jailer certification and training. See Pl. App. at p. 46; Def. App. at p. 2. Thus, Plaintiffs cannot show a complete failure to train. Plaintiffs failed to direct the Court to evidence showing a lack of training in any other area. Plaintiffs attempt to make an issue out of whether Walker and Smith "failed to ensure that Dunlap was capable of performing CPR" at a time "following Allen's suicide." See Pl. Resp. at ¶ 19. That argument is addressed below.

Plaintiffs failed to direct the Court to evidence that could be remotely interpreted as deliberate indifference by Defendants Walker and Smith. As Defendants point out in their Reply, the Plaintiffs have failed to address deliberate indifference in their Response. Thus, Plaintiffs have failed to implicate the Thompson holding regarding liability without personal involvement. In addition, Plaintiffs fail to address a causal connection between the alleged failure to train, etc. and the alleged violation. See Pl. Br. in Supp. Resp. at ¶ 10 (cursorily stating "Walker and Smith's personal involvement in the training and enforcement of mandatory state law, caused, contributed, and/or was causally linked to Allen's death."). Plaintiffs direct the Court to no evidence in support of this passing statement.

At most, Plaintiffs' claims can be categorized as nothing more than claims that the Sheriff and/or Chief Jailer were negligent in their failure to supervise or train. Defendants Walker and Smith may not be held vicariously liable for actions of the jailers they negligently supervised. Although Plaintiffs' First Amended Complaint makes use of the proper phraseology — "deliberate indifference," clearly Plaintiffs have failed to direct the Court to any factual evidentiary basis for such an allegation. At the summary judgment stage, more than allegations are required.

Although Plaintiffs allege that Defendant Dunlap did not know how to perform CPR, the evidence does not back up such an assertion. See Pl. App. at 66 ("Q. You didn't know how to perform CPR, did you, sir? A. I knew how. . . ."). Plaintiffs also state in their Surreply that " following Allen's suicide, Walker and/or Smith failed to ensure that Dunlap was capable of performing CPR and failed to provide any reminders of guidelines or follow-up instruction to Dunlap." See Surreply at 4 ¶ 9 (emphasis added). In addition to conduct after the fact being irrelevant, the record does not support such an argument as to the CPR training. See Pl. App. at 65 ("A. Also there was CPR certification. So yes, there was training after this incident."); id. at 66 ("Q. And the CPR, did you get that CPR certification? A. Yes, ma'am."). The citations that Plaintiffs use to direct the Court to evidence to support their assertions otherwise fail to support such a contention. Again, conduct or failure to train alleged to have occurred after Mr. Allen's suicide is irrelevant. Further, Plaintiffs have failed to direct the Court to evidence showing that such alleged supervisory inadequacy would be obviously likely to result in a constitutional violation.

Plaintiffs also hint at allegations that Defendants Walker and/or Smith did not ensure that the jail was adequately staffed on the night of Mr. Allen's death. However, again, the record clearly shows that the Texas Jail Standards require "no less than 1 corrections officer per 48 inmates. . . ." See Pl. App. at p. 31. The deposition testimony clearly states that a total of 41 inmates were housed in the jail that night and that it was not at maximum capacity. See, e.g., Pl. App. at p. 66 ("Q. [B]ut not at maximum capacity? A. No. We were sitting at 41."). Plaintiffs have failed to direct the Court to evidence that the jail was not adequately staffed on the night that Mr. Allen committed suicide.

Finally, it cannot be said that all reasonable sheriffs and chief jailers would recognize the alleged unconstitutionality of Defendants Walker's and Smith's supervisory or personal acts or omissions. It cannot be said that Plaintiffs' allegations of improperly monitoring and implementing effective protocols resulted in the inadequate supervision of the jailers who monitored the Decedent. Plaintiffs allege within their Complaint that a suicide prevention plan was required to be developed and implemented. See Pl. First Amend. Compl. at ¶ 31. However, it is undisputed that Howard County Jail clearly had a suicide prevention policy in place as required. See Pl. App. at pp. 34-29; Def. App. at 17. Even if Plaintiffs had argued that Defendant Dunlap failed to follow the plan, it cannot be said that a single incident of failure to follow Sheriff Walker's or Chief Jailer Smith's instructions and protocol creates a genuine issue of fact that Walker or Smith inadequately supervised Defendant Dunlap.

Finally, Plaintiffs make repeated references and innuendos to alleged failure to follow state law guidelines for jails. Regardless of which Defendant Plaintiffs are attempting to allege violated TCLEOSE and TCOMA, or any other state law standards, violations of state law do not establish a violation of a right guaranteed by the Constitution of the United States. See, e.g., Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc) (to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under federal and not state law); San Jacinto Sav. Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991) ("Violation of a state statute is not actionable under § 1983."); Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) ("A claim for relief under § 1983 must allege the deprivation of a right secured by the Constitution or laws of the United States by a defendant acting under the color of state law.") (emphasis added).

Plaintiffs allege violations of numerous rules adopted by the Texas Commission on Jail Standards as well as articles of various state jail codes. This is not the same as showing that constitutional rights have been violated. As the Supreme Court has stated, "[o]fficials, sued for violation of constitutional rights, do not forfeit their immunity by violating some other statute or regulation. Rather, these officials become liable for damages only to the extent that there is a clear violation of the . . . rights that give rise to the cause of action for damages [under § 1983]." Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S. Ct. 3012, 3019 n. 12, 82 L. Ed. 2d 139 (1984). The Supreme Court made it clear that violation of statutory standards of conduct alone is not sufficient to establish that a defendant's actions transgressed "clearly established" constitutional rights. Id. at 194. Likewise, the Fifth Circuit has said that "the enforcement of state law is the job of the states, and the federal civil rights statute may not be used to bootstrap alleged violations of state law into federal claims." Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986).

As the Fifth Circuit made clear in Doe v. Rains County Independent School District, the question of whether a constitutional violation has occurred is separate from the question of whether a state statute has been violated and therefore "[a] state employee's breach of a duty does not by itself establish her liability under § 1983." Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1408 (5th Cir. 1995). Rather, as the Doe court noted, a constitutional violation must be established separately from the issue of a state statutory violation, after which the state statute can help identify those parties who are responsible under state law. Id. at 1409. "In short," the Doe court continued, "once we determine that a constitutional violation has occurred, we are no longer barred from finding another person liable under § 1983 for constitutional injury, even if the breach itself does not independently satisfy the elements of a constitutional claim." Id. Consequently, evidence that any of the defendants failed to follow state statutes or regulations does not establish that they were deliberately indifferent to Plaintiff's suicide risk.

Therefore, this Court finds that Defendants Walker's and Smith's conduct was objectively reasonable and that they are entitled to qualified immunity, in their individual capacities, as to Plaintiffs' § 1983 claims. Plaintiffs have wholly failed to direct the Court to evidence that could be construed as showing personal involvement by Defendants Walker and Smith on the night of Mr. Allen's death. Plaintiffs also failed to direct the Court to evidence that creates a genuine issue of material fact as to Defendants Walker's and Smith's failure to train or supervise such that deliberate indifference could be inferred.

STATE LAW CLAIMS — TEXAS TORT CLAIMS ACT

Texas Civil Practice and Remedies Code § 101.106

When sued in their official capacities under state law, Defendants are entitled to have those claims dismissed and the Plaintiffs must proceed on those claims against Howard County. See, e.g., Tex. Civ. Prac. Rem. Code § 101.106(e) (If a suit is filed under the Texas Tort Claims Act against both a governmental unit and any of its employees, the employees shall immediately be dismissed upon the filing of a motion.).

Qualified Immunity

To the extent that any other state law claims beyond those brought under the Texas Tort Claims Act could be made out on a review of Plaintiffs' First Amended Original Complaint, qualified immunity would apply to Defendants Walker, Smith, and Dunlap in their individual capacities for the reasons stated in Defendants' well reasoned Brief in Support of Motion for Summary Judgment.

V. CONCLUSION

For the reasons stated above and the reasons argued in Defendants' Motion, Brief in Support, and Reply, Defendants' Motion for Summary Judgment is GRANTED.

SO ORDERED.