Sink v. Marquardt et al
MEMORANDUM OPINION AND ORDER. Defendants' Motion for Leave to Designate Responsible Third Party 49 is DENIED. Signed by Magistrate Judge Zack Hawthorn on 12/2/19. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MANAGEMENT AND TRAINING
CORPORATION (“MTC”) AND DANIEL
CIVIL ACTION NO. 9:16-CV-117
MEMORANDUM OPINION AND ORDER
Plaintiff, Kevin Sink, represented by counsel, Reginald McKamie, filed the above-referenced
civil rights action pursuant to 42 U.S.C § 1983 against defendants Management and Training
Corporation (“MTC”) and Warden David Driskell.
Factual & Procedural Background
Plaintiff filed an Amended Complaint on October 10, 2017, and brings this suit pursuant
to 42 U.S.C. § 1983 for violations of his constitutional rights under the Eighth and Fourteenth
Amendment (docket entry no. 23). Plaintiff alleges the following:
For a significant period of time prior to and including July 19, 2014 there
existed in the housing area/dayroom area where Plaintiff was assigned to live
at the Diboll Correctional Facility a condition which posed a substantial risk
of harm to Plaintiff. An approximately 20-foot high suspended ceiling in the
dayroom area, believed to be constructed of sheetrock, and the structure
holding the ceiling, was in a dangerous, deteriorating condition for a number
of months, becoming progressively worse with recurring rainfalls, with water
leaking through the ceiling and condensation leakage from a HVAC unit.
Prison inmates of the Diboll facility utilized mop buckets to catch the
dripping water from the dayroom ceiling, as well as mops to mop the
dayroom floor. Several inmates slipped, lost balance and/or fell on the wet
floor. “MTC” was notified of the dangerous condition of the dayroom ceiling
by means of requests for work orders from “MTC” Diboll staff, and
grievances or written and verbal requests from inmates to repair the ceiling.
Inmates assigned to live in the housing location with the faulty dayroom
ceiling were aware of the dangerous condition, as well as “MTC” staff
assigned to work in or near the particular housing area. “MTC” maintenance
department was aware of the condition of the dayroom ceiling. Defendant
David Driskell was personally aware of the water leaking from the dayroom
ceiling and the substantial risk of harm it presented to safety or welfare of
inmates living in the housing area and using the dayroom. On several
occasions during the months prior to July 19, 2014 Defendant Driskell
personally came into the dayroom having the dangerous ceiling condition and
observed the condition, and knew that water was leaking through the roof and
dayroom ceiling onto the floor. On one or more occasions, prior to July 19,
2014 Defendant Driskell refused to allow inspectors to inspect the dayroom
ceiling in question. Defendant Driskell failed to take any reasonable steps to
abate the condition of the dayroom ceiling prior to July 19, 2014, but was
deliberately indifferent to the risk of serious harm presented by the dayroom
On July 19, 2014 Plaintiff, along with a number of other inmates were in the
dayroom of the faulty ceiling. On that date the deteriorated dayroom ceiling
and its structure suddenly collapsed, without warning, falling upon Plaintiff
with significant force, causing significant physical injuries to Plaintiff, as well
as severe mental and emotional distress and suffering.
Amended Complaint, pgs. 3-4 (docket entry no. 23). Plaintiff asserts a cause of action for deliberate
Defendant David Driskell, having knowledge of a substantial risk of harm to
Plaintiff due to the dangerous condition of the dayroom ceiling, acted with
deliberate indifference to that risk over the course of a several-month period
prior to and including July 19, 2014. David Driskell took no reasonable
action to abate the serious risk of harm, by causing the timely repair of the
dayroom ceiling prior to July 19, 2014, and/or causing Plaintiff to be
reassigned to other housing quarters not having a dangerous dayroom ceiling
condition, and/or shutting down the dayroom until the dangerous dayroom
ceiling condition could be repaired. Instead of taking reasonable measures
to abate the condition, and risk of harm to plaintiff, plaintiff alleges further
that Defendant David Driskell adopted policy or custom of an unreasonable
delay in taking reasonable action to abate the condition, or causing the
abatement of the condition, and/or adopted a policy of custom of deliberate
indifference to the condition and the risk of harm by ignoring it. Defendants
David Driskell and “MTC” adopted a custom of tolerance or acquiescence to
the said risk of harm to plaintiff and the violation of plaintiff’s Eighth and
Fourteenth Amendment Rights. The inaction, policy or custom of “MTC”
policy-maker David Driskell and “MTC” was the moving force behind the
injuries sustained by plaintiff when the dayroom ceiling collapsed on June 19,
2014, and which evidenced a deliberate indifference to plaintiff’s Eighth and
Fourteenth Amendment rights under the United States Constitution; as well
as Plaintiff’s Eighth Amendment Right to be accorded reasonable personal
safety while confined at the Diboll Correctional Facility. The circumstances
show that Defendants “MTC” and David Driskell acted in a reckless disregard
for the Eighth and Fourteenth Amendment Rights of Plaintiff.
Amended Complaint, pgs. 4-5 (docket entry no. 23). Plaintiff pursues no other cause of action.
Motion for Leave to Designate Responsible Third Party
Pending before the Court is Defendants’ Motion for Leave to Designate Responsible Third
Party (docket entry no. 49). Pursuant to Texas Civil Practice and Remedies Code, Section 33.004(a),
defendants seek to designate J.E. Kingham Construction Co. as a responsible third party. According
to the motion, J.E. Kingham Construction Co. constructed the Diboll facility, including the
suspended ceiling at issue in this case. Defendants allege the ceiling assembly suspension system
fell as a result of J.E. Kingham Construction Co.’s actions and/or omissions in constructing the
facility. As such, defendants argue the jury is permitted to determine percentage of responsibility
of this responsible third party pursuant to Chapter 33 of the Texas Practice and Remedies Code.
Section 33. 004 of the Texas Civil Practice and Remedies Code provides that a “defendant
may seek to designate a person as a responsible third party by filing a motion for leave to designate
that person as a responsible third party.” A “responsible third party” is defined as:
[A]ny person who is alleged to have caused or contributed to causing in any
way the harm for which recovery of damages is sought, whether by negligent
act or omission, by any defective or unreasonably dangerous product, by other
conduct or activity that violates an applicable legal standard, or by any
combination of these.
TEX. CIV. PRAC. & REM. CODE § 33.011(6). Once designated, a responsible third party is added to
the list of persons the trier of fact may consider for purposes of apportioning fault in “any action
based on tort.” Id. §§ 33.022, 33.033(a). Designating a responsible third party can affect the amount
of a plaintiff’s recovery because a defendant “is liable to a claimant only for the percentage of
damages found by the trier of fact equal to that defendant’s percentage of responsibility with respect
to the . . . harm for which the damages are allowed.” Id. § 33.013(a).
In deciding whether the Texas proportionate responsibility statute applies to federal civil
rights actions, the court turns to 42 U.S.C. § 1988. That statute provides, in relevant part:
The jurisdiction in civil and criminal matters conferred on the district courts
by [federal law] for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and enforced in
conformity with the laws of the United States, so far as such laws are suitable
to carry the same into effect; but in all cases where they are not adapted to the
object, or are deficient in the provisions necessary to furnish suitable
remedies and punish offenses against law, the common law, as modified and
changed by the constitution and the statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is held, so far as the same
is not inconsistent with the Constitution and laws of the United States, shall
be extended to and govern the said courts in the trial and disposition of the
42 U.S.C. § 1988(a). The express language of § 1988 makes clear that the remedial provisions of
the statute are intended to protect persons in their civil rights. See Wright v. Reynolds, 703 F. Supp.
583, 592 (N.D. Tex. 1988) (emphasis added).
Federal courts have not hesitated to apply state laws, such as wrongful death and survival
statutes, to further the purposes of § 1983. See, e.g., Hall v. Wooten, 506 F.2d 564, 569 (6th Cir.
1974) (Kentucky survival statute); Brazier v. Cherry, 293 F.2d 401, 409-10 (5th Cir.), cert. denied,
368 U.S. 921 (1961) (Georgia survival statute); Pritchard v. Smith, 289 F.2d 153, 158 (8th Cir.
1961) (Arkansas survival statute); Smith v. Wickline, 396 F. Supp. 555, 560 (W.D. Okla. 1975)
(Oklahoma wrongful death statute); Galindo v. Brownell, 255 F. Supp. 930, 931 (S.D. Cal. 1966)
(California wrongful death statute). To that end, some district courts have also concluded that the
designation of a responsible third party under § 33.004 does not conflict with the Federal Rules of
Civil Procedure and is therefore permissible in diversity cases.1 See, e.g., Eisenstadt v. Tel. Elecs.
Corp., 2008 WL 4452999, at *1 (N.D. Tex. Sept. 30, 2008); Kelly v. Pacific Cycle, Inc., 2007 WL
4226922, at * 1 (N.D. Tex. Nov. 29, 2007). The same is not true, however, for suits involving
causes of action arising under federal statutory law only like the instant case.
Application of the Texas proportionate responsibility scheme in this case involving
allegations of deliberate indifference would frustrate the two primary goals of 42 U.S.C. § 1983 —
compensation and deterrence. See Moran v. Summers, 2016 WL 1610611, at *2 (W.D. Tex. Apr.
20, 2016) (citing Mims v. Dallas County, 2006 WL 398177, at *6 (N.D. Tex. Feb. 17, 2006)) (citing
Robertson v. Wegmann, 436 U.S. 584, 590 (1978)) (“The policies underlying § 1983 include
compensation of persons injured by deprivation of federal rights and prevention of abuses of power
by those acting under color of state law.”))). “Permitting the designation of a responsible third party
would allow the joined defendants to avoid joint and several liability for any wrongful conduct,
which in turn would likely prevent the plaintiff from receiving full compensation for their injuries.”
Moran, at * 2. “Such a result ‘would benefit the [defendants], the parties whose conduct is regulated
In Davis v. Dall. Cty., the District Court concluded, however, that the designation of a responsible third
party under § 33.004 does not conflict with the Federal Rules of Civil Procedure and was permissible where the
Court had federal subject matter jurisdiction. 2007 WL 2301585, at *2 (N.D. Tex. Aug. 10, 2007). In this case,
plaintiffs alleged both common law negligence against Dallas County and InfoIntegration and civil rights violations
against Dallas County. See also Ramirez v. Abreo, 2010 WL 11586455 (N.D. Tex. 2010) (discusses applicability of
§ 33.004 in cases that involved both § 1983 claims and state law claims; § 33.004 does not lose its applicability to
plaintiffs’ state law claims merely because those claims are asserted along with a federal claim).
by 42 U.S.C. § 1983, not plaintiffs, the parties protected by statute,’ and thus would be ‘inconsistent
with the Constitution and laws of the United States.’” Id. (citing Mims, at *6).
Based on the foregoing, this court finds it would be inappropriate to designate J.E. Kingham
Construction Company as a responsible third party pursuant to Civil Practice and Remedies Code
§ 33.04. This is consistent with the weight of authority holding theories of comparative negligence
and contribution inapplicable to federal constitutional rights violations. See, e.g., Nicols v. Knox
County, Tenneesse, 2016 WL 9149585, at *1 (E.D. Tenn. 2016); Cordova v. City of Albuquerque,
816 F.3d 645, (10th Cir. 2016); Sahota v. Cobb, 2015 WL 6835480, at *3 (W.D. La. Nov. 6, 2015)
(citing Blair v. Harris, 993 F.Supp.2d 721, 727 (E.D. Mich. 2014)); Blair v. Harris, 993 F.Supp.2d
721, 727 (E.D. Mich. 2014); Baker v. Union Township, Ohio, 2015 WL 6468386, at *3 (S.D. Ohio
2015); Hepburn v. Athelas Inst., Inc., 324 F.Supp.2d 752, 759 (D. Md. 2004); McHugh v. Olympia
Entm’t, 37 F. App’x 730, 736-37 (6th Cir. 2002); Burger v. Parish of St. Tammany, 1995 WL
317125, at *3 (E.D. La. May 24, 1995).
The court stops short of announcing a categorical rule that Texas’ proportionate liability
scheme is never applicable in federal question cases applying federal statutory law. However, for
the purposes of this civil rights claim, the Court finds it would be inconsistent with federal law to
permit the defendants to invoke § 33.004 to avoid joint and several liability and in turn avoid fully
compensating plaintiff for his injuries.
It is ORDERED that Defendants’ Motion for Leave to Designate Responsible Third Party
(docket entry no. 49) is DENIED.
SIGNED this 2nd day of December, 2019.
United States Magistrate Judge
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