De Paz Gonzalez et al v. Duane et al
Filing
58
MEMORANDUM OPINION AND ORDER: The court ORDERS that the 50 motion of JPS to dismiss be, and is hereby, granted, and that plaintiffs' claims against JPS be, and are hereby, dismissed. The court further ORDERS that the 51 motion of Duane and Acclaim be, and is hereby, granted in part and the claims against Duane arising out of failure to comply with TADA and all claims against Acclaim be, and are hereby, dismissed. (Ordered by Senior Judge John McBryde on 11/18/2021) (mmw)
Case 4:20-cv-00072-A Document 58 Filed 11/18/21
Page 1 of 15 PageID 542 _ ,-~·- -. -· 1
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IN THE UNITED STATES DISTRICT COU ,T
r-_ -~0~]-82021
,
NORTHERN DISTRICT OF TEXAS
1
FORT WORTH DIVIS ION
CLERK, U5. JJJS71:!CT COURT
l
J
'--~-------- __ • .:.c _,c ., - -- --
BERMAN DE PAZ GONZALEZ AND
EMERITA MARTINEZ-TORRES,
INDIVIDUALLY AND AS HEIRS,
AND ON BEHALF OF THE ESTATE OF
BERMAN DE PAZ-MARTINEZ,
§
§
§
§
§
§
Plaintiffs,
§
§
vs.
§
NO. 4:20-CV-072-A
§
THERESA M. DUANE, M.D., ET AL,, §
§
Defendants.
MEMORANDUM OPINION AND ORDER
Came on for consideration the motions of defendants,
Tarrant County Hospital District
("JPS"), Therese M. Duane, M.D.
("Duane•) , and Acclaim Physician Group, Inc.
("Acclaim•) , to
dismiss. The court, having considered the motions, the response
of plaintiffs, Berman De Paz Gonzalez and Emerita MartinezTorres, individually and as heirs of Berman De Paz-Martinez, the
replies,
the record, and applicable authorities, finds that the
motions of JPS and Acclaim should be granted and that Duane's
motion should be granted in part and otherwise denied.
-~----~-
Case 4:20-cv-00072-A Document 58 Filed 11/18/21
Page 2 of 15 PageID 543
I.
Background and Plaintiffs' Claims
On January 28,
2020, plaintiffs filed their original
complaint in this action. Doc. 1 1. Plaintiffs are the father and
mother of Berman De Paz-Martinez
("Berman"). They initially
brought claims on behalf of Berman's estate, but filed a notice
of dismissal, Doc.
9, in response to the court's order to
provide proof of authority to proceed in that capacity. Doc. 5.
The court dismissed the claims on behalf of the estate without
prejudice, making the judgment final. Doc. 11.
Defendants filed motions to dismiss the complaint, Docs.
16, 18, which the court granted. Docs. 27, 28,
29, 30.
Plaintiffs appealed. Doc. 31. The United States Court of Appeals
for the Fifth Circuit vacated and remanded, holding that
"Plaintiffs have a cause of action against Defendants and
standing to bring their§ 1983 claims."' Doc. 36 at 7. The Court
declined to address in the first instance other issues regarding
the§ 1983 claims that had been raised in the motions to
dismiss.
1 The
2
"Doc.
Id.
" reference is to the number of the item on the docket in this civil action.
Plaintiffs did not appeal the dismissal of their state law claims. Doc. 36 at 3, n.2.
2
Case 4:20-cv-00072-A Document 58 Filed 11/18/21
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On remand, the parties agreed that plaintiffs could file an
amended complaint, Doc. 45, which they have done. Doc. 46. In
it, they allege:
On March 29, 2018, Berman, age 21, suffered a very serious
brain injury, was in a coma in grave condition, and was kept
alive by a ventilator at John Peter Smith Hospital. Doc. 46,
, , 13, 16, 18. Plaintiffs were informed through an interpreter
that their son's prognosis was extremely poor. Id.
1 18. The
family came together to pray for a miracle and almost
immediately, Berman started making movements for the first time.
Id. On March 31, 2018, the family spent 45 minutes with a
chaplain, telling him that they believed in miracles, saw their
son make movements in response to prayer, absolutely did not
wish to stop treatment, and needed more time. Id.
1
19. Staff
told the family that Berman could stay for seven days, at which
time he would be released to go home with the necessary medical
1 20. At 6:00 a.m. the next
equipment to keep him alive. Id.
morning, Duane appeared with an interpreter and told Berman's
father that the doctors had gotten together and decided to take
Berman off life support. Id.
1
21. Duane disconnected Berman and
his father watched him die. Id. , 22.
Plaintiffs allege that the Texas Advanced Directives Act,
Tex. Health
&
Safety Code
§§
166.001-.166,
3
("TADA"), provides
Case 4:20-cv-00072-A Document 58 Filed 11/18/21
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the only process for effectuating removal of life support from
patients, and that defendants violated their constitutional
rights by failing to comply therewith.'
In support of their claims against JPS and Acclaim,
plaintiffs cite to a July 11, 2018 article by a political
advocacy group called Direct Action Texas entitled,
"Does JPS
Have a Plug-Pulling Problem?" Doc. 46, Ex. A. According to the
article, an unnamed medical director at JPS had allegedly been
pulling the plug on patients she deemed worthy of death.
doctor is allegedly [skipping the legal steps]
"This
and taking upon
herself to make the final decision to pull the plug." Id. The
original unnamed source claimed that the doctor had illegally
terminated as many as ten patients in March alone. According to
the article, JPS's CEO denied the incidents and it was unclear
how much the board of managers knew. Id. Plaintiffs also rely on
an anonymous email from a purported surgical resident, who
claimed that there were only three patients for whom Duane
withdrew care and it was only when Duane became more reckless
that nurses went to the CEO to complain. Doc. 46, Ex. B. The
anonymous source claimed that pursuant to an agreement with JPS,
3
Plaintiffs assert that Berman's constitutional rights were violated and purport to seek damages as a result. Doc. 46,
11~ 49, 51. However, they admit that the claims brought on behalf of Berman's Estate were voluntarily dismissed and
are not being reasserted. Id. at 1, n.1.
4
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Duane was dismissed in lieu of a formal complaint to the Texas
Medical Board. Id.
II.
Grounds of the Motions
Defendants make several different arguments in support of
their motions, but basically urge that:
(1) the Fourteenth
Amendment does not provide a constitutional right to medical
care;
(2) violation of TADA does not give rise to a claim under
§ 1983; and,
(3) plaintiffs have failed to plead an official
policy or custom so as to give rise to liability on the part of
Acclaim and JPS.
III.
Applicable Legal Standards
A.
Pleading Generally
Rule S(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled to
relief," Fed. R. Civ. P. 8 (a) (2),
"in order to give the
defendant fair notice of what the claim is and the grounds upon
which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)
(internal quotation marks and ellipsis omitted). Although
a complaint need not contain detailed factual allegations, the
5
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"showing" contemplated by Rule 8 requires the plaintiff to do
more than simply allege legal conclusions or recite the elements
of a cause of action. Twombly, 550 U.S. at 555
&
n.3. Thus,
while a court must accept all of the factual allegations in the
complaint as true, it need not credit bare legal conclusions
that are unsupported by any factual underpinnings. See. Ashcroft
v. Iqbal, 556 U.S. 662, 679
(2009)
("While legal conclusions can
provide the framework of a complaint, they must be supported by
factual allegations.") .
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible. Iqbal, 556
U.S. at 678. To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
[is]
relief .
a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.
11
Id.
As the Fifth Circuit has explained: "Where the complaint is
6
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devoid of facts that would put the defendant on notice as to
what conduct supports the claims, the complaint fails to satisfy
the requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528
(5th Cir. 2008). In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards
of Rule 8(a). Iqbal, 556 U.S. at 676; Griggs v. State Farm
Lloyds, 181 F.3d 694,
Knight
699
(5th Cir. 1999); see also Searcy v.
(In re Am. Int'l Refinery), 402 B.R. 728,
738
(Bankr. W.D.
La. 2 008) .
B.
Pleading Under 42 U.S.C.
§ 1983
To state a claim under 42 U.S.C.
§ 1983, a plaintiff must
allege a violation of a right secured by the Constitution or
laws of the United States and that a person acting under color
of state law violated that right. West v. Atkins, 487 U.S. 42,
48
(1988); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525
(5th Cir. 2004).
7
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The law is clearly established that the doctrine of
respondent superior does not apply to§ 1983 actions.
Monell v.
New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
Williams v. Luna,
909 F.2d 121, 123
(5th Cir. 1990). Liability
may be imposed against a governmental body only if that body
itself subjects a person to a deprivation of rights or causes a
person to be subjected to such deprivation. Connick v. Thompson,
563 U.S. 51, 60
(2011). Local governments are responsible only
for their own illegal acts. Id.
475 U.S. 469, 479
(quoting Pembaur v. Cincinnati,
(1986)). Thus, plaintiffs who seek to impose
liability on local governments under§ 1983 must prove that
action pursuant to official municipal policy caused their
injury. Monell, 436 U.S. at 691. Specifically, there must be an
affirmative link between the policy and the particular
constitutional violation alleged. City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823
(1985).
Proof of a single incident of unconstitutional activity is
not sufficient to impose liability, unless proof of the incident
includes proof that it was caused by an existing,
unconstitutional policy, which policy can be attributed to a
municipal policymaker. Tuttle, 471 U.S. at 823-24.
(If the
policy itself is not unconstitutional, considerably more proof
than a single incident will be necessary to establish both the
8
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requisite fault and the causal connection between the policy and
the constitutional deprivation. Id. at 824.) Thus, to establish
municipal liability requires proof of three elements: a
policymaker, an official policy, and a violation of
constitutional rights whose moving force is the policy or
custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001).
The Fifth Circuit has been explicit in its definition of
an "official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. 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
2. 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.
Actions of officers or employees of a municipality do
not render the municipality liable under§ 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862
(5th Cir. 1984)
9
(per curiam).
Case 4:20-cv-00072-A Document 58 Filed 11/18/21
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The general rule is that allegations of isolated incidents
are insufficient to establish a custom or policy. Fraire v. City
of Arlington,
957 F.2d 1268, 1278
City of Houston,
v. Hayden,
(5th Cir. 1992); Mcconney v.
863 F.2d 1180, 1184
717 F.2d 220, 227-28
(5th Cir. 1989); Languirand
(5th Cir. 1983).
IV.
Analysis
The law is clear that a person like Berman, who is not
incarcerated or otherwise in custody of defendants, does not
have a constitutional right to medical care. DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S.189,
Harris v. McRae, 448 U.S.
297, 317
Constitution "generally confer[s]
196
(1989)
(1980). Specifically, the
no affirmative right to
governmental aid, even where such aid may be necessary to secure
life,
liberty, or property interests of which the government
itself may not deprive the individual." DeShaney, 489 U.S. at
196. See Johnson ex rel. Johnson v. Thompson,
1495-96
971 F.2d 1487,
(10th Cir. 1992) (that plaintiffs received some treatment
did not entitle them to further treatment). Thus, defendants
argue,
there is no constitutional right to be kept alive
artificially. The question is not, however, whether Berman was
entitled to continuing care, but whether, having intubated him,
10
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defendants could extubate him without prior notice and an
opportunity to respond.
None of the cases cited by the parties appears to discuss
this question, at least not in detail. The case closest on
point, Reynolds v. Parkland Mem. Hosp., No. 3:12-CV-4571-N-BN,
2012 WL 7153849
607152
(N.D. Tex. Dec. 28, 2012), adopted, 2013 WL
(N.D. Tex. Feb. 19, 2013), holds that plaintiffs in a
case like this do not have a cause of action under section 1983.
In Reynolds, doctors at Parkland Hospital, a governmental entity
like District,
"refused to meet with Reynolds' family, made the
decision to withhold life support without consulting the family,
and made 'inappropriate' medical decisions that resulted in his
death." 2oi2 WL 7153849, at *1. The court held that without a
special relationship, Parkland and its employees had no
constitutional duty to protect Reynolds and the question of any
deliberate indifference was "simply immaterial." Id. at *3.
Reynolds was not appealed and does not appear to have been cited
by any other court.
In this case, the Fifth Circuit has recognized a cause of
action under§ 1983, to wit: "Plaintiffs have a cause of action
against Defendants.• Doc. 36 at 7. It may be that the Court was
persuaded (or simply assumed) that the creation of artificial
life came with a correspondent right to due process. Whatever
11
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the case, the Court did not go further, but indicated that other
issues raised by defendants in their motions to dismiss might
have merit. Id. Accordingly, the court considers those issues,
beginning with whether a violation of state procedure amounts to
a constitutional deprivation.
Plaintiffs allege that defendants' violation of TADA
amounted to a denial of due process. The law in the Fifth
Circuit is that a violation of state law does not constitute a
constitutional violation or a violation of federal law. Woodard
v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005); Reynolds, 2012 WL
7153849 at *4. In particular, a state's failure to follow its
own procedural regulations does not establish a violation of due
process.' Giovanni v. Lynn, 48 F.3d 908, 913
Daniels v. Williams, 474 U.S. 327, 332-33
(5th Cir. 1995). See
(1986) (noting that the
Fourteenth Amendment is not a font of tort law to be
superimposed upon whatever systems may already be administered
by the states and that just because an actor may be a state
official does not mean that his act becomes a constitutional
violation). To the extent plaintiffs assert claims arising out
The local state court of appeals has recognized that the operative section of the TADA provides a set of procedures
by which an attending physician may obtain immunity from civil liability and criminal prosecution for a decision to
unilaterally discontinue life-sustaining treatment. T.L. v. Cook Children's Med. Ctr., 607 S.W.3d 9, 24 (Tex. App.---Fort Worth 2020, pct. denied).
'1
12
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of the alleged violation of TADA, those are not claims under
§ 1983.
As for JPS and Acclaim, plaintiffs have not pleaded
sufficient facts to show plausible claims against them.
Governmental liability cannot be based on respondeat superior,
which is really what plaintiffs are trying to do. See Doc. 54 at
19-21 (arguing that Duane was a vice-principal of Acclaim, hence
its liability). Plaintiffs argue that Duane's title or alleged
status somehow makes her a policymaker on behalf of JPS and
Acclaim. Id. at 18-19 (citing Doc. 46,
1
42). But as one of the
cases they rely upon says, the title of the employee is not
dispositive. Hammerly Oakes, Inc. v. Edwards,
958 S.W.2d 387,
391 (Tex. 1997). As JPS points out, its final policymaker is its
board of managers. Tex. Health
&
Safety Code§ 281.047. Its
medical executive committee adopts policies relating to medical
decision-making. Tex. Health & Safety Code§ 281.0286(e)
& (fl.
Plaintiffs have not pleaded facts to show that Duane was a
policymaker for either entity. 5 Rather, the exhibits to the
amended complaint indicate that Duane was a rogue employee who
was neither making nor following policy. Doc. 46, Exs. A
5
&
B.
Plaintiffs overlook the fundamental difference between final decision-making authority and final policymaking
authority. Sec Bolton v. City of Dallas, 541 F.3d 545, 548-50 (5th Cir. 2008)(finality ofan employee's action does
not automatically lend it the character of a policy).
13
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Plaintiffs argue that even if Duane was not a policymaker
for JPS and Acclaim, they would still be liable because
plaintiffs have alleged that the policies of each were the
moving forces in the constitutional violations. Doc. 54 at 2125. Plaintiffs overlook that they must still identify
policymakers for JPS and Acclaim, which they have not done.'
Bennett, 735 F.2d at 862. Further, they have not identified an
unconstitutional policy or custom that caused the deprivation of
a constitutional right. Merely speculating and making conclusory
allegations that a policy existed is not enough.' Pena v. City of
Rio Grande City, 879 F.3d 613, 622
(5th Cir. 2018); Turner v.
Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017). The policy
or custom must have been adopted or maintained with objective
deliberate indifference. Scott v. Moore, 114 F.3d 51, 54 (5th
Cir. 1997). Failure to adopt a policy only counts if it amounts
to an intentional choice and not merely an unintentional
negligent oversight; that is, the failure to adopt a policy must
be deliberately indifferent. Rhyne v. Henderson Cnty., 973 F.2d
386, 392
6
7
(5th Cir. 1992).
Plaintiffs do not specify any acts of JPS and Acclaim individually. See Igbal, 556 U.S. at 676.
/\gain, thG exhibits upon which plaintiffs rely indicate that Duane "took it upon herself' to make final decisions,
that it was unclear how much the board of managers of JPS knew, that nurses went to the CEO of JPS at some
unspecified time after Duane became more reckless, and that Duane was dismissed. Doc. 46, Exs. A & B. Plaintiffs
have not alleged facts from which it could be concluded that JPS and Acclaim condoned what Duane did, much less
that there was a policy that was the moving force behind her alleged constitutional violations.
14
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V.
Order
For the reasons discussed herein,
The court ORDERS that the motion of JPS to dismiss be, and
is hereby, granted, and that plaintiffs' claims against JPS be,
and are hereby, dismissed.
The court further ORDERS that the motion of Duane and
Acclaim be, and is hereby, granted in part and the claims
against Duane arising out of failure to comply with TADA and all
claims against Acclaim be, and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of the claims against JPS and Acclaim.
SIGNED November 18, 2021.
15
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