Swallow v. Jefferson County Correctional Facility

Filing 46

ORDER overruling objections and accepting the magistrate judge's 43 Report and Recommendation. Signed by District Judge Ron Clark on 2/4/2021. (bjc, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ELIJAH BURKE SWALLOW

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VS.

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JEFFERSON COUNTY CORR. FACILITY

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CIVIL ACTION NO. 1:17cv473

ORDER OVERRULING OBJECTIONS AND ACCEPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Elijah Burke Swallow, proceeding pro se, filed the above-styled civil rights lawsuit
pursuant to 42 U.S.C. § 1983 against the Jefferson County Correctional Facility. The court referred
this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, for consideration
pursuant to 28 U.S.C. § 636 and applicable orders of this court. The Magistrate Judge has submitted
a Report and Recommendation of United States Magistrate Judge recommending this lawsuit be
dismissed for failure to state a claim upon which relief may be granted.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Plaintiff filed objections to the Report and
Recommendation. The court must therefore conduct a de novo review of the objections.
Plaintiff alleges he was improperly restrained for several months at the facility. In addition
to naming the facility as a defendant, he also named the former sheriff of Jefferson County and
employees at the facility as defendants. The claims against the individual defendants were severed
into a separate lawsuit.
As the Jefferson County Facility is not an entity which is subject to being sued, the Magistrate
Judge liberally construed plaintiff’s claim as being asserted against Jefferson County. The Magistrate
Judge concluded plaintiff had failed to state a claim because he had not demonstrated that the harm
he suffered was the result of an official policy or custom of Jefferson County.

**NOT FOR PRINTED PUBLICATION**
In his objections, plaintiff states that the former sheriff of Jefferson County neglected his
responsibility to protect inmates at the correctional facility from mistreatment. He states that
applicable regulations required the former sheriff to protect inmates. Plaintiff contends that the
former sheriff’s neglect resulted in employees at the facility acting in an unconstitutional manner.
He states that if the former sheriff had fulfilled his responsibilities, his employees would have acted
properly.
After considering plaintiff’s objections, the court agrees that plaintiff has failed to state a
claim against Jefferson County. Jefferson County cannot be vicariously liable for the actions of its
employees. Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017). It can only be liable if
an official policy or custom of the county led to the constitutional violation. Zarnow v. City of
Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010). A complaint’s “description of a policy or custom
and its relationship to the underlying constitutional violation . . . cannot be conclusory; it must
contain specific facts.” Spiller v. City of Texas City Police Department, 130 F.3d 162, 167 (5th Cir.
1997).
Plaintiff acknowledges that he cannot point to a policy of Jefferson County that led to the
harm he suffered. Nor has he shown that unwritten practices at the correctional facility, which led
to the constitutional violations, were so common as to constitute a custom that fairly represents
county policy. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). While plaintiff’s allegations
regarding the former sheriff neglecting his responsibilities may state a claim against the former
sheriff, they are insufficient to state a claim against the Jefferson County. As plaintiff has failed to
show that a custom or policy of Jefferson County led to the constitutional violations complained of,
he has failed to state a claim against the county upon which relief may be granted.
ORDER
Plaintiff’s objections are OVERRULED. The findings of fact and conclusions of law of the
Magistrate Judge are correct and the report of the Magistrate Judge is ACCEPTED. A final

**NOT FOR PRINTED PUBLICATION**
judgment shall be entered dismissing this lawsuit in accordance with the recommendation of the
Magistrate Judge.
So ORDERED and SIGNED, Feb 04, 2021.

____________________
Ron Clark
Senior Judge