Opinion
Civil Action No. 5:02-CV-098 C
December 3, 2002
ORDER
Plaintiff Nelson A. Romero filed a civil rights complaint pursuant to 42 U.S.C. § 1983 and named Terry Brown, ex-sheriff of Dawson County, Texas; Tommy Jacob, ex-jail administrator of Dawson County, Texas; and Johnny Garcia, Sheriff of Dawson County, Texas, as Defendants. Plaintiff alleges that Defendants Brown and Jacob violated his constitutional rights by deliberately withholding medical treatment for an injury that he received on October 26, 2000, while incarcerated in the Dawson County Jail. He alleges that Defendant Garcia is liable because as the elected sheriff of Dawson County, he now runs the jail. Plaintiff argues that the failure to provide timely treatment for his broken hand has resulted in permanent disfigurement and pain and suffering. Plaintiff requests monetary damages and medical treatment to repair his hand.
A supervisory official may be held liable under § 1983 only if a complainant demonstrates the official affirmatively participated in the act or acts that caused the constitutional deprivation, or the official implemented unconstitutional policies that caused the complainant's injury. Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992). See Pierce v. Texas Dep't of Criminal Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994) (holding that theories of vicarious liability do not apply to § 1983 claims) and Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1994) (holding that personal involvement is an essential element of a civil rights cause of action). Because Plaintiff has conceded that Defendant Garcia was not the elected sheriff at the time of his injury, he has failed to demonstrate that Garcia personally participated in a decision to deny medical treatment or implemented unconstitutional policies that caused his injury. The Court therefore finds that Defendant Johnny Garcia should be dismissed with prejudice from the instant civil action.
As for Defendants Brown and Jacob, the Court finds that Plaintiff has stated claims of constitutional violations sufficient to require responsive pleadings from these Defendants. The Court also finds that pursuant to Fed.R.Civ.P. 4(c)(2) and 28 U.S.C. § 1915, the United States Marshal should effectuate service upon Defendants Brown and Jacob at their last known address:
Terry Brown and Tommy Jacob c/o Dawson County Jail 401 So. 2nd Lamesa, Texas
It is, therefore, ORDERED that:
(1) Defendant Johnny Garcia and all claims alleged against him in the instant civil rights action are dismissed with prejudice.
(2) The Clerk of the Court is directed to complete form USM-285 and a summons for Defendants Terry Brown and Tommy Jacob.
(3) The Clerk shall provide a copy of this Order to the United States Marshal, along with form USM-285, the completed summons, and copies of the complaint filed in the instant civil action.
(4) The United States Marshal shall personally serve process and a copy of this Order upon Defendants Brown and Jacob at the address noted above. In the event Defendants Brown and Jacob are no longer associated with the Dawson County Jail, the United States Marshal shall command all necessary assistance from the Dawson County Jail to execute this Order.
(5) Within ten (10) days after personal service is effected, the United States Marshal shall file the return of service for Defendants Brown and Jacob and the costs incurred in effecting service on said Defendants.
(6) Defendants Terry Brown and Tommy Jacob shall each file an Answer to the complaint within thirty (30) days after service.
(7) All discovery is stayed until further order.
(8) No further motions or pleadings may be filed by Plaintiff until the Defendants have answered and the Court has entered its scheduling order.