Martinez v Foster, et al

Filing 148

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 139 Report and Recommendations. Accordingly, Defendant Donnie Foster's Amended Motion to Dismiss (Dkt. 124 ) is GRANTED IN PART AND DENIED IN PART as follows: (1) Martinez's wrongful death claim against Defendant Foster on behalf of the Estate is DISMISSED; (2) Plaintiffs' claims pursuant to the Texas Constitution are DISMISSED; (3) Plaintiffs' claims under the Eighth Amendment a re DISMISSED; and (4) Defendant Foster is not entitled to qualified immunity at this time. Plaintiffs' claims under the Fourteenth Amendment, as well as their survival action on behalf of the estate, shall proceed. Signed by Judge Richard A. Schell on 3/30/2017. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MARIA GUADALUPE MARTINEZ,
Individually, as a Legal Representative of the
Estate of DELFINO GARCIA, and Next
Friend of GEMMA GARCIA, a Minor,
GRETCHELL GARCIA, a Minor, DELFINO
GARCIA, JR., a Minor, and DELIA
MACEDO, Next Friend of EMELY
PARTICIA GARCIA,
Plaintiffs,
v.
DONNIE FOSTER, COMMUNITY
EDUCATION CENTERS, INC., JAGDISH
A. SHAH, and JOHN DOES #1
THROUGH #35,
Defendants.

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CIVIL ACTION NO. 4:13CV59

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the Report and Recommendation of the Magistrate Judge (the
“Report”) in this action (Dkt. 139), this matter having been heretofore referred to the United States
Magistrate Judge pursuant to 28 U.S.C. § 636, containing proposed findings of fact and
recommendations that Defendant Sheriff Donnie Foster’s (“Foster”) Amended Motion to Dismiss
(Dkt. 124) be GRANTED IN PART AND DENIED IN PART.
On March 24, 2017, Defendant Foster filed objections to the Report (see Dkt. 142). The
court has made a de novo review of the objections raised by Defendant Foster and is of the opinion
that the findings and conclusions of the Magistrate Judge are correct, and the objections are without

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merit as to the ultimate findings of the Magistrate Judge. The court hereby adopts the findings and
conclusions of the Magistrate Judge as the findings and conclusions of this court.
Plaintiffs brought this civil rights lawsuit under 42 U.S.C. § 1983, asserting the rights of
Delfino Garcia (“Garcia”), deceased, a former pretrial detainee at the Fannin County Jail (“Fannin
County”). Plaintiffs allege that Defendant Foster, in his capacity as Sheriff of Fannin Conty, is the
“keeper of the county jail.” See Dkt. 88 at 31. Defendant Foster first objects to the Magistrate
Judge’s conclusion that Plaintiff Maria Martinez (“Martinez”) has standing to assert a survival
claim on behalf of the Garcia’s estate (the “Estate”). See Dkt. 142 at 11. Defendant Foster renews
his argument that Martinez lacks capacity to assert claims on behalf of the Estate as Garcia’s heir.
It is well-settled under Texas law that the personal representative of a decedent’s estate is
generally the only person entitled to sue on the estate’s behalf. See Frazier v. Wynn, 472 S.W.2d
750, 752 (Tex. 1971). Before an heir at law can maintain a suit to recover property belonging to
the estate in her individual capacity as heir, she must allege and prove that there is no
administration pending and none necessary. See id. However, Texas law does not preclude the
possibility of a decedent’s heir serving as the legal representative of the decedent’s estate and filing
suit to recover estate property in her representative capacity. See Stewart v. Hardie, 978 S.W.2d
203, 207 (Tex. App. 1998) (“An heir may be a personal representative.”); see also, Shepherd v.
Ledford, 926 S.W.2d 405, 413 (Tex. App. 1996), writ granted (Mar. 21, 1997), aff'd and remanded,
962 S.W.2d 28 (Tex. 1998) (“The Probate Code states that the terms ‘personal representative’ or
‘representative’ include an executor, independent executor, administrator, independent
administrator and temporary administrator. Tex. Prob. Code Ann. § 3(aa) (Vernon 1980). Nothing

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in the wording of the subsection suggests that it is the exclusive list of persons who may become
an estate's ‘representative.’”).
As noted in the Report, Plaintiffs have consistently asserted that Martinez is not only
Garcia’s heir, but the legal representative of the Estate. See Dkt. 139 at 7. As the legal
representative of the Estate, Martinez is entitled to bring a lawsuit to recover Estate property
whether or not estate administration is necessary. Accordingly, the court finds no error in the
Magistrate Judge’s conclusion that Plaintiffs have pled sufficient facts to establish Martinez’s
capacity to bring a survival action on behalf of the Estate.
Defendant Foster also objects to the Magistrate Judge’s conclusion that Plaintiffs’ Third
Amended Complaint is not a “shotgun pleading” subject to summary dismissal. See Dkt. 142 at
13-14. As the Magistrate explained, an objectionable shotgun pleading is one that includes
irrelevant and unrelated facts not tied to specific causes of action such that the claims are unclear
and the defendant’s task in defending them is significantly impaired. See Dkt. 139 at 8. Although
the narrative in Plaintiffs’ Third Amended Complaint may not be artfully drafted, Plaintiffs cite
specific facts and allegations relevant to the particular claims against each defendant. Thus, the
court finds no error in the Magistrate Judge’s conclusion that Plaintiffs’ Third Amended Complaint
did not run afoul of any rule precluding shotgun pleadings. Accordingly, Foster’s objection is
overruled.
Next, Defendant Foster objects to the Magistrate Judge’s conclusion that Plaintiffs’
Fourteenth Amendment claims should proceed. He contends the claims should be dismissed
because: (1) Plaintiffs do not allege Foster was personally involved in the alleged incidents;
(2) Plaintiffs assert only impermissible vicarious and strict liability claims; and (3) Plaintiffs make

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no specific factual allegations concerning a policy or custom implemented by Defendant Foster or
his employer, Fannin County. See Dkt. 142 at 14-23. In order to state an official-capacity claim
against Defendant Foster for violation of Garcia’s rights under the Fourteenth Amendment,
Plaintiffs were required to “allege that an official policy or custom ‘was a cause in fact of the
deprivation of rights inflicted.’” Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5th
Cir. 1997) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)); see also
Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978); Piotrowski v. City of
Houston, 237 F.3d 567, 579–80 (5th Cir. 2001). The court concludes that Plaintiffs’ Third
Amended Complaint satisfies this initial pleading requirement. As noted in the Report, Plaintiffs
charge Foster with personally:
1) creating an atmosphere that fostered, allowed, and promoted inadequate procedures in
providing medical care to detainees at Fannin County Jail;
2) creating a policy, practice, and custom of failing to properly investigate whether such
lack of care provided to detainees would constitute a violation of Tex. Admin. Code
§§ 273.1, 273.2, 273.3, 273.4, Tex. Local Gov’t Code § 351.002, and Tex. Penal Code
§ 19.05; and
3) creating a policy, practice, and custom of not responding to medical needs in a manner
designed to cause serious harm to the inmate, disregarding continual pleas for help when
the agents, employees, and/or representatives knew or should have known that a a [sic.]
diabetic person could need medical help.
Dkt. 88 at 32. Plaintiffs further allege Foster implemented these policies, practices, and customs
“without regard to whether [they] might result in serious harm to a person such as Mr. Garcia.” Id.
In addition, Plaintiffs allege Foster’s actions “were the moving force behind JOHN DOES NO. 1
through 28’s deliberate indifference to the serious medical needs of Mr. Garcia.” Id. The court
finds these allegations sufficient to state a § 1983 claim for purposes of these Rule 12 proceedings.

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In his next objection, Defendant Foster challenges the Magistrate Judge’s conclusion that
he is not entitled to qualified immunity at this stage of the litigation. See Dkt. 142 at 24. Qualified
immunity is a defense to individual capacity claims against public officials. See Walker v. Howard,
517 F. App’x 236, 237 (5th Cir. 2013) (citing Kentucky v. Graham, 473 U.S. 159, 166–67, (1985)
(officials sued in their individual capacities “may . . . be able to assert personal immunity
defenses,” including qualified immunity, that are not available in official-capacity suits). In this
case, the court agrees with the Magistrate Judge’s conclusion that because Plaintiffs’ Third
Amended Complaint fails to state individual capacity claims against Sheriff Foster, such claims
are not properly before the court. See FED. R. CIV. P. 8. Thus, Foster’s objection on the issue of
qualified immunity is moot.
Finally, Defendant Foster challenges the Magistrate Judge’s conclusion that Plaintiffs have
not abandoned their claims against the John Doe defendants. See Dkt. 142 at 28. Although
Defendant Foster correctly notes that Federal Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2),
he argues Plaintiffs failed to meet this requirement when they included allegations against the John
Doe defendants in the “Background Facts” section of their pleading, as opposed to the separate
“Cause of Action” section. However, nothing in the language of Rule 8 requires a party to
specifically label claims as such, include statements of claims in a particular section of a pleading,
or otherwise delineate claims clearly stated in the pleading. Therefore, the court finds this
objection to be without merit.
Accordingly, Defendant Donnie Foster’s Amended Motion to Dismiss (Dkt. 124) is
GRANTED IN PART AND DENIED IN PART as follows: (1) Martinez’s wrongful death claim

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against Defendant Foster on behalf of the Estate is DISMISSED; (2) Plaintiffs’ claims pursuant
to the Texas Constitution are DISMISSED; (3) Plaintiffs’ claims under the Eighth Amendment
are DISMISSED; and (4) Defendant Foster is not entitled to qualified immunity at this time.
Plaintiffs’ claims under the Fourteenth Amendment, as well as their survival action on behalf of
the estate, shall proceed.
IT IS SO ORDERED.
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SIGNED this the 30th day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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