Balle v. City of Corpus Christi et al

Filing 67

MEMORANDUM AND RECOMMENDATION ON NUECES COUNTY'S MOTION TO DISMISS re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Objections to M&R due by 2/17/2015(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ADAM A BALLE,
Plaintiff,
VS.
CITY OF CORPUS CHRISTI, et al,
Defendants.

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§ CIVIL ACTION NO. 2:14-CV-66
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MEMORANDUM AND RECOMMENDATION
ON NUECES COUNTY’S MOTION TO DISMISS
In this civil rights action, Plaintiff Adam Balle claims that certain officers with the
Corpus Christi Police Department used excessive force when they arrested him on March
6, 2012, and that he was then denied adequate medical treatment while detained at the
Nueces County Jail. (D.E. 40). Pending is Nueces County’s Motion to Dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.E. 44).

This case was

referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636 for case
management, including making recommendations to the Court as to all dispositive
motions. For the reasons stated herein, it is respectfully recommended that the Court
deny the County’s motion.
I.

JURISDICTION.
The Court has federal question jurisdiction. 28 U.S.C. § 1331.

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II.

PROCEDURAL BACKGROUND.
On March 5, 2014, Plaintiff filed his Original Complaint alleging that Defendants

used excessive force and were deliberately indifferent to his serious medical needs in
violation of his constitutional rights. (D.E. 1). He named as Defendants: (1) the City of
Corpus Christi; (2) Nueces County, Texas; (3) Officer A. Salinas/Salines, Badge #9163;
(4) Officer B. Perriraz, Badge #8738; (5) Officer A. Salinas, Badge #1362; (6) Ten (10)
Jane Doe Defendants; and (7) Ten (10) John Doe Defendants. (D.E. 1).
On May 7, 2014, Nueces County filed a Rule 12(e) Motion for More Definite
Statement (D.E. 21), and a Rule 12(b)(6) Motion to Dismiss. (D.E. 22). The County’s
Motion for More Definite Statement was granted, and Plaintiff was ordered to file an
Amended Complaint by October 6, 2014. (D.E. 36).
On October 6, 2014, Plaintiff filed an unopposed motion for leave to file Amended
Complaint (D.E. 38), and his Amended Complaint was docketed on October 7, 2014.
(D.E. 40). In his Amended Complaint, Plaintiff identifies two Jane Doe Defendants:
Deborah Charette and C. Johnson. On October 20, 2014, Nueces County filed the instant
Motion to Dismiss.

(D.E. 44).

Following an extension of time (D.E. 54, 56), on

November 24, 2014, Plaintiff filed a response in opposition to the County’s Motion to
Dismiss. (D.E. 57). On December 3, 2014, the County was granted leave to file a reply
to Plaintiff’s response. (D.E. 61).
III.

PLAINTIFF’S ALLEGATIONS.
The following allegations set forth from Plaintiff’s perspective were made in

Plaintiff’s Amended Complaint, (D.E. 40):
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Plaintiff is an insulin-dependent diabetic. (D.E. 40, ¶ 16). At the time of the
incidents giving rise to Plaintiff’s claims, Plaintiff was forty-three years old and was
receiving Social Security disability benefits for a back injury. Id. However, he was able
to ambulate without assistance and to drive a car. Id.
On March 6, 2012, Plaintiff was at home with his wife, Ilena Balle. (D.E. 40, ¶
17). An argument ensued and Ilena Balle called 911. Id. Officer Salinas and Officer
Perriraz arrived at Plaintiff’s home. Id. Plaintiff was sitting in a remodeled garage
watching television. Id. The officers grabbed Plaintiff by the arm and “yanked” him
from the chair, causing the television to fall on his lap. Id. As Plaintiff returned the
television to the table, the officers pushed Plaintiff to the floor and then handcuffed his
arms behind his back. Id. Plaintiff’s knees were scrapped from being pushed to the
floor. Id. One officer pulled Plaintiff up by one arm, and then both officers began to
escort Plaintiff away. Id.
As the officers directed Plaintiff toward the police car that was parked out front,
Officer Salinas told Plaintiff to hurry up, while Officer Perriraz kicked him twice in the
middle of his back, causing him to fall. (D.E. 40, ¶ 18). Officer Perriraz then kicked
Plaintiff on the right side of his stomach. Id. Both officers then placed Plaintiff in the
back of the patrol car and transported him to the Corpus Christi Detention Center. Id., ¶
19. While held at the Detention Center, Plaintiff did not receive medical attention. Id.
On March 7, 2012, at approximately 11:40 p.m., Plaintiff arrived at the Nueces
County Jail. (D.E. 40, ¶ 20). Plaintiff was in “excruciating pain” and “was denied his
diabetic medicine on a regular basis.” Id. On March 10, 2012, Plaintiff submitted an
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Inmate Communication requesting medical attention. Id. He related that he was no
longer able to care for himself, that he was having severe muscle spasms, and that he had
lost the control of his bowel and bladder. Id. The Jail’s “Pass Logs” reflect that Plaintiff
complained of soiling himself, losing the use of his legs and being in pain, and claiming
that he was paralyzed such that he could not ambulate to receive his diabetic medication.
Id., ¶ 21. During this time, Nurse C. Johnson and Physician’s Assistant D. Charette knew
of and disregarded his complaints of pain and paralysis. Id., ¶ ¶ 22-23.
On March 2012, Plaintiff was transferred by ambulance from the Nueces County
Jail to Christus Spohn Memorial Hospital.

(D.E. 40, ¶ 24).

Plaintiff remained

hospitalized almost two months, until May 3, 2012. Id. At the time of admission,
Plaintiff was diagnosed with an acute distracted fracture at T12 vertebrae with
involvement of T11-T12 disc space and cervical caudal distraction.

Id.

Posterior

elements were involved including the lamina and spinous process with the vertebra of
T12. Id.
On March 17, 2012, Plaintiff underwent spinal surgery with fusion at T9-T12, and
a T10-T11-T12 fusion. (D.E. 40, ¶ 24). On May 3, 2012, Plaintiff was transported from
Christus Spohn Memorial Hospital to Harbor View Care Center, a full-time nursing
facility. (D.E. 40, ¶ 25). Except for a brief period in August 2012 when he attempted to
return home but was unable to remain due to his physical and medical needs, Plaintiff
now remains at Harbor View through the present date.

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IV.

MOTION TO DISMISS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may

move to dismiss a complaint for failure to state a claim upon which relief may be granted;
however, the district court must construe the complaint in a light most favorable to the
plaintiff, and the allegations contained therein must be taken as true. Erickson v. Pardus,
551 U.S. 89, 93-94 (2007). To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). In the context of a defendant’s motion to dismiss,
the district court’s review is limited to the allegations in the complaint and to those
documents attached to a defendant's motion to dismiss to the extent that those documents
are referred to in the complaint and are central to the claims. Causey v. Sewell CadillacChevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
V.

DISCUSSION.
Plaintiff is suing Officer Salinas and Officer Perriraz for excessive force; health

care providers P.A. Charette and Nurse Johnson for deliberate indifference to his serious
medical needs; and the City of Corpus Christi and Nueces County alleging that these
municipalities had in place unconstitutional customs, practices, or polices and/or failed to
train properly their employees such that the municipality itself is liable for Plaintiff’s
injuries. (See D.E. 40, ¶¶ 26-29). Nueces County moves to dismiss Plaintiff’s claims
against it arguing that Plaintiff has failed to plead sufficient factual allegations that if
true, would state a claim against Nueces County. Nueces County argues that Plaintiff’s
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allegations are conclusory, and that Plaintiff fails to plead with particularity, let alone
offer evidence, to support his claims to establish municipal liability based on either
unconstitutional custom or policy or failure to train theories of relief.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988); see also Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir.
1995).
A municipality will be liable for the constitutional violations of its employees only
if the alleged constitutional deprivations resulted from municipal policy. Monell v. Dep’t
of Social Services, 436 U.S. 658, 694 (1978). See also Zarnow v. City of Wichita Falls,
Texas, 614 F.3d 161, 166 (5th Cir. 2010) (noting that a municipality may not be subject
to liability merely for employing a tortfeasor; liability requires deliberate action
attributable to the municipality that is the direct cause of the alleged constitutional
violation). Liability of a municipality under § 1983 requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose “moving
force” is the policy or custom. Monell, 436 U.S. at 694; Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001).
An “official policy” may be either a written policy or “a persistent widespread
practice of [municipal] 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.” Lawson v. Dallas County, 286 F.3d
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257, 263 (5th Cir. 2002) (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir.1984) (en banc)). There must be a link between the policy and the constitutional
violation, and the policy must be maintained with an objective deliberate indifference to a
constitutionally protected right. Id. at 264. An isolated incident is not sufficient to show
a custom. Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984) (en banc),
cert. denied, 472 U.S. 1016 (1985).
For purposes of Rule 12(b)(6), Plaintiff has alleged sufficient facts that, if true,
sufficiently state a § 1983 claim against Nueces County for either maintaining an
unconstitutional practice or policy in regards to the medical needs of its pretrial detainees
or a failure to train properly the medical staff charged with attending to those needs.
Indeed, according to the “Pass Logs” allegedly maintained by Nueces County, Plaintiff’s
arrival at the Jail is indicated in the Jail’s medical records on March 8, 2012 at 11:55 a.m.
with the notation “2 x 12 HC -> 2P Balle Adam.” (D.E. 40, ¶ 21). Thus it appears that,
upon his arrival, the medical department simply noted that Plaintiff was in a 2’ by 12’
holding cell for two persons. Id. There was no medical screening, no review of alleged
injuries or complaints, and no evaluation of current medications or chronic conditions.
The next day, Plaintiff submitted an Inmate Communication that he had soiled himself
and was unable to clean himself, but this communication merited no response from the
medical department. On March 11, 2012, Plaintiff submitted an Inmate Communication
complaining of losing the use of his legs and pain. (D.E. 40, ¶ 21). He was “cleared” by
C. Johnson. There is no explanation of what examination was conducted and how Nurse
Johnson determined to “clear” Plaintiff and not to call a physician. On March 12, 2012,
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Plaintiff was advised that he needed to go to the medication line to receive his insulin.
Plaintiff stated that he was sick, but Medic Saldana was advised that he had been
“cleared” the day before by C. Johnson, so no action was taken.

Plaintiff was

characterized as “refusing” to go for his diabetic check. It was only after his persistent
“refusal” to move that day that an ambulance was called and he was taken to Spohn
Hospital. Id. If true, these facts establish that Nueces County either had a policy or
practice of purposely remaining ignorant of the medical condition of its pretrial detainees,
perhaps as a means of managing its costs, or perhaps due to a shortage of qualified
personnel. Alternatively, these same facts, as set forth by Plaintiff, show that the Nueces
County Jail medical department was grossly untrained and allowed a diabetic detainee
with a broken back and loss of bodily functions to sit in his cell and go without his
medication or proper care for four days.
Nueces County has offered a plethora of case law in support of its motion to
dismiss. However, except for one unreported district court decision from the Eastern
District of Texas, none of the cases relied on by Nueces County were disposed of at the
Rule 12(b)(6) stage. All of those cases went to summary judgment or even to trial, and
therefore, are of no assistance to Nueces County on its motion to dismiss The Eastern
District of Texas case, Chaisson v. Grounds, 2014 WL 175329 (E.D. Tex. Jan. 14, 2014)
(unpublished), does not assist Nueces County.

In Chaisson, the prisoner-plaintiff

reported to the medical department on May 19, and a nurse told him to submit a sick call
request. Chaisson submitted a sick call request the next day, and he was seen the
following day, May 21, by medical. He did not allege any substantial harm as a result of
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the three day delay, and the district court correctly found that such allegations did not
state a claim of deliberate indifference. Chaisson at 4.
In contrast, in the case sub judice, Plaintiff was not able to ambulate to the medical
department and talk to a nurse who could make an assessment before instructing him to
submit a sick call request as in Chaisson. He received only the medical treatment that
came to him in response to his Inmate Communications, and from his allegations, this
was none. He was not an inmate on a unit with a known history, but a pretrial detainee
with no relevant medical screening performed. Finally, Plaintiff is alleging substantial
harm: a decline from self-sufficiency to total dependence.
VI.

RECOMMENDATION.
For purposes of Rule 12(b)(6), Plaintiff has alleged sufficient facts to state a §1983

claim against Nueces County. Accordingly, it is respectfully recommended that the
County’s Motion to Dismiss (D.E. 44) be in all things DENIED.
ORDERED this 3rd day of February, 2015.

___________________________________
Jason B. Libby
United States Magistrate Judge

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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy
of the Memorandum and Recommendation, a party may file with the Clerk and serve on
the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

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