Akins v. Liberty County, Texas et al
MEMORANDUM and ORDER granting Defendants' motions for summary judgment. CEC and Warden New's motions for summary judgment on the pleadings is granted with respect to Akin's claims against them for intentional infliction of emotional distress and abuse of official capacity or official oppression. Finally, any claims against unnamed and unserved employees of CEC and Liberty County are dismissed. Signed by Judge Marcia A. Crone on 1/9/2014. (bjc)
UNITED STATES DISTRICT COURT
FREDERICK RAY AKINS,
LIBERTY COUNTY, TEXAS; PHIL
FITZGERALD, in his Official Capacity;
LIBERTY COUNTY SHERIFF’S
DEPARTMENT EMPLOYEES, in their
Individual Capacities and Whose Names are
Presently Unknown to Plaintiff;
COMMUNITY EDUCATION CENTERS,
INC.; EMPLOYEES OF COMMUNITY
EDUCATION CENTERS, INC., and
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:10-CV-328
MEMORANDUM AND ORDER
Pending before the court are Defendants Liberty County, Texas (“Liberty County”) and
Liberty County Judge Phil Fitzgerald’s (“Judge Fitzgerald”) (collectively, the “Liberty County
Defendants”) Motion for Summary Judgment (#78) and Defendants Community Education Centers
(“CEC”) and Warden Timothy New’s (“Warden New” or “New”) Motion for Summary Judgment
(#81).1 Defendants seek the dismissal of Plaintiff Frederick Ray Akins’s (“Akins”) claims
pursuant to Federal Rule of Civil Procedure 56. Also pending is CEC and Warden New’s Motion
for Judgment on the Pleadings (#79), wherein CEC and New seek dismissal of Akins’s claims
under Federal Rule of Civil Procedure 12(c). Having considered the pending motions, the
For the sake of simplicity, the court will refer to all defendants collectively as “Defendants”
submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that
Defendants’ motions should be granted.
On June 8, 2010, Akins filed the instant lawsuit, asserting numerous causes of action
against Defendants2 arising from his detention in the Liberty County Correctional Facility (“the
jail”) from June 8, 2009, to June 12, 2009. Akins seeks to recover pursuant to 42 U.S.C.
§§ 1981, 1983, and 1985 for violations of his constitutional “rights,” “rights and privileges,”
denials of “due process and equal protection,” and a denial of his “statutory rights.” In addition,
Akins asserts several state law tort theories, including premises liability, negligence, misuse of
information and negligence in the handling of medical information, defamation, libel per se,
defamation per se, intentional infliction of emotional distress, and vicarious or respondeat superior
The Liberty County Defendants moved for summary judgment on March 27, 2012. The
next day, March 28, 2012, CEC and Warden New moved for summary judgment and judgment
on the pleadings. Pursuant to Local Rule CV-7(e), Akins’s responses were due on April 13, 2012,
and April 15, 2012, respectively. Akins, however, did not respond.
Instead, on May 15, 2012, Akins filed a suggestion of bankruptcy. As a result, the case
was administratively closed on May 21, 2012. Approximately one year later, on May 22, 2013,
Several other defendants have already been dismissed from this action; namely, Hartman
Newspapers, L.P., Carol Skewes, Theresa Jo Barrett, The Liberty Vindicator, Granite Publications, The
Anahuac Progress, Paul Campbell, Sheriff Henry Patterson, Community Publishers, Inc., Trinity Valley
Broadcasting Company, Bill Buchanan, Allen Youngblood, and i-dineout.com. See Docket Nos. 49, 50,
61, 62, 67 & 69.
the bankruptcy trustee filed an Abandonment of Litigation, specifically listing this lawsuit. In
addition, Akins was discharged from bankruptcy on June 10, 2013. Defendants, therefore, sought
to reopen the case for rulings on the instant motions. Akins failed to respond to the motion to
reopen. As a consequence, Defendants’ motion was granted, and the case was reopened on
October 1, 2013.
To date, Akins has not responded to Defendants’ motions or requested leave to do so. As
a result, the court accepts as undisputed the facts set forth by Defendants in their motions for
summary judgment. See Jegart v. Roman Catholic Church of Diocese of Houma Thibodaux, 384
F. App’x 398, 400 (5th Cir. 2010) (“When a party does not file an opposition to a motion for
summary judgment, the district court is permitted to consider the facts listed in support of the
motion as undisputed.”); Eversley v. MBank Dallas, 843 F.2d 172, 175 (5th Cir. 1988); Ass’n of
Taxicab Operators, USA v. Yellow Checker Cab Co., 910 F. Supp. 2d 971, 975 (N.D. Tex.
2012); Lynch v. Jet Ctr. of Dallas, LLC, No. 3:05-CV-2229-L, 2007 WL 211101, at *3 (N.D.
Tex. Jan. 26, 2007); Local Rule CV-56(c).
Undisputed Facts as Asserted by Defendants3
Akins was in Portland, Oregon, when he was advised that Liberty County Sheriff Henry
Patterson (“Sheriff Patterson” or “Patterson”) had a warrant for his arrest. Akins was
charged with tampering with a government document with the intent to harm and was
subsequently re-indicted in October 2010 for organized crime and theft.
In 2009, Akins dropped out of Thomas Jefferson School of Law in San Diego, California,
because of the indictments against him. Akins was previously employed as the owner of
ICL Investigations, a firm that performed commercial litigation and personal injury
investigations. Because of the criminal charges brought against Akins in Liberty County,
These facts were taken from Liberty County’s and CEC’s motions for summary judgment and
have been combined and paraphrased for purposes of this opinion.
he is precluded from and no longer maintains a private investigator’s license in Texas or
After learning of his arrest warrant, Akins contacted Sheriff Patterson and traveled to
Texas. On June 8, 2009, around 8:00 a.m., Akins’s son drove him to the Sheriff’s Office
where he was greeted by, met, and spoke with Sheriff Patterson. Akins remained in
Patterson’s office for 20 to 30 minutes, waiting for Chief Jim Cooper (“Chief Cooper” or
“Cooper”) to arrive. Once Cooper arrived, he escorted Akins to booking, where he
booked Akins into the jail.
Akins stated that Patterson had a good attitude, was cordial, and after Cooper took Akins
to booking, Akins had no further interaction with Patterson.
After being booked in, Chief Cooper placed Akins in a holding cell with four other
individuals. Akins remained in the cell until his arraignment. Akins had no problems with
the four individuals while in the holding cell.
That same day, Chief Cooper took Akins to the 75th Judicial District Court of Liberty
County, Texas, to be arraigned and to have his bond set. After waiting in court for
approximately 20 minutes, Judge Rusty Hight (“Judge Hight”) saw Akins and set his bond
Akins contends that misinformation about his state of residence resulted in an elevated
bond—$100,000.00. He admitted, however, that he contested the issue during the hearing
and later conceded that it was the district attorney who persuaded or contributed to the
judge setting the bond at $100,000.00. CEC and New were not involved with Akins’s
arraignment hearing. Akins has no personal knowledge of whether CEC or Warden New
had any involvement in setting his bond.
Akins believes that Liberty County Judge Fitzgerald was influential in setting his bond, but
he admitted that he has no such direct evidence, was not sure if Judge Fitzgerald ever
communicated with Judge Hight about his bond, and admitted that his belief is based on
something he heard from a couple of political operatives whose names he does not
Akins had no direct dealings with Judge Fitzgerald during the events at issue in this case.
He merely heard that Fitzgerald had something to do with his situation but was unable to
identify anyone or any document that would indicate Fitzgerald’s involvement. Further,
Akins provided no direct evidence that Judge Fitzgerald was involved in any way with his
incarceration during the five days Akins was in jail.
Akins stated that Judge Hight directed that Akins’s CPAP (continuous positive airway
pressure) machine be made available.4
After the arraignment, around 5:00 p.m. on June 8, 2009, Chief Cooper brought Akins
back to the jail and permitted him to make some phone calls to his son to arrange for his
bond, medications, and CPAP machine. Cooper then turned Akins over to general jail
personnel. Later that evening, jail personnel moved Akins from a holding cell to general
population for the remainder of the day. After he was turned over to the general jail
personnel, Akins had no interaction with Cooper.
At all relevant times, Liberty County had a contract with an entity believed by Liberty
County to be a subsidiary of CEC. Under the contract, the contractor was responsible for
the maintenance, operation, and management of the jail. The contractor was also
responsible to train its employees, provide sanitation/hygiene, and supply recreation,
access to courts, health care services, food, commissary, telephone system, religious
services, facility supplies, grievance procedures, security and control, and sufficiently
trained personnel to provide 24-hour care and supervision to inmates.
Akins stated that Chief Cooper, like Sheriff Patterson, was cordial to him. He admitted
that neither Patterson, Cooper, nor anyone associated with CEC or Liberty County,
mistreated him up until this point in time and throughout the remainder of the day. Akins
further admitted that his complaints did not involve any mistreatment by Sheriff Patterson
or Cooper. After he was brought back from his arraignment by Cooper, Akins had no
dealings with Cooper or any other Sheriff’s Office personnel. Akins later dismissed
Sheriff Patterson as a defendant in this case because he felt Patterson “wasn’t culpable.”
Sometime between his incarceration in the holding cell and being placed in the jail’s
general population, Akins saw a nurse he described as a “very nice lady.”
When he was booked in, Akins recalled saying “Hello” to someone he later learned was
Warden New, but he had no other conversations with New in June 2009, and he did not
send any request for services or grievances to New in June 2009.
Akins makes various allegations of mistreatment while in the jail beginning on June 9,
2009, including being temporarily placed in a cell in the “old jail” one afternoon where
he was subjected to a 20 to 30-minute exposure to backed-up sewage, alleged delays in
receiving his CPAP machine, water, and medicine, and being placed in a solitary
confinement cell (which had an electrical outlet for his CPAP machine).
Akins testified that he did not have his CPAP machine or medications and started getting
ill sometime after being booked into the jail.
Akins uses a CPAP machine to control his sleep apnea.
Akins was moved from the holding cell to general population where he spent the night of
June 8, 2009. Akins was taken to the old jail, a separate building, on the afternoon of June
9, 2009, by a female officer named Chapman. At the old jail, Akins was placed in a cell
on the lower block by a male officer. Akins testified that the cell in which he was placed
had a plugged drain and feces on the floor. He stayed in that cell for 20 to 30 minutes.
He was then removed to a holding cell near the old jail’s control room. He claims that the
correctional officer who moved him to the holding cell apologized for the plumbing leak.
While in the holding cell, a nurse came to see Akins and gave him blood pressure
medication. She came back every hour after that and kept giving Akins additional blood
pressure medication. Once the nurses at the jail determined that Akins needed blood
pressure medication, “they stayed on [him] until they got it straightened out.” Akins
remained in the holding cell the night of June 9, 2009. He claims that the sink in the
holding cell was broken, and a trustee provided him some water. The nurses brought
water to Akins at every pill pass. Akins also received liquids with his meals but testified
that he did not care for the drinks that were served.
On June 10, 2009, Akins was moved to a look-down cell, which he referred to as a solitary
confinement cell in his deposition.
Akins’s contention that he did not receive “needed medical equipment” referred to his
CPAP machine. Akins saw his son at the jail with the CPAP machine on June 10, 2009,
and waved to him. He received his CPAP machine on the evening of June 11, 2009. The
solitary confinement cell had an electrical outlet to accommodate the CPAP machine, but
the holding cell did not. Akins got a good night’s sleep after receiving his CPAP machine
and blood pressure medication from the nurse.
While in the jail, Akins never sent a written request for services to the medical unit, and
he did not discuss any of the allegations in his lawsuit with Warden New while he was at
the jail in 2009. Akins testified that he is suing New because he is in management and in
charge of running the jail and, therefore, he is responsible for putting Akins in harm’s
way. New never personally interacted with Akins. Akins is not aware of whether New
was, at any time, involved with providing medical care or dispensing medication at the
Akins has no knowledge of who ran the kitchen at the jail. He also does not know if he
was placed on a low-salt diet. Akins testified that he received between 10 and 13 meals
at the jail and that two of those meals were “salty.” He also claims that two meals smelled
like urine, but he has no personal knowledge whether anyone urinated in his food.
Further, Akins conceded he had no personal knowledge of the nutritional plans or the
requirements for nutrition at the jail.
During his stay at the jail, Akins was on blood pressure medication, which the nurses
brought to him. The nurses checked his blood pressure when he was first booked in and
checked it several times after that.
Akins has no knowledge of the contents of CEC’s operations manual for the jail. At
deposition, Akins was “not sure” what the “established policy or custom” violations were,
but with respect to an unreasonable seizure, Akins agreed that Sheriff Patterson simply
took him into custody when Akins voluntarily turned himself in. CEC personnel were only
involved in assisting with booking Akins in at the jail after he surrendered himself.
Akins was released from the jail around noon on June 12, 2009.
Akins was unable to name any individuals who might have been treated similarly to the
way Akins felt he was treated at the jail.
Akins has no knowledge that anyone with Liberty County or CEC, prior to June 8, 2009,
knew of a collapsed sewer or main drain line at the jail.
The jail’s repair records indicate no knowledge on the part of CEC or Liberty County of
a collapsed sewer line prior to June 8, 2009.
Although Akins alleges Cooper and New verbally divulged information regarding his
medical records to Bill Buchanan (“Buchanan”) in the presence of Sheriff Patterson and
Vanessa Brashier (“Brashier”),5 the information is based on alleged hearsay statements
from Brashier made six months before Akins’s December 14, 2011, deposition. Akins was
not present during these conversations. Akins has no personal knowledge of whether New
or anyone associated with CEC disclosed his medical information.
Akins admitted that he released some of his blood pressure information into the public
domain via an e-mail dated June 14, 2009, two days after he was released from the jail.
Nonetheless, he also stated there were other media sources publishing this information
while he was in jail. Akins, however, could not identify the sources, did not remember
where he saw the information, and did not produce any supporting documentation. He also
does not know when the alleged statements by Cooper and/or New were made to Brashier
Akins stated that the release of his medical information embarrassed him, as he does not
like his private medical information being made public.
Brashier is a senior editor of the Cleveland Advocate. Buchanan is a radio broadcaster for the
Trinity Valley Broadcasting Company.
Akins admitted he is not asserting any defamation claims against CEC, New, or Liberty
County, and is not aware of CEC, New, Liberty County, Patterson, or Fitzgerald
publishing any defamatory statements about him.
Akins stated he was not sure if CEC, New, Liberty County, or Patterson was negligent in
determining whether certain statements were true before they were published.
Other than his hearsay allegations concerning New, Akins has no evidence that New
intentionally tried to hurt him in any way.
Akins admitted he has no reason to believe that Liberty County discriminated against him
because of his race or gender. Akins also testified he did not know of any voting rights
or contract issues he had with Liberty County. Further, other than an alleged CEC
employee calling Akins a “Cracker” on one occasion, Akins has no evidence CEC
discriminated against him based on his race or gender or attempted to prevent him from
voting or entering into a contract.
Although Akins alleged he received anonymous threatening text messages, he was not able
to trace them or determine their origin. No one associated with CEC, including New, ever
threatened Akins with bodily harm.
On July 8, 2009, Akins sent an e-mail to Sheriff Patterson complaining about his detention.
Patterson responded on July 10, 2009, that if Akins intended to file a formal complaint,
he would have to come into the Sheriff’s Office on July 13, 2009, and complete the
appropriate paperwork. The letter also stated that if a formal complaint was filed, an
investigation would immediately commence, and an investigator would meet with Akins
for more information. There is no evidence that Akins filed a formal complaint.
On December 31, 2009, more than 6 months after his incarceration, Akins’s counsel sent
Liberty County a Notice of Claims letter asserting $5,011,500.00 in damages and
demanding $1,008,500.00 to settle.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The parties seeking
summary judgment bear the initial burden of informing the court of the basis for their motion and
identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits, if any, which they believe demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); QBE Ins. Corp. v. Brown &
Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.
2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
“A fact is material only if its resolution would affect the outcome of the action . . . .”
Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009); accord Poole v. City
of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d
446, 454 (5th Cir. 2005). “Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “An issue is ‘genuine’
if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Bazan ex rel.
Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original). Thus, a
genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Poole, 691 F.3d at 627;
Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010); Wiley, 585 F.3d at 210; EMCASCO
Ins. Co. v. Am. Int’l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir. 2006); Cooper Tire &
Rubber Co., 423 F.3d at 454. The moving parties, however, need not negate the elements of the
nonmovant’s case. See Bayle, 615 F.3d at 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir. 2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994));
Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc., 390 F.3d 336, 339 (5th Cir.
Once a proper motion has been made, the nonmoving parties may not rest upon mere
allegations or denials in the pleadings but must present affirmative evidence, setting forth specific
facts, to show the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322 n.3
(quoting FED. R. CIV. P. 56(e)); Anderson, 477 U.S. at 256; Bayle, 615 F.3d at 355; EMCASCO
Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th
Cir. 2004). “[T]he court must review the record ‘taken as a whole.’” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)); see Riverwood Int’l Corp. v. Emp’rs Ins. of Wausau,
420 F.3d 378, 382 (5th Cir. 2005). All the evidence must be construed in the light most favorable
to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility.
Reeves, 530 U.S. at 150; Downhole Navigator, LLC v. Nautilus Ins. Co., 686 F.3d 325, 328 (5th
Cir. 2012); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009);
Lincoln Gen. Ins. Co., 401 F.3d at 350; Smith ex rel. Estate of Smith, 391 F.3d at 624. The
evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all
reasonable doubts resolved in his favor. Groh v. Ramirez, 540 U.S. 551, 562 (2004) (citing
Anderson, 477 U.S. at 255); Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 192
(5th Cir. 2011); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255,
258 (5th Cir. 2009).
Nevertheless, “only reasonable inferences in favor of the nonmoving party can be drawn
from the evidence.” Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779 (E.D. Tex. 2008)
(citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 469 n.14 (1992));
accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). “If the
[nonmoving party’s] theory is . . . senseless, no reasonable jury could find in its favor, and
summary judgment should be granted.” Eastman Kodak Co., 504 U.S. at 468-69; accord Shelter
Mut. Ins. Co. v. Simmons, 543 F. Supp. 2d 582, 584-85 (S.D. Miss.), aff’d, 293 F. App’x 273
(5th Cir. 2008). The nonmovant’s burden is not satisfied by “‘some metaphysical doubt as to the
material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’” by speculation, by
the mere existence of some alleged factual dispute, or “by only a ‘scintilla’ of evidence.” Little,
37 F.3d at 1075 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); Matsushita
Elec. Indus. Co., 475 U.S. at 586; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Davis v.
Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)); accord Thibodeaux v. Vamos Oil &
Gas Co., 487 F.3d 288, 294-95 (5th Cir. 2007); Warfield, 436 F.3d at 557; Boudreaux, 402 F.3d
at 540. “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539,
541 (5th Cir. 2003); accord RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010); Hugh
Symons Grp., plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir.), cert. denied, 537 U.S. 950
(2002); see Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 332 (5th Cir. 2004).
Summary judgment is mandated if the nonmovant fails to make a showing sufficient to
establish the existence of an element essential to his case on which he bears the burden of proof
at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322;
EMCASCO Ins. Co., 438 F.3d at 523; Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d
108, 110 (5th Cir. 2005); Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004). “[W]here the
nonmoving party fails to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial, no genuine issue of material fact can
exist.” Apache Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). “In such a
situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex Corp., 477 U.S. at 322-23.
Judgment on the Pleadings Under FED. R. CIV. P. 12(c)
CEC and Warden New move for judgment on the pleadings and seek to dismiss certain of
Akins’s state law claims.6 Rule 12(c) provides: “[a]fter the pleadings are closed—but early
enough not to delay trial—a party may move for judgment on the pleadings.” FED. R. CIV. P.
12(c); accord Hughes v. The Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001); see Great
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002); Jones
v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). “A motion brought pursuant to FED. R. CIV.
P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment
on the merits can be rendered by looking to the substance of the pleadings and any judicially
noticed facts.” Herbert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990);
see Great Plains Trust Co., 313 F.3d at 312; United States v. Renda Marine, Inc., 750 F. Supp.
2d 755, 763 (E.D. Tex. 2010), aff’d, 667 F.3d 651 (5th Cir. 2012), cert. denied, 133 S. Ct. 1800
(2013). Such motions are treated as a motion for judgment on the pleadings based on a failure to
state a claim upon which relief can be granted. See Truong v. Bank of Am., N.A., 717 F.3d 377,
381 (5th Cir. 2013); Gentilello v. Rage, 627 F.3d 540, 543-44 (5th Cir. 2010) (“We evaluate a
CEC and Warden New move for summary judgment and judgment on the pleadings as to the
majority of Akins’s claims against them. For two of Akins’s claims, intentional infliction of emotional
distress and Abuse of Official Capacity or Official Oppression, however, CEC and New failed to seek
summary judgment. Rather, they moved for dismissal of these causes of action pursuant to Rule 12(c).
Therefore, with the exception of these two claims against CEC and New, the court will apply Rule 56.
motion under Rule 12(c) for judgment on the pleadings using the same standard as a motion to
dismiss under Rule 12(b)(6) for failure to state a claim.”); Johnson v. Johnson, 385 F.3d 503, 529
(5th Cir. 2004) (same). The primary focus is whether, in the light most favorable to the plaintiff,
the complaint states a valid claim for relief. See United States v. 0.073 Acres of Land, 705 F.3d
540, 543 (5th Cir. 2013); Great Plains Trust Co., 313 F.3d at 312; Hughes, 278 F.3d at 420.
“‘Pleadings should be construed liberally, and judgment on the pleadings is appropriate
only if there are no disputed issues of fact and only questions of law remain.’” Great Plains Trust
Co., 313 F.3d at 312 (quoting Hughes, 278 F.3d at 420). In making such a determination, the
court is restricted to the pleadings and must accept all allegations as true. See Hughes, 278 F.3d
at 420 (citing St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991));
see also Great Plains Trust Co., 313 F.3d at 312. The court will not, however, accept as true
conclusory allegations or unwarranted deductions of fact. See Great Plains Trust Co., 313 F.3d
42 U.S.C. § 1983
Akins asserts a host of § 1983 claims against Defendants. He complains of constitutionally
deficient jail conditions based on inadequate and unsanitary housing, inadequate and/or unsanitary
food, inadequate medical care (including water), and inadequate recreation, as well as a totality
of faulty conditions. Akins also contends that the exercise of unidentified established policies and
customs violated his clearly established rights under the United States Constitution, including:
(a) unreasonable seizure of his person; (b) the use of unreasonable, unnecessary, and excessive
force; (c) cruel and unusual punishment; and (d) deprivation of medical care for injuries received
while in custody.
In addition, Akins avers that unidentified officers and employees of CEC and Liberty
County violated § 1983 by acting willfully, deliberately, maliciously, or with reckless disregard
for his clearly established constitutional rights. He further contends that Liberty County, CEC,
and their employees “violated his civil rights while he was in custody” and that CEC and Liberty
County are vicariously liable for the acts of their employees. Finally, Akins asserts vague due
process and equal protection claims, as well as “misuse of information” claims pertaining to
medical information Akins believes was released to the media. With regard to Liberty County,
Akins also generally avers that Liberty County had a policy or custom of “tolerating misconduct
on the part of jail staff, encouraging misconduct by failing to adequately supervise, discipline, or
train jail personnel.”
Defendants counter that Akins’s § 1983 claims are legally infirm for a number of reasons,
including: (1) Liberty County and CEC cannot be vicariously liable for the actions of its
employees and cannot be liable if their employees did not commit a constitutional violation; (2)
there is no evidence that a Liberty County or CEC policy or custom was the moving force behind
the alleged deprivations of Akins’s constitutional rights; and (3) there is no evidence that any CEC
or Liberty County employee or official personally participated in a deprivation of Akins’s
§ 1983 Generally
The Civil Rights Act of 1871, 42 U.S.C. § 1983, creates a private right of action for
redressing the violation of federal law by those acting under color of state law. See Inyo Cnty. v.
Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S. 701, 708 (2003); Conn v. Gabbert, 526
U.S. 286, 290 (1999); Livadas v. Bradshaw, 512 U.S. 107, 132 (1994); Goodman v. Harris
Cnty., 571 F.3d 388, 394 (5th Cir. 2009), cert. denied, 558 U.S. 1148 (2010); Stotter v. Univ.
of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007). It provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983; accord Connick v. Thompson, ___ U.S. ___, ___ , 131 S. Ct. 1350, 1359
(2011). “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); accord Graham v. Connor, 490 U.S.
386, 393-94 (1989); Sepulvado v. Jindal, 729 F.3d 413, 420 n.17 (5th Cir. 2013).
Thus, for Akins to recover, he must show that Defendants deprived him of a right
guaranteed by the Constitution or the laws of the United States. See Daniels v. Williams, 474 U.S.
327, 329-31 (1986); Baker, 443 U.S. at 139; Doe ex rel. Magee v. Covington Cnty. Sch. Dist.,
675 F.3d 849, 855 (5th Cir. 2012). “[T]he first step in a § 1983 analysis is to identify the specific
constitutional [or federal] right involved.” Oliver v. Scott, 276 F.3d 736, 744 n.10 (5th Cir.
2002) (citing Baker, 443 U.S. at 140); see Sepulvado, 729 F.3d at 420 n.17. “‘Section 1983
imposes liability for violations of rights protected by the Constitution, not for violations of duties
of care arising out of tort law.’” Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(quoting Baker, 443 U.S. at 146); accord Town of Castle Rock v. Gonzales, 545 U.S. 748, 768
n.15 (2005); Covington Cnty. Sch. Dist., 675 F.3d at 858. Akins must also prove that the alleged
constitutional or statutory deprivation was intentional or due to deliberate indifference—not the
result of mere negligence. See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Davidson v.
Cannon, 474 U.S. 344, 348 (1986); Daniels, 474 U.S. at 328. The negligent deprivation of life,
liberty, or property is not a constitutional violation and does not give rise to liability under the
Act. See McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002), cert. denied, 537
U.S. 1232 (2003); Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995); Fraire v.
City of Arlington, 957 F.2d 1268, 1276 (5th Cir.), cert. denied, 506 U.S. 973 (1992).
When a § 1983 suit is brought against a governmental entity, a plaintiff “must plead facts
which show that: (1) a policy or custom existed; (2) the governmental policy makers actually or
constructively knew of its existence; (3) a constitutional violation occurred; (4) and the custom or
policy served as the moving force behind the violation.” Meadowbriar Home for Children, Inc.
v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996); accord Bustos v. Martini Club Inc., 599 F.3d 458,
467 (5th Cir. 2010); Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010), cert. denied,
131 S. Ct. 2094 (2011). The key to recovery under § 1983 against a governmental entity or a
private corporation performing a governmental function is demonstrating the deprivation of a
constitutional right inflicted pursuant to an official policy or custom. See Connick, 131 S. Ct. at
1359; Zarnow v. City of Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010), cert. denied, 131 S.
Ct. 3059 (2011); accord Olivas v. Corr. Corp. of Am., 408 F. Supp. 2d 251, 254-55 (N.D. Tex.
2006), aff’d, 215 F. App’x 332 (5th Cir. 2007) (recognizing that the standards applicable to
governmental § 1983 liability similarly apply to private corporations performing governmental
functions). For § 1983 liability to attach, a plaintiff must demonstrate three elements: “‘a
policymaker; an official policy; and a violation of constitutional rights whose “moving force” is
the policy or custom.’” Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005), cert. denied,
547 U.S. 1130 (2006) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), cert.
denied, 524 U.S. 820 (2001)); accord Zarnow, 614 F.3d at 166; Rivera v. Houston Indep. Sch.
Dist., 349 F.3d 244, 247 (5th Cir. 2003). “[T]he unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur.” Piotrowski,
237 F.3d at 578 (citing Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998), cert. granted,
525 U.S. 1098, cert. dismissed, 526 U.S. 1083 (1999)); accord James v. Harris Cnty., 577 F.3d
612, 617 (5th Cir. 2009), cert. denied, 558 U.S. 1114 (2010); Rivera, 349 F.3d at 247.
Moreover, when proceeding under § 1983, “each and any policy which allegedly caused
constitutional violations must be specifically identified by a plaintiff . . . .” Piotrowski, 237 F.3d
at 579. Therefore, to sustain liability under § 1983, Akins must point to more than isolated
unconstitutional actions of a CEC or Liberty County employee; instead, he “must identify a
policymaker with final policymaking authority and a policy that is the ‘moving force’ behind the
alleged constitutional violation.” Rivera, 349 F.3d at 247 (quoting Piotrowski, 237 F.3d at 578).
The United States Supreme Court has expressly held that local governmental entities may
be sued directly under § 1983 where “the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978);
see Collins v. City of Harker Heights, 503 U.S. 115, 120-21 (1992); Zarnow, 614 F.3d at 166;
Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002). A governmental entity may also be sued
“for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a
custom has not received formal approval through the body’s official decisionmaking channels.”
Monell, 436 U.S. at 690-91; accord Zarnow, 614 F.3d at 166. The United States Court of
Appeals for the Fifth Circuit has defined an official policy or custom as:
A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s lawmaking officers or by an
official to whom the lawmakers have delegated policy-making authority; or
A persistent, widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that fairly represents
municipal policy. Actual or constructive knowledge of such custom must
be attributable to the governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 F.2d
861, 862 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985)); accord Cox, 430 F.3d at 748-49;
Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir.
2004); Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110
(2003); Brown v. Bryan Cnty., 219 F.3d 450, 457 (5th Cir. 2000), cert. denied, 532 U.S. 1007
The first type of “policy” is characterized by formal rules and understandings which
constitute fixed plans of action to be followed under similar circumstances consistently and over
time. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); accord Gonzalez v. Ysleta
Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993). The second type of “policy” arises from
custom, i.e., “conduct that has become a traditional way of carrying out policy and has acquired
the force of law.” Bennett, 728 F.2d at 768. A third type of “policy” stems from “a final
decisionmaker’s adoption of a course of action ‘tailored to a particular situation and not intended
to control decisions in later situations.’” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 406 (1997) (quoting Pembaur, 475 U.S. at 481); accord In re Foust, 310 F.3d 849, 862
(5th Cir. 2002). “[A] single decision by a policy maker may, under certain circumstances,
constitute a policy for which the county may be liable.” Bryan Cnty., 219 F.3d at 462; accord
Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525, 527 (5th Cir. 2006); Woodard v. Andrus,
419 F.3d 348, 352 (5th Cir. 2005). Under this type of “policy,” a municipality can be liable only
if the decision to adopt that particular course of action is properly made by that government’s
authorized decisionmakers. See Bryan Cnty., 219 F.3d at 462; accord Woodard, 419 F.3d at 352.
Such “authorized decisionmakers” are defined to be officials “‘whose edicts or acts may fairly be
said to represent official policy’” and whose decisions may therefore result in governmental
liability under § 1983. Bryan Cnty., 219 F.3d at 457 n.9 (quoting Monell, 436 U.S. at 694);
accord Woodard, 419 F.3d at 352; Tharling v. City of Port Lavaca, 329 F.3d 422, 427 (5th Cir.
2003); Pineda, 291 F.3d at 328. Furthermore, the Fifth Circuit has held that when a final
policymaker makes a decision, and that decision is within the sphere of the policymaker’s final
authority, “‘the existence of a well-established, officially-adopted policy will not insulate the
municipality from liability.’” Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996) (quoting
Gonzalez, 996 F.2d at 754).
Where a custom is shown, the plaintiff must demonstrate that “‘[a]ctual or constructive
knowledge of such custom [is] attributable to the governing body of the municipality or to an
official to whom that body has delegated policy-making authority.’” Piotrowski, 237 F.3d at 579
(quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)); see Cox, 430 F.3d at
749 n.53; Johnson, 379 F.3d at 309; see also McGregory v. City of Jackson, 335 F. App’x 446,
449 (5th Cir. 2009) (citing Bennett, 728 F.2d at 768). Indeed, “[p]roof of a custom and
knowledge of that custom are separate elements.” Garcia v. Contreras, No. C-07-359, 2008 WL
4646897, at *9 n.8 (S.D. Tex. Oct. 20, 2008) (citing Pineda, 291 F.3d at 330); accord Cox, 430
F.3d at 749; Rivera, 349 F.3d at 249; Garcia v. Cnty. of El Paso, 79 F. App’x 667, 669-70 (5th
Cir. 2003); Burris v. Davis, 642 F. Supp. 2d 573, 581 (S.D. Miss. 2009). “If actions of city
employees are to be used to prove a custom for which the municipality is liable, those actions must
have occurred for so long or so frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is the expected, accepted practice
of city employees.” Webster, 735 F.2d at 842; accord Bennett, 728 F.2d at 768. “Actual
knowledge may be shown by such means as discussions at council meetings or receipt of written
information.” Bennett, 728 F.2d at 768. “‘Constructive knowledge may be attributed to the
governing body on the ground that it would have known of the violations if it had properly
exercised its responsibilities, as for example, where the violations were so persistent and
widespread that they were the subject of prolonged public discussion or of a high degree of
publicity.’” Webster, 735 F.2d at 842 (quoting Bennett, 728 F.2d at 768).
In any event, a governmental entity may not be held liable for the acts of its employees
under a theory of respondeat superior. See Monell, 436 U.S. at 694; Zarnow, 614 F.3d at 167;
Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 384 n.45 (5th Cir. 2005); Pineda, 291
F.3d at 328; Piotrowski, 237 F.3d at 578; Flores v. Cameron Cnty., 92 F.3d 258, 263 (5th Cir.
1996). “Municipalities are not vicariously liable for the actions of their employees under § 1983.
Municipal liability inures only when the execution of a local government’s policy or custom causes
the injury.” Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996); see Victoria W., 369 F.3d at 482;
Williams, 352 F.3d at 1014. In order to hold a governmental entity liable for the acts of a
nonpolicymaking employee, the plaintiff must allege and prove that: “(1) a policy or custom
existed; (2) the governmental policy makers actually or constructively knew of its existence; (3)
a constitutional violation occurred; and (4) the custom or policy served as the moving force behind
the violation.” Meadowbriar Home for Children, Inc., 81 F.3d at 532-33; accord Rivera, 349
F.3d at 247; Pineda, 291 F.3d at 328; Piotrowski, 237 F.3d at 579. “Where a plaintiff claims that
the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do
so, rigorous standards of culpability and causation must be applied to ensure that the municipality
is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm’rs of Bryan Cnty.,
520 U.S. at 405 (citing City of Canton v. Harris, 489 U.S. 378, 391-92 (1989)). “These
requirements must not be diluted for ‘[w]here a court fails to adhere to rigorous requirements of
culpability and causation, municipal liability collapses into respondeat superior liability.’”
Snyder, 142 F.3d at 796 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 415); accord
Piotrowski, 237 F.3d at 580.
Consistent with the commonly understood meaning of custom, proof of random acts or
isolated incidents generally is not sufficient to show the existence of a custom or policy. See
McClendon v. City of Columbia, 258 F.3d 432, 441-42 (5th Cir. 2001), reinstated in part by
McClendon, 305 F.3d at 321 n.3); Fraire, 957 F.2d at 1278 (citing Rodriguez v. Avita, 871 F.2d
552, 554 (5th Cir.), cert. denied, 493 U.S. 854 (1989)). “‘Isolated violations are not the
persistent, often repeated constant violations that constitute custom and policy’ as required for
municipal section 1983 liability.” Campbell, 43 F.3d at 977 (quoting Bennett, 728 F.2d at 768
n.3); accord Piotrowski, 237 F.3d at 581.
Thus, “[a] customary municipal policy cannot ordinarily be inferred from single
constitutional violations.” Pitrowski, 237 F.3d at 581; accord Estate of Davis, 406 F.3d at 383;
Johnson, 379 F.3d at 309-10. To demonstrate a governmental policy or custom under § 1983, a
plaintiff must show “‘“at least a pattern of similar incidents in which the citizens were injured.”’”
Estate of Davis, 406 F.3d at 383 (quoting Snyder, 142 F.3d at 798-99 (quoting Avita, 871 F.2d
at 554-55)); accord Fraire, 957 F.2d at 1278. Only if the plaintiff demonstrates that his injury
resulted from a “‘permanent and well settled’” practice may liability attach for injury resulting
from a local government custom. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970)).
Moreover, a governmental entity does not incur liability under § 1983 unless there exists
“a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton, 489 U.S. at 385; see James, 577 F.3d at 617; Victoria W., 369
F.3d at 482; Piotrowski, 237 F.3d at 580. The Supreme Court has explained:
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.
Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 404 (emphasis in original); see Johnson, 379
F.3d at 310; Victoria W., 369 F.3d at 482. “Congress did not intend municipalities to be held
liable unless deliberate action attributable to the municipality directly caused a deprivation of
federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 415 (emphasis in original).
“Monell describes the high threshold of proof by stating that the policy must be the ‘moving force’
behind the violation.” Piotrowski, 237 F.3d at 580 (quoting Monell, 436 U.S. at 694); see also
City of Canton, 489 U.S. at 389; Cox, 430 F.3d at 748. Hence, “the plaintiff must initially allege
that an official policy or custom ‘was a cause in fact of the deprivation of rights inflicted.’”
Spiller v. City of Tex. City, 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall v. Dallas Indep.
Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)); see Shields v. Twiss, 389 F.3d 142, 151 (5th Cir.
Nevertheless, “‘[t]his connection must be more than a mere “but for” coupling between
cause and effect.’” Johnson, 379 F.3d at 310 (quoting Fraire, 957 F.2d at 1281 (citing City of
Canton, 489 U.S. at 386; City of Okla. City v. Tuttle, 471 U.S. 808, 823 (1985)); see James, 577
F.3d at 617. The plaintiff must also establish that a government policy or custom was the
proximate cause of the injuries sustained. See Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.
1980), cert. denied, 450 U.S. 931 (1981) (holding that “[i]n order for a governmental unit to be
liable under § 1983, the policy or custom must . . ., by the very terms of the statute, be a
proximate cause of the constitutional violation”); accord Johnson, 379 F.3d at 311. Thus,
“[p]ointing to a municipal policy action or inaction as a ‘but-for’ cause is not enough to prove a
causal connection under Monell. Rather, the policy must be the proximate cause of the section
1983 injury.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996), cert. denied,
519 U.S. 1111 (1997); see Murray v. Earle, 405 F.3d 278, 290 (5th Cir.), cert. denied, 546 U.S.
In addition, the “plaintiff must demonstrate that a municipal decision reflects deliberate
indifference to the risk that a violation of a particular constitutional or statutory right will follow
the decision.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 411; James, 577 F.3d at 617.
Thus, plaintiffs seeking to recover against a governmental entity under § 1983 “must first prove
a direct causal link between the [governmental] policy and the constitutional deprivation; they then
must establish that the [governmental entity] consciously enacted a policy reflecting ‘deliberate
indifference’ to the constitutional rights of its citizens.” Snyder, 142 F.3d at 795-96 (citing City
of Canton, 489 U.S. at 389); see Johnson, 379 F.3d at 309-10. “[D]eliberate indifference is a
stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 410; see Estate
of Davis, 406 F.3d at 381.
Akins’s Claims Against Judge Fitzgerald
As a threshold matter, the court notes that Akins has sued Judge Fitzgerald in his official
capacity only. Official-capacity lawsuits are typically an alternative means of pleading an action
against the governmental entity involved. See McMillian v. Monroe Cnty., 520 U.S. 781, 785 n.2
(1997); Hafer v. Melo, 502 U.S. 21, 25 (1991); Woodard, 419 F.3d at 352 (citing Monell, 436
U.S. at 690 n.55); Turner v. Houma Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 483 (5th
Cir. 2000). A suit against an official in his or her official capacity is not a suit against the official
personally but, rather, is a suit against the official’s office. See Printz v. United States, 521 U.S.
898, 930-31 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Brandon v. Holt,
469 U.S. 464, 471 (1985); Monell, 436 U.S. at 691 n.55; McCarthy ex rel. Travis v. Hawkins,
381 F.3d 407, 413-14 (5th Cir. 2004). As such, it is no different from a suit against the County
itself. See Printz, 521 U.S. at 930-31; Will, 491 U.S. at 71 (citing Kentucky v. Graham, 473 U.S.
159, 165-66 (1985); Monell, 436 U.S. at 691 n.55); Woodard, 419 F.3d at 352.
The Supreme Court has observed:
As long as the government entity receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official personally, for the real party
in interest is the entity. Thus, while an award of damages against an official in his
personal capacity can be executed only against the official’s personal assets, a
plaintiff seeking to recover on a damages judgment in an official-capacity suit must
look to the government entity itself.
Graham, 473 U.S. at 166 (emphasis in original) (citations omitted). Therefore, any § 1983 claims
asserted against Judge Fitzgerald in his official capacity are merely redundant and are of no
independent legal significance.
Akins’s Claims Against Warden New
Here, Akins has sued Warden New solely because he was the person in charge of the jail.
Other than saying “hello” to a person he later learned was the warden, Akins had no involvement
at all with New. Indeed, Akins testified that he sued New because he felt New’s “management
and his running of the jail” caused Akins harm and because “[t]he buck’s got to stop with
somebody.” As pointed out by Defendants, these statements suggest a theory of supervisory
Under § 1983, supervisory officials cannot be held liable for the actions of subordinates
under any theory of vicarious liability. See Monell, 436 U.S. at 691-95; Carnaby v. City of
Houston, 636 F.3d 183, 189 (5th Cir. 2011); Bustos, 599 F.3d at 468; Estate of Davis, 406 F.3d
at 381. A supervisor may be held liable, however, if he is either personally involved in the
constitutional deprivation or there is a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation. See Jones v. Lowndes Cnty., 678 F.3d 344, 349
(5th Cir. 2012); Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011); Thompson v. Upshur Cnty.,
245 F.3d 447, 459 (5th Cir. 2001); Alton v. Tex. A & M Univ., 168 F.3d 196, 200 (5th Cir.
1999). In other words, “the misconduct of the subordinate must be affirmatively linked to the
action or inaction of the supervisor.” Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551
(5th Cir. 1997). Because Akins has produced no evidence of participation by New in any viable
claim, New is entitled to summary judgment on all § 1983 claims. See Pesina v. Cooper, No. H09-2316, 2010 WL 430001, at *6 (S.D. Tex. Feb. 4, 2010) (dismissing action where plaintiff
failed to set out specific facts showing that assistant warden was personally involved in alleged
civil rights violations).
Inadequate Training and Supervision
Akins alleges generally that Liberty County had a policy and/or custom of tolerating
misconduct and encouraging misconduct by failing to supervise, discipline, or train jail personnel
adequately. In order to hold a municipality liable under § 1983 for the acts of its employees based
on a theory of inadequate training or supervision, the plaintiff must show:
the training or supervisory procedures of the municipality’s policymaker
the municipality’s policymaker was deliberately indifferent in adopting the
training or supervisory policy; and
the inadequate training or supervisory policy directly caused the plaintiff’s
Conner v. Travis Cnty., 209 F.3d 794, 796 (5th Cir. 2000) (quoting Baker, 75 F.3d at 200 (citing
City of Canton, 489 U.S. at 385-87)); see Valle, 613 F.3d at 544 (citing Sanders-Burns v. City of
Plano, 594 F.3d 366, 381 (5th Cir. 2010)); Benavides v. Cnty. of Wilson, 955 F.2d 968, 972 (5th
Cir.), cert. denied, 506 U.S. 824 (1992); see also Clyce v. Hunt Cnty., 515 F. App’x 319, 323
(5th Cir.), cert. denied, 134 S. Ct. 441 (2013).
With regard to the training or supervision of jail personnel, “[a] municipal ‘policy’ must
be a deliberate and conscious choice by a municipality’s policy-maker.” Rhyne v. Henderson
Cnty., 973 F.2d 386, 392 (5th Cir. 1992) (citing City of Canton, 489 U.S. at 389); accord
Peterson v. City of Fort Worth, 588 F.3d 838, 849 (5th Cir. 2009), cert. denied, 131 S. Ct. 66
(2010); see Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2012)
(“[M]unicipal liability may be based on injuries caused by a failure to adequately train or supervise
employees, so long as that failure results from ‘deliberate indifference’ to the injuries that may be
caused.”); Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 n.8 (2d Cir. 2004) (“[I]n the
context of a failure to supervise case, deliberate indifference may be established by showing that
policymaking officials deliberately ignored an obvious need for supervision.”).
governmental “liability attaches ‘where—and only where—a deliberate choice to follow a course
of action is made from among various alternatives by . . . policymakers.’” Goodman, 571 F.3d
at 396 (quoting City of Canton, 489 U.S. at 389). “It is . . . difficult in one sense even to accept
the submission that someone pursues a ‘policy’ of ‘inadequate training,’ unless evidence be
adduced which proves that the inadequacies resulted from conscious choice—that is, proof that the
policymakers deliberately chose a training program which would prove inadequate.” Tuttle, 471
U.S. at 823. To be actionable, therefore, “the failure to promulgate municipal policy must amount
to ‘an intentional choice, not merely an unintentionally negligent oversight.’” Evans v. City of
Marlin, 986 F.2d 104, 108 (5th Cir. 1993) (quoting Rhyne, 973 F.2d at 392); James, 577 F.3d
at 617-18; accord Amnesty Am., 361 F.3d at 128. Hence, “a showing of simple or even
heightened negligence will not suffice.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 407;
James, 577 F.3d at 617-18; see Conner, 209 F.3d at 796.
In failure to train or supervise cases, the plaintiff can prove the existence of a governmental
policy of deliberate indifference to individuals’ rights in two ways. See Gabriel v. City of Plano,
202 F.3d 741, 745 (5th Cir. 2000). “First, he can show that a municipality deliberately or
consciously chose not to train its officers despite being on notice that its current training regimen
had failed to prevent tortious conduct by its officers.” Id. (citing Bd. of Cnty. Comm’rs of Bryan
Cnty., 520 U.S. at 405). “Second, under the ‘single incident exception’ a single violation of
federal rights may be sufficient to prove deliberate indifference.” Id. (citing Bd. of Cnty.
Comm’rs of Bryan Cnty., 520 U.S. at 409); see Waltman v. Payne, 535 F.3d 342, 350 (5th Cir.
With regard to the first method, liability may be imposed for “a deficient training
‘program,’ necessarily intended to apply over time to multiple employees.” Bd. of Cnty. Comm’rs
of Bryan Cnty., 520 U.S. at 407 (citing City of Canton, 489 U.S. at 390). Generally, there must
be considerably more proof than a single instance of injury or an isolated case of a poorly trained
employee before municipal liability attaches in a case in which the plaintiff alleges a policy of
failure to train employees adequately. See Tuttle, 471 U.S. at 824; Mesa v. Prejean, 543 F.3d
264, 274 (5th Cir. 2008); Snyder, 142 F.3d at 796. In most situations, deliberate indifference
requires “a showing that the policymaker was made aware of the training deficiencies by ‘at least
a pattern’ of similar deprivations.” Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir.
2003); see Johnson, 379 F.3d at 309; accord Connick, 131 S. Ct. at 1360 (“A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.”) (internal quotations omitted). “If a program does
not prevent constitutional violations, municipal decisionmakers may eventually be put on notice
that a new program is called for.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 407.
Indeed, a policymaker’s “continued adherence to an approach that [he] know[s] or should know
has failed to prevent tortious conduct by employees may establish the conscious disregard for the
consequences of [his] action—the ‘deliberate indifference’—necessary to trigger municipal
liability.” Id. (quoting City of Canton, 489 U.S. at 390 n.10); accord Connick, 131 S. Ct. at
1360; Thompson v. Pinellas Cnty., No. 13-10101, 2013 WL 5663281, at *1 (11th Cir. Oct. 18,
In contrast, “[b]asing liability on inadequate training [or supervision] where there is no
municipal awareness of or acquiescence in a pattern of constitutional violations would potentially
transform almost any encounter resulting in an injury into a valid § 1983 claim.” Kellough v.
Bertrand, 22 F. Supp. 2d 602, 611 (S.D. Tex. 1998) (citing City of Canton, 489 U.S. at 391).
that a particular officer may be unsatisfactorily trained will not alone suffice to
fasten liability on the city, for the officer’s shortcomings may have resulted from
factors other than a faulty training program. . . . Neither will it suffice to prove
that an injury or accident could have been avoided if an officer had better or more
training, sufficient to equip him to avoid the particular injury-causing conduct.
Such a claim could be made about almost any encounter resulting in injury, yet not
condemn the adequacy of the program to enable officers to respond properly to the
usual and recurring situations with which they must deal. And plainly, adequately
trained officers occasionally make mistakes; the fact that they do says little about
the training program or the legal basis for holding the city liable.
City of Canton, 489 U.S. at 390-91 (citations omitted); see Snyder, 142 F.3d at 798. “An
adequate training program must ‘enable officers to respond properly to the usual and recurring
situations with which they must deal.’” Benavides, 955 F.2d at 972 (quoting City of Canton, 489
U.S. at 391). Some courts have held that all that is required for a municipality to prevail on a
claim based on inadequate training is compliance with state-mandated training standards for its
officers. See Huong v. City of Port Arthur, 961 F. Supp. at 1003, 1007 (E.D. Tex. 1997).
Here, Akins does not adduce any facts indicating that any of the Liberty County’s officers’
actions were caused by a Liberty County policy or custom, that any such custom was the moving
force behind the alleged constitutional violations, or that an authorized policy maker of Liberty
County was deliberately indifferent to an alleged unconstitutional policy or custom. Rather, Akins
admitted at deposition that he had no complaints against Sheriff Patterson and Chief Cooper while
he interacted with them at the jail. The undisputed facts also demonstrate that Judge Fitzgerald
was not involved in Akins’s arrest, arraignment, or detention at the jail. In addition, during
Akins’s stay, the jail was being maintained, managed, and operated by an independent contractor.
In short, Akins has not identified a written unconstitutional policy of inadequate training,
supervision, discipline, or otherwise, which was the moving force behind the incidents at issue.
He has also failed to show a “pattern of similar incidents” or deliberate indifference on the part
of the policymaker. Estate of Davis, 406 F.3d at 383. For these reasons, Akins’s claims for
inadequate supervision, training, and discipline must be dismissed.
Inadequate Medical Care
Next, Akins makes a number of vague and conclusory allegations regarding his claims that
he was denied constitutionally adequate medical care. First, he generally avers that the medical
care at the jail was deficient and that medical records were not used to assist diagnoses; he further
contends that he could not obtain a medical examination or care upon request. Akins also alleges
that he was not provided enough water and that he suffered chest pains, respiratory distress, severe
headaches, fainting, and stopped breathing without receiving his necessary medications and
breathing equipment (the CPAP machine). According to Akins, he was not given his CPAP
machine until the night before his release.
“The constitutional right of a pretrial detainee to medical care arises from the due process
guarantees of the Fourteenth Amendment.” Mace v. City of Palestine, 333 F.3d 621, 625 (5th
Cir. 2003) (citing Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000)); see Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010), cert. denied, 131 S. Ct. 2932 (2011). In an
“episodic act or omission” case such as this, the Fifth Circuit “employ[s] different standards
depending on whether the liability of the individual defendant or the [governmental] defendant is
at issue.” Corley v. Prator, 290 F. App’x 749, 752 (5th Cir. 2008) (citing Olabisiomotosho v.
City of Houston, 185 F.3d 521, 526 (5th Cir. 1999)); see Brown v. Strain, 663 F.3d 245, 249 (5th
To recover against an individual, “the plaintiff ‘must establish that the official(s) acted with
subjective deliberate indifference to prove a violation of [his] constitutional rights.’”
Olabisiomotosho, 185 F.3d at 526 (quoting Flores v. Cnty. of Hardeman, 124 F.3d 736, 738-39
(5th Cir. 1997)). “Subjective deliberate indifference means ‘the official had subjective knowledge
of a substantial risk of serious harm to [the plaintiff] but responded with deliberate indifference
to that risk,’” such as by failing to take reasonable measures to abate it. Id. (quoting Hare v. City
of Corinth, 74 F.3d 633, 650 (5th Cir. 1996)); see Farmer, 511 U.S. at 847. Hence, “[t]he
subjective deliberate indifference standard focuses on what the [governmental] employee actually
knew.” Corley, 290 F. App’x at 752 (citing Lawson v. Dallas Cnty., 286 F.3d 257, 264 (5th Cir.
2002)). In explaining deliberate indifference, the Fifth Circuit has held:
Deliberate indifference is an extremely high standard to meet . . . . [T]he plaintiff
must show that officials refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince
a wanton disregard for any serious medical needs. Furthermore, the decision
whether to provide additional treatment is a classic example of a matter for medical
judgment. And, the failure to alleviate a significant risk that [the official] should
have perceived, but did not[,] is insufficient to show deliberate indifference.
Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal citations and
quotations omitted). While “deliberate indifference describes a state of mind more blameworthy
than negligence . . . , it is satisfied by something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835; accord
Thompson, 245 F.3d at 459 (“[D]eliberate indifference cannot be inferred merely from a negligent
or even a grossly negligent response to a substantial risk of serious harm.”). It connotes conscious
disregard for known or obvious consequences. See Bd. of Cnty. Comm’rs of Bryan Cnty., 520
U.S. at 413 n.1.
“To succeed in holding a [county] liable, the plaintiff must demonstrate a [county]
employee’s subjective indifference and additionally that the [county] employee’s act ‘resulted from
a [county] policy or custom adopted or maintained with objective deliberate indifference to the
[plaintiff]’s constitutional rights.’” Olabisiomotosho, 185 F.3d at 526 (quoting Hare, 74 F.3d at
649 n.14) (emphasis added); accord Duvall v. Dallas Cnty., 631 F.3d 203, 210 (5th Cir.), cert.
denied, 132 S. Ct. 111 (2011) (describing the different standards for individual and governmental
liability); Corley, 290 F. App’x at 752 (explaining that a “[plaintiff] must meet both the subjective
and the objective standards” to hold a governmental entity liable).
indifference “permit[s] liability to be premised on obviousness or constructive notice.” Farmer,
511 U.S. at 841 (citing City of Canton, 489 U.S. at 390, 396). This standard, therefore,
“considers not only what the [policymaker] actually knew, but what he should have known, given
the facts and circumstances surrounding the official policy and its impact on the plaintiff’s rights.”
Corley, 290 F. App’x at 752 (citing Lawson, 286 F.3d at 264).
Akins fails to meet the “high standard” espoused by the Supreme Court and Fifth Circuit
to impose liability on Liberty County or CEC for providing purportedly inadequate medical care.
First, Akins had no dealings with any Sheriff’s Office personnel after June 9, 2009, as the jail was
being operated by CEC or a subsidiary of CEC. With regard to CEC, Akins testified that he
received his CPAP machine on June 11, 2009, less than three days after he voluntarily surrendered
to Sheriff Patterson and that he was moved to a cell with an electrical socket to accommodate the
Although there was a slight delay in Akins receiving his CPAP machine, he
acknowledged that the jail nurses treated him for potential blood pressure issues, expressing
appreciation for their efforts and stating “they stayed on me until they got it straightened out, I’ll
give them that.” Affidavits from nurses Gwen Ellis, Connie Potter, and Scofelia Rogers, reveal
that Akins received prescription blood pressure medication twice daily on June 9, 10, and 11,
2009, and medications for his acid reflux were ordered but did not arrive at the jail before his
release. There is no evidence that Akins’s health was in serious jeopardy as a result of a delay in
receiving his CPAP machine or from the medical treatment provided by the nurses. See Alfred
v. Winn Corr. Ctr., 368 F. App’x 583, 584 (5th Cir. 2010) (finding no § 1983 liability where
inmate eventually received his CPAP machine and his sleep apnea never posed a serious risk to
Similarly, Akins points to no evidence of any harm resulting from his allegedly having
insufficient water. In fact, the jail nurses brought Akins water with his blood pressure medication,
which was dispensed to him twice daily on June 9, 10, and 11, 2009. Akins also received liquids
with his meals, but he testified that he did not care for the beverages served. In short, the
evidence before the court is insufficient to indicate that Akins’s health was at risk due to a lack of
water or that the medical staff was deliberately indifferent to Akins’s need for water.
In short, Akins has failed to raise a genuine issue of material fact on his claims of
inadequate medical care. There is simply no evidence that Defendants had a policy or custom of
inadequate medical care or that any person was deliberately indifferent to Akins’s medical needs.
Summary judgment, therefore, is warranted as to these claims.
Akins also complains that he was kept in solitary confinement and was not allowed access
to fresh air or to go outside for four days. “Inmates have no protected liberty interest in specific
recreational opportunities and the ‘[d]eprivation of exercise is not a per se constitutional
violation.’” Flores v. Nueces Cnty., No. C-09-080, 2010 WL 2557775, at *11 (S.D. Tex. June
22, 2010) (quoting Lewis v. Smith, No. 00-31371, 2001 WL 1485821, at *1 (5th Cir. Nov. 13,
2001), cert. denied, 535 U.S. 1019 (2002)). “[W]hat is constitutionally required, however, is that
he not be confined for long periods without the opportunity for regular physical exercise.” Lewis,
2001 WL 1485821, at *1; Walton v. Topps, No. 12-0931, 2012 WL 3947629, at *8 (E.D. La.
July 23, 2012), report and recommendation adopted by 2012 3947976 (E.D. La. Sept. 10, 2012).
The Fifth Circuit “has suggested that deprivation of exercise claims should be evaluated on a
case-by-case basis using, inter alia, the following criteria: (1) the size of the inmate’s cell; (2) the
amount of time the inmate spends locked in his cell each day; and (3) the overall duration of the
inmate’s confinement.” Hewitt v. Henderson, 271 F. App’x 426, 428 (5th Cir. 2008) (citing Ruiz
v. Estelle, 679 F.2d 1115, 1152 (5th Cir.), amended in part, vacated in part on other grounds,
688 F.2d 266 (5th Cir. 1982)).
The Constitution, however, is not concerned with “a de minimis level of imposition.”
Hamilton v. Lyons, 74 F.3d 99, 106 (5th Cir. 1996). Further, “[t]o succeed on a claim under
Section 1983 for lack of exercise, a prisoner must establish ‘the existence of any health hazard
under the specific circumstances involved.’” Kron v. LeBlanc, No. 11-2263, 2012 WL 1563957,
at *21 (Oct. 1, 2012), report and recommendation adopted by 2013 WL 823550 (E.D. La. Mar.
6, 2013) (quoting Ruiz, 679 F.2d at 1152); accord Green v. Ferrell, 801 F.2d 765, 771 (5th Cir.
1986); Young v. Guseman, No. 12-2877, 2013 WL 4648478, at *12 (E.D. La. Aug. 29, 2013);
cf. Smith v. Hebert, No. 12-30054, 2013 WL 3243535, at *4 (5th Cir. June 28, 2013) (“As
[inmate] did not allege any physical injury stemming from his confinement in administrative
segregation . . ., the district court did not err in dismissing [his] claims that he was confined to
a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6).”).
The court views Akins’s claim regarding insufficient outdoor recreation for four days as
precisely the type of de minimis complaint that does not rise to the level of a constitutional
violation. See Hamilton, 74 F.3d at 106 (finding no viable constitutional claim where plaintiff was
denied recreation for three days). Moreover, Akins has adduced no evidence that his health
deteriorated as a result of remaining indoors. See Young, 2013 WL 4648478, at *12 (dismissing
claim of inadequate outdoor exercise where plaintiff failed to present evidence of any deleterious
health effect). Consequently, summary judgment in favor of Defendants is appropriate.
Akins next complains that he was exposed to unsanitary and dangerous conditions in the
holding cell; namely, excess water, sewage, hazardous gas, and chemical fumes. Specifically,
Akins contends that a plumbing leak from a burst pipe caused his exposure to unsanitary flooding.
In addition, he asserts that the ventilation at the jail was inadequate and failed to prevent him from
inhaling hazardous fumes. Akins purportedly lost consciousness as a result and had to be removed
from the cell by a jail employee.
A condition of confinement claim is one that “attack[s] . . . general conditions, practices,
rules, or restrictions” of confinement. Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997); see also
Anderson v. Dallas Cnty., 286 F. App’x 850, 857 (5th Cir. 2008). While such claims generally
arise from “an explicit policy or restriction”—such as the number of bunks per cell or disciplinary
segregation—a condition “may reflect an unstated or de facto policy, as evidenced by a pattern of
acts or omissions sufficiently extended or pervasive . . . to prove an intended condition or
practice.” Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th Cir. 2009). The Fifth Circuit has
recognized that “proving a pattern is a heavy burden, one that has rarely been met in . . . case
law.” Id. Moreover, to constitute a constitutional violation, the condition must be “‘arbitrary or
purposeless’ or, put differently, ‘not reasonably related to a legitimate goal.’” Id. (quoting Bell
v. Wolfish, 441 U.S. 520, 539 (1979)).
Conditions of confinement claims are subject to the standard set forth in Bell and its
progeny. Shepherd, 591 F.3d at 453. Bell recognized that “if a particular condition or restriction
[of confinement] is reasonably related to a legitimate governmental objective, it does not, without
more, amount to‘punishment.’”
Bell, 441 U.S. at 539.
Thus, in cases “grounded in
unconstitutional conditions of confinement, the plaintiff need only show that such a condition,
which is alleged to be the cause of a constitutional violation, has no reasonable relationship to a
legitimate government interest.” Duvall, 631 F.3d at 207. This is because, in such claims, “an
avowed or presumed intent by the State or its jail officials exists in the form of the challenged
condition.” Hare, 74 F.3d at 644; accord Duvall, 631 F.3d at 207.
“[A] conditions-of-confinement claim must satisfy tests for both objective and subjective
components.” Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (citing Hudson v. McMillian,
503 U.S. 1, 8 (1992)); accord Johnson v. Thaler, 507 F. App’x 370, 371 (5th Cir. 2013); Henry
v. Guseman, No. 12-0686, 2012 WL 3576043, at *3 (E.D. La. July 27, 2012), report and
recommendation adopted by 2012 WL 3575373 (E.D. La. Aug. 20, 2012); Zaragoza v. Dallas
Cnty., No. 3:07-CV-1704, 2009 WL 2030436, at *4 (N.D. Tex. July 13, 2009). “First, he must
show that his confinement resulted in a deprivation that was ‘“objectively, ‘sufficiently
serious.’”’” Johnson, 507 F. App’x at 371 (quoting Hernandez v. Velasquez, 522 F.3d 556, 560
(5th Cir. 2008) (quoting Farmer, 511 U.S. at 834)).
“Second, regarding the subjective
component, the Supreme Court has adopted ‘subjective recklessness as used in the criminal law,’
as the appropriate test for deliberate indifference.” Johnson, 507 F. App’x at 371 (quoting
Farmer, 511 U.S. at 839-40). To establish deliberate indifference, the inmate “must show that
the prison official knew of and disregarded an excessive risk to inmate health or safety.” Johnson,
507 F. App’x at 371.
As with his other causes of action, Akins’s conditions of confinement claims are legally
infirm. He has presented no evidence that Liberty County or CEC maintained a policy or custom
of housing inmates in unsanitary cells. Additionally, the record is devoid of evidence suggesting
that Akins was exposed to unreasonably high levels of contaminants. Rather, the record indicates
that Akins’s cell was not completely enclosed and it had an air conditioning vent outside the bars.
Further, Akins’s 20 to 30-minute exposure to sewage in his cell due to a broken pipe
simply does not rise to the level of a constitutional deprivation. Indeed, “[s]hort term sanitation
problems, although admittedly unpleasant, do not amount to constitutional violations.” Harris v.
Guseman, No. 12-2659, 2013 WL 1786797, at *6 (E.D. La. Mar. 8, 2013); see Davis, 157 F.3d
at 1006 (finding no objectively serious deprivation where inmate was confined for three days to
a “filthy” cell with “blood on the walls and excretion on the floors”); Smith v. Copeland, 87 F.3d
265 (8th Cir. 1996) (perceiving no constitutional violation where prisoner was exposed for four
days to raw sewage from an overflowed toilet in his cell). Moreover, Akins points to no evidence
suggesting that any Liberty County or CEC employee was deliberately indifferent to his needs
after becoming aware of the plumbing leak. To the contrary, a jail employee apologized for the
leak and removed Akins from the unsanitary cell. Once notified of the problem, other jail
personnel promptly began attempts to fix the leak. Accordingly, summary judgment is appropriate
as to these claims.
Inadequate and/or Unsanitary Food
Akins, who suffers from hypertension, avers that, during his incarceration, he was served
food that contained an inordinate amount of salt. He also alleges that some of the food served to
him smelled like urine.
The Constitution requires “jails [to] provide inmates with ‘well-balanced meal[s],
containing sufficient nutritional value to preserve health.’” Green, 801 F.2d at 770 (quoting Smith
v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977)). The evidence in this case demonstrates that
Akins was placed on a low-sodium diet after he met with a nurse following book-in. Although
Akins contends that two of the twelve or thirteen meals he received while incarcerated smelled like
urine, he admitted that he had no knowledge that anyone urinated in his food and no familiarity
with the nutritional plans in place at the jail. He also failed to identify any harm he allegedly
suffered as a result of his purportedly inadequate/unsanitary diet. Moreover, according to Warden
New’s affidavit, CEC did not operate the kitchen at the jail during Akins’s incarceration; rather,
it was operated by Aramark Correctional Services through a separate contract with Liberty
County. Akins has adduced no evidence to the contrary. For these reasons, his claims against
Defendants premised on an inadequate diet must fail. See Nichols v. Brown, No. 3:11-CV-0113,
2011 WL 1979600, at *4 (W.D. La. Apr. 28, 2011) (finding no constitutional deprivation where
inmate complained that he was not provided with a salt-free diet and did not allege any specific
physical harm resulting from the jail’s purported failure to provide the inmate with salt-free
meals), report and recommendation adopted by 2011 WL 1938290 (W.D. La. May 20, 2011).
Akins next avers that Sheriff Patterson, CEC, Liberty County Sheriff’s Office employees,
and CEC employees used unreasonable, unnecessary, and excessive force while detaining him.
He contends that this violated his clearly established rights under the Constitution. Nonetheless,
no facts accompany these allegations and no evidence to support these claims has been produced.
For excessive force claims brought by prisoners and pretrial detainees, “‘[t]he core judicial
inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.’” Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir.
1998) (quoting Hudson, 503 U.S. at 7); accord Brown v. Lippard, 472 F.3d 384, 387 (5th Cir.
2006); Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999); Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997). Because the motive of the officer is often indiscernible, the trier of fact
must base its determination on relevant objective factors suggestive of intent. Bender v. Brumley,
1 F.3d 271, 278 n.6 (5th Cir. 1993). “‘[T]he Eighth Amendment’s prohibition of cruel and
unusual punishment excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort “repugnant to the conscience of mankind.”’”
Baldwin, 137 F.3d at 839 (quoting Siglar, 112 F.3d at 193 (quoting Hudson, 503 U.S. at 7));
accord Gomez, 163 F.3d at 923. “[A]n Eighth Amendment violation does not occur with ‘every
malevolent touch by a prison guard.’” Baldwin, 137 F.3d at 839 (quoting Hudson, 503 U.S. at
In this case, there is no evidence that Akins suffered even a de minimis injury during his
placement in the lower south cell of the jail. He testified that no one mistreated him during his
arrest and claimed that only one officer grabbed and pushed him when placing him in a cell, but
he pointed to no evidence that he was injured by this officer. These circumstances are insufficient
upon which to predicate an excessive force claim.
Thus, summary judgment in favor of
Defendants is warranted.
In the “Civil Conspiracy” section of his complaint, Akins alleges due process violations
which reference “numerous false, misleading and unverified statements” allegedly published by
CEC and Liberty County employees. These claims also do not survive summary judgment.
The Due Process Clause of the Fourteenth Amendment provides: “No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process of
law.” U.S. CONST. amend. XIV, § 1. Procedural due process claims require a two-part analysis:
(1) whether the plaintiff has a life, liberty, or property interest that is entitled to procedural due
process protection; and (2) if so, what process is due. See Logan v. Zimmerman Brush Co., 455
U.S. 422, 428 (1982); Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972); Baldwin v. Daniels,
250 F.3d 943, 946 (5th Cir. 2001); Findeisen v. N. E. Indep. Sch. Dist., 749 F.2d 234, 237 (5th
Cir. 1984) (pointing out that a court reviewing a procedural due process claim must determine if
the plaintiff was “deprived of a protected property interest” and, if so, whether the deprivation
was accomplished “without adherence to due process minimums”); Givs v. City of Eunice, 512
F. Supp. 2d 522, 545 (W.D. La. 2007), aff’d, 268 F. App’x 305 (5th Cir. 2008).
Here, it is unclear what protected interest Akins claims has been damaged. If he is
contending that he has suffered damage to his reputation through the alleged release of medical
information, “[a] person’s interest in his reputation alone, apart from some more tangible interest
such as employment, is not a sufficient liberty or property interest to fall within the ambit of the
Due Process Clause.” Waltman, 535 F.3d at 348; accord Doe v. Silsbee Indep. Sch. Dist., 402
F. App’x 852, 854 (5th Cir. 2010). Akins has failed to provide evidence of any element of a
procedural due process violation. Accordingly, to the extent he asserts such a claim, it is
Substantive due process is the concept that there are certain rights so fundamental to our
traditions of justice that, no matter what procedural guarantees the government affords, the
government cannot abridge those rights. See Simi Invest. Co. v. Harris Cnty., 236 F.3d 240, 249
(5th Cir. 2000), cert. denied, 534 U.S. 1022 (2001). Indeed, “[s]ubstantive due process ‘bars
certain arbitrary, wrongful government actions “regardless of the fairness of the procedures used
to implement them.”’” Marco Outdoor Adver., Inc. v. Reg’l Transit Auth., 489 F.3d 669, 673
n.3 (5th Cir. 2007) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels, 474
U.S. at 331)). A substantive due process violation may occur when the government deprives a
person of a constitutionally protected life, liberty, or property interest under certain circumstances.
See Simi Invest. Co., 236 F.3d at 249.
In his complaint, Akins does not specifically plead “substantive” due process. Moreover,
there is no evidence that CEC, Liberty County, or their employees committed an act that
arbitrarily, capriciously, or oppressively impacted Akins’s constitutional rights. As a result,
summary judgment is proper.
Akins also makes a nebulous reference to “equal protection” in his complaint. The Equal
Protection Clause of the Fourteenth Amendment provides: “No State shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “This
is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly
situated should be treated alike.’” Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir.
1996) (emphasis in original) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)); accord Plyler v. Doe, 457 U.S. 202, 216 (1982); Gibson v. Tex. Dept. of Ins., 700 F.3d
227, 239 (5th Cir. 2012); Priester v. Lowndes Cnty., 354 F.3d 414, 424 (5th Cir.), cert. denied,
543 U.S. 829 (2004); Beeler v. Rounsavall, 328 F.3d 813, 816 (5th Cir.), cert. denied, 540 U.S.
1048 (2003). Here, Akins’s equal protection claims fail because he neither alleges nor adduces
evidence that he was treated differently based upon his race or other protected status. In fact, at
deposition, Akins testified that Defendants did not discriminate against him based on race or
gender. See Jez v. City of Waveland, No. 1:10-CV-570, 2012 WL 192534, at *3 (S.D. Miss. Jan.
23, 2012) (dismissing equal protection claim where plaintiff conceded that the defendant did not
treat him differently based on a protected status). Moreover, Akins does not identify or provide
evidence of a CEC or Liberty County policy or custom giving rise to an equal protection violation.
See Murray v. Earle, 334 F. App’x 602, 608 (5th Cir. 2009) (affirming dismissal of equal
protection claim against the district attorney where plaintiff alleged no particular policy or custom
that led to the purported equal protection violation). Akins’s equal protection claims, therefore,
Conspiracy Under § 1985
A person injured as the result of a conspiracy to interfere with his civil rights may bring
an action under 42 U.S.C. § 1985. Subsection 1 of the statute relates to a conspiracy to prevent
a public official from performing his duty; Subsection 2 addresses a conspiracy to obstruct justice
or to intimidate a party, a witness, or a juror; and Subsection 3 concerns the acts of two or more
persons conspiring to deprive any person of certain civil rights. See Montoya v. FedEx Ground
Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010); Holdiness v. Stroud, 808 F.2d 417, 424
(5th Cir. 1987). Specifically, § 1985(1) provides “any person” the right to be free from a
conspiracy “to prevent, by force, intimidation, or threat” his acceptance of a federal office or his
discharge of its duties. 42 U.S.C. § 1985(1). Section 1985(2) gives “any party or witness in any
court of the United States” the right to be free from a conspiracy to deter, intimidate, or threaten
him for attending or testifying. 42 U.S.C. § 1985(2); see also Deubert v. Gulf Fed. Sav. Bank,
820 F.2d 754, 758 (5th Cir. 1987); Disney v. Horton, No. Civ. A. 2:99-CV-0138, 2000 WL
490848, at *5 (N.D. Miss. Apr. 14, 2000). Section 1985(3) provides a remedy to “any person
or class of persons” harmed when “two or more persons in any State or Territory conspire . . .
for the purpose of depriving, either directly or indirectly, any person or class of persons of the
For the same reasons (no allegations or proof of intentional discrimination), any claim brought
pursuant to 42 U.S.C. § 1981 is not viable. See Washington v. Louisiana, 425 F. App’x 330, 333 (5th
Cir. 2011) (stating that § 1981 claims, like those brought under Title VII, require a plaintiff to establish
a prima facie case of discrimination), cert. denied, 132 S. Ct. 1633 (2012); Stewart v. City of Houston
Police Dep’t, 372 F. App’x 475, 477 (5th Cir. 2010) (“A cause of action for racial discrimination under
Section 1981 requires a demonstration of intentional discrimination.”).
equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C.
Although Akins does not specify the subsection upon which he relies, he appears to be
attempting to invoke Subsection 3 of the statute. Section 1985(3) provides, in pertinent part:
If two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; . . .
in any case of conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United States, the
party so injured or deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or more of the
Id. Section 1985(3) creates no rights, but “is a purely remedial statute, providing a civil cause of
action when some otherwise defined federal right—the equal protection of the laws or equal
privileges and immunities under the laws—is breached by a conspiracy in the manner defined by
the section.” Great Am. Fed. S&L Ass’n v. Novotny, 442 U.S. 366, 376 (1979).
To recover under § 1985(3), the plaintiff must allege and prove four elements: (1) a
conspiracy involving two or more persons; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983);
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); Lockett v. New Orleans City, 607 F.3d 992,
1002 (5th Cir.), cert. denied, 131 S. Ct. 507 (2010); Hilliard v. Ferguson, 30 F.3d 649, 652-53
(5th Cir. 1994); Deubert, 820 F.2d at 757. In addition, the conspiracy must be motivated by
“‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action.’” Scott, 463 U.S. at 829 (quoting Griffin, 403 U.S. at 102); see Lockett, 607
F.3d at 1002; Hilliard, 30 F.3d at 653 (citing Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th
Cir.), cert. denied, 512 U.S. 1207 (1994)).
Here, Akins does not allege or adduce any evidence of an unlawful conspiracy. He has
presented no facts suggesting the existence of a conspiracy “aim[ed] at a deprivation of the equal
enjoyment of rights secured by the law to all.” Griffin, 403 U.S. at 102; see Roe v. Abortion
Abolition Soc’y, 811 F.2d 931, 933-34 (5th Cir.), cert. denied, 484 U.S. 848 (1987). Moreover,
Akins testified that he did not know of any voting rights issues with Liberty County or CEC, and
there is no indication that Akins was a victim of racial or class-based animus. Thus, summary
judgment in favor of Defendants is proper.
State Law Claims
In addition to his federal causes of action, Akins asserts various common law tort theories,
including claims against Liberty County, CEC, and their employees and agents for premises
liability and negligence related to the control, operation, and maintenance of the jail,8 misuse of
information, negligent handling of information, intentional infliction of emotional distress, and
civil conspiracy. His complaint asserts claims for defamation, libel per se, and defamation per
se; however, these allegations are not directed against Liberty County, CEC, or their employees.
Akins’s negligence causes of action are based on the “condition(s) and defects on the premises.”
Accordingly, the court construes them to be the same as his premises liability claims. In any event, a
negligence claim based upon negligent activity fails here, as there is no allegation or proof of a
contemporaneous activity on the part of Defendants. Somoza v. Rough Hollow Yacht Club, Ltd., No. 0309-00308-CV, 2010 WL 2867372, at *4 (Tex. App.—Austin July 20, 2010, no pet.) (“Although a litigant
may maintain causes of action for both general negligence and premises liability, . . . under the
general-negligence theory of recovery, the claimant’s injury must result from the defendant’s
Nonetheless, Akins’s claims for intentional infliction of emotional distress, negligent handling of
information, and civil conspiracy against Defendants are based on their alleged release of
defamatory material and information protected under the Health Insurance Portability and
Accountability Act. Lastly, Akins’s claims for vicarious/respondeat superior liability are asserted
against CEC and New, but not Liberty County. Defendants advance multiple viable grounds for
dismissal of all the aforementioned claims.
Sovereign Immunity under Texas Law—Texas Tort Claims Act
In Texas, it has long been recognized that sovereign immunity, unless waived, protects the
State, its agents, and its officials from lawsuits for damages. See Tex. Dep’t of Transp. v. York,
284 S.W.3d 844, 846 (Tex. 2009); City of El Paso v. Heinrich, 284 S.W.3d 366, 369 (Tex.
2009); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). A governmental entity has
sovereign immunity and cannot be held liable for the actions of its employees unless there is a
constitutional or statutory provision waiving such immunity. See City of Houston v. Williams, 353
S.W.3d 128, 134 (Tex. 2011); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000); Kerrville State Hosp. v.
Fernandez, 28 S.W.3d 1, 3 (Tex. 2000). “Governmental immunity from suit defeats a court’s
subject matter jurisdiction.” Whitley, 104 S.W.3d at 542; see Harris Cnty. Hosp. Dist. v. Tomball
Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); City of Dallas v. Turley, 316 S.W.3d 762, 767
(Tex. App.—Dallas 2010, pet. denied). “In a suit against a governmental unit, the plaintiff must
affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.”
Whitley, 104 S.W.3d at 542; see Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.
2001); Teague v. City of Dallas, 344 S.W.3d 434, 437-38 (Tex. App.—Dallas 2011, pet. denied);
Harris Cnty. v. Luna-Prudencio, 294 S.W.3d 690, 696 (Tex. App.—Houston [1st Dist.] 2009,
The Texas Legislature enacted the Texas Tort Claims Act (“TTCA”) to waive sovereign
immunity in certain limited and narrowly defined circumstances. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.025 (“Sovereign immunity to suit is waived and abolished to the extent of
liability created by this chapter.”); Whitley, 104 S.W.3d at 544; Miller, 51 S.W.3d at 587; Dallas
Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 340, 343 (Tex.), cert.
denied, 525 U.S. 1017 (1998); accord Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 96 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). Counties, as political subdivisions of the State of
Texas, fall within the parameters of the Act. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(3)(B); accord Johnson v. Johnson Cnty., 251 S.W.3d 107, 109 (Tex. App.—Waco
2008, pet. denied).
The TTCA waives immunity, however, for only three areas of liability: (1) claims arising
from the operation or use of motor-driven vehicles or equipment; (2) claims caused by a condition
or use of tangible personal or real property; and (3) claims arising from premises defects. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.022; accord Brown, 80 S.W.3d at 554;
Able, 35 S.W.3d at 611; Fox v. Wardy, 318 S.W.3d 449, 455 (Tex. App.—El Paso 2010, no pet.);
Villegas v. Tex. Dep’t of Transp., 120 S.W.3d 26, 31-32 (Tex. App.—San Antonio 2003, pet.
denied). To hold a governmental entity liable under the TTCA for the acts of its employees: (1)
the claim must arise under one of these three specific areas of liability; and (2) the claim must not
fall within an exception to the waiver of sovereign immunity. See City of Waco v. Williams, 209
S.W.3d 216, 220 (Tex. App.—Waco 2006, pet. denied); Harris Cnty. v. Cabazos, 177 S.W.3d
105, 109 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “The determination of a governmental
entity’s negligence will be made only after a claimant has cleared these two statutory hurdles.”
Alvarado v. City of Brownsville, 865 S.W.2d 148, 155 (Tex. App.—Corpus Christi 1993), rev’d
on other grounds, 897 S.W.2d 750 (Tex. 1995).
The TTCA does not, however, waive immunity for intentional torts. See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.057; Goodman, 571 F.3d at 394; Tex. Dep’t of Public Safety v. Petta,
44 S.W.3d 575, 581 (Tex. 2001); Jones v. Tex. Dep’t of Crim. Justice, 318 S.W.3d 398, 404
(Tex. App.—Waco 2010, no pet.); Presiado v. Sheffield, 230 S.W.3d 272, 275 (Tex.
App.—Beaumont 2007, no pet.). In fact, the TTCA’s waiver of immunity expressly excludes
intentional torts such as assault, battery, and false imprisonment. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.057(2)); see also Cameron Cnty. v. Ortega, 291 S.W.3d 495, 497-98 (Tex.
App.—Corpus Christi 2009, no pet.); accord Davenport v. Rodriguez, 147 F. Supp. 2d 630, 641
(S.D. Tex. 2001) (noting that TTCA does not waive immunity for claims of intentional infliction
of emotional distress or defamation); Kellough, 22 F. Supp. 2d at 612 (holding that the TTCA
does not waive immunity for intentional infliction of emotional distress). Consistent with these
authorities, Liberty County may not be held liable for Akins’s claims for intentional infliction of
emotional distress or any other intentional tort asserted.
In the case at bar, none of Akins’s claims against Liberty County (misuse or mishandling
of information, premises liability, intentional infliction of emotional distress, or civil conspiracy)
arise from the operation or use of a motor vehicle. Likewise, these claims do not appear to be
caused by a condition or use of tangible personal or real property. See Univ. of Tex. Med. Branch
v. York, 871 S.W.2d 175, 178 (Tex. 1994) (indicating that tangible property is property that can
be handled, touched, or seen); Arnold v. Univ. of Tex. Sw. Med. Ctr., 279 S.W.3d 464, 469 (Tex.
App.—Dallas 2009, no pet.) (“While paper itself can be touched, handled, and seen, medical
information recorded on paper is not tangible personal property.”); see also Petta, 44 S.W.3d at
581 (recognizing that the TTCA does not provide for liability based upon a misuse of
information); Bossley, 968 S.W.2d at 343 (“Property does not cause injury if it does no more than
furnish the condition that makes the injury possible.”); Univ. of Tex. M.D. Anderson Cancer Ctr.
v. King, No. 14-12-00847, 2013 WL 3226790, at *2 (Tex. App.—Houston [14th Dist. June 27,
2013, no pet.) (stating that “nonuse of property [is] insufficient to fall within [TEX. CIV. PRAC.
& REM. CODE ANN. § 101.021(2)]”). Accordingly, with the exception of the premises liability
claims, Liberty County has not waived immunity as to the aforementioned claims.
Akins’s premises liability claims—which are asserted against Liberty County, CEC, and
their employees—fail for different reasons. A federal court sitting in diversity, such as this one,
looks to Texas law for the substantive standards defining a premises operator’s duty. Dixon v.
Wal-Mart Stores, Inc., 330 F.3d 311, 314 (5th Cir. 2003). When a lawsuit is brought against a
government-run prison facility, inmates are statutorily codified as licensees for the purpose of
premises liability claims. See TEX. CIV. PRAC. & REM. CODE § 101.022.9 It reasonably follows
that the same standard should be applicable in the instant case, as CEC is performing a
Subsection (b) of § 101.022 provides for an invitee standard where “special defects” such as
where “excavations or obstructions on highways, roads or streets” are involved or where “traffic signs,
signals or warning devices” are involved. Although Akins alleges a “special defect” in his complaint, the
court finds Subsection (b) inapplicable here, where the premises defect is alleged to be inside the jail rather
than on a roadway. See Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010) (“We have described
the class of conditions intended by the statute as those which, because of their size or some unusual quality
outside the ordinary course of events, . . . pose an unexpected and unusual danger to ordinary users of
roadways.”) (internal citations and quotations omitted).
See TEX. CIV. PRAC. & REM. CODE § 101.0215(a) (identifying
“establishment and maintenance” of jails as a government function); see also Rosborough v.
Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (explaining that a private company
administering a prison facility can be sued under § 1983 because it is “performing a public
function traditionally reserved to the state”); Stephens v. Corr. Servs. Corp., 428 F. Supp. 2d 580,
583 (E.D. Tex. 2006) (same).
The duty owed by a licensor to a licensee is not to “injure the licensee willfully, wantonly,
or through gross negligence or, in cases in which the owner or occupier has actual knowledge of
a dangerous condition . . ., to warn of or make safe the dangerous condition.” Osadchy v. S.
Methodist Univ., 232 S.W.3d 844, 853 (Tex. App.—Dallas 2007, pet. denied); accord Wal-Mart
Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). Therefore, to prevail, Akins must
adduce evidence of either willful, wanton, or grossly negligent conduct or that: (1) a condition
of the premises created an unreasonable risk of harm; (2) Defendants actually knew of the
condition; (3) Akins did not actually know of the condition; (4) Defendants failed to exercise
ordinary care to protect Akins from danger; and (5) Defendants’ failure was a proximate cause of
Akins’s injury. See Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 164 (Tex.
App.—Dallas 2011, no pet.); Tex. Dep’t of Transp. v. Mackey, 345 S.W.3d 760, 768 (Tex.
App.—El Paso 2011, pet. denied).
Here, the record is devoid of evidence that Defendants had actual knowledge of an
unreasonably dangerous condition at the jail. As the undisputed facts demonstrate, Defendants had
no prior knowledge that the main sewer line to the jail had collapsed. Indeed, Liberty County was
not even in control of the jail at the time Akins was incarcerated. See Gen. Elec. Co. v. Moritz,
257 S.W.3d 211, 214 (Tex. 2008) (“[A] Defendant’s duty is commensurate with the control it
retains over the independent contractor’s work.”) (emphasis in original) (quotations omitted).
Further, at deposition, Akins testified that he had no personal knowledge of whether CEC or
Liberty County had prior knowledge of the collapsed sewer line, and the jail records supplied to
the court reflect merely the discovery and repair of the sewer line. Consistent with this evidence,
Warden New confirmed that he had no prior knowledge of the collapsed pipe and that it had never
collapsed while CEC’s subsidiary operated the jail.
With regard to his alleged exposure to methane, Akins has adduced insufficient evidence
that he was exposed to a dangerously high concentration of methane or any other harmful
substance and no evidence that Defendants knew of any such hazard. Further, Akins has proffered
no expert testimony suggesting that he was exposed to dangerous levels of any substance for the
20 or 30 minutes he was in the cell. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36
(Tex. App.—Houston [1st Dist.] 2004) (“Expert testimony is particularly necessary in
chemical-exposure cases, in which medically complex diseases and causal ambiguities compound
the need for expert testimony.”); see also Seaman v. Seacor Marine, L.L.C., 326 F. App’x 721,
723 (5th Cir. 2009) (“Scientific knowledge of the harmful level of exposure to a chemical, plus
knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain
the plaintiffs’ burden in a toxic tort case.”).
In short, Akins has submitted insufficient evidence of an unreasonably dangerous condition
at the jail and no evidence of actual knowledge of any such a condition by Defendants. For these
reasons, Defendants are entitled to summary judgment as to Akins’s premises liability claims.
Release of Medical Information
Akins’s claims for misuse and negligent handling of his medical information meet a similar
fate. These claims appear to be premised on the Health Insurance Portability and Accountability
Act (“HIPAA”). HIPAA, however, does not create a private right of action. See Acara v. Banks,
470 F.3d 569, 572 (5th Cir. 2006); accord Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010);
Crawford v. City of Tampa, No. 09-15649, 2010 WL 3766627, at *2 (11th Cir. Sept. 28, 2010).
Therefore, to the extent Akins seeks to recover for a violation of HIPAA, his claims fail.
In addition, Akins has adduced no competent summary judgment evidence that CEC,
Liberty County, or their employees or agents released his medical information. Indeed, Akins’s
deposition testimony indicates that Buchanan stated to Brashier (who reportedly told Akins) that
Cooper and New released Akins’s medical information. Because this statement is hearsay, it is
inadequate to defeat summary judgment. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr.,
245 F.3d 507, 510 n.5 (5th Cir. 2001) (citing Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995));
Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 283 (5th Cir. 1991).
Moreover, Akins admitted at deposition that he released information about his blood
pressure to the media, and his sleep apnea condition and use of a CPAP machine were discussed
with Judge Hight in open court. Akins has submitted no competent summary judgment evidence
that New or any other Defendant released any confidential health information about Akins or that
he suffered damages as a result. Therefore, summary judgment is proper as to this claim.
In Count IX of the complaint, Akins asserts defamation, libel per se, and defamation per
se claims based on statements allegedly issued suggesting that Akins “violated certain laws,
committed fraud, had a judgment issued against him, was not a Texas resident, and made attacks
upon [his] conduct, integrity, and truthfulness.” These allegations, however, are directed solely
against defendants who were previously dismissed from this case. See Footnote 2. Notably,
Akins admitted at deposition that he is not asserting any defamation claims against CEC, New, or
Liberty County, and is not aware of CEC, New, Liberty County, Patterson, or Fitzgerald
publishing any defamatory statements about him.
Abuse of Official Capacity and Official Oppression
Count IV of the complaint asserts a claim for “Abuse of Official Capacity” and “Official
Oppression.” Section 39.02 of the Texas Penal Code, entitled “Abuse of Official Capacity,”
(a) A public servant commits an offense if, with intent to obtain a benefit or with
intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment; or
(2) misuses government property, services, personnel, or any other thing
of value belonging to the government that has come into the public
servant’s custody or possession by virtue of the public servant’s office
TEX. PENAL CODE § 39.02(a).
“Official Oppression” is codified at § 39.03 of the Texas Penal Code. It states in relevant
A public servant acting under color of his office or employment commits
an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention,
search, seizure, dispossession, assessment, or lien that he knows is
(2) intentionally denies or impedes another in the exercise or enjoyment of
any right, privilege, power, or immunity, knowing his conduct is
(3) intentionally subjects another to sexual harassment.
TEX. PENAL CODE § 39.03(a).
The Texas Penal Code, however, “does not create private causes of action.” Spurlock v.
Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.); Aguilar v. Chastain, 923
S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied); see also Joyner v. DeFriend, 255 S.W.3d
281, 283 (Tex. App.—Waco 2008, no pet.); Geiger v. Landes, No. 12-01-00152, 2002 WL
169284, at *3 (Tex. App.—Tyler Jan. 31, 2002, pet. denied) (dismissing claims brought pursuant
to Texas Penal Code §§ 39.02 and 39.03 on the basis that the Texas Penal Code does not provide
private rights of action). Consistent with the foregoing, these claims are without merit.
Conspiracy Under Texas Law
Akins generally contends that Defendants engaged in a conspiracy by detaining him under
conditions that violated his constitutional rights. He also alleges that Defendants violated HIPAA
by releasing his protected health information to unauthorized sources, defamed him, and otherwise
damaged him publicly and professionally.10
To hold Defendants liable under Texas law for civil conspiracy, Akins must prove five
elements: “‘(1) two or more persons; (2) an end to be accomplished; (3) meeting of minds on the
end or course of action; (4) one or more overt, unlawful acts; and (5) proximately resulting in
injury.’” Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 709 (5th Cir. 2009)
As set forth in Section II.E.3. supra, HIPAA does not create a private right of action. See
Acara, 470 F.3d at 572; accord Jones, 623 F.3d at 569; Crawford, 2010 WL 3766627, at *2.
(quoting Lane v. Halliburton, 529 F.3d 548, 564 (5th Cir. 2008)); accord Murray, 405 F.3d at
293; Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 635 (5th Cir. 2002); Chon Tri v.
J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Denson v. Dallas Cnty. Credit Union, 262 S.W.3d
846, 851 (Tex. App.—Dallas 2008, no pet.). Akins’s allegations are wholly unsupported by facts
indicative of a conspiracy among Defendants and, hence, cannot survive. He points to no
evidence that any Defendant to this action committed an illegal or overt act or that Defendants
made an agreement to commit an unlawful act. See Arsenaux v. Roberts, 726 F.2d 1022, 1024
(5th Cir. 1982) (stating that “[t]o establish a cause of action based on conspiracy[,] a plaintiff must
show that the defendants agreed to commit an illegal act”); Greenberg Traurig of N.Y., P.C. v.
Moody, 161 S.W.3d 56, 80 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“[C]ivil conspiracy
requires specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful
purpose by unlawful means.”) (internal quotations omitted). Akins’s civil conspiracy claims,
therefore, must fail.
Intentional Infliction of Emotional Distress
Akins’s claims for intentional infliction of emotional distress against Defendants are based
on their alleged “conspiracy to injure, defame, and/or violate [Akins’s] constitutional rights.”
More specifically, these claims appear to be premised on the communication or publication of
“false” statements concerning his health and other unspecified personal information. As stated
in previous sections, however, Akins is not asserting any defamation claims against Defendants,
Liberty County has not waived its sovereign immunity from a claim for intentional infliction of
emotional distress, and Akins has conceded that he is not aware of CEC, New, Liberty County,
Patterson, or Fitzgerald publishing any defamatory statements about him.
In addition, Akins has not pleaded or adduced any admissible evidence in support of his
claim for intentional infliction of emotional distress other than those underlying his § 1983 claims
and defamation claims under Texas common law. See Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 816 (Tex. 2005) (stating that in Texas, “intentional infliction of emotional distress is a ‘gapfiller’ tort never intended to supplant or duplicate existing statutory or common-law remedies”);
Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 441 (Tex. 2004); Bell v. Express Energy
Servs. Operating, LP, No. 02-11-00019-CV, 2012 WL 2036437, at *4 (Tex. App.—Fort Worth,
June 7, 2012, no pet.). Moreover, a plaintiff may not assert a claim for intentional infliction of
emotional distress merely because of his inability to prevail on another theory of relief designed
to address the gravamen of the plaintiff’s complaint. See Creditwatch, Inc., 157 S.W.3d at 816;
Garcia v. Shell Oil Co., 355 S.W.3d 768, 776 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Because § 1983 and defamation under Texas law are the appropriate avenues for redress
for Akins’s alleged injuries, his intentional infliction of emotional distress claims must be
dismissed. See Louis v. Mobil Chem. Co., 254 S.W.3d 602, 609 (Tex. App.—Beaumont 2008,
pet. denied) (“Where the gravamen of the complaint is really another tort, intentional infliction
of emotional distress is unavailable even if the evidence would be sufficient to support a claim for
intentional infliction of emotional distress in the absence of another remedy.”). Moreover, even
were the court to conclude that Akins could assert a claim for intentional infliction of emotional
distress, his pleadings are insufficient under Ashcroft v. Iqbal, 556 U.S.662, 678 (2009), and he
has tendered no evidence to support any element of such a claim. See Larson v. Hyperion Int’l
Techs., L.L.C., 494 F. App’x 493, 496 (5th Cir. 2012) (“The elements of a claim for intentional
infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the
defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff
emotional distress; and (4) the resulting emotional distress was severe.”) (internal quotations
omitted); Brennan v. Mercedes Benz USA, 388 F.3d 133, 136 (5th Cir. 2004); Hughes Training,
Inc. v. Cook, 254 F.3d 588, 594 (5th Cir. 2001), cert. denied, 534 U.S. 1172 (2002); Hoffman-La
Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). For these reasons, Akins’s claims
for intentional infliction of emotional distress must be dismissed.
Akins’s complaint mentions unnamed employees of Liberty County and CEC. These
individuals, however, have not been identified or served. See Jackson v. Cain, 864 F.2d 1235,
1238 n.1 (5th Cir. 1989) (noting that a former employee of the prison who was never served with
process is “no longer a defendant.”). In any event, the Fifth Circuit has recognized that when a
defending party “establishes that the plaintiff has no cause of action, . . . th[e] defense generally
inures also to the benefit of other similarly situated defendants.” Bloch v. Samuels, No. H-044861, 2006 WL 2239016, at *9 (S.D. Tex. Aug. 3, 2006) (citing Lewis v. Lynn, 236 F.3d 766,
768 (5th Cir. 2001)); see Armenta v. Pryor, 377 F. App’x 413, 415 n.1 (5th Cir. 2010); United
States v. Peerless Ins. Co., 374 F.2d 942, 945 (4th Cir. 1967); Snell v. Cmty. Educ. Ctrs., No.
5:11-CV-126, 2012 WL 3956328, at *15-16 (E.D. Tex. June 20, 2012), report and
recommendation adopted by 2012 WL 3930062 (E.D. Tex. Sep. 10, 2012).
memorandum opinion addressing the motions filed by CEC, New, Liberty County, and Fitzgerald
disposes of all remaining claims presented in the complaint. Thus, because the named Defendants
have shown that Akins has no viable cause of action, any unnamed or unserved defendants are
entitled to benefit from the court’s ruling on the motions addressed herein.
Consistent with the foregoing analysis, Akins fails to present a claim that warrants relief.
Defendants are entitled to judgment as a matter of law. Accordingly, Defendants’ motions for
summary judgment are GRANTED. Further, CEC and Warden New’s motion for judgment on
the pleadings is GRANTED with respect to Akins’s claims against them for intentional infliction
of emotional distress and abuse of official capacity or official oppression. Finally, any claims
against unnamed and unserved employees of CEC and Liberty County are DISMISSED.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 9th day of January, 2014.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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