Garza v. Texas
Filing
22
OPINION and ORDER of Summary Judgment granting 13 MOTION for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(arrivera, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
OSCAR JOSE GARZA,
Plaintiff,
VS.
HARRIS COUNTY, TEXAS,
Defendant.
§
§
§
§
§
§
§
§
§
CIVIL ACTION H-09-4058
OPINION AND ORDER OF SUMMARY JUDGMENT
The above referenced action seeks compensatory and exemplary
damages for the alleged violation of Plaintiff Oscar Jose Garza’s
(“Garza’s”) civil and constitutional right as a pre-trial detainee
to medical care, grounded in 42 U.S.C. § 1983 and the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments of the United
States Constitution and in negligence and gross negligence under
Texas State law.
Pending before the Court is Defendant Harris
County, Texas’s (“Harris County’s”) motion for summary judgment
(instrument #13).
I.
Factual Allegations
According to the complaint (#1), on December 27, 2007 Garza
was arrested and charged with Drinking While Intoxicated (“DWI”) in
Harris County, Texas.
Because it was his third offense and
therefore a felony DWI, he was initially taken into custody by the
Harris County Sheriff’s Office and housed in the 1200 Baker Street
jail.
At his screening examination upon arrival, Garza related a
-1-
history
of
high
blood
pressure
since
approximately
2001
and
informed jail personnel that he had suffered a stroke some years
before his arrest, but had recovered.
On arrival his blood
pressure was 182/100, and continued to be high for several days, so
he was prescribed medication, including Clonidine, HCTZ, Catapril
and aspirin, which soon controlled the problem. He remained at the
jail for approximately nine weeks, but during that time he claims
that he received his medication only on an irregular basis.
Subsequently Garza was transferred to the Harris County Jail
Facility at 701 N. San Jacinto Street in Houston, Texas (“701
jail”). There he claims that he received no medications, allegedly
because his name was left off the list of inmates who required
medication.
Garza informed the staff at the 701 jail, but nothing
was done to resume his blood pressure medication on a regular
basis.
A note made by a nurse with the Harris County Sheriff’s
Office indicated that on March 10, 2008 his blood pressure was
194/134 and that he had not had medication for that condition for
at least two days because of his transfer.
On the evening of March
11, 2008 Garza became dizzy and fell off his bunk in his cell; he
had a grand mal seizure and was admitted to LBJ Hospital early in
the morning of March 12, 2008 with a blood pressure reading of
156/113. He was treated with intravenous medication, which lowered
his blood pressure so that he could be transferred to Ben Taub
Hospital.
On admission to Ben Taub, he was lethargic but able to
-2-
be aroused, his blood pressure was measured at 113/76 and his pulse
at 55, and he had no strength, no sensation and a decreased muscle
tone in his left upper and lower extremity. His left side suffered
decreased
muscle
reflexes,
facial
paralysis,
and
a
positive
Babinski sign, and plus paralysis of the left trapezius muscle.
A
CT scan of his head revealed a large right-sided brain hemorrhage
(right basal ganglia).
Garza asserts that because he had been
denied his required blood pressure medication, he suffered an
Intracerebral Hemorrhage, i.e., a stroke.
He now suffers from the
effects of that stroke, including significant left sided motor
weakness and deficiencies in attention and memory, and he has a
relatively poor prognosis.1
Garza charges that his stroke was caused by uncontrolled blood
pressure due to denial of his medication and by the continued
administration of aspirin, which he asserts is only indicated for
patients with “infarct” strokes, not hemorrhagic strokes associated
with high blood pressure.
The complaint further asserts that the individuals who staffed
1
It should be noted that Garza’s own deposition, submitted as
evidence by Harris County, contradicts some of his complaint’s
key allegations as well as the medical doctor’s affidavit that he
submits as his own summary judgment evidence.
For example
during his deposition he claimed that he did not receive any
blood pressure medicine in Harris County Jail after he was booked
on December 27, 2007 until the end of February (#13-1, Ex. A at
82-85), that he did not see a doctor in the month of December
2007 at the jail (id. at 86-87), and that the stroke he suffered
on March 10, 2007 was his first stroke (id. at 95).
-3-
the two jails in which Garza was housed (deputies, jailers and
medical personnel) were employed by Harris County and acted as
agents and employees of the County. The individual jailers and the
medical personnel were acting under color of state law in their
official capacities and were under the direct supervision and
control of Harris County.
He claims that they were negligent and
grossly negligent in failing to provide for his safety and welfare
and that their acts constituted a deliberate, malicious, callous,
and reckless indifference to Garza’s rights and physical safety.
Garza claims that Harris County failed to properly supervise,
train, and manage the individual employees involved in Garza’s
treatment in jail and that this failure was a direct and proximate
cause of his injuries. He also asserts Harris County was negligent
in
failing
to
administration
implement
of,
and
a
policy
monitoring
of
regarding
the
appropriate
administration
of,
medication and in failing to properly train jail staff regarding
appropriate delivery and monitoring of required medication and
detainees’
negligently
health
conditions.
implemented
and
He
alleges
ratified
that
inadequate
Harris
County
policies
and
procedures concerning the treatment of detainees with specific
medical needs that required continual administration of medication
and monitoring of their medical condition. Moreover the County had
a custom, usage, procedure, pattern, practice or policy that
encouraged, condoned, and permitted its jail staff to ignore the
-4-
medical needs of detainees and prisoners, to fail to distribute
medications
at
appropriate
intervals,
and
to
leave
medical
decisions about dispensing medication to untrained jailers rather
than medical staff.
Harris County participated in or became aware
of, had actual and constructive knowledge of, the calculated and
systematic
violations
of
citizens’
rights
by
the
individuals
staffing its jails.
II.
Standard of Review
The Court notes that Plaintiff is no longer in detention and
is represented by counsel in this suit.
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
favorable
to
the
nonmovant,
the
court
determines
that
“the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
A dispute of “material”
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Initially the movant bears the burden of
identifying those portions of the pleadings and discovery in the
record that it finds demonstrate the absence of a genuine issue of
material fact; the movant may, but is not required to, negate
elements of the nonmovant’s case to prevail on summary judgment.
-5-
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v.
National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v.
Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.
National
Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).
“[A] complete failure of proof concerning an
essential element of the nonmoving party’s case renders all other
facts immaterial.”
not
rely
merely
Celotex, 477 U.S. at 323.
on
allegations,
denials
The nonmovant may
in
a
pleading
or
unsubstantiated assertions that a fact issue exists, but must set
forth specific facts showing the existence of a genuine issue of
material fact concerning every element of its cause of action(s).
Morris v. Covan World Wide Moving, Inc,, 144 F.3d 377, 380 (5th Cir.
1998).
Conclusory allegations unsupported by evidence will not
preclude summary judgment.
National Ass’n of Gov’t Employees v.
City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).
“‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”
-6-
State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).
“Nor is the ‘mere scintilla of evidence’ sufficient;
‘there must be evidence on which the jury could reasonably find for
the plaintiff.’”
Fifth
Circuit
Id., quoting Liberty Lobby, 477 U.S. at 252. The
requires
probative evidence.’”
the
nonmovant
to
submit
“‘significant
Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).
“If the evidence is merely colorable,
or
probative,
is
not
granted.”
significantly
summary
judgment
may
be
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th
Cir. 1999), citing Celotex, 477 U.S.
at 322, and Liberty Lobby,
477 U.S. at 249-50.2
III.
Relevant Substantive Law
As a matter of law, a number of Plaintiff’s claims are not
cognizable and must be dismissed, as indicated infra in discussion
of the applicable substantive law.
2
The court has no obligation to “sift through the record in
search of evidence” to support the nonmovant’s opposition to the
motion for summary judgment. Forsyth v. Barr, 19 F.3d 1527, 1533
(5th Cir. 1994). Rather the nonmovant must identify evidence in
the record and demonstrate how it supports his claim. Ragas v.
Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
-7-
Title 42 U.S.C. § 19833 provides a remedy to a party who, as
the result of state action, suffers a derivation of his rights
privileges or immunities secured by the Constitution and the laws
of the United States.
1981).
White v. Thomas, 660 F.2d 680, 683 (5th Cir.
Thus to state a claim under the statute, a plaintiff must
prove (1) a violation of the United States Constitution or federal
law; and (2) that the violation was committed by one acting under
color of state law.
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
251-53 (5th Cir. 2005).
A claim for denial of constitutionally adequate medical care
to a pretrial detainee arises from deprivation of substantive due
process under the Fourteenth Amendment.
Gutierrez v. City of San
Antonio, 139 F.3d 441, 452 (5th Cir. 1998), citing Brothers v.
Klevenhagen, 28 F.3d 452, 255-56 (5th Cir. 1994); Fields v. City of
South Houston, 922 F.2d 1183, 1191 (5th Cir. 1991).
The Fifth
Circuit applies the same standard for assessing constitutional
claims of denial of medical care to pretrial detainees under the
Fourteenth Amendment as it does for denial of medical care to
3
Section 1983 provides in relevant part,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State .
. . subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress . . . .”
-8-
convicted inmates under the Eighth Amendment.4 Gibbs v. Grimmette,
254 F.3d 545, 548 (5th Cir. 2001), cert. denied, 534 U.S. 1136
(2002).
Garza’s claim of denial of medical care as a pretrial
detainee therefore falls under the Fourteenth Amendment, and not
the Fourth, Fifth or Sixth Amendments and technically not the
Eighth Amendment.
Thus Garza’s claims under amendments other than
the Fourteenth are dismissed.
In this action Garza expressly sues the individual jailers,
deputies and medical personnel only in their official capacities.
“Official-capacity suits . . . ‘generally represent only another
way of pleading an action against an entity of which the officer is
an agent.’”
Kentucky v. Graham, 473 U.S. 159, 165 (1985)(quoting
Monell v. Dep’t of Social Services, 436 U.S. 658, 690 n.55 (1978)).
A suit against a municipal official in his official capacity is no
different from a suit against the municipality itself.
Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Thus
Garza’s claim is properly brought against only Defendant Harris
County.
to
bring
Graham, 473 U.S. at 167 n.14 (“There is no longer a need
official-capacity
actions
against
local
government
officials, or under Monell, . . . local government units can be
sued directly.”); Castro v. Romero, 256 F.3d 349, 355 (5th Cir.
2001)(dismissal
of
claim
against
4
officers
in
their
official
The Eighth Amendment’s prohibition against cruel and unusual
punishment forbids deliberate indifference to the serious medical
needs of prisoners. Estelle v. Gamble, 429 U.S. 97 (1976).
-9-
capacity is appropriate when the “allegations duplicate claims
against the respective governmental entities themselves”).
Municipalities are considered “persons” that may be sued
directly under § 1983.
Monell, 436 U.S. at 694.
“A municipality
cannot be vicariously liable for the constitutional torts of its
employees or agents.”
615
(5th
Cir.
1999),
Gros v. City of Grand Prairie, 181 F.3d 613,
citing
Monell,
436
U.S.
at
694.
“A
municipality is liable only for acts attributable to it through
some official action or imprimatur.” Valle v. City of Houston, 613
F.3d 536, 541 (5th Cir. 2010).
To sue a municipality or local
government under § 1983, a plaintiff must demonstrate (1) a
policymaker, (2) an official policy, and (3) 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.), cert.
denied, 534 U.S. 820 (2001); Monell, 436 U.S. at 578.
An official
policy is “(1) [a] policy statement, ordinance, regulation, or
decision
that
municipality’s
lawmakers
have
is
officially
lawmaking
delegated
adopted
officers
or
and
by
policy-making
promulgated
an
official
authority;
or
by
the
to
whom
(2)
[a]
persistent, widespread practice of officials or employees, which,
although not authorized by officially adopted and promulgated
policy, is so common and well-settled as to constitute a custom
-10-
that
fairly
represents
the
municipal
policy.5
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 has delegated policy-making authority.”
Webster v. City of
Houston, 735 F.2d 838, 841 (5th Cir. 1984)(en banc).
“[I]solated
unconstitutional actions by municipal employees will almost never
trigger liability.”
Piotrowski, 237 F.3d at 578.
A plaintiff may
establish a custom or policy based on an isolated decision only
when made by an authorized policymaker in whom final authority
rested concerning the action ordered because then it is the policy
of the municipality.6
City of St. Louis v. Praprotnik, 485 U.S.
112, 123-25 (1988)(“only those municipal officials who have ‘final
policymaking authority’ may by their actions subject the government
to § 1983 liability”); Bennett v. City of Slidell, 728 F.2d 762,
769 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985); Brown v.
Wichita County, Tex., No. 7:05-CV-108-0, 2011 WL 1562567, *6 (N.D.
Tex. Apr. 26, 2011).
Furthermore a “handful” of instances do not
5
“[W]here prior incidents are used to prove a pattern, they
‘must have occurred for so long or so frequently that the course
of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected,
accepted practice of city employees.’” Peterson v. City of Fort
Worth, Texas, 588 F.3d 838, 850 (5th Cir. 2009), quoting Webster,
735 F.2d at 842. “A pattern . . . requires ‘sufficiently
numerous prior incidents,’ as opposed to isolated instances.”
Id., quoting McConney v. City of Houston, 863 F.2d 1180, 1184
(5th Cir. 1989).
6
Whether an official has “final policymaking authority” is a
question of state law. Praprotnik, 485 U.S. at 123.
-11-
constitute a pervasive custom or practice.
Pineda v. City of
Houston, 291 F.3d 325, 329 (5th Cir. 2002)(finding that eleven
incidents of warrantless searches of residences by the Houston Gang
Task Force did not establish a “persistent widespread practice” or
an unwritten municipal custom), cert. denied, 537 U.S. 1110 (2003).
Pretrial detainees may assert constitutional challenges under
either of two theories:
act or omission.”
“condition of confinement” or “episodic
Scott v. Moore, 114 F.3d 51, 53 & n.2 (5th Cir.
1997)(en banc), citing Hare v. City of Corinth, Miss., 74 F.3d 633,
644-45 (5th Cir. 1996)(en banc).
In a “condition of confinement” case, the plaintiff attacks
general jail conditions, practices, rules or restrictions that
plaintiff must show amount to punishment and are not incident to
some other legitimate governmental purpose. Id.; id. To reach the
level of impermissible punishment, the condition must be “arbitrary
or purposeless” or “not related to a legitimate goal.”
Wolfish, 441 U.S. 520, 539 (1979).
Bell v.
See also Scott, 114 F.3d at 53
(In a “conditions of confinement” case, a constitutional violation
arises only when the complained of condition is not reasonably
related to a legitimate, non-punitive governmental objective.).
Isolated examples are insufficient to demonstrate a constitutional
violation; “a pretrial detainee
must “demonstrate a pervasive
pattern of serious deficiencies in providing for his basic human
needs; any lesser showing cannot prove punishment in violation of
-12-
the detainee’s Due Process rights.” Shepherd v. Dallas County, 591
F.3d 445, 454 (5th Cir. 2009).
“A condition is usually the
manifestation of an explicit policy or restriction:
the number of
bunks per cell, mail privileges, disciplinary segregation, etc.,”
and official intent need not be shown, but is presumed. 453-54.
Id., citing Scott v. Moore, 114 F.3d at 53 n.2.
Sometimes the
condition represents an implied or de facto policy, as shown by a
“pattern of acts or omissions ‘sufficiently extended or pervasive,
or otherwise typical of extended or pervasive misconduct by [jail]
officials.”
Id., citing Hare, 74 F.3d at 645.
“Proving a pattern
is a heavy burden, one that has rarely been met in our caselaw.”
Id.
Where a plaintiff cannot prove “the existence of an officially
sanctioned
unlawful
condition,”
he
alternatively
may
make
an
“episodic-acts-or-omissions” claim by alleging specific acts or
omissions by particular jail officials. Shepherd, 591 F.3d at 452.
In such claims, “an actor usually is interposed between the
detainee and the municipality, such that the detainee complains
first of a particular act of, or omission by, the actor and then
points derivatively to a policy, custom, or rule (or lack thereof)
of the municipality that permitted or caused the act or omission.”
Scott, 114 F.3d at 53.
In the episodic-act-or-omission case, the
plaintiff must prove intent of the jail official or officials
involved, specifically that with “deliberate indifference to the
-13-
detainee’s needs” the jail official acted or failed to act.
Hare,
74 F.3d at 648; Olabisiomotosho v. City of Houston, 185 F.3d 521,
526 (5th Cir. 1999)(“To succeed in holding a municipality liable,
the plaintiff must demonstrate a municipal employee’s subjective
indifference and additionally that the municipal employee’s act
‘resulted from a municipal policy or custom adopted or maintained
with
objective
deliberate
indifference
to
the
[plaintiff’s]
constitutional rights.’”)(citing Hare, 74 F.3d at 649 n.14).
In
other words the plaintiff must show that the state official knew of
and disregarded an excessive risk to the inmate’s health or safety.
Gibbs, 254 F.3d at 549.
The Court concludes that Garza’s lawsuit
is an episodic-act-or-omission case:
he complains of specific
omissions in his medical treatment by several jail employees acting
with subjective indifference resulting from a municipal policy or
custom that was adopted or maintained by the County with objective
deliberate indifference to the detainee’s constitutional rights,
which he claims caused his stroke.
To satisfy the deliberate indifference standard, a plaintiff
must show that the defendant was deliberately indifferent “‘to the
known or obvious consequences’ that constitutional violations would
result.” Id. at 580, citing Board of County Commissioners of Bryan
County, Okl. v. Brown, 520 U.S. 327, 220 (1986).
Deliberate
indifference is a subjective standard that requires that “the
official must both be aware of facts from which the inference could
-14-
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825,
837 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 648-49 (5th
Cir. 1996).
Thus to be liable, a plaintiff must demonstrate that
the official knows of and disregards an excessive risk to the
detainee’s health or safety.
Harris v. Hegmann, 198 F.3d 153, 159
(5th Cir. 1999). A plaintiff need not show that the prison official
believed that harm would actually occur, but only that the official
acted or failed to act despite his knowledge of a substantial risk
of harm.
Hinojosa v. Johnson, 277 Fed. Appx. 370, 374 (5th Cir.
2008), citing Farmer, 511 U.S. at 842.
The plaintiff may show the
official’s knowledge of the risk by circumstantial evidence, e.g.,
by showing that the risk was so obvious that the official must have
known about it.
Hinojosa, 277 Fed. Appx. at 374, citing Johnson v.
Johnson, 385 F.3d 503, 524 (5th Cir. 2004).
For
denial
of
medical
care,
under
the
“extremely
high
standard” of deliberate indifference the plaintiff “must show that
the
officials
refused
to
treat
him,
ignored
his
complaints,
intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any
serious medical needs”; “an incorrect diagnosis by prison medical
personnel
does
indifference.”
not
suffice
to
state
a
claim
for
deliberate
Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d
752, 756 (5th Cir. 2001); cited for that proposition, Kavanaugh v.
-15-
Boyd, Civ. A. No. H-09-2882, 2011 WL 679786, *10 (S.D. Tex. Feb. 8,
2011)
“‘Unsuccessful medical treatment, acts of negligence, or
medical malpractice do not constitute deliberate indifference.’”
Id. (“Deliberate indifference is especially difficult to show when
the inmate has been provided with ongoing medical treatment.”),
quoting Gobert v. Caldwell, 463 F. 3d 339, 346 (5th Cir. 2006).
“A
decision not to provide additional or different treatment ‘is a
classic example of a matter for medical judgment’ rather than a
basis for an Eighth Amendment claim.”
Id., quoting Estelle v.
Gamble, 429 U.S. 97 (1976)). “‘Disagreement with medical treatment
does not state a claim for Eighth Amendment indifference to medical
needs.’”
Cir.
Id., quoting Norton v. Dimizana, 122 F.3d 286, 292 (5th
1997).
The
prison
official
may
avoid
liability
by
demonstrating that he “responded reasonably to the risk, even if
the harm ultimately was not averted.”
Hinojosa, 277 Fed. Appx. at
374, citing Farmer, 511 U.S. at 844.
Simple or even heightened
negligence is insufficient to establish deliberate indifference.
Farmer, 511 U.S. at 835.
Indeed negligence and gross negligence do not implicate the
Constitution and thus cannot provide a basis for a § 1983 claim,
Farmer, 511 U.S. at 826 (“deliberate indifference entails something
more than mere negligence”).
“[T]he Due Process Clause is simply
not implicated by a negligent act of an official causing unintended
loss or injury to life, liberty or property.” Daniels v. Williams,
-16-
474 U.S. 327, 328 (1986).
Allegations amounting to negligent
medical care cannot support a claim under § 1983; delay in medical
care can only constitute a violation under the Eighth Amendment
(and thus the Fourteenth Amendment) if there has been deliberate
indifference causing substantial harm.
F.2d
191,
195
(5th
Cir.
1993).
Mendoza v. Lynaugh, 989
Moreover
Garza’s
claims
of
negligence and gross negligence against Harris County do not meet
the limited waiver of sovereign immunity under the Texas Tort
Claims Act, Tex. Civ. Prac. & Rem. Code § 101.021.7
Therefore
Garza’s claims against Harris County for negligence and gross
negligence are barred by sovereign immunity and are dismissed.
See, e.g., Anderson v. Dallas County, Texas, 286 Fed. Appx. 850,
863 (5th Cir. 2008).
7
Section 101.021 provides,
A governmental unit in the state is liable for:
(1) property damage, personal injury, and
death proximately caused by the wrongful act
or omission or the negligence of an employee
acting within his scope of employment if:
(A) the property damage, personal
injury or death arises from the
operation or use of a motor-driven
vehicle or motor-driven equipment;
and
(B) the employee would be
personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a
condition or use of tangible personal or real
property if the governmental unit would, were
it a private person, be liable to the
claimant according to Texas law.
-17-
In addition to compensatory damages, Garza seeks exemplary
damages against Harris County on his claims under § 1983.
In City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the
Supreme Court held that punitive damages are not recoverable
against a municipality in a § 1983 suit.
Thus Garza’s claim for
exemplary damages is also dismissed.
“In limited circumstances, a local government’s decision not
to
train
certain
employees
about
their
legal
duty
to
avoid
violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983.”
131 S. Ct. 1350, 1359 (2011).
Connick v. Thompson,
“A municipality’s culpability for
deprivation of rights is at its most tenuous where a claim turns on
a failure to train.”
Id., citing Oklahoma City v. Tuttle, 471 U.S.
808, 822-23 (1985)(“[A] ‘policy’ of inadequate training’” is “far
more
nebulous,
and
a
good
deal
further
removed
from
the
constitutional violation, than was the policy in Monell.”).
To
establish
municipal
liability
under
§
1983,
a
local
government’s failure to train its employees in the particular
conduct in dispute must amount to “deliberate indifference to the
rights of person with whom the [untrained employees] come into
contact.”
Harris,
Connick, 131 S. Ct. at 1359, citing City of Canton v.
489
U.S.
378,
388
(1989).
Only
if
it
meets
this
requirement does it constitute a city policy or custom under the
statute.
Id. at 1359-60, citing id. at 389.
-18-
“[W]hen city
policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate
citizens’
constitutional
rights,
the
city
may
be
deemed
deliberately indifferent if the policymakers choose to retain that
program.”
Id. at 1360.
“Without notice that a course of training
is deficient in a particular respect, decisionmakers can hardly be
said to have deliberately chosen a training program that will cause
violations of constitutional rights.”
inaction’
in
light
constitutional
of
notice
violations
‘is
Id.
that
the
its
“The city’s ‘policy of
program
functional
will
cause
equivalent
decision by the city itself to violate the Constitution.’”
of
a
Id.,
citing Canton, 489 U.S. at 395.
Usually
constitutional
a
plaintiff
violations
must
by
show
a
untrained
pattern
of
employees
similar
to
prove
deliberate indifference for purposes of a failure-to-train claim.
Id.
A local government’s failure to train municipal employees may
qualify as a “policy,” but only when it “reflects a ‘deliberate’ or
‘conscious’ choice by a municipality” to proceed in a course of
action
chosen
officials.
from
among
various
Canton, 489 U.S. at 389;
alternatives
by
relevant
Connick, 131 S. Ct. at 1360,
citing Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986).
In Canton the Supreme Court suggested that “in a narrow range
of
circumstances”
a
single
incident
might
be
sufficient
to
demonstrate deliberate indifference where the unconstitutional
-19-
consequences of a failure to train would be so obvious and so
predictable that a proof of a pattern of previous violations would
not be necessary to impose liability.
Connick, 131 S. Ct. at 1361
and 1363, citing Board of Comm’rs of Bryan Cty., 520 U.S. 397, 409
(1997), and
Canton, 489 U.S. at 390.
See Brown v. Bryant County,
Okl., 219 F.3d 450, 460-61 (5th Cir. 2000)(“[T]o hold the county
liable for a single decision, there must be a high degree of
predictability
concerning
the
consequences
of
the
challenged
decision. . . . Specifically, to find the county liable for a
single decision of the policymaker, there must be evidence that
would support a finding that it was obvious that the offending
officer in question was ‘highly likely to inflict the particular
injury suffered by the plaintiff.’”)(citing Bryan Cty. 520 U.S. at
411), cert. denied, 532 U.S. 1007 (2001).
In Connick, Thompson
sued the parish prosecutor’s office for violating Brady by failing
to disclose exculpatory evidence, and the jury found for Thompson.
On appeal the Supreme Court reversed the verdict based on a single
incident because prosecutors receive adequate training on avoiding
Brady violations in both their general training to obtain a law
degree and in studying to pass the bar to obtain a license to
practice law.
Connick, 131 S. Ct. at 1361-64.
The same might hold
true in this suit for the doctors and medical professionals
treating Garza for hypertension, a common medical problem, in the
two jail facilities in which he was housed.
-20-
Because Garza has also not identified a policymaker or a
decision by a policymaker, nor has he pointed to a formal official
policy of Harris County not train its staff to provide adequate
medical care to pretrial detainees, Plaintiff must show a “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 to constitute a custom that
fairly represents municipal policy.”
Bennett v. City of Slidell,
735 F.2d 861, 862 (5th Cir. 1984), cert. denied, 472 U.S. 1016
(1985).
As noted, usually a pattern of similar constitutional
violations
by
allegedly
untrained
employees
is
necessary
to
demonstrate a municipality’s deliberate indifference for purposes
of a failure to train.
Bryan Cty., 520 U.S. at 409.
The court
must first determine whether the county’s training program was
adequate; if it was not, the court must then ask whether the
inadequate training represented a city policy. City of Canton, 489
U.S. at 390.
A municipality’s failure to train and/or supervise
can constitute a “policy” under § 1983 if there is deliberate
indifference of policymakers to an obvious need for training and
supervising in light of the duties of certain officers or employees
and the inadequacy in training or lack of supervision is likely to
result in a violation of citizens’ constitutional rights.
City of
Canton v. Harris, 489 U.S. 378, 389 (1989); Brown v. Bryan County,
Okl., 219 F.3d 450, 458 (5th Cir. 2000), cert. denied, 532 U.S. 1007
-21-
(2001).
The
failure
to
train
must
conscious choice by a municipality.
389.
reflect
a
deliberate
or
City of Canton, 489 U.S. at
“[T]he focus must be on adequacy of the training program in
relation to the tasks the particular officers must perform.
That
a particular officer may be unsatisfactorily trained will not alone
suffice
to
fasten
liability
on
the
city,
for
the
officer’s
shortcomings may have resulted from factors other than a faulty
training program . . . for example, that an otherwise sound program
has been negligently administered.”
Id. at 390-91.
Nor is a
claim that “an injury or accident could have been avoided if an
officer had had better or more training,” because such an argument
“could be made about almost any encounter resulting in injury”;
even adequately trained officers err and such a claim does not
prove the training program was inadequate.
Id. at 391.
For
municipal liability to attach, a deficiency in a city’s training
program
must
have
caused
the
two
jails’
indifference to Garza’s medical condition.
IV.
staffs’
deliberate
Id.
Harris County’s Motion for Summary Judgment (#13)
Garza’s arrest on December 27, 2007 was the ninth time he was
incarcerated in the Harris County Jail, the first arrest occurring
in 1992.
Plaintiffs Dep., #13, Ex. A, at pp. 24, 27, 33, 36, 39,
42, 45, 47, 57, 71, and 79-80.
Plaintiff,
another
deposition
With copies of a deposition from
and
an
affidavit
(with
Garza’s
medical records attached) from Harris County Executive Director for
Health Services and custodian of the Sheriff’s Office inmate
medical records Michael Seale, M.D., whose duty was to oversee all
-22-
medical operations for the Harris County Jail system, three other
affidavits,
medical
records,
and
documents
containing
Harris
County’s policies and procedures in support of its motion, Harris
County argues that its evidence shows there is no genuine issue of
material fact and that it is entitled to judgment as a matter of
law.
Harris County’s evidence details how Plaintiff was treated
medically
and
what
the
medications
he
received
during
his
detainment in two Harris County jail facilities and at LBJ Hospital
during the period in dispute, in particular from his arrest on
December
27,
2007
through
his
stroke
on
March
10,
2008
and
hospitalization on March 11, 2008.
According to his deposition and affidavit testimony, Dr.
Seale’s duties include policy review and development for all health
services provided through the Harris County Jail and oversight of
all physician, nurse practitioner and nursing practices in the
jail, insuring compliance with the health services components of
the jail standards as regulated by the Texas Commission on Jail
Standards (“TCJS”), and continued accreditation by the National
Commission
on
Correctional
Health
Care
Standards
for
Health
Services (“NCCHC Standards”). #13-2, Ex. B t 7-8; #13-3, Ex. C, at
1-2.
He is a qualified expert in the field of medicine, is a
custodian of inmate medical records, and often reviews these
records to determine medical care received by inmates.
Id. at 4.
He has reviewed the medical records of Oscar Garza through his nine
stays in the Harris County Jail and identified the following
entries relevant to this action and to the County’s official
procedures and policies involved in Garza’s medical care.
After Garza was arrested and booked into the Harris County
Jail on December 29, 2007, pursuant to jail procedure Garza was
screened by the Inmate Processing Center Nurse at 10:52 p.m.
-23-
#13-
3, Ex. C at 5.8
His blood pressure then was 182/100, and he
informed the nurse that he had a history of hypertension and needed
multiple medications.
Id.
Garza was sent on to see a physician
because of his elevated blood pressure.
#13-2 at 14.
Inmates are
not permitted to bring medication from outside into the jail.
at 15.
Id.
At 2:52 a.m on December 28, 2007, within four hours of his
initial screening, with a blood pressure reading of 196/111 he saw
a physician in the jail clinic who prescribed a .2 milligram dose
of Clonidine and a repeat blood pressure in approximately an hour.
#13-3, Ex. C at 5; #13-3, Ex. B at 16-17.
At 5 a.m. his blood
pressure reading was 174/113.
Because it was still
Id; id. at 18.
high, the physician gave him another dose of Clonidine.
a.m. his blood pressure was recorded as 144/113.
At 6:27
Id.; id. at 19.
Another entry that same day indicated it was 171/97. The physician
noted there were no chest pains, no shortness of breath, no lower
extremity edema, no vision changes, no change in gait, a normal
result from a head, eyes, ears, nose and throat examination, clear
lungs, regular heart beat and rhythm, although the patient had a
headache.
The doctor ordered another medication, Norvasc, 10
milligrams by mouth daily and blood pressure checks twice a day for
three days, and gave Garza Tylenol.
Id.; id. at 20.
The next day, December 29, 2007, Garza’s blood pressure was
measured as 182/106.
Id.; id. at 21.
A physician ordered a
diuretic, hydrochloric thiazide (“HCTZ”) once a day, an aspirin a
day, and another blood pressure check in an hour.
Id.; id. at 21.
A re-check of his blood pressure showed it to be 142/92.
8
Id. at 6;
Dr. Seale testified at deposition that the medical screening
is mandatory for all who have not bonded out or left for other
reasons. At the screening a registered nurse asks a set of
questions designed to identify any chronic or acute medical or
mental health needs, takes the inmate’s vital signs (blood
pressure, heart rate, respiratory rate and temperature), and does
a chest x-ray to check for active tuberculosis. #13-2 at 11-13.
-24-
id. at 22.
On December 31, 2007 Garza signed for receipt of keep-
on-person (“KOP”) medications (Capropril and HCTZ) and non-KOP
Clonidine.9
Although Garza returned to the clinic on January 7,
2008 with a high blood pressure reading of 171/113, it was brought
under control to 126/88 with these medicines and he was able to be
released from the clinic the same day.
#13-3, Ex. C at 6.
As a regular Harris County Jail procedure, every inmate
undergoes a fourteen-day health assessment.
#13-2, Ex. B at 23.
Garza’s took place on January 8, 2008 and involved a history and
physical
performed
physician.
by
a
nurse
that
was
then
Id. at 24; #13-3, Ex. C at 6.
reviewed
by
a
The nurse noted a
history of high blood pressure since 2001, a history of a stroke,
diagnosed in 2007, a list of the patient’s medications, an alcohol
habit
of
a
12-pack
per
day,
use
of
cocaine,
marijuana,
and
occasional tobacco, and the statement, “Blood pressure elevated.
Hasn’t taken prescriptions today. Instructed to take prescriptions
upon return to cell.”
readings:
The nurse documented two blood pressure
152/100 and 154/98.
Id. at 24;
id. at 6.
Plaintiff’s
records reveal that his blood pressure was checked again on January
10, 2008 (120/80), January 11, 2008 (115/86), January 12, 2008
(98/66), and January 13, 2008 (106/70).
#13-3, Ex. C at 6.
On
February 27, 2008 Garza signed for receipt of Captopril, ECASA and
HCTZ for a thirty-day supply.
Id.
Clonidine was renewed for 30 days.
On March 3, 2008 the order of
Id. at 7.
The MAR indicates
Garza received medication through March 7, 2008, but not on March
9
The Harris County Jail has different procedures for two types
of medicines: “keep-on-person” (“KOP”) medications, which are
given to the detainee in bottles over which the detainee has
physical control and the responsibility to take the medications
as the physician instructs, and non-keep-on-person (“non-KOP”)
medications, which are administered by nurses from medication
carts, with each dose documented in a Medication Administration
Record (“MAR”) as given or not given. #13-3, Ex. C at 7; #13-2,
Ex. B at 24-25.
-25-
8-10, 2008 after he was transferred to the 701 jail.
Id.
at 7, 8.
On March 10, 2008 Garza collapsed in his cell and was brought
to the clinic for a physician evaluation.
Id. at 7.
His chart
indicates that he had not received his medication for three days,
that he had suffered from a headache all day, and that about two
hours earlier he had felt numbness in his left arm and leg.
Id.
He was given medication and taken by ambulance to LBJ Hospital.
Harris
County
demonstrates
that
it
had
several
relevant
official policies and practices.
For instance, a policy of the Health Services Division of the
Harris County Sheriff’s Office is to provide information to inmates
on arrival in both writing by the Sheriff’s Office Inmate Handbook
and verbally by the intake screening nurse about how to access
medical care.
#13-6, Ex. F (Affidavit of Bobby D. Davis, Medical
Administrator of the Harris County Sheriff’s Office Health Services
Division).
As explained in section J-E-07 of the Health Services
Manual (#13-6), inmates have access to sick call request slips,
which they fill out, which are then placed in a locked box and
picked up by a Health Services Division member during the night
shift, and which are evaluated daily by the health care providers
for immediacy of need and required intervention.
The information
on the slips is recorded onto Triage Logs that are maintained for
each jail location and cellblock.
#13-6.
The Triage Logs for
Garza’s cellbock from January 1, 2008 through March 8, 2008 do not
reflect any sick call requests from Garza.
#13-6, Ex. B.
Harris
County’s policy or practice requires any sick call requests from an
inmate to be noted in his medical records; from December 27, 2007March 10, 2008 Garza’s medical records do not show any sick call
requests nor that any employee from the Health Services Division or
the Sheriff’s Office generally had knowledge that Garza had any
emergent issues regarding immediate medical intervention that were
not addressed or responded to.
#13-6.
-26-
Furthermore, as Plaintiff
concedes in his deposition, he was familiar with the sick call
request slips from previous incarcerations when he had employed
them (e.g., #13-1 at 32-22).
As
another
example,
the
Harris
County
Sheriff’s
Office
Standard Procedures for 701 Detention Command requires all staff
members working with the inmates to document and record all
noteworthy information in a “Pass-On-Book” located in each work
area or post for each watch.
an
outcry”
regarding
Documentation of an inmate’s “making
emergency
treatment would be noted.
medical
concerns
and
need
or
#13-5, Ex. E (Lt. Ronny Taylor Affid.),
Ex. 2 (copies of excerpts of the relevant Pass-On-Book, which do
not show any entry or information about Garza for March 8th or 9th;
on March 10th at 11:30 p.m. an entry states that he fell out of his
bunk and claimed he could not walk).
Procedure 2.2 of Harris County Sheriff’s office Manual of
Policies and Procedures for Nursing Services (copy attached to
Seale’s affidavit, #13-3, Ex. C, Ex. 2) states, “Medication nurses
will ascertain if the patient, having missed one dose of narrow
therapeutic range medication, has been released from custody or
transferred to another cellblock or facility.
If transfer has
occurred, the nurse will ensure the MAR and medication is noted
with proper location and transferred to the appropriate cart.”
Thus when Garza was transferred to the 701 jail, the individual
nurse should have determined his location after completing the
nurse’s
medication
delivery
rounds
and
finding
he
has
been
transferred. #13-3, Ex. C. at 8. Harris County concedes, “It does
not appear that the policy was followed in this circumstance based
on the absence of documentation on the MAR for March 8, 9, and 10
following the Plaintiff’s transfer,” but attributes noncompliance
to negligence
#13 at 8, citing id.
Harris County insists that
there is no evidence that any of its jail
staff who dealt with
Plaintiff’s medical problems had actual awareness or knowledge that
-27-
Plaintiff would experience a life-threatening event and thus no
evidence that it acted with deliberate indifference.
Nor has
Plaintiff shown that the alleged acts or omissions resulted from a
Harris
County
policy
or
custom,
adopted
or
maintained
with
objective deliberate indifference to Garza’s constitutional rights.
Moreover Harris County insists it had proper medical care
policies and procedures in place. It participates in and has fully
satisfied various performance evaluations.
The Medical Division
maintains a Comprehensive Continuous Quality Improvement Program
involving annual audits of Harris County Jail’s inmates’ access to
care,
nursing
care,
emergency care, etc.
pharmacy
services,
diagnostic
services,
#13 at 10, citing #13-6 Ex. F and F(A) and
section J-A-06 of the Manual (#13-6(A)).
The Health Services
Division employs approximately 200 full time and 200 temporary
health care staff to provide routine and emergent care to inmates
24 hours a day, 7 days a week.
Id.
Since 1985 it has maintained
continuous accreditation through external peer review from the
National
Commission
on
Correctional
Health
Care,
the
premier
national accrediting agency for health services in jails, prisons
and juvenile confinement facilities, and met the Commission’s
Standards for Health Services in Jails. Seale’s Affid., #13-3, Ex.
C
at
2-3.
Harris
County
maintains
that
this
accreditation
validates its position that it goes beyond minimum constitutional
standards.
Finally in 2007 and 2008 Harris County Jail system
passed the annual state jail inspection by the Texas Commission on
Jail Standards.
V.
Plaintiff’s [Response]10 (#18)
After reiterating a number of his complaint’s allegations,
Garza submits an affidavit from Alvin M. Cotlar, M.D., F.A.C.S., a
licensed, practicing physician, board certified in surgery, who
10
The document is incorrectly labeled a “Reply.”
-28-
states that his information and opinions are “based on my line-byline review of Mr. Oscar Garza’s medical record documented during
his incarceration in the Harris County Jail, Harris County, Texas,
from admission to release.” #18, Ex. He reiterates the details of
Garza’s medical history during his detention, discussed supra,
emphasizing Garza’s “dangerously high BP and a history of longstanding treatment for this malady,” that Garza had had a stroke a
few years before, that “[h]is blood pressure on admission required
multiple drugs to control, and it was imperative that his BP
medication be administered without interruption and in correct
doses to prevent recurrent complications, including a stroke.” Id.
His affidavit states the following relevant points:
A patient with a history of a stroke and suffering
from hypertension, on medication for hypertension, who is
admitted to a facility, jail, prison or even a hospital
(for an unrelated condition) is in a dangerous medical
situation in the event he does not receive his antihypertensive medication.
By history, Mr. Garza’s
previous stroke was due to hypertension.
It is the
responsibility of the medical staff in charge of Mr.
Garza’s care to ensure (1) that they confirm that
medications have been used to control high blood pressure
(2) that the medication is given to the patient by the
attendant on a schedule established by a physician as
appropriate to keep the blood pressure normal (3) to
monitor the blood pressure at regular intervals to ensure
that the dosage of the medication and times of
administration are effective. Expecting the patient to
take his medication without being given the medication by
a nurse, technician, or attendant, at each authorized
time, is inappropriate and not within a facility’s or any
medical treatment program’s standard of care. Patients
will invariably forget to take their medication or take
it at irregular intervals such that the blood pressure
will not be controlled. At times the patient will not
take the medication because they perceive it is having an
adverse effect or is unnecessary.
The patient is not in position to monitor his need
for the medication because he would need to self-document
his BP at various regular intervals. Patients may have
extremely elevated BPs and not have headache or other
symptoms related to the high BP. Unless a patient has
-29-
his own BP machine and is knowledgeable as to what
results are ominous, the self-administration is totally
inappropriate. Circumstances concerning the environment
and the individual, such as Mr. Garza, cause the concept
of giving him the responsibility of taking his own BP
medication to border on the ridiculous. He should never
be expected to ask for BP medication based on his own
perception of need. As seen in this case, the gap in
administration of BP medication resulted in severe,
debilitating stroke. Mr. Garza did not receive his BP
medication on March 8,9,10, resulting in headaches on the
third day without medication and then developed classic
signs of a stroke which was caused by this gap in
treatment.
. . . The jail officials including the medical staff
were well aware of the necessity to continue his
treatment with BP medicine, which had been effective in
controlling high elevated blood pressure. The fact that
they held back his critical medication from him is
clearly “indifference” and must be “deliberate” since it
couldn’t be “accidental” for three days.
There was
substantial documentation of the necessity for the
medical staff to give him anti-hypertensive medications.
Not recognizing this and ignoring the potential disaster
that could result[] is clearly “indifference.” “Concern”
rather than “indifference” would have been demonstrated
by personnel reviewing the inmate’s medical record,
identifying his on-going medication requirements, and
ensuring he received the medication.
#18, Ex. (Cotlar Affid.).
VI.
Court’s Ruling
After reviewing the record and the applicable law, the Court
concludes that Harris County’s motion for summary judgment should
be granted. “Deliberate indifference is an extremely high standard
to meet.”
Domino, 239 F.3d 756.
Defendant’s competent summary
judgment evidence11 shows that pretrial detainee Garza was not the
11
Although his representation of his medical treatment differs
from that indicated in his records, Garza does not expressly
claim that his medical records were falsified or manipulated and
-30-
victim of “deliberate indifference” to his serious medical needs as
defined by the case law construing § 1983 and the Fourteenth
Amendment.
Moreover Plaintiff has failed to raise a genuine issue
of material fact for trial.
There is no disagreement here that Garza’s hypertension,
especially in light of his long history with it, including a
previous stroke, was a serious, indeed life-threatening condition
that
required
Nevertheless,
multiple
Harris
medications
County
has
and
produced
regular
his
monitoring.
medical
records
indicating that up until March 8, 2008 when he was transferred to
the 701 jail it provided him with timely examinations by physicians
and nurses a number of times between his less-than-three-months’
stay prior to his stroke, a correct diagnosis, and multiple
medications that were appropriately changed or dosage modified
are inaccurate. Even if he did, the Fifth Circuit requires such
a claim to be supported by facts. Mathis v. Alexander, 49 F.3d
728, No. 94-40757, 1995 WL 103646, *4 (5th Cir. March 3, 1995).
Conclusory allegations that medical records have been falsified
are insufficient to defeat a motion for summary judgment.
Knighten v. Ott, 69 Fed. Appx. 657, No. 02-41163, 2003 WL
21355964, (5th Cir. May 21, 2003)(conclusory allegations that
prisoner’s “medical records were falsified is insufficient to
defend medical defendants’ summary-judgment evidence or to create
a genuine issue of material fact”). See also Howe v. Polunsky
Unit, No. Civ. a. 9:08CV142, 2010 WL 5640804 *8 (E.D. Tex. Nov.
30, 2010); Boone v. Buchanan, No. Civ. A. 6:07CV242, 2008 WL
744247, *15-16 (E.D. Tex. Mar. 19, 2008)(“The claim that the
medical records have been falsified is not itself a
constitutional violation”); Carter v. McMeely, 24 F.3d 236, No.
93-3591, 1994 WL 242624, *2 (5th Cir. May 16, 1994)(finding
Carter did not present “any evidence creating a genuine issue on
the question whether his medical records were altered.”).
-31-
until the hypertension was brought under control.
Garza fails to
produce evidence demonstrating that the jail staff “refused to
treat
him,
ignored
his
complaints,
intentionally
treated
him
incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for serious medical needs.”
Domino, 239
F.3d at 756.
Dr. Cotlar’s affidavit’s assertion that the medical staff was
“deliberately
indifferent”
to
Garza’s
dangerously
high
blood
pressure is not based on the same standard as that required under
§ 1983 and the Fourteenth or Eighth Amendments.
Cotlar’s use of
the term suggests it is akin to medical malpractice, negligence or
gross negligence.12
Moreover the staff had been providing the
12
For example, he states, “It is the responsibility of the
medical staff in charge of Mr. Garza’s care to ensure (1) that
they confirm that medications have been used to control high
blood pressure (2) that the medication is given to the patient by
the attendant on a schedule established by a physician as
appropriate to keep the blood pressure normal (3) to monitor the
blood pressure at regular intervals to ensure that the dosage of
the medication and times of administration are effective.” He
adds, “There was substantial documentation of the necessity for
the medical staff to give him anti-hypertensive medications. Not
recognizing this and ignoring the potential disaster that could
result[] is clearly “indifference.” “Concern” rather than
“indifference” would have been demonstrated by personnel
reviewing the inmate’s medical record, identifying his on-going
medication requirements, and ensuring he received the
medication.”
Cotlar asserts that in his opinion, “Expecting the patient
to take his medication without being given the medication by a
nurse, technician, or attendant, at each authorized time, is
inappropriate and not within any facility’s or any medical
treatment program’s standard of care. . . . Circumstances
concerning the environment and the individual, such as Mr. Garza,
cause the concept of giving him the responsibility of taking his
-32-
precise services Cotlar required until Garza’s transfer to the 701
jail, when apparently the medical monitoring and his access to
medication lapsed for two to three days when the nurse on the
medicine cart on March 8, 2008 failed to follow Procedure 2.2 of
the Sheriff’s Office Manual of Policies and Procedures, i.e., to
“ascertain if the patient, having missed one dose of narrow
therapeutic range medication, has been released from custody or
transferred to another cellblock or facility.
If transfer has
own BP medication to boarder on the ridiculous. He should not be
expected to ask for BP medication based on his own perception of
need.”
Differences of opinion about medical treatment among
physicians do not state a claim for deliberate indifference to
medical needs. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.
1997). Case law demonstrates that provision of some KOP
medication for immediate relief and of non-KOP medication for
more potent and dangerous drugs was an accepted regular practice
in Texas County jails. See, e.g., Senegal v. Hamilton, No. A-10CA-534-LY, 2011 WL 2442871, *5 (W.D. Tex. June 14, 2011)(summary
judgment evidence showed that the “medical staff regularly
monitored Plaintiff’s vital signs, prescribed medication to
maintain a healthy blood pressure, and took him to the hospital
when he complained of chest pains. . . . Plaintiff was prescribed
multiple medications to treat his blood pressure, and had blood
pressure medication give to him to keep on his person at the time
that his blood pressure began to escalate.”); Alexander v. Kukua,
C.A. No. C-10-325, 2011 WL 489837 (S.D. Tex. July 16, 2011);
Mendenhall v. Wilson, No. 5:07CV44, 2010 WL 958043 (E.D. Tex.
Feb. 19, 2010), adopted, 2010 WL 958060 (E.D. Tex. Mar. 12,
2010); Minix v. Blevins, Civ. A. No. 6:06cv306, 2007 WL 1217883
(E.D. Tex. Apr. 23, 2007); Buffin v. Bowles, No. 3:99-CV-1386-H,
2000 WL 1274003, *4 (N.D. Tex. Sept. 6, 2000). The Court has
been unable to find any case finding that this method of
medication distribution is unconstitutional, and Plaintiff does
not cite any authority for such a proposition. As noted, Harris
County has provided evidence that its medical treatment program
has been regularly reviewed, accredited and approved by highly
regarded investigative entities.
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occurred, the nurse will ensure the MAR and medication is noted
with proper location and transferred to the appropriate cart.”
#13-3, Ex. C, Ex. 2.
Regardless, Plaintiff fails to allege facts
demonstrating, no less prove, that she acted with deliberate
indifference, that her failure was intentional rather than merely
negligent, or that her omission was a regular practice or procedure
in the jail of which Harris County was actually or constructively
aware.
Indeed Harris County’s express policy was to the contrary.
“[T]he fact that one nurse might not have followed this custom [or
policy] does not establish an unconstitutional policy.”
Buffin v.
Bowles, No. 3:99-CV-1386-H), 2000 WL 1274003, *3 (N.D. Tex. Sept.
6,
2000).
Malpractice
or
negligence
is
not
grounds
for
a
constitutional claim. Vornado v. Collins, 920 F.2d 320, 319-20 (5th
Cir. 1993).
A prison official is deliberately indifferent to
serious medical needs if he intentionally denies or delays access
Walker v. Butler, 967 F.2d 176, 178 (5th Cir.
to medical care.
1992).
treatment
An
inadvertent
does
not
violate
Fourteenth, Amendment.
Cotlar’s
affidavit
failure
does
the
to
provide
Eighth,
adequate
and
medical
therefore
the
Estelle v. Gamble, 429 U.S. at 463-65.
not
show
that
the
staff
consciously
disregarded a substantial risk of serious harm nor does it even
mention the circumstance of Garza’s transfer.
Moreover, even if Garza had shown a constitutional violation
of deliberately indifferent denial or delay of medical care, he has
-34-
not shown that a policy, practice or custom of Harris County was
the moving force behind the violation.
Harris County has provided
evidence of its official policies and practices regarding medical
care for its inmates and of its provision of adequate care.
Garza
has not identified any policymaker for the County no less alleged
any policy that he initiated.
Nor has Garza
alleged, no less
supported with summary judgment evidence, any pattern or custom of
Harris County Jail employees’ treatment of other inmates similar to
that allegedly inadequate medical care accorded to him, no less
that Harris County had actual or constructive knowledge of such a
custom or practice.
Garza’s failure-to-train claim, i.e., that Harris County
failed to train its jail staff about administration and monitoring
of the administration of medication to inmates, is conclusory.
He
fails to plead, no less support with summary judgment evidence, any
instances of improper administration of medicine to inmates besides
himself, nor any facts about Harris County’s training program. Nor
does he allege, no less demonstrate, that any individual Harris
County
medical
employee
was
highly
likely
to
deny
another
hypertensive inmate blood pressure medication and cause him to have
a stroke.
Nor does he allege facts, no less offer proof, that
Harris County had actual or constructive knowledge of such a
problem.
In sum, he presents no summary judgment evidence to
support his failure-to-train claim.
-35-
Accordingly, for the reasons stated above, the Court
ORDERS that Harris County’s motion for summary judgment is
GRANTED.
SIGNED at Houston, Texas, this
7th
day of
September , 2011.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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