Opinion
NO. 3-04-CV-2754-M.
February 17, 2006
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The University of Texas Medical Branch at Galveston ("UTMB") has filed a motion to dismiss a third-party complaint for contribution and indemnity filed by Dallas County, Texas ("the County"). The County, joined by Dallas County Hospital District ("DCHD"), seeks leave to designate UTMB as a responsible third party pursuant to Tex. Civ. Prac. Rem. Code § 33.004. For the reasons stated herein, UTMB's motion to dismiss should be granted and the County's motion should be denied.
I.
This is a civil rights action brought on behalf of three former inmates of the Dallas County Jail alleging violations of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, section 504 of the Rehabilitation Act (the "Rehabilitation Act"), 29 U.S.C. § 794, and 42 U.S.C. § 1983. Defendants are the County, former Sheriff Jim Bowles, and DCHD. Succinctly stated, plaintiffs contend that defendants failed to provide adequate medical care and treatment to mentally ill inmates in violation of federal anti-discrimination laws and the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. ( See Plf. Compl. at 15-18, ¶¶ 9.05-9.11 18-20, ¶¶ 9.12-9.20).
Plaintiffs James Monroe Mims, Jr., Clarence Lee Grant, Jr., and Kennedy C. Nickerson bring this action by and through their respective legal representatives. Advocacy, Inc., a non-profit corporation funded by Congress to protect the legal rights of persons with disabilities, has joined the suit seeking injunctive and declaratory relief "to mandate and require changes in the operation of the Dallas County Jail[.]" ( See Plf. Compl. at 3, ¶ 1.04).
At all times relevant to this suit, UTMB, who was not sued by plaintiffs, provided and administered health care services to inmates in Dallas County jail facilities pursuant to an Interlocal Agreement ("the Agreement") with the County and DCHD. (Cty. Resp. to Mot. to Dismiss, App. at 002, ¶ 3 005). Among the "covered services" provided by UTMB were physician coverage, 24-hour on-site nursing care, disbursement and delivery of pharmacy medications, and psychiatric services. ( Id. at 006, ¶ A(6)). UTMB was obligated to furnish such services to inmates in accordance with standards of care established by the American Correctional Association and state regulatory agencies. ( Id. at 008, ¶ D(3)). Failure to meet those minimum standards constitutes grounds for terminating the Agreement. ( Id.). In addition, the Agreement provides:
After this lawsuit was filed, UTMB notified the County of its intent not to renew the Agreement and to terminate medical services provided to the Dallas County Jail effective November 30, 2005. ( See Cty. Supp. Obj. to F R on Mot. to Dismiss, App. at 31-32).
To the extent authorized by the Constitution and laws of the State of Texas, UTMB shall hold harmless and indemnify DCHD, the County, the Sheriff (individually and in his official capacity), the Commissioners and Board members and their officers and employees, from and against any and all claims, liabilities, losses, judgments, expenses and/or damages, including reasonable attorney's fees and court costs, resulting from or attributable to any act or omission of UTMB, its officers and employees, including any acts constituting negligence.
( Id. at 012, ¶ G). However, another provision makes clear that "neither the execution of this Agreement, nor the conduct, act or inaction by any person in the execution, administration or performance of this Agreement constitutes or is intended to constitute a waiver of UTMB's, the County's or DCHD's immunity from suit." ( Id. at 013, ¶ I).
Shortly after the County was served with process and filed an answer, it brought a third-party action against UTMB for indemnity, breach of contract, and negligence. (Cty. Third-Pty. Compl. at 4-5, ¶¶ 8-10). UTMB filed a motion to dismiss the third-party complaint on grounds of sovereign immunity under the Eleventh Amendment. The County responded that: (1) Congress has abrogated Eleventh Amendment immunity in suits brought against state agencies under the ADA and the Rehabilitation Act; and (2) UTMB waived any immunity from suit under the express terms of the Agreement and by its conduct. In rejecting the first argument, the magistrate judge acknowledged that state agencies are not entitled to Eleventh Amendment immunity in suits brought by aggrieved persons under Title II of the ADA and section 504 of the Rehabilitation Act. Mims v. Dallas County, Texas, No. 3-04-CV-2754-M, 2005 WL 1553961 at *2 (N.D. Tex. Jun. 30, 2005), citing Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 1985, 158 L.Ed.2d 820 (2004) and Pace v. Bogalusa City School Board, 403 F.3d 272, 281 (5th Cir.), cert. denied, 126 S.Ct. 416 (2005). However:
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.
U.S. CONST. amend XI. UTMB is an agency of the State of Texas. TEX. EDUC. CODE ANN. § 65.02(a)(8) (Vernon 2002); see also Wise v. Rupert, No. 3-03-CV-0393-L, 2003 WL 21448352 at *2 (N.D. Tex. May 21, 2003) (Kaplan, J.).
[N]o such claims are asserted against UTMB in this case. Rather, the County has filed a third-party action against UTMB for indemnity, breach of contract, and negligence. The court cannot accept the County's argument, unsupported by any legal authority, that sovereign immunity is waived just because the inmates "are free to sue UTMB directly for the alleged violations of the ADA and the Rehabilitation Act." Unlike a direct action brought under these federal statutes, the County's third-party claims do not implicate the fundamental right of access to the courts. There simply is no basis for concluding that Congress intended or has the constitutional authority to abrogate Eleventh Amendment immunity under the circumstances presented here.Id., 2005 WL 1553961 at *2. The magistrate judge also rejected the County's waiver argument, finding that neither the Agreement itself nor the conduct of UTMB supports a waiver of sovereign immunity. Id. at *2-3. The district judge accepted the recommendation to dismiss all third-party claims asserted by the County, except "the single issue of whether the immunity claimed by UTMB is abrogated insofar as claims are asserted based upon [the ADA] and [the Rehabilitation Act]." See Order, 9/20/05 at 1-2. The County was allowed to amend its pleadings to specify the factual and legal basis of its indemnity claim under those statutes, and UTMB's motion to dismiss was remanded to the magistrate judge for further consideration of that narrow issue. Id. at 2.
On November 21, 2005, the County filed an amended third-party complaint against UTMB alleging, inter alia, a direct action for contribution and indemnity under the ADA and the Rehabilitation Act. ( See Cty. First Am. Third-Pty. Compl. at 5-6, ¶¶ 10-13). A few days later, the County filed a motion for leave to join UTMB as a responsible third party under Tex. Civ. Prac. Rem. Code § 33.004, the Texas statute that establishes a framework for proportionate responsibility in civil tort actions. DCHD joined in that motion on January 12, 2006. UTMB has responded to the County's amended third-party complaint and its attempt to invoke the Texas proportionate responsibility statute. The issues have been fully briefed by the parties and this matter is ripe for determination.
II.
The sole remaining issue with respect to UTMB's motion to dismiss is whether the County may assert a third-party claim for contribution under Title II of the ADA and section 504 of the Rehabilitation Act. The court initially observes that neither statute explicitly provides for such a right. Nor has any federal court ever implied a right to contribution under the ADA or the Rehabilitation Act. In fact, the only case directly on point squarely holds that there is no right to contribution under those statutes. See Bowers v. National Collegiate Athletic Ass'n, 346 F.3d 402, 433 (3d Cir. 2003).
In its amended third-party complaint, the County sues for both contribution and indemnity. ( See Cty. First Am. Third-Pty. Compl. at 5-6, ¶¶ 10-13). However, there is no common law right of indemnity between joint tortfeasors under Texas law. See Askanase v. Fatjo, 148 F.R.D. 570, 574 (S.D. Tex. 1993) (citing cases). Instead, the right to indemnity arises from either an express or implied contract. Hondo Oil and Gas Co. v. Texas Crude Operator, Inc., 970 F.2d 1433, 1441 (5th Cir. 1992); see also F.D.I.C. v. Niblo, 821 F.Supp. 441, 457 (N.D. Tex. 1993) (availability of common law indemnity is "extremely limited"). The court previously determined that the County was not entitled to contractual indemnity against UTMB, and will not revisit that holding here.
A careful examination of Bowers is instructive. The plaintiff in that case was a high school athlete who suffered from a learning disability that prevented him from taking several core academic courses required for a college athletic scholarship. When several colleges, including Temple University, learned of plaintiff's status, they stopped recruiting him. Plaintiff then sued the colleges in New Jersey federal court for violations of the ADA, the Rehabilitation Act, and state antidiscrimination laws. Temple brought a third-party action for contribution against three universities not sued by plaintiff. The third-party defendants filed a motion to dismiss, arguing that neither Title II of the ADA nor section 504 of the Rehabilitation Act contemplates an award for contribution. Two of the third-party defendants, who were state universities, also argued that Temple's contribution claim was barred by Eleventh Amendment immunity. Relying on the Supreme Court's decision in Musick, Peeler Garrett v. Employers Insurance of Wausau, 508 U.S. 286, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993), and language in the ADA and the Rehabilitation Act incorporating the remedies available under Title VI of the Civil Rights Act, the district court held that there is a judicially implied right to contribution under Title II of the ADA and section 504 of the Rehabilitation Act. Bowers v. National Collegiate Athletic Ass'n, 171 F.Supp.2d 389, 395 (D. N.J. 2001). The district court also anticipated the holding in Lane, finding that Congress validly abrogated Eleventh Amendment immunity in suits brought under Title II of the ADA. Id. at 402-03. The court therefore declined to dismiss the third-party claims for contribution under the ADA and the Rehabilitation Act. Id. at 409.
Title II of the ADA incorporates by reference the remedies available under the Rehabilitation Act, which, in turn, incorporates the remedies available under Title VI of the Civil Rights Act. See 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2). Because the Supreme Court previously found a judicially-implied private right of action available for enforcement of section 601 of Title VI, the parallel provision to section 504 of the Rehabilitation Act, see Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 1516, 149 L.Ed.2d 517 (2001), the district court turned to Musick to determine whether a right to contribution exists under the ADA and the Rehabilitation Act. Musick permits a court to infer a right to contribution where such a right does not involve "conduct subject to liability under an express remedial provision fashioned by Congress," or extend to "conduct not already subject to liability through private suit[.]" Musick, 113 S.Ct. at 2090. Because the remedies under the ADA and the Rehabilitation Act are judicially applied and administered, and because the legislative history of Title II suggests that Congress expected it would include the "full panoply of remedies," the district court concluded that the right to contribution "both furthers the purposes of the [ADA] and enhances predictability for those regulated by it." Bowers, 171 F.Supp.2d at 396-97.
On appeal, the Third Circuit reviewed the circumstances under which a right to contribution may exist under federal law absent express statutory authority. The court started with an analysis of three Supreme Court decisions — Texas Instruments, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) and Northwest Airlines, Inc. v. Transportation Workers Union of America, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), which held there is no implied right to contribution under the Equal Pay Act, Title VII of the Civil Rights Act, or federal antitrust law, and Musick, 113 S.Ct. 2085, which found an implied right to contribution in private actions brought under Rule 10b-5 of the Securities and Exchange Act of 1934. Noting that Musick represented a departure from the course set in Northwest Airlines and Texas Industries, the court attempted to harmonize the three cases:
When a statute creates a private right of action but fails to provide expressly for a right to contribution, particularly if the remedial scheme created is detailed, Congress's silence with regard to contribution weighs heavily against implying such a right because there is a presumption that the silence reflects congressional intent not to create such a right. On the other hand, when courts have implied a right of action it would be "futile" to look for congressional intent to create a right to contribution, inasmuch as Congress did not intend explicitly to create the cause of action on which such a right would be based. In that situation, courts have somewhat broader latitude to determine whether a right to contribution is consistent with Congress's intent in creating the right sought to be enforced.Bowers, 346 F.3d at 425-26 (internal citations omitted). The Third Circuit agreed with the district court that the remedial provisions of Title II of the ADA and section 504 of the Rehabilitation Act, which incorporate the rights and remedies of Title VI by simple cross-reference without attempting to define more precisely those rights, are similar in analytic terms to the amendments to the securities laws considered by the Musick court. Such cross-referencing language suggests "a recognition on Congress's part of the somewhat broader role of federal courts in defining the contours of Title VI (and, therefore, section 504 and Title II) liability." Id. at 427. Therefore, the district court properly relied on Musick. Id.
Still, the critical inquiry in deciding whether a right to contribution should be implied by the courts is one of Congressional intent. Id. at 429; see also Musick, 113 S.Ct. at 2087-92. In making that determination, the Bowers court, like the Musick court, turned to analogous statutes for guidance. Bowers, 346 F.3d at 431. First, the court observed that neither Title I of the ADA nor section 501 of the Rehabilitation Act, which are most analogous to Title II and section 504, provide for a right to contribution. Id. at 430 433. Nor has any court ever recognized such a right under Title I or section 501. Id. Second, the rights and remedies under Title I of the ADA and section 501 of the Rehabilitation Act are derived from Title VII of the Civil Rights Act, which, as the Supreme Court held in Northwest Airlines, does not create a right to contribution. Id. at 432-33. Finally, even if the court were to consider Title III of the ADA as another possibly analogous provision, no court has ever found an implied right to contribution under Title III. Id. at 433. Unable to find any indication that Congress intended to recognize a right to contribution to complement the other judicially-implied remedies under Title II of the ADA and section 504 of the Rehabilitation Act, the Bowers court refused to infer such a right. Id.
The Musick court looked to sections 9 and 18 of the Securities and Exchange Act of 1934, 15 U.S.C. §§ 78i and 78r, to determine whether a right to contribution should be implied in a 10b-5 action. The Supreme Court concluded that sections 9 and 18 were sufficiently similar to Rule 10b-5 to inform its analysis because: (1) sections 9 and 18 target the precise dangers that are the focus of section 10(b); (2) the intent of all three sections is to deter fraud and manipulative practices in securities markets and to ensure full disclosure of information material to investment decisions; and (3) sections 9 and 18 impose liability upon defendants who stand in a position most similar to 10b-5 defendants. Musick, 113 S.Ct. at 2090-91. Because both sections 9 and 18 explicitly provide for a right to contribution, the court found that Congress intended to allow such a right as part of the judicially-implied remedies available in 10b-5 actions.
The County criticizes Bowers as a "shortsighted quest to deny contribution rights[.]" ( See Cty. Reply Br. at 10). However, the decision is well-reasoned and entirely consistent with the general reluctance of federal courts to recognize a right to contribution as a matter of common law or statute. See Anderson v. Griffin, 397 F.3d 515, 523 (7th Cir. 2005) (citing cases). Absent any authority to the contrary, this court follows Bowers and concludes that there is no right to contribution under Title II of the ADA or section 504 of the Rehabilitation Act. UTMB's motion to dismiss the County's third-party complaint should be granted.
III.
In the event the court dismisses its third-party complaint, the County seeks leave to designate UTMB as a responsible third party pursuant to Tex. Civ. Prac. Rem. Code § 33.004. Under this statute, a "responsible third party" is defined as:
[A]ny person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.
TEX. CIV. PRAC. REM. CODE ANN. § 33.011(6) (Vernon Supp. 2005). If the County is allowed to designate UTMB as a responsible third party, the trier of fact would be required to determine the percentage of responsibility attributable to the County, DCHD, and UTMB "for causing or contributing to cause in any way the harm for which recovery of damages is sought[.]" Id. § 33.003(a). That, in turn, could affect the amount of plaintiffs' recovery, because a defendant "is liable to a claimant only for the percentage of damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the . . . harm for which the damages are allowed." Id. § 33.013(a).
The County tacitly concedes that the Texas rule of proportionate responsibility does not apply to plaintiffs' statutory causes of action under the ADA and the Rehabilitation Act. Instead, the County seeks leave to designate UTMB as a responsible third party with respect to plaintiffs' civil rights claims under 42 U.S.C. § 1983. In deciding whether the Texas proportionate responsibility statute applies to federal civil rights actions, the court turns to 42 U.S.C. § 1988. That statute provides, in pertinent part:
The jurisdiction in civil and criminal matters conferred on the district courts by [federal law] for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause[.]42 U.S.C. § 1988(a). The express language of section 1988 makes clear that the remedial provisions of the statute are intended to protect persons in their civil rights. See Wright v. Reynolds, 703 F.Supp. 583, 592 (N.D. Tex. 1988). To that end, federal courts have not hesitated to apply state laws, such as wrongful death and survival statutes, to further the purposes of section 1983. See e.g. Hall v. Wooten, 506 F.2d 564, 569 (6th Cir. 1974) (Kentucky survival statute); Brazier v. Cherry, 293 F.2d 401, 409-10 (5th Cir.), cert. denied, 82 S.Ct. 243 (1961) (Georgia survival statute); Pritchard v. Smith, 289 F.2d 153, 158 (8th Cir. 1961) (Arkansas survival statute); Smith v. Wickline, 396 F.Supp. 555, 560 (W.D. Okla. 1975) (Oklahoma wrongful death statute); Galindo v. Brownell, 255 F.Supp. 930, 931 (S.D. Cal. 1966) (California wrongful death statute).
However, application of the Texas proportionate responsibility scheme would frustrate the two primary goals of 42 U.S.C. § 1983 — compensation and deterrence. See Robertson v. Wegmann, 436 U.S. 584, 590, 98 S.Ct. 1991, 1995, 56 L.Ed.2d 554 (1978) ("The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law."). Some federal courts have refused to apply state laws permitting contribution among joint tortfeasors because it would weaken the "deterrent value" of section 1983. See, e.g. Hepburn v. Athelas Institute, Inc., 324 F.Supp.2d 752, 759 (D. Md. 2004); Mason v. City of New York, 949 F. Supp. 1068, 1079 (S.D.N.Y. 1996). An even more compelling reason exists for not applying the Texas proportionate responsibility scheme, a product of the legislature's sweeping tort reform initiative in 1995 and 2003, as it could directly affect, and most likely reduce, the ability of plaintiffs to recover full compensation for their injuries. Such a result would be wholly inconsistent with the purposes of the federal civil rights laws. See Hepburn, 324 F.Supp.2d at 756 (state law remedies should not be read into federal statutes to protect persons regulated by the statute at the expense of the persons protected by the statute).
In an effort to persuade the court to apply the Texas proportionate responsibility statute, the County cites Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir. 1986) and Dobson v. Camden, 705 F.2d 759 (5th Cir. 1983). Neither case is controlling or convincing. Hinshaw was a civil rights action brought against two police officers alleging use of excessive force. At trial, the jury found one officer, Ron Wyrick, 65% at fault for the damages sustained by the plaintiff, and another officer, Bob Doffer, 35% at fault. The Fifth Circuit determined that the evidence was insufficient to support a judgment against Doffer. Therefore, the court was left to decide whether Wyrick, who was only 65% at fault, should be held liable for 100% of the damages. Under Texas law in effect at the time, joint tortfeasors were jointly and severally liable to a claimant even if the jury assessed specific percentages of fault. See Hinshaw, 785 F.2d at 1269, citing TEX. CIV. PRAC. REM. CODE ANN. § 33.013 (Vernon 1986) (repealed) ("Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant . . ."). The court reasoned that the same rule should apply where a judgment is reversed as to one of two jointly and severally liable defendants. According to the court:
We believe that our holding comports with the goals of section 1983, compensating plaintiffs who suffer a violation of constitutional rights and preventing abuses by those acting under color of state law. Were we to hold Wyrick responsible for only 65% of the damages suffered by Hinshaw, then Hinshaw would not receive full compensation for his injuries. We would be punishing Hinshaw because he sued an extra defendant and because the district court erred in not granting Doffer's motions for directed verdict and for judgment notwithstanding the verdict. Since these policy considerations indicate that our application of Texas law to resolve the question of whether to hold Wyrick fully liable for the judgment is "not inconsistent with the Constitution and laws of the United States," we adopt this aspect of Texas law.Id. at 1269 (internal citations omitted). Thus, Hinshaw actually supports this court's conclusion that the current version of the Texas statute, which provides for a proportionate reduction in the ability to recover damages from a defendant according to relative fault, is inconsistent with the policies underlying section 1983.
Dobson, which was decided nearly three years before Hinshaw, involved the effect of a pretrial settlement with a joint tortfeasor in a federal civil rights action. In that case, a divided panel held that the Texas comparative fault scheme did not conflict with federal law. See Dobson, 705 F.2d at 766-70. However, the Fifth Circuit granted rehearing en banc and expressly determined that the case was "inappropriate" for resolution of the proportionate responsibility issue. Dobson v. Camden, 725 F.2d 1003, 1004 (5th Cir. 1984). To the extent the panel opinion in Dobson supports the designation of UTMB as a responsible third party under the current Texas statute, that opinion no longer has any precedential value.
The court concludes that application of the Texas law establishing proportionate responsibility in civil tort actions would benefit the County and DCHD, the parties whose conduct is regulated by 42 U.S.C. § 1983, not plaintiffs, the parties protected by the statute. It would allow the County and DCHD to avoid joint and several liability for any wrongful conduct found by the trier of fact and could prevent plaintiffs from receiving full compensation for their injuries. Such a result would frustrate the dual goals of section 1983 — deterrence and compensation — and would be "inconsistent with the Constitution and laws of the United States." Accordingly, the County should not be permitted to designate UTMB as a responsible third party under the Texas statute.
RECOMMENDATION
UTMB's motion to dismiss the County's third-party complaint for contribution and indemnity should be granted. The County's motion for leave to designate UTMB as a responsible third party under Tex. Civ. Prac. Rem. Code § 33.004 should be denied. The court should direct the clerk to enter a final judgment as to all claims against UTMB. See FED. R. CIV. P. 54(b).
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).