Doe v. Harris County, Texas et al

Filing 62

MEMORANDUM OPINION AND ORDER granting 40 MOTION to Dismiss 35 Amended Complaint, granting in part and denying in part 43 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, denying 59 Opposed MOTION for Leave to File Plaintiff's Fourth Amended Complaint. (Joint Proposed Scheduling Order due by 10/9/2017.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JANE DOE,

September 29, 2017
David J. Bradley, Clerk

§
§
§
§

Plaintiff,

v.

§
§

HARRIS COUNTY, TEXAS;
NICHOLAS SOCIAS, Individually;
and TAYLOR ADAMS, Individually,

CIVIL ACTION NO. H-16-2133

§
§
§
§
§

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Jane Doe, brings this action against Harris County,
Texas, and Harris County employees, Nicholas Socias ("Socias") and
Taylor Adams ("Adams") , in their individual capacities, for damages
based

on

allegations

deprived Plaintiff

of

that
(a)

defendants

"(1)

her protected

unconstitutionally

liberty

interests

and

(b) right to counsel and (2) failed or refused to provide her with
even a scintilla of reasonable medical care." 1

Pending before the

court

Motion

are

Nicholas

Socias' s

Second Amended

Pursuant to Federal Rule of Civil Procedure 12 (b) (6)
Second

Amended

MD")

(Docket

Harris County's Rule 12 (b) ( 6)

Entry

No.

40)

t

to

Dismiss

("Socias' s
Defendant

Motion to Dismiss for Failure to

State a Claim Upon Which Relief Can Be Granted ("Harris County's
MD")

(Docket Entry No.

1

p. 1.

Plaintiff' s

43) ,

and Plaintiff's Opposed Motion for

Third Amended Complaint,

Docket Entry No.

35,

Leave to File Her Fourth Amended Complaint ("Plaintiff's Motion to
Amend")

(Docket Entry No. 59).

For the reasons explained below,

Plaintiff's Motion to Amend will be denied, Socias's Second Amended
MD will be granted, and Harris County's MD will be granted in part
and denied in part.
I.

Plaintiff's Motion to File Fourth Amended Complaint

Plaintiff seeks leave to file a fourth amended complaint to
allege the following "new and material facts:"
•

Defendant Socias (or someone acting pursuant to his
instructions) informed St. Joseph Medical Center
that
Plaintiff
would
be
relocated
to
the
Harris County Jail's Mental Health Unit;

•

Defendant Socias (or someone acting pursuant to his
instructions) informed St. Joseph Medical Center
that said relocation was directed by the trial
court;

•

The trial court never made any ruling that
Plaintiff should be moved to the Harris County
Jail's Mental Health Unit; and

•

Harris County refused to properly classify or treat
Plaintiff despite having her medical records and
medications at the time she was booked into its
custody. 2

Defendants oppose plaintiff's motion because plaintiff failed to
attach a copy of her proposed amendments to her motion, and because
she has failed to show good cause for the proposed amendments. 3

2

Plaintiff's Motion to Amend, Docket Entry No. 59, p. 1.

3

Defendants' Joint Opposition to Plaintiff's Motion for Leave
to File Her Fourth Amended Complaint
("Defendants'
Joint
Opposition"), Docket Entry No. 60.
-2-

Although

plaintiff

did

not

attach

a

proposed

Fourth

Amended

Complaint to her motion, plaintiff has since submitted her proposed
Fourth Amended Complaint. 4

Accordingly,

defendants'

opposition

based on plaintiff's failure to file a proposed Fourth Amended
Complaint is moot.
A.

Standard of Review

If a scheduling order has been entered establishing a deadline
for amendments to pleadings, Federal Rule of Civil Procedure 15(a)
provides the standard for requests to amend that are filed before
the scheduling order's deadline has expired, and Federal Rule of
Civil Procedure 16(b) provides the standard for requests to amend
that are filed after the scheduling order's deadline has expired.
Marathon Financial Insurance, Inc., RRG v. Ford Motor Co., 591 F.3d
458, 470 (5th Cir. 2009); Fahim v. Marriott Hotel Services, Inc.,
551 F.3d 344, 348 (5th Cir. 2008).
Rule 15(a) states that "[t]he court should freely give leave
when justice so requires."

Fed. R. Civ. P. 15(a) (2).

"A decision

to grant leave is within the discretion of the court, although if
the

court

'lacks

a

"substantial

reason"

to

deny

discretion "is not broad enough to permit denial."'"

leave,

its

State of

Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1302-03 (5th Cir.

4

See Plaintiff's Fourth Amended Complaint, Exhibit 1 to
Plaintiff's Reply in Support of Her Opposed Motion for Leave to
File Her Fourth Amended Complaint (Dkt. 59) ("Plaintiff's Reply in
Support of Motion to Amend"), Docket Entry No. 61-1.
-3-

1995)

(quoting Jamieson By and Through Jamieson v. Shaw, 772 F.2d

1205,

1208

(5th

presumption

in

Cir.
favor

Rule

1985)).
of

granting

15 (a)

leave

provides

to

"a

strong

amend."

Financial

Acquisition Partners LP v. Blackwell, 440 F.3d 278, 291 (5th Cir.
2006).

Nevertheless, "[d]enial of leave to amend may be warranted

for undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies, undue prejudice to
the

opposing

party,

or

United States ex rel.

futility

Steury v.

262, 270 (5th Cir. 2010)

of

a

proposed

Cardinal Health,

amendment."

Inc.,

625 F.3d

(citing Foman v. Davis, 83 S.Ct. 227, 230

(1962)).
"Rule 16(b)
entered,

it

provides that once a scheduling order has been

'may be modified only for good cause and with the

judge's consent.'"
P. 16 (b) (4)).

Marathon, 591 F.3d at 470 (quoting Fed. R. Civ.

"The good cause standard requires the 'party seeking

relief to show that the deadlines cannot reasonably be met despite
the

diligence

Enterprises,

of

the

L.L.C. v.

Practice

and

needing

the

extension.'"

SouthTrust Bank of Alabama,

533, 535 (5th Cir. 2003)
Federal

party

NA,

S&W

315 F.3d

(quoting 6A Charles Alan Wright, et al.,

Procedure

§

1522 .1

( 2d

ed.

1990)) .

To

determine whether the moving party has established good cause,
courts consider four factors:
to timely move
amendment;
(4)

for

leave

"(1) the explanation for the failure

to amend;

(2)

the

importance of

the

(3) potential prejudice in allowing the amendment; and

the availability of a continuance to cure such prejudice."
-4-

Marathon, 591 F.3d at 470 (quoting Southwestern Bell Telephone Co.
v.

City of El Paso,

movant

establishes

courts

analyze

Enterprises,

346 F. 3d 541,
good cause

the

315

motion

to

to

F. 3d at 535.

546

(5th Cir.

extend

amend

the

under

Because a

2003)).

If a

scheduling order,
Rule

15 (a) .

S&W

Docket Control Order

("Scheduling Order") was entered in this case on September 30, 2016
(Docket

Entry No.

22) ,

Rule

16 (b) 's

standard applies,

and the

plaintiff must show good cause to amend.
B.

Plaintiff Fails to Show "Good Cause"

1.

Plaintiff Has a Reasonable Explanation for Delay

Plaintiff argues that
[a]fter conferring with a consulting expert on June 22,
2 017, Plaintiff's counsel became fully aware of the
import of the newly alleged facts.
Specifically,
Plaintiff's consulting expert explained certain markers
and
notations
in
Plaintiff's
medical
records.
Plaintiff's counsel did not understand the import of said
markers
or
the
implications
thereof
until
their
discussion with said expert on June 22.
Prior to that
conversation, Plaintiff could neither have guessed nor
responsibly alleged that Socias represented to her mental
health providers that she would be relocated to the
Mental Health Unit of the Harris County Jail. 5
Plaintiff argues that
[t]he statute of limitations has not run, Plaintiff is
entitled to bring a new claim against Defendant Socias
based on the newly acquired information (insofar as he
engaged in an independently non-prosecutorial act which
deprived her of her constitutional rights under color of
state law) , and said case would properly be consolidated
herewith. As a result, Plaintiff respectfully requests
leave to file her Fourth Amended Complaint because she

5

Plaintiff's Motion to Amend, Docket Entry No. 59, p. 3.
-5-

was incapable of discovering the newly required facts in
a more expedient manner through no fault of her own. 6
Asserting that plaintiff has had access to her own records
since they were generated in December of 2015, 7 defendants argue
that

the

plaintiff's

information, 8 and that

medical

records

are

not

newly

acquired

plaintiff should not be allowed to amend

her pleadings a fourth time "based on the fact that she just read
her own medical records from 2015 and discovered an entry that she
wants to include in her lawsuit." 9

Plaintiff replies that her

counsel first requested [her] medical records from
St. Joseph Medical Center on July 1, 2016.
For nearly
nine months, St. Joseph Medical Center failed to comply
with [her] lawful requests for her medical records.
St. Joseph Medical Center even refused to comply with a
federal subpoena for the records [].
Finally, in March
of 2017, St. Joseph Medical Center provided the requested
records.
Plaintiff's counsel then forwarded these
records to Plaintiff's expert for review.
Plaintiff's
counsel then learned of the relevant facts therein, the
import thereof, and the implication of Plaintiff's scores
on the Global Assessment of Functioning scale in a
conference call with her expert on June 22; Plaintiff's
motion for leave was filed two weeks later on July 6,
2017. 10
Based on the verification signed by plaintiff's attorney, the
court

concludes

that

despite

acting diligently to acquire

6

Id. at 4.

7

Defendants' Joint Opposition, Docket Entry No. 60, p. 8.

8

her

Id.

10

Plaintiff' s Reply in Support of Motion to Amend, Docket Entry
No. 61, p. 2 (citing id. at 12, verification signed by plaintiff's
attorney).
-6-

medical records from St. Joseph's Medical Center, that plaintiff
did not acquire those records until March of 2017,

and that the

facts that plaintiff seeks leave to assert could not have been
asserted by the November 21, 2016, deadline for filing motions to
amend established by the court's September 30,
Order.

2016,

Scheduling

Defendants have neither argued nor cited any evidence from

which the court could conclude that the plaintiff was aware of the
facts

on

which

her

proposed

amendments

deadline for amending pleadings expired,

are

based

before

the

or that had plaintiff

acted diligently she could have acquired those facts from another
source in time to meet the deadline for amending pleadings. The
court

is

therefore

persuaded

that

plaintiff

has

offered

a

reasonable explanation for delay in seeking leave to amend,

and

that this factor weighs in favor of granting her motion.

See

Southwestern Bell,

346 F.3d at 547

finding that "[movant]

(denying leave to amend upon

was aware of the contract that forms the

basis of its proposed amendment months in advance of the deadline
and does not offer a satisfactory explanation for its delay in
seeking leave to amend").
2.

The Proposed Amendments Are Not Important

Plaintiff

argues

that

her

"proposed

amendments

are

immeasurably important because they (inter alia) permit her to hold
the proper parties accountable for their respective misdeeds," 11 and

11

Plaintiff's Motion to Amend, Docket Entry No. 59, p. 4.
-7-

that "these new facts further expand upon Plaintiff's allegation
that

Defendant

Socias

was

acting

in

the

clear absence

jurisdiction and/or in a non-prosecutorial function." 12
argues

that

"Defendant

Socias'

material

concerning a non-existent judicial decree . .
as a prosecutorial function.

As a result,

of

all

Plaintiff

misrepresentations
cannot be construed
Plaintiff's proposed

amendment is appropriate, necessary, timely, and in the interests
of justice." 13
Citing Maryland Manor Associates

v.

City of

Houston,

816

F. Supp. 2d 394 (S.D. Tex. 2011), defendants argue that Plaintiff's
Motion

to Amend

should be

denied because

her proposed Fourth

Amended Complaint would add no new claims and would be almost
identical to her Third Amended Complaint. 14

Defendants explain that

Plaintiff claims her latest amendment is necessary after
she reviewed her medical records and discovered an entry
suggesting St. Joseph's Hospital believed she would be
sent to the Harris County Jail's Mental Health Unit.
This is a minute detail in the scheme of plaintiff's 282paragraph opus, and it does nothing to advance her case.
If this case goes to trial, plaintiff may have the
opportunity to introduce these records into evidence, but
at this stage, the Federal Rules of Civil Procedure do
not permit her to use her complaint to list every
hospital record entry that she thinks is important. 15
In Maryland Manor a developer sued the City of Houston for denying
a permit.

The City filed two motions to dismiss.

As the court was

12Id.

14

Defendants' Joint Opposition, Docket Entry No. 60, pp. 6-7.

-8-

considering the City's motions, plaintiff filed a motion to amend.
Judge Rosenthal held:
[T]he third amended complaint is almost identical to the
second amended complaint. The minor differences between
the third amended complaint and the second amended
complaint would not change the court's resolution of the
City's motions to dismiss. Maryland Manor's motion for
leave to amend is denied both because it is untimely and
because amendment would be futile.
Id. at 401.
Plaintiff replies that her proposed amendments are material
and that defendants' opposition to them
ignore[s] the facts that (1) said Amended Complaint[]
incorporated astonishingly revealing public statements
from the Harris County District Attorney, Defendant
Socias, and the Harris County Sheriff demonstrating
Defendants' liabilities herein and (2) were not objected
to by any Defendant. 16
Missing from Plaintiff's proposed Fourth Amended Complaint are any
new causes of action or claims for relief or any allegations of new
conduct.
live

The new facts that plaintiff seeks leave to add to her

pleadings

concern

defendant

Socias'

previously

alleged

communications with plaintiff's treatment providers at St. Joseph's
Medical Center and her failure to receive reasonable medical care
at the Harris County Jail.
Complaint

alleges

that

For example, Plaintiff's Third Amended
defendant

Socias

sent

an

email

to

plaintiff's mother that said:
"I went to visit [Plaintiff] yesterday at the hospital
and she was doing much better.
I spoke with the doctor
there and
made sure he understood the entire

16

No.

Plaintiff' s Reply in Support of Motion to Amend, Docket Entry
p. 4.

61,

-9-

situation.
They started medicating her and having her
talk to the doctor.
I thought it would take longer to
see any change but I was impressed with her improvement
already.
She obviously wants out but I am making sure
she is getting the best care we can give. I will stop by
again either today or tomorrow to make sure she is still
ok going into the weekend.
The nurses all have my cell
phone number so if something happens they will call me,
day or night, so I can go over there." 17
Moreover, plaintiff acknowledges that
[t]his existing allegation (when taken as true) already
evidences Defendant Socias' active communication with
Plaintiff's doctors and nurses in violation of federal
law.
As a result, Plaintiff can make specific and
plausible allegations that (1) Defendant Socias informed
her doctors and nurses that the trial court wished that
Plaintiff be relocated to the Mental Health Unit of the
Harris County Jail, (2) that the trial court made no such
finding or entered any such Order, and (3) Defendant
Socias was responsible for her confinement in general
population at the Harris County Jail (and all forseeable
consequences thereof) . 18
Plaintiff's Third Amended Complaint also alleges

facts

to

support her claim that she failed to receive reasonable medical
care while

confined

in the

Harris

County Jail.

For

example,

plaintiff alleges:
During the booking process, one or more Sheriff's
Department employees (while utilizing and acting in
conformity with Harris County's official policies,
practices, customs, procedures, or protocols)

d.

learned Plaintiff had been recently discharged
from St. Joseph Medical Center following inpatient treatment for acute symptoms of her
mental disability;

17

Plaintiff' s Third Amended Complaint,
pp. 11-12 ~ 26.
18

Docket Entry No.

Plaintiff's Motion to Amend, Docket Entry No. 59, p. 5.
-10-

35,

e.

deliberately failed or refused to assign
Plaintiff to the jail's Mental Health Unit;

g.

were deliberately indifferent to Plaintiff's
well-established constitutional and federally
protected rights; and

h.

prevented Plaintiff from having access to:
i.

ii.

confinement

reasonable
conditions
of
under the circumstances;
reasonable medical care;

iii. reasonable accommodations[.]

19

Because Plaintiff's proposed Fourth Amended Complaint does not
assert any new causes of action or claims for relief and, instead,
merely

provides

additional

details

to

support

claims

already

alleged, and because the differences between the proposed fourth
and

third

resolution

amended
of

the

complaints
defendants'

concludes that plaintiff has
amendments are important.

would

not

motions
failed to

to

change

the

dismiss,

show that

court's

the

court

the proposed

Accordingly, this factor weighs against

granting Plaintiff's Motion to Amend.
3.

The Potential Prejudice to the Defendants Cannot Be Cured
By a Continuance

Plaintiff argues that defendants will not be prejudiced by her
amended pleading because
Defendants need not
dismiss (insofar as

submit an additional motion to
the existing briefings already

19

Plaintiff' s Third Amended Complaint,
pp. 14-15 ~ 37.
-11-

Docket Entry No.

35,

address applicable law), that this Honorable Court can
utilize the entirety of its existing draft Order
concerning Defendants' motions to dismiss (insofar as
none of the existing facts have changed) , and that this
Honorable court is fully capable of analyzing whether
Socias' alleged misrepresentations constitute an act
(1) in furtherance of the prosecutorial function and/or
( 2) within his arguable jurisdiction. 20
Defendants respond that granting Plaintiff's Motion to Amend
would prejudice them because
[e]ach time plaintiff amends her complaint, defendants
must respond by filing new answers or motions to dismiss.
Defendants have filed responsive pleadings to plaintiff's
various amended complaints on August 12, 2016 (Doc. 8),
October 3, 2016 (Doc. 23), November 7, 2016 (Doc. 29),
and January 10, 2017 (Docs. 38, 40, & 43).
Any material change to plaintiff's complaint would
upend the pending motions and require another round of
filings.
Plaintiff concedes that it was too burdensome
for her to draft her amended complaint in three weeks,
and it stands to reason that it would be too burdensome
for defendants to analyze her complaint and prepare
responses in the same amount of time.
Even in a best
case scenario, the parties would endure considerable time
and expense to draft and respond to a new complaint that
adds nothing to the case. 21
Plaintiff does not dispute that if she is allowed to file a
Fourth Amended Complaint,
need to file new answers.

defendants would be prejudiced by the
Instead, asserting that the parties have

not even begun discovery, plaintiff replies that in the event the
court

finds

request,

any

party

is

unfairly

prejudiced

by

a continuance is available to remedy same. 22

plaintiff's
Moreover,

20

Plaintiff's Motion to Amend, Docket Entry No. 59, p. 6.

21

Defendants' Joint Opposition, Docket Entry No. 60, p. 9.

22

Plaintiff' s Reply in Support of Motion to Amend, Docket Entry
No. 61, p. 9.
-12-

plaintiff qualifies

her argument

that

defendants

would not

be

prejudiced because they would not need to submit new motions to
dismiss only "insofar as the existing briefings already address
applicable law," 23 and similarly qualifies her argument that the
court

could utilize

the

entirety of

any

existing draft

order

concerning defendants' motions to dismiss only "insofar as none of
the existing facts have changed." 24 Since, however, plaintiff seeks
leave to amend for the express purpose of adding new facts to those
alleged in her Third Amended Complaint, plaintiff's argument all
but concedes
defendants

that granting her motion to amend will prejudice

and

possibly

waste

scarce

judicial

resources

by

requiring a whole new round of dispositive motions.
The Fifth Circuit has noted that although prejudice to a party
could be "ameliorated by a continuance . . . delaying rulings .
never is ideal."
F.3d 508,

509

Rushing v. Kansas City Southern Railway Co., 185
(5th Cir.

1999),

cert.

denied,

120

S.

Ct.

1171

(2000), overruled on other grounds, Mathis v. Exxon Corp., 302 F.3d
448, 459 n.16 (5th Cir. 2002).

Although the court could extend the

deadlines for filing pleadings and motions to dismiss, extending
these deadlines would not cure the additional time and expense
required for defendants to file a new set of answers and possibly
new motions to dismiss.

"Moreover, a continuance would [neither]

deter future dilatory behavior, nor serve to enforce .

-13-

. court

imposed scheduling orders."

Geiserman v. MacDonald, 893 F. 2d 787,

792 (5th Cir. 1990).
This action has been pending for over a year, and plaintiff
has filed an original and three amended complaints, but defendants
have filed two motions to dismiss.

Despite plaintiff's reasonable

explanation for the cause of her delay in asserting the proposed
new facts that she seeks leave to add to her complaint, the court
is not persuaded that the Scheduling Order should be amended to
extend the deadlines for filing pleadings and motions to dismiss to
accommodate

the

new

facts

that

plaintiff

seeks

leave

to

add.

Allowing the proposed amendment will not only require the court to
abandon long-established deadlines for filing pleadings and motions
to dismiss, but also will delay the trial and thereby prejudice the
defendants.

Since, moreover, the differences between the proposed

fourth and third amended complaints would not change the court's
resolution of the defendants'
amendments would be futile.

motions to dismiss,

the proposed

The court thus concludes that the

third and fourth factors weigh against Plaintiff's Motion to Amend
to file a fourth amended complaint.
F.3d

at

547

(courts

have

"broad

See Southwestern Bell,
discretion

to

preserve

346
the

integrity and purpose of the pretrial order").

c.

Conclusions

Although the court is persuaded that plaintiff has presented
a

reasonable explanation for delay in seeking leave to file a

Fourth Amended Complaint to add newly discovered facts, the court
-14-

concludes that plaintiff has failed to establish good cause as
required by Rule 16(b) (4) to amend pleadings after the deadline for
doing so established by the court's Scheduling Order has expired
because she has failed to establish that the proposed amendments
are important, that the defendants will not be prejudiced, that a
continuance would cure the prejudice to defendants,
proposed

amendments

P. 16(b) (4)

would

not

be

futile.

See

or that the

Fed.

R.

Civ.

("A schedule may be modified only for good cause and

with the judge's consent.").
II.

Defendants' Motions to Dismiss

Plaintiff's Third Amended Complaint asserts claims against
defendants Socias and Harris County pursuant to 42 U.S.C.
the United States Constitution,
Act,

and

§

§

1983,

the Americans with Disabilities

504 of the Rehabilitation Act for unconstitutionally

depriving her of her protected liberty interests, right to counsel,
right

to

be

heard,

and

right

to

reasonable

medical

care. 25

Defendants Socias and Harris County have each filed motions to
dismiss pursuant to Rule 12(b) (6) for failure to state a claim for
which relief may be granted.
A.

Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) for
failure to state a claim for which relief may be granted tests the

25

Plaintiff's Third Amended Complaint,

p. 1.

-15-

Docket Entry No.

35,

formal sufficiency of the pleadings and is

"appropriate when a

defendant attacks the complaint because it fails to state a legally
cognizable claim."
(5th Cir.
12 2

S.

2001),

Ct .

Ramming v. United States,
cert.

2665

281 F.3d 158,

denied sub nom Cloud v.

( 2 0 0 2) .

The

court

must

161

United States,

accept

the

factual

allegations of the complaint as true, view them in a light most
favorable to the plaintiff, and draw all reasonable inferences in
the plaintiff's favor.

Id.

"When a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a
limited one. The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims."
Swierkiewicz v. Sorema N.A., 122 S. Ct. 992,

997

Scheuer

(1974)).

v.

Rhodes,

94

S.

Ct.

1683,

1686

(2002)

(quoting
To

avoid

dismissal a plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face."
Twombly,

127

standard"

S.

Ct.

requires

1955,
"more

1974
than

unlawfully-harmed-me accusation."
19371

1949

(2009) •

"Where a

Bell Atlantic Corp. v.

(2007).
an

This

unadorned,

"plausibility
the-defendant-

Ashcroft v. Iqbal, 129 S. Ct.

complaint pleads

facts

that are

'merely consistent with' a defendant's liability, it 'stops short
of the line between possibility and plausibility of "entitlement to
relief."'"

Id.

considering a

(quoting Twombly,

motion

to

dismiss,

127

S.

district

Ct.

at

courts

1966).
are

When

able

to

consider documents that are attached to a motion to dismiss if they
are "referred to in the plaintiff's complaint and are central to
-16-

the plaintiff's claim."
F.3d 533,

536

Dean Witter,

(5th Cir.
224

Scanlan v.
2003)

F.3d 496,

Texas A & M University,

343

(citing Collins v. Morgan Stanley

498-99

(5th Cir.

2000)).

See also

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir.

2004)

("Documents that a defendant attaches to a motion to

dismiss are considered part of the pleadings if they are referred
to in the plaintiff's complaint and are central to her claim.").
B.

Alleged Facts 26

Plaintiff alleges that in 2013 she was victimized by a serial
rapist in Houston, Texas.

Plaintiff alleges that at all relevant

times she suffered from bipolar disorder and symptoms associated
with schizophrenia,

that she was psychologically vulnerable, and

that all reasonable observers could see that she suffered from
mental illness.

The criminal trial for plaintiff's rapist was set

to begin December 7,
begin,

2015.

The day before the trial was set to

investigators from the Harris County District Attorney's

Office traveled to plaintiff's home in Longview,
Texas, to transport her to Houston to testify.
December 8,

2015,

Gregg County,

While testifying on

plaintiff suffered a mental breakdown and was

transported by ambulance from the courtroom to St. Joseph Medical
Center

in

Houston

for

evaluation

and

treatment.

Based

on

plaintiff's breakdown, the presiding judge ordered a recess until
January of 2016.

26

Id. at 6-30

~~

20-82.
-17-

During

the

trial

recess

Harris

County Assistant

Attorney Socias obtained an order of
Harris

County Sheriff

discharge

from

plaintiff

St.

notice

attachment

to take plaintiff

Joseph's

Medical

or opportunity

to

plaintiff was unrepresented by counsel.

directing the

into custody upon her

Center

be

District

without

providing

heard and knowing

that

The amount of plaintiff's

bail was $10,000.00.
Plaintiff alleges that on December 9,
plaintiff at St.

2015,

Socias visited

Joseph Medical Center where he spoke with her

treatment providers; and on December 10, 2015, he sent plaintiff's
mother the following email:
went to visit [Plaintiff] yesterday at the hospital and
she was doing much better. I spoke with her doctor there
and .
. made sure he understood the entire situation.
They started medicating her and having her talk to the
doctor. I thought it would take longer to see any change
but I was impressed with her improvement already.
She
obviously wants out but I am making sure she is getting
the best care we can give.
I will stop by again either
today or tomorrow to make sure she is still ok going into
the weekend. The nurses all have my cell phone number so
if something happens they will call me, day or night, so
I can go over there . 27
I

Plaintiff alleges that Socias deliberately refused to tell her
mother that he had already obtained an Order jailing her upon
discharge from St. Joseph Medical Center.

Plaintiff alleges that

Socias' deliberate and purposeful deception caused her mother to
refrain from taking any material action to ensure that she was
released from Harris County's custody.

27

Id. at 11-12

~

26.
-18-

r

a

f

I

Plaintiff

alleges

that

on December 18,

2015,

while

still

hospitalized but scheduled to be released, Harris County District
Attorney investigator Brandon Plagens arrested,
transported

plaintiff

from

St.

Joseph

handcuffed,

Medical

Center

to

and
the

Harris County Jail.
Plaintiff alleges that upon taking custody of her, Sheriff's
Department staff learned that she was mentally disabled, a victim
witness

not

accused

committing

recently

Plaintiff alleges that all reasonable observers could
suffered

from

mental

in-patient

and

treatment.

she

following

crime,

from

that

hospital

any

discharged

see

a

of

illness.

mental

health

Nevertheless,

Harris County Sheriff's Department staff booked plaintiff into jail
pursuant to the court order attaching her as a material witness.
Plaintiff alleges

that during the booking process one or more

Sheriff's Department employees falsely entered her information into
the computer system used by jail staff to identify, classify, and
manage inmates identifying her as a defendant in a sexual assault
case, and deliberately failed to assign her to the jail's Mental
Health Unit.
Plaintiff alleges that Socias refrained from informing the
trial court that her mental condition had improved and she had been
released

from St.

Joseph's Medical

Center,

thereby making the

previously signed attachment order unnecessary and inappropriate.
Plaintiff alleges that while incarcerated in the Harris County
Jail

she

did

not

receive

treatment
-19-

for

her

mental

health

conditions, she was taunted and harassed by her cellmates because
of her race, and her requests for her medication and for transfer
to another location were denied.

Plaintiff alleges that she was

aggressively assaulted by another inmate, and that although she was
then moved to a different location,

she received no assistance

filing aggravated assault charges against the other inmate.
Plaintiff

alleges

that

on December

24,

2015,

her

mother

contacted Socias to explore the possibility of posting bond so that
she could be released for Christmas.

Socias responded via email

that if plaintiff were bonded out and then failed to testify that
then "'things get very very bad for [Plaintiff] legally, '" and that
if

plaintiff

was

bonded

out

of

jail

and

failed

to

"'stay

medicated'" and"' [stay] out of trouble,'" that whoever bonded her
out of jail would be "'on the hook'"

for $15, 000. 28

Plaintiff

alleges that Socias' deliberate and purposeful deception caused her
mother to refrain from taking any material action to effect her
release from jail.
Plaintiff alleges that she spent the Christmas and New Year's
holidays without a toothbrush, hairbrush, or towel simply because
she was a rape victim who suffered from mental illness.
Plaintiff alleges that on December 28, 2015,
did

not

receive

psychiatric

Harris County Jail.

28

Id. at 17-18

help

from

medical

she sought but
staff

at

the

Plaintiff alleges that medical staff falsely

~

41.
-20-

told her that she suffered from a confused belief that she was a
victim,
that

not the defendant,

their

false

of an aggravated sexual assault,

statements

caused

her

significant

and

emotional

distress and mental anguish.
Plaintiff alleges that on January 8,
psychiatric

episode

in

her

cell

during

2016,

she suffered a

which

she

disturbance by pleading loudly for God to rescue her.

caused

a

Plaintiff

alleges that jail guards, including defendant Adams, responded, but
instead of providing her medical care, they escalated the encounter
into a physical confrontation during which Adams punched plaintiff
in the face with a closed fist bruising her eye socket.

Plaintiff

alleges that another guard slammed her to the floor and painfully
twisted her arms behind her back to handcuff her as she wept.
Plaintiff alleges that following the disturbance Adams asked the
Harris County District Attorney to file assault charges against
her, and that the Harris County District Attorney's office began to
prosecute her for felony assault.
Plaintiff alleges that on January 11, 2016, the Harris County
District

Attorney's

office

brought

her

testifying in her rapist's criminal trial.

to

court

to

continue

Plaintiff alleges that

she was forced to appear in court with a black eye wearing someone
else's ill-fitting,

used clothes provided by the prosecutor and

bright orange jail-issue rubber shoes.
Plaintiff alleges that on January 14, 2016, the Harris County
District

Attorney's

office

dismissed
-21-

the

felony

assault

case

against her "'in the interest of justice,'" and because prosecutors
" 'cannot prove the case beyond a reasonable doubt. ' " 29
day,

the

On the same

judge presiding over the trial of plaintiff's rapist

issued an order releasing plaintiff as a material witness, and the
Harris County Jail released plaintiff from custody.
Plaintiff

alleges

that

on

Harris County District Attorney,

or

about

July

Devon Anderson,

20,

2016,

made a public

statement about the plaintiff's treatment stating:
a.

"She [Jane Doe] was committed to a psychiatric
hospital because she was a danger to herself";

b.

" [B] ecause of overcrowding,
released ten days later";

c.

"At that point, the decision was made to put her in
custody for her own safety and to ensure her
appearance at trial, which had been recessed";

d.

"The system broke down in the jail";

e.

"She [Jane Doe] did not receive the proper care in
the Harris County Jail";

f.

"[W]e recognize that because of the holidays, the
lack of
resources
that were
available,
the
prosecutor made countless phone calls trying to
find another place to put her, we have reached out
to mental health organizations around town"; and

g.

"[W]e are going to be engaging in training to- for
prosecutors and staff to learn how to deal with
someone in a mental crisis
mental health
crisis." 30

she

[Jane

Doe]

was

29Id. at 22 ~ 54.
3oid. at 29 ~ 81.
-22-

I

I

I

!

I

C.

The Claims Against Socias

Plaintiff asserts claims for damages against Socias in his
personal capacity under 42 U.S.C.
acting under color of state law,

§

1983,

alleging that Socias,

deprived her of constitutional

rights protected by the Fourth, Sixth, and Fourteenth Amendments to
the United States Constitution including:
(a)

the right to be free from unreasonable searches and
seizures; 31

(b)

the right to procedural due process by depriving
her of notice, the opportunity to be heard, and/or
the right to counsel before having her committed, 32

(c)

the
her
the
and

(d)

the right to counsel. 34

right to procedural due process by depriving
of notice, the opportunity to be heard, and/or
right to counsel before having her committed
jailed; 33

Socias argues that he is entitled to absolute prosecutorial immunity
from all the causes of action asserted against him because all the
acts that plaintiff complains about were prosecutorial functions
intimately associated

with

the

judicial

phase

of

the

criminal

process that he performed as an advocate for the State of Texas. 35

31

Plaintiff' s Third Amended Complaint,
pp. 30-37 ~~ 83-113.
~~

Docket Entry No.

35,

32

Id. at 37-42

33

Id. at 42

34

Id. at 42-45

35

Socias's Second Amended MD, Docket Entry No. 40, pp. 6, 11.

~~

114-134.

135-138.
~~

139-146.

-23-

1.

Applicable Law
(a)

u.s.c.

42

42 U.S.C.

§

§

1983

1983 provides a private right of action for the

deprivation of rights, privileges, and immunities secured by the
Constitution or laws of the United States.

Section 1983 states:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, 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
42

u.s.c.

§

1983.

"[Section]

1983

'is not itself a

source of

substantive rights,' but merely provides 'a method for vindicating
federal rights elsewhere conferred.'"
1865, 1870 (1989)
n. 3 (1979)).

Graham v. Connor, 109 S. Ct.

(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694

To establish

§

1983 liability plaintiff must prove

that she suffered "(1) a deprivation of a right secured by federal
law (2) that occurred under color of state law, and (3) was caused
by a state actor."
(5th Cir. 2004).

Victoria W. v.

Larpenter,

369 F.3d 475,

482

Plaintiff must also show that the deprivation of

federal right suffered was due to intentional conduct or deliberate
indifference and not the result of mere negligence.
(b)
Despite

Id.

Absolute Immunity
§

recognized that

1983's broad reach the Supreme Court
the statute was not meant
-24-

"has

to effect a

long

radical

departure from ordinary tort law and the common-law immunities
applicable in tort suits."

Rehberg v. Paulk, 132 S. Ct. 1497, 1502

In Rehberg the Supreme Court explained that because

(2012)).

Congress intended

1983 to be understood in light of common law

§

principles, "the Court has looked to the common law for guidance in
determining the scope of the immunities available in a
action."
law

is

Id.
used

§

1983

The Court has made clear that although the common
to

available under

determine
§

a

federalized

claims,

an all- in-one

scope

of

the

absolute

immunity

the federal civil rights statute is not

1983,

"simply

the

amalgamation
federal

of

pre-existing

claim encompassing

common-law

the

torts

of

assault, trespass, false arrest, defamation, malicious prosecution,
and more."
§

is

Id. at 1504.

Instead, the "federal claim created by

1983 differs in important ways from those pre-existing torts.

broader

in

that

it

reaches

constitutional

and

It

statutory

violations that do not correspond to any previously known tort."
Id. at 1504-1505.
tortfeasors

"But it is narrower in that it applies only to

who act under color of

state

law."

Id.

at 1505.

"Thus, both the scope of the [§ 1983] tort[s] and the scope of the
absolute

immunity available

respects from the common law."

in

§

1983

actions

differ

in

some

Id.

The Court has taken a "functional approach" to determining who
is entitled to absolute immunity.

Rehberg,

132 S.

Ct.

(citing Forrester v. White, 108 S.Ct. 538, 545 (1988)).

-25-

at 1503
The Court

consult[s] the common law to identify those governmental
functions that were historically viewed as so important
and vulnerable to interference by means of litigation
that some form of absolute immunity from civil liability
was needed to ensure that they are performed "with
independence and without fear of consequences."
Id.

(quoting

Pierson

v.

Following this approach,

Ray,

87

S.

Ct.

1213,

1218

(1967)).

the Court has identified the following

functions that are absolutely immune from liability for damages
under§ 1983:

actions taken by legislators within the legitimate

scope of legislative authority, Tenney v. Brandhove, 71 S. Ct. 783,
788 (1951); actions taken by judges within the legitimate scope of
judicial authority, Pierson, 87 S. Ct. at 1217-18; testimony given
by witnesses at trial,

Briscoe v.

LaHue,

103 S.

Ct.

1108,

1111

(1983); and, relevant to this case, actions taken by prosecutors in
their

role

as

advocates

in

the

judicial

process;

Imbler

v.

Pachtman, 96 S. Ct. 984, 990 (1976)
In Imbler the Court held that "a prosecutor enjoys absolute
immunity from § 1983 suits for damages when he acts within the
scope of his prosecutorial duties."

Id.

Absolute immunity shields

a prosecutor from suit for conduct such as initiating a prosecution
and presenting the State's case, i.e., conduct that is "intimately
associated with the judicial phase of the criminal process," id. at
995, even when faced with allegations of knowingly using perjured
testimony and withholding exculpatory evidence.

Id.

at 987-88.

Conversely, a prosecutor is not entitled to absolute immunity for
conduct that is more appropriately classified as administrative or
-26-

I

I

!
~

investigative.

Id.

at

995.

When

determining

if

conduct

is

entitled to absolute immunity the critical inquiry is whether the
prosecutor's actions were intimately related to his role as an
advocate for the State during the judicial phase of the criminal
Id. & n.33.

process.

In Imbler

the

Court

explained that

absolute

immunity

for

prosecutorial duties is justified by "concern that harassment by
unfounded litigation would cause a deflection of the prosecutor's
energies from his public duties, and the possibility that he would
shade his

decisions

instead of

exercising the

judgment required by his public trust."
that absolute immunity "leave[s]

Id. at

independence of
991.

Recognizing

the genuinely wronged defendant

[or other party] without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty," id. at 993,
the Court nonetheless concluded that "the alternative of qualifying
a prosecutor's immunity would disserve the broader public interest
[because i]t would prevent the vigorous and fearless performance of
the prosecutor's duty that is essential to the proper functioning
of

the

criminal

justice

system."

Id.

at

993-94.

The

emphasized that
the immunity of prosecutors from liability in suits under
§ 1983 does not leave the public powerless to deter
misconduct or to punish that which occurs.
This Court
has never suggested that the policy considerations which
compel civil immunity for certain governmental officials
also place them beyond the reach of the criminal law.
Even judges, cloaked with absolute civil immunity for
centuries, could be punished criminally for willful
-27-

Court

deprivations of constitutional rights on the strength of
18 U.S.C. § 242, the criminal analog of § 1983.
. The
prosecutor would fare no better for his willful acts.
Moreover, a prosecutor stands perhaps unique, among
officials
whose
acts
could
deprive
persons
of
constitutional rights, in his amenability to professional
discipline by an association of his peers. These checks
undermine the argument that the imposition of civil
liability is the only way to insure that prosecutors are
mindful of the constitutional rights of persons accused
of crime.
Id. at 994.
Since Imbler the Supreme Court and the Fifth Circuit have
employed

the

"functional

approach"

to

determine

prosecutor's acts entitle him to absolute immunity.

whether

a

Burns v. Reed,

111 S. Ct. 1934, 1939 (1991); Buckley v. Fitzsimmons, 113 S. Ct.
2606, 2613 (1993); Loupe v. O'Bannon, 824 F.3d 534, 539 (5th Cir.
2016).

Under the functional

approach courts

"look [ ]

to

'the

nature of the function performed, not the identity of the actor who
performed it'" when assessing whether conduct is prosecutorial, and
thus absolutely protected.

Buckley, 113 S. Ct. at 2613

Forrester, 108 S. Ct. at 545); Loupe, 824 F.3d at 539.
protected

acts

of

advocacy

include

those

(quoting

Absolutely

"undertaken

by

a

prosecutor in preparing for the initiation of judicial proceedings
or for trial,

and which occur in the course of his role as an

advocate for the State."
F. 3d at 539.

Buckley, 113 S. Ct. at 2615; Loupe, 824

A prosecutor is thus absolutely protected when he

appears in court in support of an application for a search warrant
and presents evidence at a probable

cause hearing,

Burns,

111

S. Ct. at 1941-42, and when he prepares and files unsworn documents
-28-

in order to obtain an arrest warrant,

s.

Ct.

50 2

I

50 9 -10

( 19 9 7) .

Kalina v.

Fletcher,

118

Absolute immunity also protects a

prosecutor when he evaluates evidence and presents that evidence at
trial

or before

Imbler,

96 S. Ct.

a

grand

jury even

if

the

evidence

is

false.

984 & 995 n.32; Burns, 111 S. Ct. at 1940-42;

Buckley, 113 S. Ct. 2614-15.
895, 897 (5th Cir. 1987)

See also Rykers v. Alford, 832 F.2d

("Prosecutors may appeal to this immunity

in the face of allegations of the knowing use of perjured testimony
and the withholding of exculpatory information.").

By shielding

prosecutors engaging in these activities, absolute immunity "serves
the policy of protecting the judicial process."
1942.

Burns, 111 S. Ct.

Only qualified immunity is available to prosecutors when

they perform investigative or administrative functions unrelated to
judicial proceedings. 36

s. Ct. at 2615-16.

Id. at 1938 n.2.
Investigative

acts

See also Buckley, 113
outside

the

scope

of

absolute immunity include giving legal advice to the police during
a pretrial investigation, Burns, 111 S. Ct. 1943-45; conspiring to
fabricate evidence before a grand jury is convened and making false
statements at a press conference, Buckley, 113 S. Ct. 2616-18; and

36

Qualified immunity protects "government officials performing
discretionary functions" from civil liability "insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982). See
Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985) {Qualified
immunity is "an immunity from suit rather than a mere defense to
liability").
-29-

I
i

acting as a complaining witness by providing sworn statements to a
court, Kalina, 118 S. Ct. at 509-10.
In sum,

acts undertaken in direct preparation of judicial

proceedings warrant absolute immunity, whereas other acts, such as
the

preliminary

gathering

of

evidence

that

may

ripen

into

a

prosecution, are too attenuated to the judicial process to afford
absolute protection.
absolute

immunity

Loupe, 824 F.3d at 538-39 (denying prosecutor
for

ordering

a

sheriff's

deputy

to

make

a

warrantless arrest); Hoog-Watson v. Guadalupe County, Texas, 591
F.3d

431,

438

(5th

Cir.

2009)

(recognizing

that

prosecutors

performing investigative functions normally performed by police
officers

should

officers) .
therefore,

The

receive

only

analytical

is advocacy,

i.e. ,

the
key

immunity
to

accorded

prosecutorial

to

police

immunity,

whether the actions at issue are

those of an advocate performed in intimate association to the
judicial process.

Id.

Socias, as "the official seeking absolute immunity[,]
the burden of showing that such immunity is
function in question."
F.3d

at

437-38

bears

justified for the

Burns, 111 S. Ct. at 1939; Hoog-Watson, 591

(prosecutor

asserting

affirmative

defense

of

absolute immunity bears burden of proving that her conduct served
a prosecutorial function) .
2.

Application of the Law to the Plaintiff's Allegations

Socias argues that he is entitled to absolute immunity because
at all relevant times he was acting in his capacity as a prosecutor
-30-

employed by Harris County District Attorney Devon Anderson, because
the conduct attributed to him in the Plaintiff's Third Amended
Complaint
function,

occurred

while

he

and because Socias'

intimately associated with
process.

was

performing

a

prosecutorial

alleged wrongful actions were all

the

judicial phase

of

the

criminal

Because Socias has only asserted entitlement to absolute

not qualified immunity, the court makes two important assumptions:
first, that plaintiff's allegations of fact are true; and second,
that plaintiff alleges constitutional violations for which § 1983
provides a remedy.

See Buckley, 113 S. Ct. at 2609.

Citing Harris v. Dallas County District Attorney's Office, 196
F.3d 1256

(5th Cir. 1999)

(Table); Adams v. Hanson,

656 F.3d 397

(6th Cir. 2011); Betts v. Richard, 726 F.2d 79 (2d Cir. 1984); and
Daniels v. Kieser,

586 F.2d 64

(7th Cir. 1978), cert. denied,

99

S. Ct. 2050 (1979), Socias argues "courts have uniformly recognized
that a prosecutor's procurement of an order to detain a witness for
trial -

regardless of the motive or impropriety of the procedures

to be a prosecutorial function." 37

The courts in each of these

cases have indeed held that prosecutors are entitled to absolute
immunity for seeking a judicial order to detain a material witness.
Socias argues that

37

Socias's Second Amended MD, Docket Entry No. 40, p. 6. See
also id. at 12-18; Defendant Nicholas Socias's Reply to Plaintiff's
Response to Motion to Dismiss ("Socias's Reply in Support of Second
Amended MD"), Docket Entry No. 55.
-31-

[t]he only cases that have declined to extend absolute
immunity to a prosecutor in this context have turned on
one of two bases: (1) the prosecutor's conduct was a
sworn statement or affirmation that was not quasijudicial under Kalina v. Fletcher,
[118 S. Ct. 502
(1997)]; or (2) the prosecutor had violated a statutory
or court-ordered administrative responsibility that was
not quasi-judicial, as in Odd v. Malone, 538 F.3d 202 (3d
Cir. 2008). Neither circumstance applies here. 38
In Kalina,

118 S.

Ct.

at 506,

the Supreme Court assessed

whether a prosecutor was performing a prosecutorial function when
she undertook three separate acts:

filing an information, a motion

for an arrest warrant, and an affidavit in which she swore that the
facts provided to the court in support of the arrest warrant were
true.

An arrest warrant was issued based on the prosecutor's sworn

statements.

The Court determined that all but the act of

swearing to the underlying facts in the affidavit, id. at 509-10,
were prosecutorial

in function.

Explaining that

" [t] estifying

about facts is the function of the witness, not of the lawyer," id.
at 510, the Court concluded that "[e]ven when the person who makes
the constitutionally required 'Oath or affirmation'

is a lawyer,

the only function that she performs in giving sworn testimony is
that of a witness."

Id.

Odd was a consolidated appeal of two cases, Odd v. Malone, and
Schneyder v.

Smith,

2007 WL 119955

(E.D.

Pa.

Jan.

9,

2007),

in

which prosecutors had obtained bench warrants to detain material
witnesses whose testimony was to be used in murder prosecutions.

38

Socias's Second Amended MD, Docket Entry No. 40, p. 18.
-32-

See Odd, 538 F.3d at 205 ("These consolidated appeals concern the
scope of prosecutorial immunity.").

The prosecutor failed to seek

the release of Odd, a third-party witness held in state custody,
after the proceedings in which he was to testify terminated.

Id.

at 215.
In the other case, the plaintiff, Schneyder, was arrested for
failure to appear and was detained when she failed to post bail.
The judge who detained Schneyder directed the prosecutor to notify
him of any delays in the criminal prosecution.

Schneyder alleged

that the judge made it clear that he intended to release her in the
event of a continuance and that the prosecutor acknowledged the
judge's

instruction.

Less

than

a

week

later

continued for more than three-and-a-half months.
failed

to

notify

incarcerated.

the

detaining

judge,

and

Her family hired an attorney,

the

trial

was

The prosecutor

Schneyder

remained

who learned of the

detaining judge's admonition to the prosecutor to notify him of any
continuances in the criminal prosecution.

The attorney notified

the judge, and Schneyder was released forty-eight days after the
prosecution was continued.

Id.

at 205-06.

Schneyder sued the

District Attorney's Office and the prosecutor under

§

1983.

The

district court held that the prosecutor was entitled to absolute
prosecutorial immunity.

Schneyder appealed, and the Third Circuit

reversed the dismissal of Schneyder's claims.
The

Third

Circuit

described

the

omission

giving

rise

to

Schneyder's suit as a failure to notify the detaining judge that
-33-

I

the criminal case had been continued, and also as an omission to
"inform [

the court about the status of a detained witness."

Id.

at

Schneyder,

was

213.

"acknowledge [d]

that

[the

prosecutor]

acting in her prosecutorial capacity when she secured the material
witness warrant for Schneyder's arrest."

Id. at 212.

Schneyder

alleged, however, that the prosecutor's failure to notify the judge
who had issued the warrant

(per his order and per local custom)

that the trial in which she was to testify had been continued was
an administrative oversight not entitled to prosecutorial immunity.
The prosecutor argued that her failure to seek Schneyder's release
from custody following the continuance was an act of prosecutorial
discretion entitled to absolute immunity.

Id.

The Third Circuit

held that the actions of both prosecutors were not acts of advocacy
intimately associated with the judicial phase of a criminal process
but

were,

instead,

failed to complete.

administrative
Id.

at 217.

tasks

which

in

which

Schneyder

was

to

prosecutors

The Third Circuit based its

holding in Schneyder's case on three observations:
trial

the

testify

was

(1) because the
continued,

the

prosecutor's failure to act occurred during a period of judicial
inactivity;

(2) because the detaining judge allegedly directed the

prosecutor to inform him of changes in the trial's status,

the

prosecutor's failure to act constituted an act of disobedience to
a judicial order; and (3) because the custom and practice of the
Philadelphia

courts

was

to

assign

sole

responsibility

for

monitoring material witnesses to the District Attorney's Office and
to

individual prosecutors and the gist of
-34-

this

obligation was

"plainly administrative," Odd 53 8 F. 3d at 214,

the prosecutor's

failure to act was an administrative act, lacking any significant
discretionary or advocative component.

Id.

Three years later the

Third Circuit reaffirmed its holding in Odd and the reasons for it.
See Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011).
Plaintiff

argues

that

Socias

is

not

entitled to absolute

immunity because
(1) Socias acted outside of his prosecutorial function
and in the clear absence of all jurisdiction, (2) Socias'
conduct was not intimately associated with the judicial
phase of the criminal process, (3) the trial court had no
authority to seize Plaintiff, and (4) the trial court's
attachment was void. 39
In addition, citing Schneyder, 653 F.3d at 313, plaintiff argues
that Socias engaged in conduct substantially similar to conduct
that the Third Circuit held not entitled to any immunity,
that

Socias

wrongfully
condition

plaintiff's

failed

to

improved

inform
and

she

the

trial

was

court

released

i.e.,
that
from

St. Joseph's Medical Center. 40
(a)

Citing

~~

Socias Did Not Act Outside of His Prosecutorial
Function
and
in
the
Clear Absence
of
All
Jurisdiction
22.a-22.1 and 120 of her Third Amended Complaint,

plaintiff argues that Socias acted outside of his prosecutorial
function and in the clear absence of all

jurisdiction when he

obtained an invalid order of attachment pursuant to which plaintiff

39

Plaintiff' s
Response
to
Socias'
Motion
to
Dismiss
("Plaintiff's Response to Socias' MD"), Docket Entry No. 49, p. 14.
40

Id. at 19-22.
-35-

was arrested and jailed during a recess in the criminal trial of
her rapist. 41

Plaintiff argues that Socias is not entitled to

prosecutorial immunity because he obtained the order of attachment
by

(a)

perpetrating

Disciplinary
(c)

Rule

fraud
of

on

the

court, 42

Professional

(b)

Conduct

violating Texas
3. 03 (A)

violating a variety of state and federal laws. 44

paragraphs of plaintiff 1

41

Id. at 15.

S

I

43

and

The cited

complaint allege:

See also id. at 30-31.

42

Plaintiff argues that Socias, alleged acts constitute fraud
on the court because in First National Bank of Louisville v.
Lustig, 96 F.3d 1554, 1573 (5th Cir. 1996), the Fifth Circuit held
that "egregious misconduct, such as
the fabrication of
evidence by a party in which an attorney is implicated will
constitute a fraud on the court.
See Plaintiff, s Response to
Socias, MD, Docket Entry No. 49, p. 15.
11

43

Plaintiff argues that Socias, alleged acts violated Texas
Disciplinary Rule of Professional Conduct 3.03(A), which imposes a
duty
(1) to disclose a fact to a tribunal because disclosure
was necessary to avoid assisting a criminal or fraudulent
act and/or (2) to disclose to the tribunal in an ex parte
proceeding an unprivileged fact which he reasonably
believed should be known by that entity for it to make an
informed decision.
See Plaintiff, s
pp. 17-18.
44

Response

to

Socias,

MD,

Docket

Entry No.

49,

Plaintiff also argues that Socias, alleged acts

(1) violated Texas Code of Criminal Procedure§ 56.02 [by
failing to provide] her notice or an opportunity to be
heard,
(2) committed the Texas criminal offense of
"Official Oppression~~, and (3) committed the federal
criminal offense of "Conspiracy Against Rights 11 when [he]
victimized Plaintiff.
See Plaintiff,s Response to Socias, MD, Docket Entry No. 49, p. 19.
-36-

22. Harris County personnel (including but not limited
to Assistant District Attorney Nicholas Socias ["ADA
Socias"])
seized

and

a.

conspired
to
have
Plaintiff
detained during said recess;

b.

conspired to obtain an unauthorized court
the
order
to
imprison
Plaintiff
in
Harris County Jail upon her discharge from
St. Joseph Medical Center;

c.

secured the issuance of a subpoena for an
invalid address for an earlier trial date and
never had Plaintiff served therewith;

d.

subsequently failed to issue (much less serve)
a valid subpoena listing Plaintiff's address
in Gregg County for the actual trial date;

e.

knew
Plaintiff
Harris County;

f.

is presumed to have known that Plaintiff's
residence outside of Harris County deprived
the trial court of jurisdiction to grant an
attachment Order;

g.

knew he did not satisfy the Texas Code of
Criminal
Procedure's
plain
language
requirement that an out-of-county witness must
be under a subpoena before an attachment order
can issue;

h.

was incapable of satisfying said Section's
plain-language requirement because Plaintiff:

was

not

a

resident

of

i.

was not subject to a valid subpoena; and

ii.

was not a resident of Harris County.

i.

obtained an unauthorized Order of attachment
directing the Harris County Sheriff to take
Plaintiff into custody upon her discharge from
St. Joseph Medical Center;

j.

obtained said attachment Order while Plaintiff
was unrepresented by counsel;
-37-

k.

l.

120.

obtained
said
attachment
providing
Plaintiff
with
opportunity to be heard;

Order
notice

without
or
an

knew at all relevant times that said Order was
invalid, that Plaintiff was unrepresented by
counsel, and that Plaintiff was not given
notice or an opportunity to be heard prior to
the
Order
being
issued
(despite
the
fundamental and material effect thereof on her
well-established constitutional rights);

The risk of an erroneous deprivation under
these circumstances was certain insofar as
Texas
statutes clearly and unambiguously
deprived the trial court of jurisdiction to
issue an Order of attachment if Defendant
Socias had informed it that:
resident

of

a.

Plaintiff
was
not
Harris County and

b.

Plaintiff had never been served with a
subpoena. 45

a

Plaintiff argues that these allegations show that Socias obtained
the attachment order pursuant to which she was arrested and jailed
either by misrepresenting - or failing to disclose - material facts
and relevant law to the trial court, 46 but does not allege that
Socias

obtained

the

attachment

order

45

based

Plaintiff' s Third Amended Complaint,
pp. 8-9 ~ 22.a-22.l and p. 38 ~ 120.
46

on

his

own

sworn

Docket Entry No.

3 5,

Plaintiff's Third Amended Complaint, Docket Entry No. 35,
p. 33 ~ 95 ("The signing of a facially valid attachment order under
these circumstances cannot constitute an intervening cause for any
purpose because Defendant Socias knowingly omitted material
information from his argument to the trial court knowing said facts
would have divested said court of jurisdiction as a matter of
law.").
-38-

testimony.

See Kalina, 118 S. Ct. at 509-10 (holding that swearing

to the underlying facts in the affidavit was not a prosecutorial
function).

To the contrary, plaintiff alleges that the District

Attorney Devon Anderson released a public statement saying that
"[a]

deputy

constable

swore

out

a

mental

warrant. " 47

health

Although plaintiff argues that Socias could not have been acting in
a

prosecutorial

capacity

when

he

made

the

alleged

sentations and failed to make necessary disclosures
court

because

those

acts

constituted

fraud

on

misrepre-

to the trial

the

court

and

violated the Texas Rules of Professional Conduct and state and
federal criminal laws, she fails to cite any authority holding that
prosecutors
committing

lose

their

wrongful

entitlement

acts

while

to

absolute

performing

such

immunity

by

prosecutorial

functions.
Both the Supreme Court and the Fifth Circuit have held that
prosecutors are entitled to absolute immunity even when they are
alleged to have knowingly presented perjured testimony, failed to
disclose exculpatory evidence, and engaged in other malicious acts
"so long as the statements
which they were made.]"
Imbler,

[a]re related to the proceeding[s in

Burns,

111 S.

Ct.

at 14 91.

See also

96 S. Ct. at 995 (recognizing absolute immunity even for

prosecutors accused of presenting perjured testimony and failing to
disclose exculpatory evidence); Harris, 196 F.3d 1256 at *1 ("Even

47

Id. at 2

~

7 (f).
-39-

if

[the prosecutor]

acted inappropriately

and failed to

adduce enough evidence to merit a writ of attachment,

she still

receives absolute prosecutorial immunity.").
Plaintiff has not cited,

and the court has not found,

any

authority holding that a prosecutor alleged to have misrepresented
or failed to disclose material facts or relevant law to a court
while advocating for the state in a criminal proceeding has acted
outside of his prosecutorial function or in the clear absence of
all jurisdiction.

To the contrary the Fifth Circuit has held that

[f] or purposes of immunity determinations
. the
presence or absence of jurisdiction is determined with
reference to whether the challenged activity falls within
the category of conduct in which a prosecutor is generally
authorized to engage, rather than with reference to the
wrongful nature or excessiveness of the conduct.
Cousin v. Small, 325 F.3d 627, 635 (5th Cir. 2003)
Lyford,

171

Sparkman,

98

F.3d
S.

330,
Ct.

337

1099,

(5th
1105

(citing Kerr v.

Cir.

1999)

(citing

Stump

(1978)

("A

judge will

not

v.
be

deprived of immunity because the action he took was in error, was
done maliciously,

or was in excess of his authority; rather,

he

will be subject to liability only when he has acted in the 'clear
absence of all jurisdiction.'")).
In Stump the Court cited
(1871),

Bradley v. Fisher, 80 U.S. 335, 352

for its description of the distinction between lack of

jurisdiction
examples:

and

excess

of

jurisdiction

with

the

following

If a probate judge, with jurisdiction over only wills

and estates, should try a criminal case, he would be acting in the
-40-

clear

absence

of

jurisdiction

liability for his action;

and

would

not

on the other hand,

be

immune

if a

from

judge of a

criminal court should convict a defendant of a nonexistent crime,
he would merely be acting in excess of his jurisdiction and would
be immune.

Although Stump and Bradley addressed judicial immunity,

"immunity of a prosecutor is based upon the same considerations
that underlie the common-law immunities of
within the scope of their duties."
2894,

2912

(1978).

judges.

acting

Butz v. Economou,

98 S. Ct.

Plaintiff's allegations that Socias obtained

the attachment order by engaging in the acts alleged in ~~ 22.a22.1 and 120 of her Third Amended Complaint and thereby perpetrated
fraud on the court, violated a rule of professional conduct, and
violated various state and federal criminal laws, all allege that
Socias exceeded his authority,

not that he acted outside of his

prosecutorial function or in the clear absence of all jurisdiction.
Cousin,

325

F. 3d at

635.

See

also

Bradley,

80

U.S.

at

352

(describing the distinction between acting in excess of authority
and acting in the absence of all jurisdiction) .
Plaintiff has not argued, and the court does not find, that by
obtaining the order of attachment pursuant to which plaintiff was
arrested and jailed, or by engaging in any of the acts alleged in
~~

22.a-22.1 or 120 of Plaintiff's Third Amended Complaint, Socias

engaged in acts that are not prosecutorial in function.

Such an

argument would fail because while plaintiff's complaint does not
disclose whether Socias obtained the attachment order during an
-41-

in-court or an out-of-court proceeding, plaintiff alleges that the
attachment order was obtained during a recess in a criminal trial
in which plaintiff chose to testify, 48 the trial court called the
recess

on December

breakdown

while

8,

2015,

testifying, 49

when plaintiff
the

breakdown

suffered a
left

incapacitated that she had to be hospitalized,
order

signed by the

trial

court was

50

mental

plaintiff

so

the attachment

facially valid,

51

and the

attachment order insured plaintiff's availability to testify when
the trial resumed in January of 2016. 52

See Burns, 111 S. Ct. at

48

Plaintiff' s Third Amended Complaint, Docket Entry No. 35,
p. 1 ' 1 ("Plaintiff was a rape victim and chose to testify against
her rapist at trial."); p. 6 '20.a-.b ("Plaintiff: a. was raped,
choked, beaten, and sodomized by a serial rapist in Houston in
2 013; b. was called to testify against said rapist [.] ") ; p. 7
'20.h ("[Plaintiff] testified against her rapist in 176th District
Court in Harris County, Texas[.]"); p. 8 '22.i ("[Socias] obtained
an unauthorized Order of attachment directing the Harris County
Sheriff to take Plaintiff into custody upon her discharge from
St. Joseph Medical Center[.]").
49

Id. at 1 ' 2 ("Plaintiff suffered a mental breakdown during
said testimony.") ; p. 7 ' 2 0 .1 (" [Plaintiff] suffered a mental
breakdown during her testimony on December 8, 2015[.]"); p. 7 '21
("Based thereon [i.e., on the plaintiff's mental breakdown] , the
presiding judge ordered a recess until January 2016[.]").
Id. at 7 ' 2 o. o (" [Plaintiff] was transported by ambulance
to St. Joseph Medical Center in Houston, Texas for evaluation and
treatment [.] ") .
50

51

Id. at 33 ' 95 ("The signing of a facially valid attachment
order under these circumstances cannot constitute an intervening
cause for any purpose because Defendant Socias knowingly omitted
material information from his argument to the trial court knowing
said facts would have divested said court of jurisdiction as a
matter of law.").
52

Id. at 14 ' 36 ("Harris County Sheriff's Department staff
agreed and conspired with ADA Socias . . . to book Plaintiff into
(continued ... )
-42-

1941-42
court

(a prosecutor is absolutely protected when he appears in

in

support

of

an

application

for

a

search warrant

and

presents evidence at a probable cause hearing); Harris, 196 F.3d
1256 at *1 (recognizing that a prosecutor's efforts to secure the
appearance of the state's trial witnesses in court are activities
intimately associated with the

judicial phase

of

the

criminal

process, and thus are entitled to absolute immunity).
Regardless of whether Socias'

alleged actions or inactions

occurred in court or out of court,

they were thus prosecutorial

functions
criminal

"intimately associated with the judicial phase of the
process."

Imbler,

96

s.

Ct.

at

995

(holding

that

prosecutor was entitled to absolute immunity for making statements
to police regarding the questioning of a witness during a courtroom
recess).
Because the actions that Socias took to obtain the attachment
order were actions that fell within his prosecutorial function as
an advocate for the State of Texas,

he is entitled to absolute

immunity even if his representations and/or failure to disclose
material facts or relevant law to the court were false, misleading,
or malicious.

See Burns,

111 S.

52

Ct.

at 1941

(recognizing that

( • • • continued)
the Harris County Jail under:
a. color of state law; and b. the
guise of Plaintiff being a properly 'attached' material witness.");
p. 17 ~ 41 ("On Christmas Eve 2015, Plaintiff's mother:
c. was informed by ADA Socias (via email) that if Plaintiff were
bonded out and then failed to testify, then 'things get very very
bad for [Plaintiff] legally[.]").

-43-

prosecutors

do

not

forfeit

their

absolute

immunity

by making

knowingly false statements to a court, "so long as the statements
[a]re related to the proceeding[s in which they were made]").
(b)

Socias is Not Alleged to have Engaged in Conduct
Substantially Similar to Conduct that the Third
Circuit Held Not Entitled to Any Immunity

Citing Schneyder,

653 F.3d at 331-34, plaintiff argues that

Socias engaged in conduct substantially similar to conduct that the
Third Circuit held not to be entitled to any immunity. 53

Plaintiff

argues that by failing to inform the trial court that plaintiff's
condition improved and that she was released from St.

Joseph's

Medical Center, Socias engaged in "administerial and non-advocative
[that] precluded the trial court from exercising its

conduct
proper

function

prosecutorial

via

fraud,

function

or

and

did

duty

not

comport

recognized

with

within

any
the

United States. " 54
Although Plaintiff's

Third Amended Complaint alleges

that

Socias violated his well established duty as an officer of the
court by failing to advise the trial court of a material change in
circumstances surrounding plaintiff's detention, unlike the facts
at issue in Schneyder, plaintiff has not alleged that the trial

53

Plaintiff's Response to Socias'
pp. 19-22.
54

MD,

Docket Entry No.

49,

Id. at 22.
See also Plaintiff's Third Amended Complaint,
Docket Entry No. 35, pp. 34 ~~ 102-106.
-44-

court ever imposed a ministerial duty on Socias to report material
changes in the circumstances surrounding plaintiff's detention,
that there is a local custom or policy that required prosecutors to
report such changes, or that any failure to inform the court of a
material change occurred during a period of judicial inactivity.
To

the

contrary,

plaintiff

expressly

alleges

that

plaintiff's mental breakdown during her testimony,
55

judge ordered a recess until January of 2016,

following

the presiding

Socias "conspired

to obtain an unauthorized court order to imprison Plaintiff in the
Harris

County Jail upon her discharge

Center," 56 and "the amount of

[her]

from St.

Joseph Medical

bond was $10,000." 57

These

factual allegations show not only that the trial court contemplated
and

provided

for

material

change

in

the

circumstances

of

plaintiff's detention about which she contends Socias had a duty to
inform the court, but also that the trial court was fully aware
that if plaintiff did not pay a bond she would remain in custody
until the trial resumed in January of 2016,
established by the trial court.

~'

on a schedule

These allegations distinguish the

facts at issue here from those at issue in Schneyder, 653 F.3d at
331-34.

55

p. 7

~

Plaintiff' s Third Amended Complaint,
21.

56

Id. at 8

57

Id. at 18

~

22.b.
~

43.b.
-45-

Docket Entry No.

35,

(c)

Citing

~~

Socias Did Not Engage in Conduct that Was Not
Intimately Associated With the Judicial Phase of
the Criminal Process
26-27,

32,

41-43,

and 113

of her Third Amended

Complaint, plaintiff argues that Socias engaged in conduct that was
not intimately associated with the judicial phase of the criminal
process by (1) rendering legal advice to plaintiff's mother in an
effort to ensure plaintiff remained in custody,

(2)

communicating

with hospital staff at St. Joseph's about the plaintiff's release,
and

(3)

sending a Harris County investigator to St. Joseph's to

acquire plaintiff and deliver her to the Harris

County Jail. 58

Plaintiff argues that
[n] one of these actions warrant absolute immunity because
none are intimately associated with the judicial phase of
the criminal process. For example, neither Plaintiff nor
her mother were in the courtroom (or even the courthouse)
at the time of these acts, Plaintiff was not under
subpoena at any time relevant hereto, and any person (not
just a prosecutor or lawyer) could engage in each of
these acts precisely because they are not intimately
associated with the judicial phase of the criminal
process. 59
Plaintiff's arguments that Socias gave legal advice to her
mother, communicated with St. Joseph's staff about when she would
be released, and sent a county investigator to St. Joseph's to take
her to jail were not intimately associated with the judicial phase

58

Plaintiff' s Response to Socias' MD, Docket Entry No. 49,
p. 22 (citing Plaintiff's Third Amended Complaint, Docket Entry
No. 35, pp. 11-12 ~~ 26-27 and 32; pp. 17-18 ~~ 41-43; p. 37
~ 113) .
59

Id. at 22-23.
-46-

of the criminal process has no merit because plaintiff alleges that
these acts occurred during a recess in the trial of plaintiff's
rapist, and that Socias engaged in these acts for the sole purpose
of ensuring that plaintiff was available to testify when the trial
resumed.

These

facts

are analogous

to

the

facts

at

issue

in

Harris, 196 F.3d at 1256, a case in which the Fifth Circuit held
the prosecutor entitled to absolute immunity.
In Harris the plaintiff argued that absolute immunity was not
available to the defendant prosecutor because "telling her to pay
no heed to the subpoena to appear in court and getting the trial
judge to

jail her pursuant

to a

writ of

attachment without a

hearing are not part of the prosecutorial function."

Id. at *1.

Citing Kalina, 118 S. Ct. at 509-510, the Fifth Circuit disagreed
stating:
A prosecutor's management of the state's trial witnesses,
which includes instructing them on when to appear in
court, and efforts to secure the appearance of the
state's
trial
witnesses
in court
are
activities
intimately associated with the judicial phase of the
criminal process, and thus are entitled to absolute
immunity.
Even
if
[the
prosecutor]
acted
inappropriately in her dealings with Harris, and failed
to adduce enough evidence to merit a writ of attachment,
she still receives absolute prosecutorial immunity.
Harris, 196 F.3d 1256 at *1 (citing Henzel v. Gerstein, 608 F.2d
654,

657

(5th Cir. 1979)

prosecutor's

actions

in

(" [P] rosecutorial immunity extends to a
'initiating

and

pursuing

a

criminal

prosecution and in presenting the state's case . . . even where the
prosecutor knowingly used perjured testimony,
-47-

or failed to make

full disclosure of all facts.'"); Esteves v. Brock, 106 F.3d 674,
677 (5th Cir.), cert. denied, 118 S. Ct. 91 (1997)
prosecutor

is

entitled

to

absolute

immunity

(holding that a
for

his

use

of

peremptory strikes in an unconstitutional manner) .
Plaintiff's attempts to distinguish Harris are not persuasive.
Plaintiff argues that Socias was not "managing" her because he was
not telling her when to appear,

and that Socias was not acting

within the scope of his prosecutorial duties because he allegedly
gave incorrect legal advice to her mother in an effort to ensure
that she remained jailed. 60

But as Socias observes:

[T]he purpose of the attachment was to tell plaintiff not
only "when to appear" but also to assure that she
actually did appear.
[P] laintiff accuses Socias of warning her
mother of the responsibilities that come with bailing out
her daughter and the consequences of plaintiff not
showing up at trial.
Plaintiff's own complaint
acknowledges that Socias gave this alleged legal advice
for one purpose - to secure plaintiff's appearance at
trial:
On

Christmas Eve
. was informed
that if Plaintiff
failed to testify,
bad for [Plaintiff]

2015, Plaintiff's mother
by ADA Socias (via email)
were bonded out and then
then "things get very very
61
legally".

The only authority plaintiff cites to counter Harris is In re
Brown,

60

511 B.R.

843,

852

(Bankr.

S.D. Tex.

2014),

an inapposite

Id. at 10.

61

Socias' Reply in Support of Second Amended MD, Docket Entry
No. 55, pp. 4-5 (quoting Plaintiff's Third Amended Complaint,
Docket Entry No. 35, p. 17 ~ 41 (emphasis in original)).
-48-

case

in which the bankruptcy court sanctioned an attorney for

violating the duty of candor required by Rule 3.03 of the Texas
Disciplinary Rules of Professional Conduct.
concludes that Socias'
mother,

Accordingly, the court

rendering of legal advice to plaintiff's

communicating with hospital staff at St.

Joseph's about

plaintiff's release, and sending an investigator to St. Joseph's to
acquire plaintiff and deliver her to the Harris County Jail, are
acts

that

Socias

performed

in

an

"effort

to

control

the

presentation of [plaintiff's] testimony [at trial] , " Imbler, 996 S.
Ct. at 995 & n.32, an act that is intimately associated with the
judicial phase of the criminal process.
(d)
Citing~~

The Trial Court Had Authority to Seize the
Plaintiff and Its Attachment Order Was Not Void
22.d-22.e of her Third Amended Complaint, plaintiff

argues that Socias is not entitled to absolute immunity because the
trial court lacked the authority to seize her. 62

Plaintiff alleges

that Socias
d.

failed to issue (much less serve) a valid
subpoena listing Plaintiff's address in Gregg
County for the actual trial date;

e.

knew
Plaintiff
Harris County. 63

was

62

not

Plaintiff's Response to Socias'
pp. 24-30.
63

p. 8

a

resident

of

MD,

Docket Entry No.

49,

Plaintiff' s Third Amended Complaint,
22.d-22.e.

Docket Entry No.

35,

~~

-49-

Plaintiff argues that her allegations that
(1) she was an out-of-county resident, (2) she was not
served with a subpoena, and (3) Socias knew both facts
means
that
there was no
failure
to appear,
no
disobedience, and no jurisdiction for her to be seized
pursuant to Article 24.22 as a matter of Texas law. 64
Asserting that the attachment was

"beyond the authority of the

trial court to issue" and that it "deprived [her]
without

due process,"

plaintiff

argues

that

of her liberty

the

attachment

is

void. 65
Plaintiff's arguments that the trial court lacked jurisdiction
and that its order of attachment is void are based on plaintiff's
contention that the order of attachment could only have been issued
pursuant to Texas Code of Criminal Procedure art.

24. 22,

which

allows courts to fine and attach a witness "[i]f a witness summoned
from without the county refuses

to obey a

subpoena." 66

Since,

however, plaintiff alleges that she was never served a subpoena, 67
plaintiff could not have refused to obey a subpoena.

Accordingly,

plaintiff's complaint contains no factual allegations capable of
making Art. 24.22 applicable to her claims.

64

Plaintiff' s

Response to Socias'

MD,

Docket Entry No.

49,

p. 25.
65

Id. at 29.

66

Id. at 15.

67

Plaintiff' s Third Amended Complaint, Docket Entry No. 35,
p. 8 § 21.c-21.d (" [Socias"
c. secured the issuance of a
subpoena for an invalid address for an earlier trial date and never
had Plaintiff served therewith; d. subsequently failed to issue
(much less serve) a valid subpoena listing Plaintiff's address in
Gregg County for the actual trial date")
-50-

Citing,
703

(Tex.

inter alia, Mapco,

1990),

rendered when a

Inc. v. Forrest,

795 S.W.2d 700,

for its definition of a void judgment as one
court has no

jurisdiction over the parties or

subject matter, no jurisdiction to render judgment, or no capacity
to act as a court, plaintiff argues that Socias is not entitled to
absolute immunity because the trial court did not have jurisdiction
to issue the attachment. 68

But the actions about which plaintiff

complains were all undertaken during a recess called during her
rapist's

trial

in an effort to ensure that plaintiff would be

available to continue testifying when that recess ended and the
trial resumed.

Plaintiff's argument that the trial court lacked

jurisdiction therefore

has

no merit

because

the

trial

court's

jurisdiction to conduct her rapist's trial is not in doubt. 69

As

one Texas appellate court has recently stated:
In any case, criminal or civil, if a person appears at
trial to be a witness, the trial court has jurisdiction
of the witness for purposes of administering the witness
oath, regulating the process of obtaining the witness's
testimony, placing the witness under "the Rule" pursuant
to Rule 614 of the Rules of Evidence, and even compelling
the continued presence of the witness for the duration of
the trial.
And, of course, there is no doubt that the
witness could be held in contempt of court for actions in
violation of the trial court's orders. Thus, again, by
appearing before the trial court, though not compelled to
do so, the witness is subject to the trial court's
jurisdiction.

68

Plaintiff's Response to Socias'
p. 29 & n.Sl.
69

MD,

Docket Entry No.

49,

Id. at 24 ( "Socias implies that the trial court's authority
to attach Doe was not defined exclusively by Article 24.22 of the
Texas Code of Criminal Procedure.
However, each of Socias'
theories of potential authority are plainly inapposite.").
-51-

Almanza v. State of Texas, ____ S.W.3d ____ , 2017 WL 2979426, *3
(Tex. App.

Waco, 2017).

Accordingly, the court is not persuaded

that Socias' assertion of absolute immunity is subject to denial
either because

the

trial

court

lacked authority

to

seize

the

plaintiff or because its order of attachment was void.
3.

Conclusion

For the reasons explained above,

the court concludes that

plaintiff's claims against Socias should be dismissed because he is
entitled to absolute prosecutorial immunity from all of the causes
of action asserted against him.
D.

The Claims Against Harris County

Plaintiff asserts claims for damages against Harris County
under 42 U.S.C.

1983 for depriving her of constitutional rights

§

to due process, liberty, counsel, medical care, and protection in
violation of the Fourth, Sixth, and Fourteenth Amendments to the
United

States

Disabilities Act

Constitution, 70
("ADA") ,

Rehabilitation Act,

42 U.S. C.

22 U.S.C.

basis of disability. 72

and

§

under
§

794,

the

Americans

12131, 71 and

§

with

504 of the

for discrimination on the

Harris County moves for dismissal of the

claims asserted against it under Rule 12(b) (6) for failure to state

70

Plaintiff's Third Amended Complaint,
pp. 45-65 ~~ 147-219 (Counts 5 through 8).
71

Id. at 65-75

~~

220-38 (Count 9).

72

Id. at 75-76

~~

239-44 (Count 10).
-52-

Docket Entry No.

35,

a

claim

for

which

relief

may

be

granted. 73

Alternatively,

Harris County seeks judgment on the pleadings under Rule 12(c) . 74
"'A motion brought pursuant to Fed. R. Civ. P. 12(c) is designed to
dispose of cases where the material facts are not in dispute and a
judgment on the merits can be rendered by looking to the substance
of the pleadings and any judicially noticed facts.'"

In re Enron

Corp. Securities, Derivative & "ERISA" Litigation, 439 F. Supp. 2d
692, 695 (S.D. Tex. 2006)

(quoting Great Plains Trust Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)).
1.

Claims Asserted Under 42 U.S.C. § 1983

Plaintiff asserts five causes of action against Harris County
under 42 U.S.C.

§

1983 for depriving her of clearly established

constitutional rights:

Count 5 for violation of her right to due

process; 75 Count 6 for violation of her right to remain free from
government-inflicted inadequate medical care and/or punishment; 76
Count 7 for violation of her right to liberty, i.e., her right not
to be involuntarily committed or jailed without probable cause; 77
Count 8 for violation of her right to be properly classified as a

73

Harris County's MD, Docket Entry No. 43, p. 1.

74

Id. at n.l.

75

Plaintiff' s Third Amended Complaint,
pp. 45-48 ~~ 147-60.
76

Id. at 48-59 ~~ 161-204.

77

Id. at 59-62 ~~ 205-10.
-53-

Docket Entry No.

35,

witness detainee while incarcerated in the Harris County Jail; 78
Count 11 for violation of her right to be protected from harm while
incarcerated in the Harris County Jail. 79
action

(Counts

5 and 7)

Two of these causes of

are premised on actions attributed to

Harris County Assistant District Attorney Nicholas Socias and his
supervisors, including former Harris County District Attorney Devon
Anderson; the remaining causes of action (Counts 6, 8, and 11) are
premised on actions attributed to employees of the Harris County
Jail and their supervisors,

including then Harris County Sheriff

Ron Hickman.
Local governments may not be held liable under § 1983 on the
basis

of

respondeat

superior

or

vicarious

liability.

Local

governments can be sued and subjected to monetary damages under
§ 1983 only if an official policy or custom causes a person to be
deprived of a federally protected right.

Monell v. Department of

Social Services of the City of New York,

98 S.

(1978)

("[A]

Ct. 2018, 2037-38

local government may not be sued under§ 1983 for an

injury inflicted solely by its employees or agents.

Instead, it is

when execution of a government's policy or custom

. inflicts

the injury that the government as an entity is responsible under
§

1983.").

To

plausibly

allege

a

damage

claim

Harris County under § 1983 plaintiff must allege that

7sid. at 63-65 ~~ 211-19.
79Id. at 76-80 ~~ 245-71.
-54-

against
"(1)

an

official policy (2) promulgated by the [county] policymaker (3) was
the moving force behind the violation of a constitutional right."
Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 847 (5th Cir.
2009).

An official policy can be either

ordinance,

regulation,

promulgated

by

[the

or

decision

county's]

"a policy statement,

officially

officers,"

or

adopted

a

and

"governmental

'custom' even though such a custom has not received formal approval
through the body's official decisionmaking channels."

Monell, 98

s. Ct. at 2036.

("Official

See also Peterson,

policy

usually

exists

in

588 F.3d at 847

the

form

of

statements, ordinances, or regulations, but .
the

form

of

a

well-settled as

widespread
to

practice

constitute a

that

written

policy

may also arise in
is

custom that

'so
fairly

common

and

represents

municipal policy.'")
(a)

Violation of Rights Premised on Actions Attributed
to Harris County Assistant District Attorney Socias
and His Supervisors

Plaintiff asserts two causes of action for violation of her
clearly

established

attributed
Nicholas

to

then

Socias

and

constitutional
Harris
his

County

rights

premised

Assistant

supervisors,

on

District

including

actions
Attorney

Harris

County

District Attorney Devon Anderson and Harris County Sheriff Ron
Hickman.

In Count 5 plaintiff alleges that Harris County violated

her right to substantive due process by deliberately depriving her
of her rights to notice, counsel, and a hearing before a reasonably
-55-

well-informed tribunal before having her arrested, committed, and
jailed without probable cause under the facts alleged in her Third
Amended Complaint. 80

Plaintiff alleges:

156. Devon Anderson and Sheriff Hickman have publicly
articulated (or ratified) Harris County,s preexisting policy, practice, procedure, custom or
training in this respect and was deliberately
indifferent to the deprivations of Plaintiff 1 S
rights.
157. Specifically, Devon Anderson publicly stated (in
response to this incident) that:
"I don 1 t believe
she [Plaintiff] wanted to go forward.
That,s the
worst thing about being a rape victim. You have to
stand up in a courtroom and talk about what
happened to you in front of the person who did it
to you.
Nobody wants to go through it.
It 1 S the
worst thing ever.
But if nobody went through it,
these people would be preying on all of us.,, 81
In Count 7 plaintiff alleges that Harris County violated her
rights protected by the Fourth, Sixth, and Fourteenth Amendments by
having an unconstitutional policy, procedure, practice, custom, or
training with respect to those whom it sought to involuntarily
commit and/or jail without probable cause. 82

Plaintiff alleges that

Socias, acting as a county - not a state - actor, engaged in nonprosecutorial,

administrative,

and

ministerial

(i.e.,

non-

prosecutorial) functions when he obtained an attachment order from
the judge presiding over the

trial of her rapist knowing that

80

Plaintiff, s Third Amended Complaint,
pp. 45-48 ~~ 147-60.
~~

81

Id. at 47

82

Id. at 59-62

156-57.
~~

205-10.
-56-

Docket Entry No.

35,

plaintiff was not a resident of Harris County, plaintiff had not
been served with a subpoena, and the trial court lacked personal
jurisdiction over plaintiff for purposes of the attachment order.
Plaintiff

alleges

that

Socias

was

acting

Harris County's pre-existing (or ratified)

in

conformity

with

policies, procedures,

practices, customs, or trainings because District Attorney Devon
Anderson publicly stated:
i.

"There is no reason to believe that anyone in this
situation .
believed what they were doing was
unauthorized by the law";

ii.

"There were no apparent alternatives that would
ensure both the victim's safety and her appearance
at trial[;]"

iii. Plaintiff was "homeless on the street" when she was
not;
iv.

"A prosecutor in court [Socias] presented a set of
facts and the judge ruled and granted the witness
bond" despite the fact that said "facts" were
incontrovertibly untrue [.] 83

Plaintiff alleges that by making these statements Anderson:
a.

has publicly articulated that it is Harris County's
pre-existing
(or
ratified)
policy,
practice,
custom, procedure, or training to make up facts
when the existing facts do not permit its personnel
to achieve the desired ends;

b.

she (as the policymaker for the Harris County
District Attorney's Office) expressly approves of
such a practice even after investigating the
underlying facts;

c.

as policymaker administratively approves of her
prosecutors failing to perform their ministerial/
administrative responsibility of confirming the
accuracy of information;

83

Id. at 60-61

~

206. f.
-57-

d.

as policymaker has created, continued, or ratified
an unconstitutional and administrative policy,
practice, procedure, custom, or training which
permits Harris County District Attorney prosecutors
to
fail
or
refuse
to
provide
disabled
victim/witness
detainees
with
notice,
an
opportunity to be heard, and/or counsel before
having them involuntarily committed or jailed;

e.

has publicly articulated that it is Harris County's
pre-existing
(or
ratified)
policy,
practice,
custom, procedure, or training to make up facts
when the existing facts do not permit its personnel
to achieve the desired ends;

f.

as policymaker administratively approves of her
prosecutors withholding known material information
from a tribunal (despite the prohibitions in Rule
3.03
of
the
Texas
Disciplinary
Rules
of
Professional Conduct) which both deprives the court
of the ability to make an informed decision and
improperly causes the People to be seized (even in
ex parte proceedings where they have no notice, an
opportunity to be heard, or counsel) . 84

Plaintiff also alleges that Anderson
(as the policymaker for the Harris County District
Attorney's Office) failed to train her employees in the
District Attorney's Office
that
the
People whom
Harris County sought to involuntarily commit (and/or jail
without having allegedly committed a criminal act)
required:
a.

notice;

b.

an opportunity to be heard;

c.

counsel;

d.

residence within Harris County; and/or

e.

service of a subpoena. 85

84

Id.

at 61-62

85

Id.

at 62

~

~

207.

208.
-58-

Citing Esteves,

106 F.3d at 674,

Harris County argues that

plaintiff's claims arising from actions attributed to Socias and
Anderson are subject to dismissal because Harris County cannot be
held liable for prosecutorial actions taken on behalf of the State
during the

judicial proceedings. 86

course of

Reimer, 66 F.3d 75, 77 (5th Cir. 1995)
Upton County, Texas,
denied,

111

s.

(per curiam), and Turner v.

915 F.2d 133, 137-38

Ct.

788

(1991)

Citing Krueger v.

1

(5th Cir. 1990), cert.

plaintiff

responds

that

Harris County can be held liable for Socias' actions because Socias
exceeded the scope of his prosecutorial duties,
District Attorney either ratified Socias'

and because the

actions or failed to

adequately train and supervise Socias. 87
(1)

Socias Acted As an Agent of the State

"Whether an individual defendant is acting on behalf of the
state or the local government is determined by state law and by an
analysis of the duties alleged to have caused the constitutional
violation."
Texas law,

Esteves,

106 F. 3d at 677.

Under well established

"when acting in the prosecutorial capacity to enforce

state penal law, a district attorney is an agent of the state, not

86

Harris County's MD, Docket Entry No. 43, pp. 9-13 and 15-17;
Harris County's Reply, Docket Entry No. 54, pp. 3-8.
87

Plaintiff's Response to Defendant Harris County's Motion to
Dismiss
(Dkt.
No.
43)
and Requests
for
Judicial
Notice
("Plaintiff's Response to Harris County's MD") , Docket Entry
No. 50, pp. 17-19, 28-32.
-59-

of the county in which the criminal case happens to be prosecuted."
Id.

at

678.

The

Fifth Circuit

has

held

that

Texas

district

attorneys act as agents of the State for alleged misconduct while
engaging in criminal proceedings to enforce state law, Echols v.
Parker,

909

F.2d

795,

801

(5th

Cir.

1990);

using

peremptory

challenges during jury selection, Esteves, 106 F. 3d at 678; denying
a prisoner the right to proceed in forma pauperis on appeal and the
right

to

self-representation,

Krueger,

66

F.3d

at

76-77;

and

delaying the presentation of a case to the grand jury.

See Quinn

v. Roach, 326 F. App'x 280, 282, 292-93 (5th Cir. 2009)

88

For the reasons stated in

§

I I . C. 2 ,

above,

the court has

already concluded that the actions of Socias about which plaintiff
complains were prosecutorial functions intimately associated with
the judicial phase of the criminal process.
plaintiff
Harris

alleges,

Socias'

County District

actions

were

Therefore, even if as
ratified

Attorney Devon Anderson,

by

Harris

then
County

cannot be held liable for those actions because they all occurred

88

In contrast, the Fifth Circuit has held that under Louisiana
law district attorneys are agents of the local parish, not the
State, when acting in their prosecutorial capacity. See Hudson v.
City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999) ("After a
very careful review, we conclude that the Orleans Parish District
Attorney's office is not an arm of the state and therefore not
entitled to the benefits of the Eleventh Amendment."); Spikes v.
Phelps, 131 F. App'x 47, 49 (5th Cir. 2005) ("Esteves should be
viewed as an interpretation of Texas law concerning the role of a
district attorney within the framework of state government.
But
this court has held, contrary to Esteves, and based on Louisiana
law, that a parish district attorney is not entitled to Eleventh
Amendment immunity.").
-60-

while Socias was acting in his prosecutorial capacity as an agent
of the state, not Harris County.
(2)

Esteves, 106 F.3d at 678.

Plaintiff Failed to Allege Facts Capable of
Establishing that Harris County Can Be Held
Liable for Socias Having Exceeded the Scope of
His Prosecutorial Duties

"If a district attorney exceeds the scope of his prosecutorial
duties,

a

county

circumstances."

may

be

Krueger,

Upton County, Texas,

held
66

liable

F.3d

at

under
77

certain

(citing

limited

Turner

915 F.2d 133, 137-38 (5th Cir. 1990)).

v.
For

example, in Turner, 915 F.2d at 134, the plaintiff alleged that the
county sheriff planted evidence and conspired with the district
attorney to force the plaintiff to plead guilty to the resulting
charges.

Finding that the sheriff was the final policymaker for

the county in the area of "preserving the peace in his jurisdiction
and arresting all offenders," id. at 136, the Fifth Circuit held
that

"[t]he

sheriff's

and

the

district

attorney's

alleged

participation in the conspiracy, if proven, will suffice to impose
liability on the county."

Id. at 137.

The Fifth Circuit explained

that
[w]hen the official representing the ultimate repository
of law enforcement power in the county makes a deliberate
decision to abuse that power to the detriment of its
citizens, county liability under section 1983 must
attach, provided that the other prerequisites for finding
liability under that section are satisfied.
Id.

at 138.

district

Although the Fifth Circuit did not hold that the

attorney

was

a

final

policymaker,

-61-

it

held

that

the

district attorney was
county might be liable.

a

possible

co-conspirator for which the

Id.

Plaintiff argues that Harris County may be held liable for
Socias'

actions

because

Socias

exceeded

the

scope

of

his

prosecutorial duties when he "(i) perpetrated a fraud on the trial
court,

(ii)

violated

Texas

Disciplinary

Rule

of

Professional

Conduct 3.03(a), and/or (iii) violated state and federal laws." 89
But plaintiff has not alleged any facts capable of establishing
either that Socias was a final policymaker for the county, or that
Socias exceeded the scope of his prosecutorial duties by conspiring
with a final policymaker for the county.

Accordingly, the court

concludes that even if as plaintiff alleges, Socias exceeded the
scope of his prosecutorial duties by perpetrating fraud on the
trial court and by violating disciplinary rules of conduct and
state and federal laws,

Harris County cannot be held liable for

Socias' actions.
(3)

Plaintiff Failed to Allege Facts Capable of
Establishing that the District Attorney Failed
to Train or Supervise Socias

Plaintiff argues that Harris County may be held liable for
Socias' actions because the District Attorney failed to adequately
train or supervise her employees to prevent the wrongful attachment
of witnesses without probable cause.

In order to succeed on a

failure to train and supervise claim,

the plaintiff must plead

89

Plaintiff' s
No. 50, p. 19.

Response to Harris County's MD,
-62-

Docket Entry

facts

sufficient

indifferent"

to

show

that

county

county

was

"deliberately

to the obvious need for training and supervision.

Peterson, 588 F.3d at 849-50.
the

the

that

the

alleged

In other words it must be obvious to
unconstitutional

conduct

was

the

"highly predictable consequence" of not training or supervising its
actors.

Plaintiff has not alleged any facts capable of

establishing either that Harris County lacked sufficient training
or supervision for assistant district attorneys,

or that it was

obvious to Harris County that the lack of sufficient training or
supervision would result in prosecutors wrongfully obtaining orders
of attachment for witnesses by engaging in the acts that plaintiff
alleges Socias performed, i.e., perpetrating fraud on the court,
violating disciplinary rules of conduct,
federal

law.

Nor has

plaintiff

or violating state and

alleged any

facts

capable of

establishing that Harris County knew that such wrongful conduct had
occurred or had occurred with such frequency that Harris County was
put on notice that training or supervision was needed.
849-50.

See id. at

Because plaintiff has made no such allegations, she has

failed to state a claim for which relief may be granted based on
the

alleged

Attorney.

actions

of

Socias

or

the

Harris

County

District

Culbertson v. Lykes, 790 F.3d 608, 625 (5th Cir. 2015).
(b)

Violation of Rights Premised on Actions Attributed
to Employees of the Harris County Jail and Their
Supervisor, the Elected Harris County Sheriff

Plaintiff asserts three causes of action for violation of
clearly

established

constitutional
-63-

rights

premised

on

actions

attributed

to

employees

of

the

Harris

supervisor, the Harris County Sheriff:
free

from

government
punishment

arbitrary

inflicted
of

a

County

Jail

and

their

Count 6, right to remain

inadequate

medical

victim/witness

care

detainee;

and/or

Count

8,

maintaining a constitutionally inadequate policy concerning the
classification

and

confinement

of

victim/witness

detainees

or

people transferred into Harris County's custody from medical/mental
health facilities; and Count 11, failure to protect.
Harris

County's

MD

does

not

expressly

seek

dismissal

of

plaintiff's claims regarding inadequate medical care or failure to
protect.

Instead, Harris County argues that the

expressly

addressed

conclusory. 9 °
reply,

should

be

dismissed

Citing Bell v. Wolfish,

however,

Harris

County

argues

§

1983 claims not

because

99 S. Ct. 1861
that

they

are

(1979),

plaintiff's

in

claim

regarding inadequate medical care is subject to dismissal because
plaintiff fails to allege what specific medical care she sought,
what medications or treatment were denied to her,
denial was deliberate.

91

or why that

Citing Farmer v. Brennan, 114 S. Ct. 1970

(1994), Harris County argues that
[t]o the extent plaintiff seeks compensation for
provoking two altercations in the jail - one with a
fellow inmate and another with a guard - this claim must
be dismissed. To be held liable for putting an inmate in
danger of harm from others, a public entity must have
actual knowledge that plaintiff would be attacked by

90

Harris County's MD, Docket Entry No. 43, p. 20.

91

Harris County's Reply, Docket Entry No. 54, pp. 4-5.
-64-

another inmate.
It is insufficient to show that the
guard "should have known" of the risk of violence . .
Even if individual guards knew plaintiff would be
attacked (which plaintiff never alleges) , that knowledge
is not imputed to Harris County unless a supervisor
participated in the attack or failed to supervise . . . .
Plaintiff never alleges Harris County knew she would get
into two altercations, or that Harris County deliberately
allowed the altercations. To the contrary, Harris County
defused the altercations, offered plaintiff medical
treatment, and reassigned her housing. Count 6 should be
dismissed. 92
Plaintiff argues in response that she has alleged that
Harris County jail employees acted in conformity with
Harris County's policies, practices, customs, procedures,
and trainings when they failed to ensure jail staff were
aware of Plaintiff's disabilities, 93 that Harris County
classifies all material witnesses booked into its jail as
criminal defendants, 94 that Harris County did not train
its employees how to deal with people (like Plaintiff)
experiencing mental health crises, 95 that said conduct
caused Plaintiff to be deprived of her constitutional
rights, 96 and that same was approved, instituted, or
ratified by Harris County's policymaker. 97

92Id.

93

Plaintiff' s Response to Harris County's MD, Docket Entry
No. 50, pp. 14-15 (citing Plaintiff's Third Amended Complaint,
Docket Entry No. 35, pp. 8-10 ~ 22.s-22.t; pp. 14-15 ~ 37; p. 19
~ 46.f-46.g; pp. 27-28 ~ 74.
94

Id. at 14 (citing Plaintiff's Third Amended Complaint, Docket
Entry No. 35, p. 28 ~~ 77-78; pp. 29-30 ~ 82).
95

Id. (citing Plaintiff's Third Amended Complaint, Docket Entry
No. 35, pp. 49 and 50~ 163(h); p. 54 ~ 175).
96

Id. (citing Plaintiff's Third Amended Complaint, Docket Entry
No. 35, p. 4 ~ 10; pp. 14 and 15 ~ 37.h; pp. 24 and 25 ~ 65.j-k.
97

Id. at 14-15 (citing Plaintiff's Third Amended Complaint,
Docket Entry No. 35, p. 5 ~ 12; pp. 24-25 ~ 65.k; p. 47 ~ 156;
p. 54 ~ 176; p. 59 ~ 200).
-65-

Plaintiff also argues that
former Harris County Sheriff (Harris County's policymaker
at the time with respect to law enforcement) has admitted
that (1) Harris County does not have the resources to
handle the burden imposed by those who have mental health
issues, (2) more than one out of every four inmates in
Harris County's custody is on psychotropic medications,
(3) Harris County had no policy at the time concerning
the way to handle people in Plaintiff's position [i.e.,
experiencing a mental health crisis,] , and ( 4) instead of
dedicating its limited resources to providing reasonable
accommodations or trainings concerning people like
Plaintiff, Harris County has instead opted to spend
$800,000 per pay period on overtime. The obviousness of
the substantial risks of harm to the People under these
facts permits the inference that Harris County officials
knew (and were deliberately indifferent to) same. 98
(1)

Counts 6 and 11:
Inadequate Medical Care and
Failure to Protect

In Hare v. City of Corinth, Mississippi, 74 F.3d 633, 650 (5th
Cir. 1996)

(en bane),

the court held that "the

[government]

owes

the same duty under the [Fourteenth Amendment] Due Process Clause
and the Eighth Amendment to provide both pretrial detainees and
convicted inmates with basic human needs,

including medical care

and protection from harm, during their confinement."

The court has

explained that when the government, by the affirmative exercise of
its power so restrains an individual's liberty, renders him unable
to care for himself, and at the same time fails to provide for his
basic human needs,
reasonable

safety,

~'

the

food, clothing, shelter, medical care, and
government

98

transgresses

the

substantive

Id. at 16-17 (citing Plaintiff's Third Amended Complaint,
Docket Entry No. 35, p. 3 ~ S(c), (d), (e), and (g)).
-66-

limits on state action set by both the Eighth Amendment and the Due
Process Clause.

See DeShaney v. Winnebago County Department of

Social Services,

109 S.

government has a
including

Ct.

998,

1005-06

(1989).

Although the

recognized interest in detaining individuals,

material

witnesses,

the

substantive

limits

on

governmental action set by the Due Process Clause prohibit the
government from punishing detainees who have not been adjudicated
guilty of a crime.

Bell, 99 S. Ct. at 1872.

Plaintiff alleges that during the booking process one or more
Sheriff's Department employees deliberately failed to assign her to
the jail's Mental Health Unit despite knowing that she was mentally
disabled

and

in-patient

recently

mental

discharged

health

from

a

hospital

Plaintiff

treatment.

following

alleges

that

Harris County Jail staff assigned her to general population among
violent offenders despite having actual knowledge that plaintiff
had an open and obvious mental deficiency;
living environment free

that she required a

from emotional and physical abuse with

greater access to medical attention; and that she came directly
from a ten-day stay at St.
staff
Harris

made

recommendations

County

incarcerated

did
in

not

the

Joseph Medical Center where medical
concerning

comply.

Harris

her

Plaintiff

County

Jail

treatment for her mental health conditions,

care
alleges

she

did

with

which

that

while

not

receive

she was aggressively

assaulted by another inmate, and her requests for medication and
transfer were denied.

Plaintiff alleges that on December 28, 2015,
-67-

she sought but did not receive psychiatric help from medical staff;
that on January 8, 2016, she suffered a psychiatric episode in her
cell during which she caused a disturbance by pleading loudly for
God to rescue her; and that jail guards, including defendant Adams,
responded, but instead of calling for medical care, they escalated
the encounter into a physical confrontation during which Adams
punched plaintiff in the face with a closed fist bruising her eye
socket.

Plaintiff alleges that another guard slammed her to the

floor and painfully twisted her arms behind her back to handcuff
her as

she wept.

Plaintiff also alleges

that Harris County's

elected District Attorney made public statements acknowledging that
plaintiff

did

not

receive

proper

care

while

housed

in

the

Harris County Jail.
Plaintiff

alleges

that

actual

knowledge

of

her

mental

deficiency placed Harris County on notice that significant harm
would befall her in the general population;

that

the physical

injuries she sustained following an untreated psychotic episode
were both foreseeable and preventable; and that Harris County's
actual knowledge,

acceptance, and ratification of its failure to

provide treatment for her mental illness is evidenced by public
comments made by the elected District Attorney.
Plaintiff argues that her allegations establish a deliberate
or de facto policy of failing to provide for the mental health
needs of jail detainees who are mentally ill or disabled and are
experiencing

or

have

recently

experienced

-68-

acute

psychiatric

episodes or mental health crises requiring hospitalization,

that

Harris County has a history of failing to provide treatment for
mentally

ill

and

disabled

detainees,

that

Harris

County's

deliberate or de facto policy is evidenced by public statements
made by the elected District Attorney and sheriff regarding not
only the

failure

to

treat

her properly but also

the

county's

inability to meet the needs of other mentally ill and disabled
inmates.

Because

challenge

Harris

plaintiff's

§

County's
1983

MD

does

allegations

not

that

substantively
it

maintained

policies and practices of providing mentally ill inmates suffering
mental health crises inadequate medical care and failing to protect
them from harm, and because the court concludes that plaintiff's
allegations are minimally sufficient to state

§

1983 claims for

maintaining a policy, practice, or custom of providing inadequate
mental health care to unadjudicated detainees, the court concludes
that the claims asserted in Counts 6 and 11 are not subject to
dismissal.
(2}

In

Count

8

Count 8:

plaintiff

Failure to Classify Properly

alleges

that

Harris

County

had

a

constitutionally inadequate policy, practice, custom, or training
concerning the classification and confinement of victim/witness
detainees or detainees who were transferred into its custody from
medical/mental health facilities.

Plaintiff alleges that she had

a well established liberty interest in not being thrown into the
Harris County Jail while

labeled as a
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criminal defendant when

Harris County knew there was no probable cause to believe she had
committed a crime,

and that her improper classification was the

moving force behind her ongoing injuries. 99
Harris County argues that
Plaintiff's
claim
that
Harris
County
had
a
constitutionally
inadequate
policy,
procedure,
practice[,] custom, or training concerning the classification and confinement of victim/witness detainees or
detainees transferred into its custody from medical/
mental health facilities, as well as Plaintiff's other
misclassification-related claims, fail to state a claim
upon which relief can be granted against Harris County
because they are conclusory and allege, at worst,
negligence. 100
The Fifth Circuit has held that the classification of inmates
is an administrative function of the jail.
F.2d 1364, 1376 (5th Cir. 1981)

liberty

Inmates therefore have

(en bane)

no

protectable

classification,

property

or

Jones v. Diamond, 636

interest

in

custodial

and plaintiff has no constitutional right to a

particular status or classification within the jail.

Because the

classification of prisoners is a matter within the discretion of
prison officials, absent an abuse of discretion, federal courts are
loathe to interfere with custodial classifications established by
prison officials.

See Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir.

1998), abrogated on other grounds by Booth v.
732,

735

(2001)

Plaintiff's

99

complaint

Plaintiff' s Third Amended Complaint,
pp. 63-65 ~~ 211-19.
100

Churner,

532 U.S.

concerning

improper

Docket Entry No.

Harris County's MD, Docket Entry No. 43, p. 19.
-70-

35,

classification

at

the

jail

contains

no

facts

capable

of

establishing that her classification at the Harris County Jail was
an abuse of discretion.

Accordingly, plaintiff's claim concerning

the classification and confinement of victim/witness detainees or
detainees who were transferred into its custody from medical/mental
health facilities asserted in Count 8 will be dismissed.
2.

The Americans With Disabilities Act and
Rehabilitation Act

504

§

of the

Plaintiff asserts causes of action against Harris County for
discrimination based on disability in violation of the ADA,

u.s.c.

§

12131, 101 and § 504 of the Rehabilitation Act,

794.102

§

Title

II

of

the

ADA provides

that

42

22 U.S.C.

"[n] o

qualified

individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the
services,

programs,

subjected

to

§

12132.

or

activities

discrimination

Thus,

by

of

any

a

public

such

entity,

entity."

42

pp.

programs,

or

activities

for

at 75-76

~~ 239-44

(Count 10).
-71-

(2) that

or denied benefits of,
which

101 Plaintiff's Third Amended Complaint,
65-75 ~~ 220-38 (Count 9).
102 Id.

the

(1) that she

is a qualified individual within the meaning of the Act;
she was excluded from participation in,

be

u.s.c.

to state a claim for violation of Title II,

plaintiff must allege facts capable of establishing:

services,

or

Harris

County

is

Docket Entry No. 35,

responsible,

or

was

otherwise

being

discriminated

against

by

Harris County; and (3) that such exclusion, denial of benefits, or
discrimination was by reason of her disability.

Lightbourn v.

County of El Paso, Texas, 118 F.3d 421, 428 (5th Cir. 1997).

The

Fifth Circuit has held that claims under Title II of the ADA and
claims under
from a

§

504 of the Rehabilitation Act be treated identically

jurisprudential standpoint.

Bennett-Nelson v.

Louisiana

Board of Regents, 431 F.3d 448, 454-55 (5th Cir. 2005); Hainze v.
Richards, 207 F.3d 795, 799 (5th Cir. 2000).
Asserting that she is a person with a mental disability as
defined by the ADA and that Harris County is a public entity within
the

meaning

of

Tile

II

of

the

ADA,

plaintiff

alleges

that

Harris County discriminated against her because of her disability
in violation of the ADA by treating her as a criminal defendant who
did not require mental health treatment or medical care, denying
her reasonable and appropriate standards of hygiene, denying her
services and programs that would have accommodated her disability
and were available

to other inmates,

felony

for

prosecution

behavior

that

and threatening her with
was

symptomatic

of

her

deteriorating mental health. 103
The court is not persuaded that these allegations state a
claim

under

the

ADA

or

§

504.

103

Plaintiff,s

allegation

Plaintiff' s Third Amended Complaint, Docket Entry No.
pp. 65-75 ~~ 220-44.
-72-

that

35,

Harris County discriminated against her because of her disability
by treating her as a criminal defendant who did not require mental
health treatment,

and by denying her services and programs that

would have accommodated her disability are merely different ways of
alleging that Harris County failed to provide her adequate mental
health treatment.

While

the

Constitution may require

certain

mental health treatment for jail detainees, the ADA does not compel
Harris County to provide any particular treatment in order to
prevent discrimination.
discriminated

against

Plaintiff's allegation that Harris County
her

on

the

basis

of

her

threatening her with felony prosecution for

disability by

behavior that was

symptomatic of her deteriorating health is not sufficient to state
a claim for disability discrimination because plaintiff has not
alleged that detainees who were not mentally disabled were not
threatened for engaging in the same behavior.

Finally, plaintiff

fails to identify any accommodation that she requested,
requested

accommodation was

reasonable,

or

how

denial

requested accommodation was motivated by her disability.

why any
of

any

Although

plaintiff infers that she had a right to be housed in the public
psychiatric center instead of the jail,

she acknowledges that a

quarter of the jail's general population detainees are treated for
psychiatric problems,
establishing

that

and fails

the

psychiatric

center was

plaintiff's

ADA and

§

failure

to plead any facts
to

house

her

in

based on her disability.
504 claims will be dismissed.
-73-

capable of
the

public

Accordingly,

III.

Conclusions and Order

For the reasons stated in

I,

§

above,

Plaintiff's Opposed

Motion for Leave to File Her Fourth Amended Complaint (Docket Entry
No. 59) is DENIED.
For the reasons stated in
that

Socias

Accordingly,

is

entitled

§

to

II.C, above, the court concludes

absolute

prosecutorial

immunity.

Nicholas Socias's Second Amended Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b) (6)

(Docket Entry

No. 40) is GRANTED.
For the reasons stated in
that

the

causes

of

action

§

that

II.D, above,
plaintiff

the court concludes

has

asserted
7,

against

Harris County under 42 U.S.C.

§

1983 in Counts 5,

and 8,

and

under Title II of the ADA and

§

504 of the Rehabilitation Act in

Counts 9 and 10 are all subject to dismissal for failure to state a
claim for which relief may be granted, but that the causes of action
that plaintiff has asserted against Harris County for inadequate
medical care and failure to protect in Counts 6 and 11 are not
subject

to

dismissal.

Accordingly,

Defendant

Harris

County's

Rule 12(b) (6) Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can Be Granted (Docket Entry No. 43) is GRANTED in PART
and DENIED in PART.
The Order Granting Agreed Motion to Stay Current Deadlines
signed on April

26,

2017

(Docket

Entry No.

58),

requires

the

parties to submit a proposed scheduling order to this court within
-74-

ten days of the court's entry of orders on defendant's motions to
dismiss.

Accordingly,

the parties are ORDERED to submit a joint

proposed scheduling order within ten (10) days from the entry of
this Memorandum Opinion and Order.
SIGNED at Houston, Texas, this 29th day of September, 2017.

UNITED

-75-

DISTRICT JUDGE