Moran v. Summers et al

Filing 48

ORDER GRANTING 37 Motion for Leave to File Consolidated Response; GRANTING 41 Motion for Leave to Exceed Page Limitation; DISMISSING AS MOOT 28 Motion to Dismiss; GRANTING 29 Motion for Summary Judgment; GRANTING 30 Motion for Summary Judgment; DISMISSING AS MOOT 43 Motion to Exclude ExpertTestimony; DISMISSING AS MOOT 45 Motion for Extension of Time to Respond. Signed by Judge Sam Sparks. (ml)

r
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

P1LrQ2
N

UT

JOSE MORAN,

:

Plaintiff,
CAUSE NO.:
A-15-CA-00769-

-vs-

TYLER SUMMERS, in his individual
capacity, and CITY OF
PFLUGERVILLE,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Defendants City of Pflugerville and Officer Tyler Summers' Motion to Dismiss
[#28], Plaintiff Jose Moran's Response [#39] in opposition, and Defendants' Reply [#40], as well
as Officer Summers' Motion for Summary Judgment [#29] and the City's Motion for Summary

Judgment [#30], Moran's Consolidated Response [#38] in opposition, and Defendants'

Consolidated Reply [#42] in support.' Having reviewed the documents, the governing law, and
the file as a whole, the Court now enters the following opinion and orders.
Background2

This case involves Section 1983 claims for violations of the Fourteenth Amendment right
to due process, as well as claims for violations of the rights secured by the Americans with

Disabilities Act (ADA) and the Rehabilitation Act (RA). The crux of Plaintiff Jose Moran's suit
The Court also considered Moran's Unopposed Motion for Leave to File Consolidated Response
and Defendants' Unopposed Motion for Leave to Exceed Page Limitation [#41], which it hereby GRANTS.
1

[#37]

2

Although Defendants filed a consolidated motion to dismiss contemporaneously with their separate
motions for summary judgment, the Court will address the claims against Defendants pursuant to the summary
judgment standard contained in Federal Rule of Civil Procedure 56. For purposes of a summary judgment motion,
any disputed facts are viewed "in the light most favorable" to Moran, the nonmoving party. See Tolan v. Cotton, 134
S. Ct. 1861, 1863

(2014).

/

is his claim that Officer Tyler Summers denied him medical care when he failed to check Moran

into the emergency room subsequent to his arrest, after which Moran wandered outside, into the
street, and was struck by a hit-and-run driver.

At approximately 7:32 p.m. on September 3, 2013, Moran was involved in a single-car
collision near 1600 Settlers Valley Road in Pflugerville, Texas. Summers' Mot. Summ. J. [#291] Ex.

A (Summers Deci.) ¶ 33 Several officers responded to the accident, including Officer

Summers of the Pflugerville Police Department. Id. Officer Summers investigated the scene of

the accident and spoke with Moran, who informed Officer Summers he was diabetic. Resp. [#3 83] Ex. 2 (Police Dept. Records) at 19-20; id. Ex. 7 (Summers Dep.) at 36:6-11. EMS personnel

on the scene offered Moran treatment and transport to the hospital, but he refused treatment three

times. Summers' Mot. Summ. J. [#29-1] Ex. B (EMS First Response Records) at 147.

According to Moran, at the time of the accident, he had not taken his insulin in three
days4

and, in fact, was on his way to pick up his insulin from the pharmacy when the accident

occurred. Id. Ex.

1

(Moran Decl.) ¶J 8-10. Moran was diagnosed with type II diabetes in 1996

and is aware that when he fails to take insulin, his blood sugar rises. Id. ¶ 3. When his blood

sugar is too high, he "get[s] confused," has trouble "standing upright," and "walking in a straight

line." Id. ¶ 6. Moran testified that when he is in this condition, he has trouble "thinking clearly"
and taking care of himself, so he will generally ask a friend to help him seek medical attention.
Id.

¶J6-7.

Because Officer Summers and the City filed identical appendices in support of their separate motions for
summary judgment, the Court will cite to the evidence provided in Officer Summers' appendix.
'

There is conflicting evidence in the record on this point. According to Officer Summers' dash cam video,
Moran told Officer Summers at the scene of the accident he had been without insulin for two weeks, not three days.
Summers' Mot. Summ. J. [#29-1] Ex. A-3 (Summers' Dash Cam) at 20:38:3 1.

Moran further admitted to Officer Summers that he had one beer around 4:30 p.m. that
afternoon. Police Dept. Records at 19. He advised Officer Summers that because of his diabetes,
one beer "was too much for him." Id. Suspecting Moran of driving while intoxicated, Officer

Summers asked Moran to perform two field sobriety tests. Id. The parties dispute whether Moran
actually performed these tests. Resp. [#38] at 3. Moran contends he informed Officer Summers
he could not do the field sobriety tests "because of [his] diabetes." Moran Deci. ¶ 11. According
to Officer Summers' report, however, Moran performed two field sobriety tests and exhibited

several signs of intoxication. Police Dept. Records at 19-20. Officer Summers then asked Moran

if alcohol was a factor in the collision, and Moran stated it probably was. Id. at 20. The parties
agree that Officer Summers then took Moran into custody and informed Moran he was under

arrest for driving while intoxicated. Id.; Moran Dee!. ¶ 13. Officer Summers then transported
Moran to the Travis County jail. Id.
Officer Summers and Moran arrived at the jail at 9:04 p.m. Summers' Dash Cam at
2 1:04:05. Around 11:00 p.m., Nurse Cathy Garcia evaluated Moran and determined his blood

sugar was 435. Resp. [#38-3] Ex. 13 (Garcia Decl.) ¶ 6. Garcia testified that a normal blood
sugar level for someone without diabetes is between 70 and 110. Id. ¶ 10. She further testified

that because Moran's blood sugar of 435 seemed comparatively high, there were moderate
ketones present in his urine, and Moran appeared to be under the influence of alcohol, Garcia
believed Moran's medical condition was unstable and therefore refused to book him as an
inmate. Id. ¶J 9-10. Accordingly, Garcia directed Officer Summers to take Moran to the

emergency room in Brackenridge Hospital for treatment. Id. at ¶ 11.

During the short car ride from the jail to the hospital, Officer Summers maintained a
conversation with Moran, wherein he told Moran he had two choices: Officer Summers could

3

either accompany Moran to the hospital and then return him to the jail, or Officer Summers

could release Moran in order to receive the medical attention he needed. Summers' Dash Cam at
23:24:55. When Officer Summers asked Moran if he would refuse treatment at the hospital,

Moran replied he would not. Id. at 23 :25:34. Moran expressly stated,

I'm not going to refuse the treatment. I mean I'm fully, fully knowledgeable guy
so I'm not going to refuse anything. For real. For real. And I am glad that you
understand me how my situation is and you're willing to take me to the hospital to
be checked out for medical issues. I don't refuse anything.
Id. at 23 :25:30-23 :26:15.

In his deposition, Officer Summers testified he believe Moran had sobered up since his

initial arrest and could describe his medical needs to the hospital staff. Summers' Mot. Summ. J.
[#29-1] Ex. F (Summers Dep.) at 93:17-23. Officer Summers further believed that

if it were an

emergency situation, Garcia would have called an ambulance to take Moran to the hospital. Id. at

31:24-32:9.
Moran, however, maintains he was not lucid during this car ride, and in fact, does not
remember this conversation with Officer Summers or the ensuing "rambling soliloquy," wherein
Moran talked about needing a police escort to pick up his things from his wife's house the

following day. Moran Deci. ¶ 17. At his deposition, Moran explained he has never been married.
Resp. [#38-3] Ex. 14 (Moran Dep.) at 28:19-21. In support of Moran's contention that he was

disoriented during the car ride, Moran points to his hospital medical records, which reveal that

twenty minutes after Moran was dropped off at the hospital, his blood alcohol level was still .09.
Summers' Mot. Summ. J. [#29-1] Ex. C (Brackenridge Records) at 106.
At 11:29 p.m., Officer Summers and Moran arrived at the hospital. Summers' Dash Cam
at 23:29:58. The parties agree Officer Summers left the hospital at 11:32

minutes after he

arrivedand during that

p.m.just

over two

time, Officer Summers exited the vehicle, assisted

ru

Moran out of the car, removed his handcuffs, and retrieved Moran's possessions from the trunk

of his car. Moran Deci. ¶

18; Summers Dep. at 38:13-39:23; Summers Dash Cam at 23:30:15.

At this point the parties' stories diverge. According to Officer Summers, he expressly told Moran

he was released from custody before walking Moran up ten stairs and through a door to the
entrance of the emergency room, where he saw Moran speak with a hospital staff member.
Summers Dep. at 40:4-42:4. He then returned to his car and drove away. Moran, however,
maintains that Officer Summers did not tell him he was released from custody and simply

instructed Moran to "go check yourself in." Moran Decl. ¶J 20-21. Thus, according to Moran,
Officer Summers did not escort Moran inside the emergency room, nor did he tell any medical

provider of Moran's condition. Id. ¶ 21.
Moran previously testified that after Officer Summers dropped him off, he entered the

emergency room and spoke with a woman at the front desk. Summers' Mot. Summ. J. [#29-1]
Ex. D (Moran Dep.) at 155:11-16. He did not tell anyone at the emergency room he was

diabetic. Id. at 170:25-171:1. Moran took a seat in the lobby and waited approximately fifteen to

twenty minutes. Id. at 156:6-8. Moran then told a nearby patient to save his seat and walked
outside to "get some fresh air." Moran Dccl. ¶ 24. Moran contends this is the last thing he
remembers before waking up in the hospital. Id. Although Moran waited in the lobby for some
time, "no one at Brackenridge ever knew Moran had arrived, had extremely high blood sugar,
and needed medical treatment." Resp. [#3 8] at 8.

Shortly before midnight, Moran was hit by a hit-and-run driver. Id. Ex. 4 (Austin Police
Department Records) at 68. EMS records reveal Moran was found in the middle of the road on
the opposite side of the hospital, "unconscious

. . .

[and] bleeding from a severe laceration to the

front of his head." Id.; Summers' Mot. Summ. J. [#29-i] Ex. H (EMS Second Response
Records) at 197. He was transported back to the hospital. EMS Second Response Records at 197.
On intake at the hospital, a Hemoglobin A-ic test was conducted, which provides a 2-3

month average of blood sugars. Brackenridge Records at 46. According to Moran's physicians'
records, the goal of a Hemoglobin A-ic test is to achieve a reading below 7.0. Id. at 46. Moran's

Hemoglobin A-ic on the night he was admitted to the hospital was 14. Id. at 106. As noted
above, Moran's blood alcohol concentration was 0.09. Id. Moran was not released from the

hospital until September 19, 2013. Id.
On September 1, 2015, Moran filed a lawsuit against Officer Summers in his individual
capacity, the City, and Seton Family Hospitals (Seton).

See

Compi. [#1]. Subsequently, the Court

granted Moran's motion to dismiss his claims against Seton with prejudice.

See

P1.'s

Agreed

Mot. Dismiss [#12]; Order of Nov. 10, 2015 [#13]. In his complaint, Moran alleges Officer

Summers violated his Fourteenth Amendment right to due process by being deliberately

indifferent to his medical needs. Compi. [#1] ¶J 30-35. As to the City, Moran contends it
violated his constitutional rights by "fail[ing] to train officers that patients in custody must be
admitted to the hospital, not merely left on the curb at the hospital." Id. ¶ 38. Moran further

claims the City intentionally discriminated against Moran in violation of the ADA and RA by
failing to provide him with reasonable accommodations, "such as admission to or monitoring at
the hospital when his blood sugar was dangerously high." Id. ¶ 46.

Defendants separately moved for summary judgment. Officer Summers argues the Court
should grant summary judgment in his favor because he is entitled to qualified immunity, while
the City contends summary judgment is warranted because no policy or practice was adopted

with deliberate indifference to Moran's clearly established constitutional rights.

See

Summers'

Mot. Summ. J. [#29] at 16; City's Mot. Summ. J. [#30] at 7-12. These motions have been fully

briefed and are now ripe for the Court's consideration.

Analysis
I.

Legal Standards

A.

Summary Judgment
As noted, Defendants submitted their motion to dismiss on the same date they filed their

separate motions for summary judgment. These motionswhich involve the same substantive

issueswere filed

sixteen months after Moran filed his original complaint and just two months

before the close of discovery. Notably, in briefing Defendants' summary judgment motions, both

parties submitted a significant amount of evidence in the form of affidavits, deposition excerpts,
and police reports. Because the lawsuit is no longer in its earliest stages, and because the Court

has before it evidence outside the pleadings, the Court finds it appropriate to address Moran's
claims pursuant to the summary judgment standard set forth in Federal Rule of Civil Procedure
56. See Barrett v. Harrington, 130 F.3d 246, 252 (6th Cir. 1997) (affirming district court's

decision to address defendant's motion for summary judgment rather than her motion to dismiss,
where defendant filed both motions contemporaneously "more than four months after Plaintiff
filed his original complaint, and after the parties had completed discovery").
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law.
Celotex Corp.

v.

FED. R.

Civ. P. 56(a);

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

7

v.

Liberty

Lobby,

Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000);Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support

the nonmoving party's case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner

v.

Baylor Richardson Med. Ctr.,

476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence. Id. The party opposing
summary judgment is required to identify specific evidence in the record and to articulate the

precise manner in which that evidence supports his claim. Adams

v.

Travelers Indem. Co. of

Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift

through the record in search of evidence" to support the nonmovant's opposition to the motion
for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in

ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to its case and on which it will bear

the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B.

Section 1983
Section 1983 provides a cause of action to individuals whose federal rights have been

violated by those acting under color of state law. Doe

v.

Dali. Indep. Sch. Dist., 153 F.3d 211,

215 (5th Cir. 1998). Section 1983 is not itself a source of substantive rights; rather, it merely

provides a method for vindicating federal rights conferred elsewhere. See Aibright v. Oliver, 510
U.S. 266, 271 (1994). In order to state a claim under Section 1983, a plaintiff must (1) allege a

violation of rights guaranteed by the United States Constitution or federal law, and (2) show that
the alleged deprivation was committed by a person acting under color of state law. Doe, 153 F.3d
at 215.

II.

Application

A.

Claim Against Officer Summers
Officer Summers asserts qualified immunity in defense of Moran's Section 1983 claim

that he was deliberately indifferent to Moran's medical needs. Qualified immunity protects

public officials "from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known."

Harlow

v.

Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified immunity

applies, courts undertake a two-step analysis, asking "(1) whether facts alleged or shown by

plaintiff make out the violation of a constitutional right, and (2) if so, whether that right was
clearly established at the time of the defendant's alleged misconduct." Pasco

v.

Knoblauch, 566

F.3d 572, 579 (5th Cir. 2009). "The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted." Lytle
(quoting Saucier

v.

v.

Bexar Cty., 560 F.3d 404, 410 (5th Cir. 2009)

Katz, 533 U.S. 194, 202 (2001) overruled in part by Pearson

v.

Callahan,

555 U.S. 223 (2009)).

"Qualified immunity balances two important

intereststhe need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555
U.S. at 233. Qualified immunity "gives government officials breathing room to make reasonable

but mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law." Messerschmidt

v.

Millender, 132 S. Ct. 1235, 1244 (2012) (internal quotation

marks omitted). "[W]hile the Supreme Court has stated that 'courts should define the 'clearly

established' right at issue on the basis of the 'specific context of the case,' it has also recently
reminded [courts] that [they] 'must take care not to define a case's 'context' in a manner that
imports genuinely disputed factual propositions." Luna

v.

Mullenix, 773 F.3d 712, 724-25 (5th

Cir. 2014) rev'd on other grounds by 136 S. Ct. 305 (2015) (quoting Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014)).

The gravamen of Moran's Section 1983 suit is his claim that Officer Summers denied

Moran access to medical care in violation of his constitutional rights. Generally, the Due Process
Clause of the Fourteenth Amendment does not place affirmative duties on the state. See, e.g.,
DeShaney

v.

Winnebago Cty. Dep 't of Soc. Servs., 489 U.S. 189, 196 (1989) (rejecting the notion

of a state-created duty where the plaintiff had been released from the state's physical custody).
For instance, the state has no affirmative duty to fund medical services for the general public.
See, e.g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation to fund abortions or

other medical services). In Estelle

v.

Gamble, however, the Supreme Court recognized a critical

10

exception to this rule. 429 U.S. 97 (1976). There, the Supreme Court held the state has an

"obligation to provide medical care for those whom it is punishing by way of incarceration. An
inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so,
those needs will not be met." Id. at 103. The Estelle Court therefore concluded that the Eighth

Amendment's prohibition against cruel and unusual punishment, made applicable to the states
through the Due Process Clause of the Fourteenth Amendment, mandates that states provide

adequate medical care to all of their prisoners. Id. at 104-05. This right has been extended to
pretrial detainees. Hare v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996).
In this case, the parties dispute whether Moran, a pretrial detainee, was in custody after

Officer Summers released him in front of the emergency room, and if not, whether Officer
Summers still owed Moran a duty to provide medical care after his release from custody. As an
initial matter, the Court concludes Moran was not, as a matter of law, in custody when he was

released in front of the emergency room, nor was he in custody when he later wandered outside
the hospital and was struck by a hit-and-run driver. It is undisputed that Officer Summers

removed Moran's handcuffs and handed him his belongings. Though Moran maintains Officer
Summers did not explicitly tell him he was no longer under arrest, Moran admits to turning

around to see Officer Summers driving away. Moran has pointed to no evidence to plausibly
suggest he was still in custody when Officer Summers "put[] the car in reverse, and dr[ove]
away" after releasing Moran. Resp. [#38] at 7.

Therefore, the Court must determine whether Officer Summers had a duty to provide

Moran medical care after he was released from custody. In support of his claim, Moran relies on
Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999), for the proposition that the constitutional

obligation to provide medical care to prisoners extends, in certain circumstances, to pretrial

11

detainees after they are released from custody. However, neither the Fifth Circuit nor the

Supreme Court has recognized such a right. The Ninth Circuit is the only federal appellate court
to have done

so.5

Wakefield, 177 F.3d at 1164.

In Wakefield, the Ninth Circuit, relying on Estelle and DeShaney, concluded the state

maintains some, if very limited, duties to provide medical care following a prisoner's release
from custody. Id. Of particular concern to the Ninth Circuit was the transitional period during

which a prisoner may not, because of recent restriction on his liberty, quickly obtain necessary
medical care on his own accord. Id. ("[A] prisoner's ability to secure medication 'on his own

behalf is not necessarily restored the instant he walks through the prison gates and into the
civilian world."). The court reasoned that, because it could take a parolee days or even weeks to
obtain new medication, "the period of time during which prisoners are unable to secure

medication 'on their behalf' may extend beyond the period of actual incarceration." Id.
Accordingly, the court held the state was required to provide the plaintiff with enough

medication to cover the period of time "reasonably necessary to permit him to consult a doctor
and obtain a new supply." Id.; see also Haley v. Cty. of Del Norte, Cal., No. C 08-04572, 2009
WL 3568897, at *8 (N.D. Cal. Oct. 30, 2009) (denying an officer qualified immunity where the

officer released the plaintiff from custody after learning the plaintiff needed urgent surgery);
Lugo

v.

Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000) (applying Wakefield and

concluding that where the plaintiff was paroled while awaiting surgery, the state owed the

plaintiff a limited duty of protection beyond his period of incarceration).

Other courts have recognized a duty to protect a prisoner after his release from custody where the state
continues to impose limitations on the individual's freedom, such as through parole or supervised release. See, e.g.,
Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005). Wakefield, however, is the only appellate opinion the
undersigned located that expressly extends the state's affirmative duty to provide medical care to prisoners once
they are released from custody.

12

Because the right recognized in Wakefield and its progeny has not been recognized by the

Fifth Circuit, this Court is not bound by those decisions. Indeed, at least one district court in this
circuit has reached the opposite conclusion of the Ninth Circuit in Wakefield, holding instead that
"{o]nce the prisoner is released from custody," the rationale of Estelle and DeShaney no longer

exists. See Smith v. City of Tupelo, Miss., No. 1:05-CV-226-D-D, 2007 WL 2071811, at *6 (N.D.
Miss. July 19, 2007) (concluding the defendant-officials did not owe the plaintiff a duty to

provide medical care once he was released from custody, but holding in the alternative that even

if the duty existed, the plaintiff failed to show the officials violated the duty).
However, even assuming there is a duty to provide medical care to pretrial detainees after

their release, Moran has failed to show Officer Summers violated this duty. To establish a
violation of his constitutional right to medical care as a pretrial detainee, Moran must show
Officer Summers acted with "deliberate indifference to serious illness or injury." Id. "Deliberate

indifference is an extremely high standard to meet." Domino

v. Tex.

Dep 't of Criminal Justice,

239 F.3d 752, 756 (5th Cir. 2001). It encompasses "only 'unnecessary and wanton infliction of

pain' or acts 'repugnant to the conscience of mankind." Tamez v. Manthey, 589 F.3d 764, 770
(5th Cir. 2009) (quoting McCormick

v.

Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). To show

deliberate indifference, Moran must present evidence (1) the defendant had subjective

knowledge of "facts from which an inference of substantial risk of serious harm could be
drawn"; (2) the defendant drew that inference; and (3) the defendant's response to the risk

indicates he subjectively intended the harm to occur. Estate of Allison v. Wansley, 524 F. App'x
963, 970 (5th Cir. 2013). Mere negligence or even a grossly negligent response to a substantial

risk of serious harm is not enough to establish deliberate indifference. Id.

13

As to the first element of deliberate indifference, there is no doubt that Officer Summers

believed Moran was under the influence of alcohol at the time of the single-car collision, and it is
clear from the record that Officer Summers knew Moran's blood sugar was very high at the time

Garcia advised Officer Summers to take Moran to the emergency room. Officer Summers later
explained he believed Moran "had sobered up" by the time he released Moran at the hospital.
Summers' Mot. Summ. J. [#29] at 6. He points to the dash cam video of their conversation on the

way to the hospital to support his belief that Moran was not "a danger to himself' or anyone else.
Id. at 15. The Court has reviewed this video evidence, and concludes that at the very least, a fact

issue remains as to whether this conversation is sufficient to counter evidence that Officer
Summers was subjectively aware of a substantial risk of serious harm to Moran.
Nevertheless, Moran has failed to satisfy his burden of proof on the third element of

deliberate indifferencethat Officer Summers' response indicates he subjectively intended the
harm. Unlike

Wakefield,

this is not a case where the plaintiffs ability to seek medical care was

curtailed by previous restrictions on his liberty. Officer Summers did not restrict Moran's
freedom but instead released him in front of the emergency room, where it is undisputed Moran

waited for some time to receive care before wandering outside. Moreover, this case is distinct
from

Haley,

where the court found there was a fact issue as to whether the officer temporarily

released the plaintiff prior to a scheduled surgery simply to avoid paying for the surgery. In this
case, Moran has failed to point to any facts which suggest Officer Summers failed to check him

into the hospital in attempt to sidestep a potentially large hospital bill.

To the contrary, this case is similar to Smith, where the officials made arrangements to
ensure the plaintiff would receive proper medical care after his release. Here, Officer Summers

drove Moran to the hospital, and during the trip, questioned Moran to ensure he would seek the

14

treatment he needed. The video evidence of this conversation reveals Moran understood his
medical needs and would consent to treatment at the hospital. Although Officer Summers did not
walk Moran to the emergency room door, Moran, by his own account, entered the emergency

room, spoke with a woman at the front desk, and waited in the lobby for some period of time

before leaving the hospital. Officer Summers could not have known Moran would wander
outside the emergency room and into the street, where he would be struck by a hit-and-run
driver. As a result, Officer Summers did not knowingly disregard a substantial risk of serious

hami.
Finally, even if Moran has established a constitutional violation under the right set forth

in Wakefield, Officer Summers is nevertheless entitled to qualified immunity. The Fifth Circuit
has not expressly recognized this right, and the district court's holding to the contrary in Smith
indicates the law is far from clearly established in this circuit. See Wilson v. Layne, 526 U.S. 603,
618 (1999) (stating that when judges disagree on constitutional questions it is unfair to subject

officials to money damages for picking the wrong side in the debate). Accordingly, Officer
Summers was not "on notice" that releasing Moran in front of the emergency room, rather than

checking him into the emergency room, violated Moran's due process rights. See Murray

v.

Earle, 405 F.3d 278, 289 (5th Cir. 2005) ("Although there need not be prior case law directly on
point for a constitutional right to be clearly established, the state of the law must be such that a
reasonable officer would be on notice that his actions could violate a constitutional right.")
Officer Summers' motion for summary judgment is therefore GRANTED.

15

B.

Claims Against the City
Section 1983 Claim

i.

Moran also names the City as a defendant for his Section 1983 claim, contending the City
has a policy or practice of failing to ensure pretrial detainees receive necessary medical care and
further failing to train officers to wait with an inmate at a hospital to ensure he receives medical
care. To hold a municipality liable for a violation of the constitutional right to due process, a

pretrial detainee must show (1) the municipal employee violated his clearly established
constitutional rights with subjective deliberate indifference, and (2) this violation resulted from a

municipal policy or custom adopted or maintained with objective deliberate indifference. Flores
v. Cty. ofHardeman, Tex.,

124 F.3d 736, 738 (5th Cir. 1997). Moran points to Officer Summers'

actions as a basis for holding the City liable. This Court has already concluded, however, that

Moran failed to establish Officer Summers violated a clearly established constitutional right with
subjective deliberate indifference. Accordingly, Moran's Section 1983 claim against the City
fails as well.
ii.

ADA and RA Claims

In addition, Moran contends the City violated the ADA and RA by denying him the

benefits of its services and programs because of his diabetes. Both the ADA and RA are federal
statutes which were designed to eliminate discrimination against individuals with

disabilities.6

The ADA states in relevant part:
[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, or activities of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132 (1995). A "public entity" is defined under the statute as "any State or local government" and
"any department, agency, special purpose district, or other instrumentality of a State or States or local government."
Id. § 12131(1).
Similarly, the RA provides:

16

Because the ADA expressly provides "[t]he remedies, procedures and rights" available under the
RA are also accessible under the ADA, "[j]urisprudence interpreting either section is applicable
to both." Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); D.A. ex rel. Latasha A.

v.

Hous.

Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010) ("Because this court has equated liability

standards under

§

504 [of the RA] and the ADA, we evaluate D.A. 's claims under the statutes

together.")
To state a claim under either the ADA or RA, a plaintiff must allege that (1) he is a

qualified individual; (2) who was excluded from participation in or denied the benefits of
services, programs, or activities of a public entity; and (3) that the exclusion, denial, or

discrimination was because of his disability. Lightbourn

v. Cty.

of El Paso,

Tex., 118 F.3d 421,

428 (5th Cir. 1997). A plaintiff must show intentional discrimination in order to recover

compensatory damages under the ADA or RA. DelanoPyle v. Victoria Cty., Tex., 302 F.3d 567,
574 (5th Cir. 2002).

In this case, Moran claims "to participate in the 'program or service' of incarceration at

the jail, Moran required the reasonable accommodation of a medical exam at [the hospital] that

the City failed to provide him." Resp. [#3 8] at 20. However, the Court previously concluded

Moran was not in custody after Officer Summers released him in front of the emergency room.
Thus, Moran's ADA and RA claims appear to be based on two alleged exclusions: his exclusion

not just from the benefits of incarceration, such as access to medical care, but his exclusion from

No otherwise qualified individual with a disability in the United States. . . shall, solely by reason
of her or his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal fmancial assistance or
under any program or activity conducted by any Executive agency.
29 U.S.C. § 794 (1995). Moran has produced evidence that the City received federal funds and is therefore subject to
liability under the RA. See Resp. [#38-3] Ex. 12 (Byrne Justice Assistance Grant).

17

incarceration itself. Moran has cited no legal authority to support this novel theory of liability
under the ADA and RA.
Even assuming arguendo that Moran is a qualified individual under the ADA and RA and
he was entitled to the reasonable accommodation of medical treatment as a pretrial detainee,

Moran has failed to show he was actually

denied

this accommodation. Indeed, Moran was first

offered medical treatment and an EMS transport to the hospital at the scene of the single-car

collision in Pflugerville, but Moran refused that treatment three times. EMS First Response
Records at 147. Subsequently, Officer Summers transported Moran to the emergency room.
During that transport, Moran promised Officer Summers he would not refuse treatment once he

reached the emergency room. Summers' Dash Cam at 23:25:30-23:26:15. Moran admits he
entered the emergency room, spoke with a woman at the front desk, and waited for some time in
the lobby before ultimately failing to seek medical treatment. The City's two attempts to provide

Moran with medical treatment, including an EMS transport to the hospital, strongly suggests the
City did, in fact, provide Moran with access to medical treatment.
At bottom, however, Moran has not produced evidence that Officer Summers' failure to
check Moran into the hospital was

because of Moran's

diabetes. To the contrary, the evidence

shows Officer Summers released Moran in front of the emergency room because his presence
was required in Pflugerville due to an increased number of emergency calls.

See

Summers Dep.

at 85:6-86:1. The record reveals that at most, Officer Summers acted with negligence, not

intentional discrimination, in failing to check Moran into the hospital once he released him from

custody. Because Moran has failed to meet his burden to show violations of the ADA or RA, the

City's motion for summary judgment on these claims is GRANTED.

EI1

Conclusion
In sum, because Officer Summers is entitled to qualified immunity on Moran's claim that

he was denied access to medical care in violation of his constitutional rights, the Court grants

Officer Summers' motion for summary judgment. The Court likewise grants the City's motion
for summary judgment on Moran's claims under Section

1983,

the ADA, and the RA.

Accordingly,
IT IS ORDERED that Plaintiff Jose Moran's Unopposed Motion for Leave to File

Consolidated Response

[#3 7]

and Defendants City of Pflugerville and Officer Summers'

Unopposed Motion for Leave to Exceed Page Limitation

[#41]

are GRANTED;

IT IS FURTHER ORDERED that Defendants' Motion to Dismiss

[#28]

is

DISMISSED AS MOOT;
IT IS FURTHER ORDERED that Defendant Officer Summers' Motion for

Summary Judgment

[#29]

is

GRANTED;

IT IS FURTHER ORDERED that Defendant City of Pflugerville's Motion for

Summary Judgment

[#30]

is

GRANTED; and

IT IS FINALLY ORDERED that Defendants' Motion to Exclude Expert

Testimony
[#45]

[#43]

and Plaintiffs Unopposed Motion for Extension of Time to Respond

are DISMISSED AS MOOT.

SlGNEDthisthe

/C)

dayof April 2017.

SAT?

UNITED STATES DISTRICT JUDGE

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