Rodriguez v. Christus Spohn Health System Corporation et al
Filing
196
MEMORANDUM OPINION AND ORDER... Christus' Motion for Partial Summary Judgment on Plaintiff's Due Process Claims 109 is GRANTED.. Christus' Motion for Partial Summary Judgment on Plaintiff's Equal Protection Claims 175 is GRAN TED... Christus' Motion for Judgment on the Pleadings Regarding Plaintiff's Claim 177 is GRANTED... Rodriguez' Motion and Amended Motion for Partial Summary Judgment on Liability 178 179 are DENIED... Christus' Motions for Leave to Reply 184 , 186 , 189 are GRANTED. (Signed by Judge John D. Rainey) Parties notified.(ltesch, ) Modified on 6/14/2012 (ltesch, ).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SUSANNA HINOJOSA RODRIGUEZ,
Plaintiff,
v.
CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION, et al.,
Defendants.
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CIVIL ACTION NO. C-09-95
MEMORANDUM OPINION & ORDER
Pending before the Court are Defendants CHRISTUS Spohn Health System Corporation
d/b/a CHRISTUS Spohn Hospital Corpus Christi–Memorial (also sued as CHRISTUS Spohn
Health System Corporation) and CHRISTUS Health’s (collectively “CHRISTUS”) Motion for
Partial Summary Judgment on Plaintiff’s Due Process Claims Under 42 U.S.C. § 1983 (Dkt. No.
109), Motion for Partial Summary Judgment on Plaintiff’s Equal Protection Claims under 42
U.S.C. § 1983 (Dkt. No. 175), and Motion for Judgment on the Pleadings Regarding Plaintiff’s
Claim under Texas Civil Practice and Remedies Code Section 81.010 (Dkt. No. 177), to which
Plaintiff Susanna Hinojosa Rodriguez (“Rodriguez”) has responded (Dkt. Nos. 117 & 181; 182;
and 183, respectively), and CHRISTUS has replied (Dkt. Nos. 123 & 184-A; 186-A; and 189-A,
respectively).1 Rodriguez has also filed a Motion and Amended Motion for Partial Summary
Judgment on Liability on Plaintiff’s Texas Civil Practice & Remedies Code § 81.010 Claim
(Dkt. Nos. 178 & 179), to which CHRISTUS has responded (Dkt. No. 185).
1. The CHRISTUS Defendants filed motions for leave to reply with respect to their Motion for Partial
Summary Judgment on Plaintiff’s Due Process Claims Under 42 U.S.C. § 1983 (Dkt. No. 184), Motion for Partial
Summary Judgment on Plaintiff’s Equal Protection Claims Under 42 U.S.C. § 1983 (Dkt. No. 186), and Motion for
Judgment on the Pleadings Regarding Plaintiff’s Claims Under Texas Civil Practice & Remedies Code Section
81.010 (Dkt. No. 189), to which Plaintiff filed three separate responses in opposition (Dkt. Nos. 187, 188, and 190,
respectively). In the interests of justice, the Court will consider all filings presently before it. Accordingly,
CHRISTUS’ motions for leave to reply (Dkt. Nos. 184, 186, and 189) are GRANTED.
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I. Factual and Procedural Background
On October 28, 2008, Rodriguez filed a healthcare liability suit in Texas state court
against CHRISTUS, the Nueces County Hospital District (the “Hospital District”),2 and John
Hill (“Hill”), a mental health technician employed by CHRISTUS. Rodriguez alleged that, on or
about April 1, 2007, she “was voluntarily admitted as a patient to [CHRISTUS’] Behavioral
Medicine Department for treatment of a serious mental health condition–bi-polar disorder and
other mental health conditions.” (Pl. First Amended Pet., Dkt. No. 1, Ex. 9, ¶ 10.) Rodriguez
claimed that during her hospitalization, Hill sexually assaulted her “by touching [her] shoulders
with his hand, telling [her] how beautiful she was and how beautiful her breasts were. Defendant
Hill further told [her] that he could find a ‘good place for a good night’ and that he would ‘show
her his big dick.’” (Id. ¶ 36.) Hill allegedly assaulted Rodriguez again that same day after lunch,
this time “by approaching [her] from behind; grabbing and fondling her breasts and rubbing his
crotch against her buttocks and lower back pressing his penis against her and stating ‘Do you
want my black dick?’” (Id. ¶ 37.) Rodriguez claimed that she reported the assault to nursing
staff, but CHRISTUS’ “fail[ure] to take any prompt and appropriate remedial action[] left [her]
scared, intimidated, and fearing for her safety,” so she asked to be discharged. (Id. ¶¶ 39–40.)
Rodriguez further alleged that “[i]n the aftermath of the assaults, [her] condition significantly
worsened and [she] was diagnosed with Post Traumatic Stress Disorder” which “culminated in
[her] having suicidal thoughts and [she] has attempted suicide as a result.” (Id. ¶¶ 54, 56.)
CHRISTUS filed a plea to the jurisdiction in Texas state court seeking dismissal of
Rodriguez’ suit on the grounds of governmental immunity. CHRISTUS argued that because the
Hospital District contracts out to CHRISTUS the responsibilities of indigent health care required
by Texas law, CHRISTUS is a “hospital district management contractor,” which is defined by
2. The Hospital District has since been dismissed as a defendant to this lawsuit.
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statute as “a nonprofit corporation, partnership, or sole proprietorship that manages or operates a
hospital or provides services under contract with a hospital district that was created by general or
special law.” TEX. HEALTH & SAFETY CODE § 285.071. Section 285.072 further provides that a
“hospital district management contractor in its management or operation of a hospital under a
contract with a hospital district is considered a governmental unit for purposes of Chapters 101,
102, and 108, Civil Practice and Remedies Code[.]” TEX. HEALTH & SAFETY CODE § 285.072.
Thus, although it is a private corporation, CHRISTUS claimed that it was entitled to
governmental immunity on Rodriguez’ healthcare liability claims.
In response to CHRISTUS’ assertion that it is a governmental unit, Rodriguez filed her
First Amended Petition on April 2, 2009, adding causes of action under TEX. CIV. PRAC. & REM.
CODE § 81.010 and under 42 U.S.C. § 1983 for violations of her right to substantive due process
and equal protection. Based on Rodriguez’ pleading of § 1983 claims, on April 30, 2009, the
Hospital District, with CHRISTUS’ consent, timely removed the case to this Court, where it was
originally assigned to then-Chief Judge Hayden Head. Rodriguez subsequently filed Plaintiff’s
Original Complaint (Dkt. No. 11) in this Court, reasserting all of the claims she had previously
alleged in state court.
On October 15, 2009, CHRISTUS filed three motions to dismiss all of Rodriguez’ claims
against it: (1) Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to
Federal Rule of Civil Procedure 12(b)(1) or, Alternatively, Motion for Partial Summary
Judgment Pursuant to Federal Rule of Civil Procedure 56 (Dkt. No. 19); (2) Defendant
CHRISTUS Health’s Motion for Judgment on the Pleadings Pursuant to Federal Rule of Civil
Procedure 12(c) (Dkt. No. 20); and (3) Defendants’ Motion for Judgment on the Pleadings
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Regarding Plaintiff’s 42 U.S.C. § 1983 Claims (Dkt. No. 21).3 After Judge Head recused, the
case was reassigned to Judge Janice Graham Jack. (Dkt. No. 44.) With one exception, Judge Jack
denied CHRISTUS’ 12(b)(1) motions, ruling that CHRISTUS did not have immunity from suit
for purposes of Rodriguez’s state-law claims and also that CHRISTUS was acting under color of
state law for purposes of 42 U.S.C. § 1983. (Dkt. No. 54.)
After Judge Jack recused and this action was reassigned to the undersigned judge,
CHRISTUS filed a motion for reconsideration of Judge Jack’s ruling on Rodriguez’ state-law
claims (Dkt. No. 58), which this Court denied (Dkt. No. 80). CHRISTUS subsequently filed an
interlocutory appeal of Judge Jack’s rulings on Rodriguez’ state-law claims. (Dkt. No. 84.) The
United States Court of Appeals for the Fifth Circuit vacated Judge Jack’s ruling and found that
CHRISTUS, as a hospital district management contractor, did qualify for limited governmental
immunity under the Texas Tort Claims Act, thus dismissing all of Rodriguez’s state-law claims
against CHRISTUS “except to the extent that [any Chapter 81 claim] falls under § 81.010.”
Rodriguez v. CHRISTUS Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010).
Rodriguez’ only remaining causes of action against CHRISTUS following remand were
those under TEX. CIV. PRAC. & REM. CODE § 81.010 and her due process and equal protection
claims under 42 U.S.C. § 1983, which Rodriguez subsequently realleged when she filed her First
Amended Complaint on August 5, 2011 (Dkt. No. 141). CHRISTUS now moves for summary
judgment on Rodriguez’ constitutional claims under § 1983 and moves for judgment on the
pleadings on Rodriguez’ state-law claim under § 81.010.
3. On the same date, Rodriguez filed a Motion for Declaratory Judgment, seeking a declaratory judgment
that Texas Health and Safety Code §§ 285.071 and 285.072 are unconstitutional (Dkt. No. 22), which was denied
(Dkt. No. 157).
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II. CHRISTUS’ Motions for Partial Summary Judgment
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also Christopher
Village, LP v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999). “For any matter on which the nonmovant would bear the burden of proof at trial . . . , the movant may merely point to the absence
of evidence and thereby shift to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact warranting trial.” Transamerica
Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir. 1995); see also Celotex Corp. v. Catrett, 477
U.S. 317, 323–25 (1986). To prevent summary judgment, the non-movant must “respond by
setting forth specific facts” that indicate a genuine issue of material fact. Rushing v. Kansas City
S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).
When considering a motion for summary judgment, the Court must view the evidence in
the light most favorable to the non-movant and draw all reasonable inferences in favor of the
non-movant. See Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998); Texas v. Thompson, 70
F.3d 390, 392 (5th Cir. 1995). “The court may not undertake to evaluate the credibility of the
witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record
is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive
at a verdict in that party’s favor, the court must deny the motion.” Int’l Shortstop, Inc. v. Rally’s,
Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). However, the non-movant cannot avoid summary
judgment by presenting only “conclusory allegations” or “unsubstantiated assertions,” such as
the bare allegations of a complaint, but must present sufficient evidence, such as sworn
testimony in a deposition or affidavit, to create a genuine issue of material fact as to the claim
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asserted. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). “Even if the
standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it
believes that ‘the better course would be to proceed to a full trial.’” Freeman v. U.S., 2005 WL
3132185, *2 (S.D. Tex. Nov. 22, 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)).
B. Evidentiary Objections
Before considering the substantive merits of CHRISTUS’ motions for summary
judgment, the Court first notes that both Parties have objected to portions of the opposing side’s
summary judgment evidence. The Court has considered both the evidence proffered and the
Parties’ objections, and to the extent the Court has regarded portions of the evidence as relevant,
admissible, and necessary to the resolution of particular summary judgment issues, it hereby
overrules the evidentiary objections. To the extent the Court has not relied on other evidence
about which a party complains, the remaining objections are denied as moot.
C. Motion for Partial Summary Judgment on Plaintiff’s Due Process Claims
1. Due Process Standard
The Constitution provides that States may not deprive any person of life, liberty, or
property without due process of law. U.S. CONST. AMEND. XIV, § 1. In order for a plaintiff to
prevail on a due process claim, she must identify a constitutionally protected life, liberty, or
property interest and then prove that government action resulted in deprivation of that right. San
Jacinto Savings & Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991).
A governmental entity may be held liable under § 1983 only for its own unconstitutional
or illegal policies and not for the tortious acts of its employees. See Monell v. Dept. of Soc.
Servs., 436 U.S. 658, 694 (1978). Thus, in order to establish a claim against a governmental
entity under § 1983, a plaintiff must prove that: (1) a constitutional violation occurred, (2) an
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injury resulted from a custom or policy, (3) a causal connection between the constitutional
violation and the custom or policy, and (4) deliberate indifference. See generally, City of Canton
v. Harris, 489 U.S. 378, 385 (1989); Bd. of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 411–12 (1997); Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).
An offending policy may be an official policy adopted and promulgated by the unit of
government, or a “persistent, widespread practice of [government] officials or employees” that is
“so common and well settled as to constitute a custom that fairly represents [governmental]
policy.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). A “custom” rising to the level of
official policy may, in appropriate cases, encompass allegations that a policymaker failed to act
affirmatively, including a failure to adequately train a subordinate. Connick v. Thompson, —
U.S. —, 131 S.Ct. 1350, 1359 (2011). A governmental entity is liable only when the official
policy is the “‘moving force’ behind the injury alleged. That is, a plaintiff must show that the
[governmental] action was taken with the requisite degree of culpability and must demonstrate a
direct causal link between the [governmental] action and deprivation of federal rights.” Brown,
520 U.S. at 404. Thus, in order to establish a claim under § 1983 for failure to properly
investigate, train, and supervise, a plaintiff must show that she was deprived of a constitutional
right as a direct and proximate result of an official policy or custom attributable to the defendant.
Pineda, 291 F.3d at 332.
“To satisfy [§ 1983], a [government entity]’s failure to train its employees in a relevant
respect must amount to ‘deliberate indifference to the rights of persons with whom the [untrained
employees] come into contact.” Connick, 131 S.Ct. at 1360 (quoting Canton, 489 U.S. at 395). In
order to establish deliberate indifference, the plaintiff must show that the governmental entity
disregarded a known or obvious consequence of its actions; specifically, the plaintiff must
establish that the defendant: (1) was aware of the facts from which an inference of an excessive
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risk to the plaintiff’s health or safety could be drawn, and (2) the defendant actually drew an
inference that such potential for harm existed. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
254–55 (5th Cir. 2005).
2. Analysis
Rodriguez claims that CHRISTUS violated “her substantive due process rights of bodily
integrity under the Fourteenth Amendment.” (Pl. First Am. Compl., Dkt. No. 141 ¶ 1.) In support
of this claim, Rodriguez testified during her deposition that as she was walking out of the
hospital cafeteria after breakfast on April 3, 2007, Hill approached her from behind, grabbed and
fondled her breasts, rubbed his penis against her buttocks and lower back, and asked, “Do you
want my black dick?” (Rodriguez 4/28/2010 Dep., Dkt. No. 181, Ex. 4 at 59:12–61:5.)
Rodriguez also submitted a police report that was completed the day after the alleged assault
took place. (4/4/2009 Police Report, Dkt. No. 117, Ex. 6.) According to the police report,
Rodriguez told the officer that “in the morning, [Hill] had been touching her shoulders with his
hand. He also told her, ‘Your [sic] beautiful, you are beautiful, you have beautiful breasts.’ [Hill]
also told [Rodriguez] that he could find a good place for a good night and that he would show
her what [sic] he had a big dick.” (Id. at 4.) Rodriguez also told the officer that “[a]round 12
Noon (lunch), [Hill] grabbed her from behind and wrapped his arms around her upper body and
squeezed her. He also rubbed his penis (still clothed) on her lower back-butt area.” (Id.)
a. Constitutional Violation
CHRISTUS does not dispute that Rodriguez has a liberty interest in her bodily integrity
that is protected by the Fourteenth Amendment. CHRISTUS further acknowledges that the Fifth
Circuit has recognized that an assault of an egregious nature, whether physical or sexual, can rise
to the level of a substantive due process violation under the Constitution, citing Doe v. Rains
County Indep. Sch. Dist., 66 F.3d 1402, 1406–07 (5th Cir. 1995) (repeated sexual exploitation
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and statutory rape of a girl by teacher constituted “an actionable deprivation of her liberty
interest in freedom from sexual abuse by persons wielding state authority”); Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994) (sexual fondling and statutory rape of 15-year old
girl by teacher constituted violation of student’s bodily integrity); Jefferson v. Ysleta Indep. Sch.
Dist., 817 F.2d 303, 305 (5th Cir. 1987) (teacher’s lashing of a second grade student to a chair
for two days violated the student’s substantive due process right to bodily integrity). However,
CHRISTUS claims that Hill’s alleged behavior, though potentially rising to the level of a
common law assault claim, is not so egregious, brutal, or inhumane so as to shock the conscience
and require constitutional protection.
Unlike Rains County ISD, Taylor ISD, and Ysleta ISD, CHRISTUS argues, there are no
allegations of prolonged sexual exploitation of a minor over a period of several months, nor does
Hill’s alleged behavior demonstrate a prolonged physical restraint that deprived Rodriguez of
basic necessities. Instead, as in Hawkins v. Holloway and Petrone v. Cleveland State University,
the alleged inappropriate behavior took place with no skin touching skin, lasted for at most a few
seconds, and involved at most two inappropriate suggestions of further sexual contact. See
Hawkins v. Holloway, 316 F.3d 777, 785 (8th Cir. 2003) (sheriff’s grabbing of male employees’
clothed genitals, buttocks, and chests did not amount to violation of their substantive due process
rights); Petrone v. Cleveland State Univ., 993 F. Supp. 1119, 1126 (N.D. Ohio 1998) (holding
that allegations of a supervisor’s sexual advances, including one where the supervisor slid his
hand up a woman’s thigh, did not state a substantive due process claim), disapproved of on other
grounds in Kovacevich v. Kent State Univ., 224 F.3d 806 (6th Cir. 2000). As such, CHRISTUS
maintains that even if the facts as alleged by Rodriguez are taken as true—which Hill denies—
these allegations do not rise to the level of a constitutional violation of her bodily integrity.
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Rodriguez argues that what distinguishes her case from those cited by CHRISTUS is that
she was hospitalized for her own safety because she was suicidal, Hill was aware of her suicidal
tendencies and history of sexual abuse, and Hill then used his position as a mental health
technician to sexually exploit her. According to Rodriguez, Hill’s conduct toward her is the “type
of physical force and emotional damage that may cause a patient to become suicidal,” and as a
result of Hill’s conduct, Rodriguez developed Post Traumatic Stress Disorder and attempted
suicide. (Dkt. No. 117 at 15.) According to Rodriguez, the fact that Hill would assault her during
her hospitalization is egregious and shocks the conscience, and is therefore a violation of her
substantive due process rights.
In Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys, the Fifth Circuit
acknowledged that “[t]he Supreme Court recognized the shocks the conscience standard in
Rochin v. California, 342 U.S. 165 (1952),” and explained that:
Conduct sufficient to shock the conscience for substantive due process purposes
has been described in several different ways. It has been described as conduct that
“violates the decencies of civilized conduct”; conduct that is “so brutal and
offensive that it [does] not comport with traditional ideas of fair play and
decency”; conduct that “interferes with rights implicit in the concept of ordered
liberty”; and conduct that “is so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.”
Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys, —F.3d —, 2012 WL 976349,
at *15–16 (5th Cir. Mar. 23, 2012) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846–
47 & n.8 (1998) (citation and internal quotation marks omitted in original)).
Applying the standard set forth in Doe ex rel. Magee, and taking Rodriguez’ allegations
as true–namely that Hill was aware of Rodriguez’ suicidal tendencies and history of sexual abuse
and used his position as a mental health technician to sexually grope and proposition her while
she was hospitalized and under his watch and care–the Court finds that Rodriguez has
sufficiently alleged a constitutional violation based on the invasion of her bodily integrity. See
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Williams v. Prudden, 67 F. App’x 976, 977 (8th Cir. 2003) (inmate “sufficiently state[d] an
Eighth Amendment claim by alleging that [prison guard] forcibly ground his pelvis against her,
grabbed her breast, verbally demanded sexual favors, made physical sexual advances, and
attempted to force himself upon her”); Hawkins v. Holloway, 316 F.3d at 782, 789 (recognizing
an actionable claim for “invasion of her bodily integrity” where sheriff’s deputy alleged that
sheriff made vulgar comments to her, “once came up from behind her and placed his hands
around her and grabbed her breasts,” and “on several occasions . . . stood next to her and pulled
her close to him . . . [o]ften times . . lay[ing] his hand on [her] breast); Haberthur v. City of
Raymore, 119 F.3d 720, 723 (8th Cir. 1997) (recognizing an actionable claim for a substantive
due process violation where plaintiff alleged that, on one occasion, a police officer placed his
hands under her shirt, fondled her breast, and caressed her body while making sexually
suggestive comments to her).
b. Custom or Policy
i. Inadequate Training
CHRISTUS has offered substantial evidence establishing that Hill, along with other
employees at CHRISTUS, was adequately trained on principles of sexual harassment, diversity
in the workplace, workplace violence, and the rights of mental health patients. First, Hill testified
during his deposition that he was provided training on the Patient Bill of Rights and sexual
harassment policies during his time at CHRISTUS. (Hill Dep., Dkt. No. 109, Ex. 1 at 48:3-22;
62:22-24.) Prior to the events giving rise to this litigation, Hill received the following training
relevant to this action: (1) Abuse and Neglect: 2/31/2003; (2) Patient Rights: 6/21/2006; (3)
Patients Rights in the Mental Health Setting: 2/20/2004; (4) Sexual Harassment in the
Workplace: 6/21/2006; (5) Code of Ethics: Foundation of Integrity & Ethics: 6/14/2006; (6)
Code of Ethics: The 2004 Code of Ethics: 6/14/2006; (7) Code of Ethics: Regulatory
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Background and System Resources: 6/14/2006; (8) Abuse, Neglect, and Exploitation: 2/20/2004;
(9) Patient Relations and Compliance: 6/21/2006; (10) HIPAA Patient Care: 4/15/2003; (11)
Diversity in the Workplace: 6/14/2006; (12) Workplace Violence: 6/21/2006; 2/3/2007; (13)
Identifying and Assessing Victims of Abuse and Neglect: 2/03/2007; and (14) Crisis Prevention
Institute (CPI) Course: 2/31/2003; 2/20/2004; 8/17/2005. (Hill Health Stream Report, Dkt. No.
109, Exhs. 4, 5.) Hill’s former supervisor at CHRISTUS, Oscar Solis, explained that the CPI
training that Hill received “was approximately four hours long . . . And, basically it taught you
how to deescalate people, how to respect personal space, and how to protect yourself or protect
other patients from combative patients.” (Solis Dep., Dkt. No. 109, Ex. 6 at 36:24–37:6.) Solis
further testified that employees were instructed during CPI training that they were “supposed to
give patients their personal space. And the personal space is usually—and it’s in the training—an
arm’s length away.” (Id. at 37:23–38:1.)
CHRISTUS has offered further evidence that it had the following written policies in
place concerning harassment and patient rights prior to April 2007: (1) “Abuse/Neglect” Policy,
which sets forth a specific procedure for employees to follow when there has been an accusation
that an employee injured, mistreated, abused, or neglected a patient (Dkt. No. 109, Ex. 7 at 9–
10); (2) “Workplace Principles” Policy (formerly known as “Harassment Policy”), which
provides employees with guidance on CHRISTUS’ commitment to a harassment-free workplace
and specifically defines unwelcomed harassment to include “gestures or behaviors which
threaten, intimidate or are unwelcome,” including “sexual advances, requests for sexual favors,
inappropriate touching of a sexual or abusive nature and other verbal or physical conduct of a
sexual nature” (Id., Ex. 8 at 1); (3) “Bill of Rights for Mental Health Patients” Policy, the
purpose of which is to “assure that the patients or family/guardian of patients admitted to
CHRISTUS Spohn Health System’s Behavioral Medicine Department are informed of their
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patient rights” (Id., Ex. 9 at 1); and (4) “Patient Rights and Responsibilities” Policy, which was
created to provide a “written resource document that outlines CHRISTUS Spohn Health
System’s philosophy of patient rights” (Id., Ex. 10 at 1.)
Rodriguez argues that CHRISTUS is relying on policies relevant to sexual harassment
between employees; however, “[t]he ‘training’ that CHRISTUS points to is not relevant to:
patient boundaries, sexually inappropriate conduct with patients, and sexual harassment of
patients.” (Dkt. No. 181 at 50.) Rodriguez makes repeated references to the concept of “patient
boundaries,” arguing that “[t]here is no evidence that CHRISTUS has a policy regarding patient
boundaries relevant to inappropriate sexual conduct between employees and patients” and
“[t]here is no evidence that Mr. Hill was trained in regard to patient boundaries in a sexual
context which is the training and policy issue in this case. (Id. at 3, 55.)
Contrary to Rodriguez’ position, the mere fact that CHRISTUS’ training programs did
not use the specific phrase “patient boundaries” does not negate the totality of its training
programs. Using common sense, any employee could conclude that the sexual harassment
training they received applies to all contact with other individuals, not just fellow employees. As
the Tenth Circuit explained in Barney v. Pulsipher:
Even if the courses concerning gender issues and inmates’ rights were less than
adequate, we are not persuaded that a plainly obvious consequence of a deficient
training program would be the sexual assault of inmates. Specific or extensive
training hardly seems necessary for a jailer to know that sexually assaulting
inmates is inappropriate behavior.
Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998) (quoting Andrews v. Fowler, 98 F.3d
1069, 1077 (8th Cir. 1996) (“In light of the regular law enforcement duties of a police officer, we
cannot conclude that there was a patently obvious need for the city to specifically train officers
not to rape young women.”). Similarly, the Court finds that, given all the other training
CHRISTUS provided employees regarding sexual harassment and patient rights, specific training
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on “patient boundaries” hardly seems necessary for a mental health technician to know that
sexually assaulting patients is inappropriate behavior.
As further evidence that CHRISTUS had no policy against sexual conduct between staff
and patients, Rodriguez claims that CHRISTUS Director of Risk Management, Sidney Nau
(“Nau”), admitted that such conduct was “a long-standing behavioral–behavior and was
practiced by many staff members.” (Nau Dep., Dkt. No. 117, Ex. 13 at 61:7-9.) However, a full
examination of Nau’s testimony reveals that Nau explicitly stated that she was referring to staff
members’ practice of hugging patients, not engaging in “sexual conduct” with them. (Id. at 63:915.) There is a vast difference between hugging and the allegations that Rodriguez has made
against Hill in this action.
ii. Ratification
Rodriguez next argues that CHRISTUS ratified Hill’s behavior when “it did not take
appropriate steps to admit that Mr. Hill’s conduct was in error and “assured a result that Mr. Hill
did nothing wrong by not conducting an inappropriate [sic] investigation and by failing to
properly discipline Mr. Hill.” (Dkt. No. 181 at 56.) Specifically, Rodriguez claims that
CHRISTUS failed to investigate all claims against Hill; failed to interview Rodriguez; failed to
make appropriate reports with the State of Texas about Hill’s conduct; failed to train Hill as
recommended by the State of Texas, and failed to take other actions in order to justify
maintaining Hill’s employment. According to Rodriguez, CHRISTUS’ ratification of Hill’s
conduct “is evidence of the relevant policies before the deprivation.” (Id. (citing Milam v. City of
San Antonio, 113 F. App’x 622, 628 (5th Cir. 2004)).) See also Grandstaff v. City of Borger, 767
F.2d 161, 171 (5th Cir. 1985).
CHRISTUS maintains that Hill was appropriately not terminated, given that a proper
investigation was performed by CHRISTUS and the Texas Department of State Health Services
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(TDSHS), and such claims were rendered unsubstantiated. (Nau Dep. at 37:17-20; TDSHS
Records, Dkt. No. 181, Ex. 14 at 3.) Hill was also immediately suspended while the investigation
was pending (TapRooT Incident Report, Dkt. No. 181, Ex. 8 at 1), and he was required to attend
counseling sessions on his days off (Hill Dep. at 46:3–47:10).
CHRISTUS further argues even if its investigation was inadequate or otherwise flawed,
CHRISTUS’ post-incident conduct and decision not to terminate Hill are not relevant because
the theory of ratification has been limited by the Fifth Circuit to “extreme factual situations,” and
“unless the subordinate’s actions are sufficiently extreme—for instance, an obvious violation of
clearly established law—a policymaker’s ratification or defense of his subordinate’s actions is
insufficient to establish an official policy or custom.” Worldwide St. Preachers Fellowship v.
Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009) (citing Peterson v. City of Fort Worth,
Tex., 588 F.3d 838, 848 (5th Cir. 2009); Grandstaff v. City of Borger, Tex., 767 F.2d 161, 170
(5th Cir. 1985)). The Fifth Circuit has further held that ratification “does not stand for the
proposition that if a policymaker defends his subordinates and if those subordinates are later
found to have broken the law, then the illegal behavior can be assumed to have resulted from an
official policy.” Coon v. Ledbetter, 780 F.2d 1158, 1161–62 (5th Cir. 1986). Similarly the First
Circuit has rejected a district court’s suggestion that a city had ratified a police officer’s action
by clearing him and finding that he had acted in accordance with the police department’s
policies. Kibbe v. City of Springfield, 777 F.2d 801, 809 n.7 (1st Cir. 1985) (noting that the court
was “unconvinced that a failure to discipline [the officer] or other officers amounts to the sort of
ratification from which a jury properly could infer municipal policy”).
Based on existing Fifth Circuit precedent, the Court finds that, even if CHRISTUS’
investigation into Rodriguez’ claims was inadequate, this alone is insufficient to establish a
custom or policy for purposes of § 1983 liability. See Peterson v. Fort Worth, 588 F.3d 838, 852
15
(5th Cir. 2009) (holding that even if there was error in post-incident investigation into police
officer’s conduct, the court could not conclude that city maintained an official policy of
condoning excessive force); Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001)
(finding that city’s failure to investigate and discipline in that case did not rise to the level of
custom or policy, noting that “it is nearly impossible to impute lax disciplinary policy to the city
without showing a pattern of abuses that transcends the error made in a single case”); DeShay v.
Bastrop Indep. Sch. Dist., 180 F.3d 262, 1999 WL 274606, *2 (5th Cir. 1999) (rejecting
plaintiffs’ assertion that the school’s insufficient investigation was actionable under § 1983
because “[t]he Due Process Clause is simply not implicated by a negligent act of an official
causing unintended loss of injury to life, liberty or property”) (emphasis in original).
In sum, the Court finds that CHRISTUS had a policy of adequately training its employees
with respect to patients’ rights and the inappropriateness of sexual harassment of any individual,
including patients. The Court further finds that CHRISTUS did not ratify Hill’s conduct when it
refused to terminate his employment after its investigation, as well as the investigation
performed by the Texas Department of Health, concluded that Rodriguez’ allegations were
unsubstantiated.
c. Motivating Factor
Even if CHRISTUS’ allegedly inadequate response to Rodriguez’ complaint about Hill
did support a finding that CHRISTUS’ policy and training regarding physical contact between
staff and patients was inadequate–which the Court does not find–the Fifth Circuit has explained
that while post-incident conduct “might provide evidence of the content of a municipality’s
policies,” it cannot be linked to causation:
That the policymakers failed to take disciplinary action in response to [Plaintiff]’s
complaints does not show that they knew of and approved the illegal character of
the arrest, determining that it accorded with municipal policy. Second, it is hard to
16
see how a policymaker’s ineffectual or nonexistent response to an incident, which
occurs well after the fact of the constitutional deprivation, could have caused the
deprivation.
Milam v. City of San Antonio, 113 Fed. App’x 622, 628 (5th Cir. 2004). Other courts have also
held that a single flawed investigation–or even a failure to complete an investigation at all–is
insufficient to prove causation in a § 1983 setting. See Mettler v. Whitledge, 165 F.3d 1197, 1205
(8th Cir. 1999) (finding that inadequate investigation into shooting could not have caused
deputies to use excessive force where plaintiff offered no evidence that any previous
investigations were inadequate or that such investigations were a moving force in deputies
actions); Bolander v. Taser Int’l, Inc., 2009 WL 2004379, at *16 (S.D. Fla. July 9, 2009) (“Even
if the City conducted no investigation after the incident, Plaintiffs could not show that the failure
to investigate caused the use of excessive force. A different result would simply result in
respondeat superior liability.”)
Finally, Rodriguez’ own summary judgment evidence shows that another male mental
health technician was terminated from CHRISTUS for engaging in inappropriate sexual behavior
with a patient shortly before April 2007. (Josephine Rodriguez Dep., Dkt. No. 182, Ex. 5 at
30:22–31:13.) Thus, Rodriguez cannot show that CHRISTUS had a custom or policy of ignoring
such conduct, nor that Hill was motivated to assault her based on CHRISTUS’ alleged custom of
refusing to investigate or discipline staff based on similar patient complaints. See Mettler, 165
F.3d at 1205.
d. Deliberate Indifference
In support of her claim that CHRISTUS was deliberately indifferent to a known risk to
her health and/or safety, Rodriguez points to evidence that during Nau’s investigation into
Rodriguez’ allegations against Hill, one nurse said she had seen Hill “hugging patients and other
staff and she said it made her uncomfortable,” another nurse said that Hill “made her
17
uncomfortable the way he touched the female staff and patients,” and a third staff member said
Hill would “go around hugging people and demonstrated that he would come up from behind
and drape his arms over your shoulders.” (Nau Investigation, Dkt. No. 181, Ex. 8, CSM 004692–
94.)
CHRISTUS acknowledges that the discipline report it created for Hill after its
investigation into Rodriguez’ allegations states that complaints were made from “patients and
fellow associates about inappropriate professional conduct” by Hill and that “Hill needs to
realize and understand boundaries with patients and co-workers.” (Associate Discipline Form,
Dkt. No. 109, Ex. 11, at 1.) However, the report specifically states that Hill had not “been
previously warned and/or probated for the same or similar reason.” (Id.) To the contrary, Solis
and CHRISTUS Human Resources Director Sylvia Guzman both testified that Hill was a good
employee and that they were unaware of any complaints about his behavior prior to April 2007.
(Solis Dep. at 42:25–43:10; Guzman Dep., Dkt. No. 181, Ex. 11 at 78:10–79:4.) Nau’s postinvestigation report also indicated that all three female staff members who had witnessed Hill
hugging patients and staff on prior occasions admitted that they had never brought their concerns
about Hill to anyone’s attention. (Nau Investigation, CSM 004692–94.) Finally, one of Hill’s coworkers, Thelma Vasquez, testified that other than the allegations made by Rodriguez in April
2007, she did not have any knowledge of claims of inappropriate conduct involving Hill.
(Vasquez Dep., Dkt. No. 109, Exh. 2, 15:2-6; 26:-5.)
Rodriguez has also presented evidence that, on the same afternoon she complained to
CHRISTUS staff about Hill, another female patient complained that Hill approached her while
she was resting, patted her on the buttocks, and convinced her to pull up her shirt so that he could
see her tattoo, which caused the patient to partially expose her breast to Hill. (TapRooT Incident
Report at 1.) However, because this complaint was not made to CHRISTUS until after the
18
alleged incident with Rodriguez and Hill had already occurred, it could not have alerted
CHRISTUS to a potential risk to Rodriguez’ health or safety. Likewise, despite Rodriguez’ claim
that Hill had previously sexually assaulted her when she was hospitalized on another occasion in
early 2007, Rodriguez admitted during her deposition that she did not report this conduct to
anyone at CHRISTUS. (Rodriguez 4/28/2010 Dep. at 53:2–54:4.)
Because Rodriguez has not set forth evidence of any previous incidents that would have
given CHRISTUS actual or constructive notice that the specific conduct alleged here might
occur, CHRISTUS could not have been aware of any alleged risk to Rodriguez’ health or safety,
nor deliberately disregarded such risk.
In sum, the summary judgment evidence conclusively establishes that CHRISTUS had a
custom and policy of properly training its employees and did not act with deliberate indifference
to Rodriguez’ health or safety. Thus, the Court finds that CHRISTUS’ Motion for Partial
Summary Judgment on Plaintiff’s Due Process Claims Under 42 U.S.C. § 1983 should be
GRANTED.
C. Motion for Partial Summary Judgment on Plaintiff’s Equal Protection Claims
1. Equal Protection Standard
The Equal Protection Clause of the Fourteenth Amendment is essentially a mandate that
all persons similarly situated be treated alike. Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993) (citing
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)). Courts conduct an equal
protection inquiry only “if the challenged government action classifies or distinguishes between
two or more relevant groups.” Id. To sustain an equal protection claim, a plaintiff must establish
that she was treated differently than a similarly situated individual. Bryan v. City of Madison,
213 F.3d 267, 276 (5th Cir. 2000). A plaintiff must also demonstrate that the acts of the
19
government official in question were motivated by improper considerations, such as sex, race,
religion, or the desire to prevent the exercise of a constitutional right. Id.
Finally, like claims for due process violations under § 1983, to hold a governmental
entity liable for an equal protection violation requires proof of an official policy or custom and a
violation of constitutional rights whose moving force is the policy or custom. Pineda, 291 F.3d at
328.
2. Analysis
Rodriguez claims that CHRISTUS violated her rights under the Equal Protection Clause
“based upon gender, female, and mental disability.” (Pl. First Am. Compl. ¶ 1.) In support of her
equal protection claim, Rodriguez relies upon the same set of facts and evidence giving rise to
her due process claim, namely her alleged sexual assault by Hill. CHRISTUS argues that, even
taking Rodriguez’ sexual assault allegations as true, her equal protection claim fails because the
Equal Protection Clause is not a constitutional vehicle through which an individual may claim
legal remedies for sexual assault. CHRISTUS further argues that Hill’s actions cannot be
imputed to CHRISTUS for purposes of equal protection liability because CHRISTUS had
policies in place to fully train its employees with the intent of eliminating unlawful
discrimination.
a. Constitutional Violation
Rodriguez claims that “[t]he Fifth Circuit recognizes the existence of a claim under 42
U.S.C. §1983 for violation of the Equal Protection Clause of the Fourteenth Amendment related
to gender discrimination/sexual harassment.” (Dkt. No. 172 at 1 (citing Sanches v. CarrolltonFarmers Branch Indep. School Dist., 647 F.3d 156 (5th Cir. 2011); Sharp v. City of Houston,
960 F. Supp. 1164, 1177 (S.D. Tex.1997), aff’d Sharp v. City of Houston, 164 F.3d 923 (5th Cir.
1999)).) As CHRISTUS points out, there are two problems with this argument. First, this case
20
involves an isolated allegation of sexual assault–not a pattern of gender discrimination or sexual
harassment over a period or months or years. Furthermore, both Fifth Circuit cases cited by
Rodriguez dismissed the plaintiffs’ equal protection claims, and thus do not stand for the
proposition she claims.
Sanches involved a high school student who brought a § 1983 action against her school
district alleging violations of Title IX and the Equal Protection Clause based on sexual
harassment by another student. In affirming summary judgment in favor of the school on
plaintiff’s equal protection claim, the Fifth Circuit explained that “any harassment was not based
on her sex, so there [was] no constitutional violation.” Sanches, 647 F.3d at 171. Sharp was an
employment discrimination action involving a female police officer who sued the City of
Houston and her supervisors for sexual harassment and retaliation in violation of Title VII and
for “pervasive departmental misconduct” under § 1983, including claims of sexual harassment
under the Equal Protection Clause and retaliation under the First Amendment. Sharp, 960 F.
Supp. at 1165–66. The district court granted summary judgment in favor of the city on the
plaintiff’s sexual harassment claim under the Equal Protection Clause “because Sharp ha[d]
adduced no evidence of a policy or custom of sexual harassment within the [police department].”
Id. at 1177. On appeal, the Fifth Circuit never addressed the issue of whether an isolated incident
of sexual assault rises to the level of an equal protection claim—in fact, the Equal Protection
Clause isn’t even mentioned in the Fifth Circuit’s opinion. See Sharp, 164 F.3d 923.
Here, like the court in Doe v. Beaumont ISD, the Court is unable to locate any Fifth
Circuit case at the district or circuit level recognizing that a state actor’s isolated sexual assault of
an individual could constitute a violation of the Equal Protection Clause. See Doe v. Beaumont
Indep. Sch. Dist., 8 F. Supp. 2d 596, 613 (E.D. Tex. 1998) (acknowledging that the court “was
unable to find a case recognizing an equal protection claim under these facts,” where parents
21
brought an equal protection claim against school alleging that a teacher sexually assaulted their
eleven-year-old daughter). However, the Fifth Circuit’s opinion in Doe v. Taylor ISD suggests
that such a claim is more properly brought under the Due Process Clause. Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443, 458 (5th Cir. 1994). In Taylor ISD, the court declined to determine
whether a male teacher’s molestation and statutory rape of a 15-year-old female student
constituted an equal protection violation because the court had already determined that this
conduct violated the plaintiff’s substantive due process rights, and the plaintiff did “not claim
that the damages that she could recover . . . based on [the teacher’s] alleged violation of her
equal protection rights would be any more extensive than the damages that she could recover
based on the substantive due process violation.” Id. at 458; see also Brittany B. v. Martinez, 494
F. Supp. 2d 534, 539 (W.D. Tex. 2007) (“This Court declines to address the distinction between
Plaintiff’s equal protection and substantive due process claims because it would not have any
impact on the Court’s legal analysis” in sexual harassment action brought by female student
against school district and board of trustees).
CHRISTUS has cited two cases in which other circuits have expressly held that an
alleged sexual assault does not state a claim for equal protection. For example, in Barney v.
Pulsipher, the Tenth Circuit declined to hold that a sexual assault of a female prison inmate
stated a claim for damages under the Equal Protection Clause. See Barney v. Pulsipher, 143 F.3d
1299 (10th Cir. 1998). Distinguishing the plaintiff’s claim from an equal protection claim in an
employment context, the court in Barney held that “[t]he Equal Protection Clause . . . is usually
invoked to remedy disparities in educational, vocational, and recreational programs offered to
male and female inmates.” Id. at 1312 n.15. Instead, the court held that claims of sexual
harassment were more properly analyzed under the Eighth Amendment. Id.; see also Williams v.
Prudden, 67 F. App’x 976, 977 (8th Cir. 2003) (female prison inmate who alleged that prison
22
guard sexually assaulted her “failed to state an equal protection claim, as she did not allege any
facts to show that she was treated differently from other similarly situated inmates”). Rodriguez
attempts to distinguish these cases on the basis that she was not a prisoner and she is not alleging
that she was denied conditions dissimilarly to male patients, but is instead alleging sexual assault
motivated by her gender. However, as CHRISTUS aptly recognized, if this Court were to hold
that a sexual assault, in itself, rises to the level of an equal protection violation, any plaintiff–
male or female–alleging a sexual assault by a person acting under the “color of law” could
automatically file suit under the Equal Protection Clause because any such assault would
necessarily occur against one gender or the other.
Even if the Court were to recognize Rodriguez’ claim of gender-motivated sexual assault
as constituting a violation of the Equal Protection Clause–which the Court is not inclined to do–
Rodriguez’ equal protection claim would still fail because, as explained fully in Part II.C.2,
supra, Rodriguez has presented no evidence that CHRISTUS had a custom or policy of
improperly training its employees, that CHRISTUS failed to respond to complaints regarding
such conduct, or that CHRISTUS acted with deliberate indifference to Rodriguez’ rights. To the
contrary, CHRISTUS has offered evidence that it had policies in place to fully train its
employees with the intent of eliminating unlawful gender discrimination in the workplace.
Specifically, CHRISTUS: (1) devotes an entire section of its Patients’ Rights training materials
to the inappropriateness of discrimination, including gender discrimination. (Dkt. No. 109, Ex. 5,
Parts 1, 2, 3, 5); (2) requires its employees to complete diversity training, whereby employees are
instructed to strictly comply with laws that prohibit workplace discrimination among and
between co-workers, including Title VII of the Civil Rights Act of 1964 (Id. Part 8); and (3)
trains its employees on treating patients ethically and with integrity, protecting against patient
23
abuse/neglect, patients’ rights, and the inappropriateness of sexual harassment (Id. Parts 3,4, 6,
7).
Finally, the Court finds that Rodriguez has presented no evidence that Hill considered her
alleged mental health disability as a motivating factor in his alleged actions. Furthermore, at the
time of the alleged assault, Rodriguez was a mental health patient in a unit comprised of only
patients with mental health disabilities, and Hill was employed as a mental health technician only
in that unit. Rodriguez has failed to offer any evidence that Hill singled her out from among
other similarly-situated patients for disparate treatment based on her alleged mental health
disability with discriminatory intent, which is required to establish an equal protection violation.
See Williams, 67 Fed. App’x at 977 (female inmate “failed to state an equal protection claim, as
she did not allege any facts to show that she was treated differently from other similarly situated
inmates”).
Accordingly, the Court is of the opinion that CHRISTUS’ Motion for Partial Summary
Judgment on Plaintiff’s Equal Protection Claims under 42 U.S.C. § 1983 should be GRANTED.
IV. CHRISTUS’ Motion for Judgment on the Pleadings Regarding Plaintiff’s Claim under
TEX. CIV. PRAC. & REM. CODE § 81.010
Rodriguez’ First Amended Complaint alleges that CHRISTUS is liable under TEX. CIV.
PRAC. & REM. CODE § 81.010–which provides for injunctive relief against a governmental unit
based on sexual exploitation by a mental health services provider–because one of its employees
sexually assaulted her while she was a patient. CHRISTUS now moves for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure Rule 12(c) on the grounds that it is not a
“governmental unit” as defined by TEX. CIV. PRAC. & REM. CODE §§ 81.010 and 101.001(3)(B).
24
A. Rule 12(c) Standard
A motion brought pursuant to Rule 12(c) is designed to dispose of cases where the
material facts are not in dispute and judgment on the merits of the case can be determined by
looking to the substance of the pleadings and any judicially noticed facts. Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). In considering a Rule 12(c)
motion, the central issue is whether, in the light most favorable to the plaintiff, the complaint
states a valid claim for relief. Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001).
The Court “must look only to the pleadings and accept all allegations contained therein as true.”
United States v. Renda Marine, Inc., 667 F.3d 651, 654 (quoting Brittan Communs. Int’l Corp. v.
Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002)). “The issue is not whether the plaintiffs will
ultimately prevail, but whether they are entitled to offer evidence to support their claims.” Id. at
654–55 (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)).
A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under
Rule 12(b)(6) for failure to state a claim. Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180
(5th Cir. 2007); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Thus,
the Court must accept the plaintiff’s allegations as true and draw all reasonable inferences in her
favor. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993); United States v. Gaubert, 499 U.S. 315, 327 (1991). A court may not look
beyond the face of the pleadings to determine whether relief should be granted based on the
alleged facts. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (citing St. Paul Ins. Co. of
Bellaire, Texas v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991)).
Dismissal can be based on either a lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory. See Frith v. Guardian Life Ins. Co. of
Am., 9 F. Supp. 2d 734, 737–38 (S.D. Tex. 1998). While a complaint need not contain detailed
25
factual allegations to survive a 12(b)(6) motion, the Supreme Court has held that a plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (abrogating the Conley v. Gibson, 355 U.S.
41 (1957) ‘no set of facts’ standard as “an incomplete, negative gloss on an accepted pleading
standard”) (citations omitted). Plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face” and “raise a right to relief above the speculative level.” Id.; Nationwide BiWeekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007).
B. Analysis
Rodriguez seeks injunctive relief, costs, and attorney’s fees against CHRISTUS under
TEX. CIV. PRAC. & REM. CODE § 81.010(b), which provides that:
[A] patient, a former patient, or another person acting on behalf of a patient or
former patient may bring an action under this section against a governmental unit
that is an employer of a mental health services provider, including a special
officer for mental health assignment, who commits any conduct described by
Section 81.002(1), (2), or (3) in relation to the patient or former patient. In an
action brought under this subsection, the patient or former patient may obtain:
(1) an order requiring the governmental unit to discharge the mental health
services provider who committed the conduct;
(2) court costs; and
(3) reasonable attorney’s fees, as determined by the court.
TEX. CIV. PRAC. & REM. CODE § 81.010(b). Conduct described in § 81.002 includes:
(1) sexual contact between the patient or former patient and the mental
health services provider;
(2) sexual exploitation of the patient or former patient by the mental
health services provider; or
(3) therapeutic deception of the patient or former patient by the mental
health services provider.
26
TEX. CIV. PRAC. & REM. CODE § 81.002.
CHRISTUS originally moved for summary judgment on Rodriguez’ § 81.010 claim on
the grounds that Hill was not a “mental health services provider” under the meaning of the
statute. (Dkt. No. 106.) The Court denied CHRISTUS’ motion, finding “that Hill’s serving as a
‘guide’ to monitor Rodriguez when she was suicidal, combined with the 15-minute observations
of Rodriguez that Hill performed, is sufficient to raise a genuine issue of material fact as to
whether Hill provided mental health services directly to Rodriguez.” (Dkt. No. 166 at 3.)
CHRISTUS now moves for judgment on the pleadings on the grounds that it is not a
“governmental unit” as defined by TEX. CIV. PRAC. & REM. CODE §§ 81.010 and 101.001(3)(B).
Section 81.010 explicitly states that it applies only to “governmental units” that have “the
meaning assigned by Section 101.001(3)(B).” TEX. CIV. PRAC. & REM. CODE § 81.010(a).
Section 101.001(3)(B) defines “governmental unit” as:
a political subdivision of this state, including any city, county, school district,
junior college district, levee improvement district, drainage district, irrigation
district, water improvement district, water control and improvement district, water
control and preservation district, freshwater supply district, navigation district,
conservation and reclamation district, soil conservation district, communication
district, public health district, and river authority.
TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B).
CHRISTUS acknowledges that, based on its contractual relationship with the Hospital
District, the Texas Legislature has conferred limited “governmental unit” status upon it because
it is a “hospital district management contractor” as defined by TEX. HEALTH & SAFETY CODE §§
285.071 & 285.072. CHRISTUS further acknowledges that it qualifies as a “governmental unit”
for purposes of TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D), which defines a “governmental
unit” as “any other institution, agency, or organ of government the status and authority of which
are derived from the Constitution of Texas or from laws passed by the legislature under the
27
constitution.” TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D) (emphasis added). However,
because CHRISTUS is not a political subdivision of Texas and does not fall within the meaning
of Subsection 101.001(3)(B), CHRISTUS argues that Rodriguez’ § 81.010 claim should be
dismissed as a matter of law.
In response, Rodriguez claims that CHRISTUS is a governmental unit as defined by TEX.
CIV. PRAC. & REM. CODE § 101.001(3)(B) because “CHRISTUS is not a separate ‘governmental
unit’ apart from the Nueces County Hospital District” and ““[p]ublic health districts’ such as the
Nueces County Hospital District are specifically identified in Texas Civil Practice & Remedies
Code Section 101.001(3)(B).” (Dkt. No. 183 at 7–8.) However, as CHRISTUS correctly points
out, “Rodriguez has not and cannot point to any statutory or legal authority holding that a
hospital district management contractor like CHRISTUS is transformed into a hospital district
merely by virtue of its contractual relationship . . . because such authority does not exist.” (Dkt.
No. 183 at 10.)
A plain reading of the statute shows that CHRISTUS is not a political subdivision of
Texas and is not a “governmental unit” as defined by TEX. CIV. PRAC. & REM. CODE §
101.001(3)(B). As such, CHRISTUS is not subject to liability under § 81.010. Even so,
Rodriguez maintains that CHRISTUS should nonetheless be estopped from asserting its
immunity for a number of reasons, none of which the Court finds persuasive.
Rodriguez first argues that CHRISTUS should be precluded from claiming that it is not a
governmental unit under § 81.010 because CHRISTUS “failed to deny her allegations and to
plead this defense as required by FRCP 8” and “did not deny [her] allegations with enough
specificity to place [her] on notice that CHRISTUS would pursue a claim that it was not a
governmental entity.” (Dkt. No. 183 at 3.) However, the record shows that CHRISTUS
specifically denied in its Answer that it was a governmental unit under TEX. CIV. PRAC. & REM.
28
CODE § 81.010. Rodriguez alleged in Paragraph 38 of her First Amended Complaint, “This cause
of action is plead against CHRISTUS because they are a ‘governmental unit’. Ms. Rodriguez
seeks the remedies, rights and damages afforded by Texas Health and Safety Code Chapter 81 as
if CHRISTUS is a ‘governmental unit.’” (Pl. First Amended Compl. ¶ 38.) In its Answer,
CHRISTUS admitted that it was “a ‘governmental unit’ for purposes of Chapters 101, 102 and
108 of the Texas Civil Practice and Remedies Code pursuant to Texas Health and Safety Code §
285.071 and § 285.072,” but CHRISTUS “den[ied] the remainder of the allegations contained in
Paragraph 38.” (Def. Answer ¶ 38.) Thus, CHRISTUS properly put Rodriguez on notice that it
disputed that it was a governmental unit under § 81.010.
Next, Rodriguez claims that CHRISTUS was required to plead in its Answer, as an
affirmative defense, that Rodriguez had failed to prove that CHRISTUS is the type of
governmental unit subject to § 81.010. By definition, an affirmative defense is a “defendant’s
assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim,
even if all the allegations in the complaint are true.” BLACK’S LAW DICTIONARY (9th ed. 2009).
“[A]ccord and satisfaction; arbitration and award; assumption of risk; contributory negligence;
duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches;
license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver” are
set forth in the Federal Rules as affirmative defenses that must be plead in a party’s response.
FED. R. CIV. P. 8(c)(1). Here, CHRISTUS does not attempt to assert any of the defenses listed
in Rule 8(c), nor does it admit that all of the allegations in Rodriguez’ Complaint are true.
Instead, CHRISTUS’ Answer explicitly denied Rodriguez’ allegation that she “ha[d] met all
prerequisites of Chapter 81 of the Civil Practice and Remedies Code to bring this claim.” (Pl.
First Amended Compl., Dkt. No. 141, ¶ 40, Def. Answer, Dkt. No. 142, ¶ 40.) “A denial that an
essential element of a claim exists is not the same as an affirmative defense to the claim and need
29
not be included in the answer under [R]ule 8(b).” Am. Gooseneck, Inc. v. Watts Trucking Serv.,
Inc., 159 F.3d 1355, 1998 WL 698937, *4 (5th Cir. 1998) (unpublished) (comparing Rule 8(b)
with Rule 8(c); see also S.E.C. v. Jantzen, 2011 WL 250322, *2 (W.D. Tex. Jan 25, 2011)
(denial of elements of plaintiff’s prima facie case is not a proper affirmative defense).
Rodriguez next argues that CHRISTUS made a judicial admission that it was a
governmental unit for purposes of § 81.010 when it stated in the background section of its
Motion for Summary Judgment on Plaintiff’s Section 81.010 Claims that “Rodriguez’s claim
under Section 81.010 of the Texas Civil Practice and Remedies Code remains, as CHRISTUS
was found to be a ‘governmental unit’ for purposes of this Section.” (Dkt. No. 106 at 4.) “To
qualify as a judicial admission, the statement must be (1) made in a judicial proceeding; (2)
contrary to a fact essential to the theory of recovery; (3) deliberate, clear, and unequivocal; (4)
such that giving it conclusive effect meets with public policy; and (5) about a fact on which a
judgment for the opposing party can be based.” Heritage Bank v. Redcom Lab., Inc., 250 F.3d
319, 329 (5th Cir. 2001) (citing Griffin v. Superior Ins. Co., 338 S.W.2d 415, 419 (Tex. 1960)).
CHRISTUS admits that it “was making a legal conclusion (albeit an erroneous one) in the
language quoted by Ms. Rodriguez” and argues that “whether a governmental unit can be sued
under a particular legal provision is a question of law for the court to consider.” (Dkt. No. 189,
Ex. 1 at 8 (citing Hall v. Provost, 232 S.W.3d 926 (Tex. App.–Dallas 2007, no pet.).) The Court
agrees that whether CHRISTUS is a governmental unit for purposes of § 81.010 is a question of
law, not fact. Because “[a] party may not judicially admit a question of law,” Rodriguez’
argument fails. See H.E. Butt Grocery Co. v. Pais, 955 S.W.2d 384, 389 (Tex. App.–San Antonio
1997, no pet.).
Finally, Rodriguez claims that CHRISTUS’ motion violates the “law of the case”
doctrine, which provides that “an issue of law or fact decided on appeal may not be reexamined
30
either by the district court on remand or by the appellate court on a subsequent appeal.” Illinois
Cent. Gulf R.R. v. International Paper Co., 889 F.2d 536, 539 (5th Cir.1989), abrogated on other
grounds as recognized by United States v. Farias, 481 F.3d 289, 291-92 (5th Cir.2007).
According to Rodriguez, because the Fifth Circuit determined that CHRISTUS is a
“governmental unit” for purposes of the Texas Tort Claims Act, it is, per se, a “governmental
unit” for purposes of Section 81.010.
As noted in Part I, supra, CHRISTUS previously filed an interlocutory appeal of Judge
Jack’s determination that it did not have immunity from suit for purposes of Rodriguez’ state-law
claims. The Fifth Circuit reversed, finding that CHRISTUS is a governmental unit as defined by
the Texas Tort Claims Act and is immune to liability under that Act. See Rodriguez v.
CHRISTUS Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010). With respect to
Rodriguez’ claim under § 81.010, the court wrote:
In the second claim, under Chapter 81 of the Texas Civil Practice and Remedies
Code—the Sexual Exploitation by Mental Health Provider Act, Rodriguez alleges
that she was sexually assaulted by Hill—an employee of CHRISTUS. Here, she
claims personal injury for which she seeks monetary damages and/or equitable
relief. This claim also sounds in tort. However, Chapter 81 contains a partial
waiver of immunity. Section 81.010 allows a cause of action as defined in §
81.002 against governmental units but only for “(1) an order requiring the
governmental unit to discharge the mental health services provider who
committed the conduct; (2) court costs; and (3) reasonable attorney's fees, as
determined by the court.” Since CHRISTUS is “considered a governmental unit
for the purposes of [the Tort Claims Act],” it enjoys the same level of partial
immunity. Thus, it is immune to any claim under Chapter 81 except as allowed by
§ 81.010. Rodriguez’s Chapter 81 claim must be dismissed, except to the extent
that it falls under § 81.010.
Id. at 736–37 (internal citations omitted).
The “law of the case” doctrine “covers issues decided both expressly and by necessary
implication, and reflects the jurisprudential policy that once an issue is litigated and decided,
‘that should be the end of the matter.’” United States v. Pineiro, 470 F.3d 200, 205 (5th Cir.
31
2006) (quoting United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004)). Because the Fifth
Circuit never addressed whether CHRISTUS is a governmental unit as defined by TEX. CIV.
PRAC. & REM. CODE § 101.001(3)(B), and therefore whether Rodriguez’ claim falls under §
81.010, the “law of the case” doctrine is inapplicable here.
Accordingly, the Court is of the opinion that CHRISTUS’ Motion for Judgment on the
Pleadings Regarding Plaintiff’s Claim under Texas Civil Practice and Remedies Code Section
81.010 should be GRANTED. As such, Rodriguez’ Motion and Amended Motion for Partial
Summary Judgment on Liability on Plaintiff’s Texas Civil Practice & Remedies Code § 81.010
Claim are DENIED.
V. Conclusion
For the foregoing reasons, it is hereby ORDERED as follows:
1. CHRISTUS’ Motion for Partial Summary Judgment on Plaintiff’s Due Process Claims
Under 42 U.S.C. § 1983 (Dkt. No. 109) is GRANTED;
2. CHRISTUS’ Motion for Partial Summary Judgment on Plaintiff’s Equal Protection
Claims Under 42 U.S.C. § 1983 (Dkt. No. 175) is GRANTED;
3. CHRISTUS’ Motion for Judgment on the Pleadings Regarding Plaintiff’s Claim under
Texas Civil Practice and Remedies Code Section 81.010 (Dkt. No. 177) is GRANTED;
and
4. Rodriguez’ Motion and Amended Motion for Partial Summary Judgment on Liability on
Plaintiff’s Texas Civil Practice & Remedies Code § 81.010 Claim (Dkt. Nos. 178, 179)
are DENIED.
SIGNED this 13th day of June, 2012.
____________________________________
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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