Cadena v. El Paso County et al

Filing 80

REPORT AND RECOMMENDATIONS re 62 Motion for Summary Judgment, filed by El Paso County. Signed by Judge Robert F. Castaneda. (jg1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
APRIL CADENA,
Plaintiff

§
§
§
EP-16-CV-00209-FM-RFC
-vs§
§
EL PASO COUNTY, CORIZON HEALTH, §
INC., DR. ALEX SALAZAR,
§
Defendants
§
§
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On this day, the Court considered the Motion for Summary Judgment (“motion”) filed by
Defendant El Paso County (“County”). Having considered the motion, the evidence submitted,
and the applicable law, it is the recommendation of this Court that the motion should be
GRANTED in part and DENIED in part.
PROCEDURAL HISTORY
Cadena filed her complaint on June 21, 2016, against Dr. John Alejandro “Alex” Salazar
(“Dr. Salazar”), Corizon Health Inc. (“Corizon”), and the County (together “Defendants”). (Doc.
1). Cadena asserts that the Defendants discriminated against her because of her disability and
acted with deliberate indifference to her medical needs in violation of her First, Eighth, and
Fourteenth Amendments rights. Accordingly, Cadena brought suit against the County under the
American with Disabilities Act (“ADA”) and 42 U.S.C. § 1983. Id. Defendants Corizon and Dr.
Salazar filed their separate motion for summary judgment on August 25, 2017. (Doc. 37).1
Subsequently, the County filed its own motion for summary judgment on October 13, 2017

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In the County’s motion for summary judgment, the County joins Corizon and Salazar’s motion
for summary judgment regarding Cadena’s § 1983 claims. Similarly, Cadena incorporates her
responses against Corizon and Salazar’s motion for summary judgment in this motion.
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(Doc. 62),2 Cadena filed a response on November 20, 2017 (Doc. 67), and the County filed a
reply on November 27, 2017. (Doc. 70). Lastly, Cadena filed her final response on December 2,
2017 (Doc. 71), and the County filed its final reply on December 8, 2017. (Doc. 72).
CADENA’S CLAIMS
Cadena asserts claims against the County pursuant to the ADA and claims pursuant to 42
U.S.C. § 1983 for violations of her First, Eighth, and Fourteenth Amendment rights. (Doc. 1:2638).
Cadena alleges that the County failed to provide her with reasonable accommodations or
modifications and intentionally discriminated against her because of her disability in violation of
the ADA.
Cadena also alleges that the County, through the actions of Dr. Salazar and other jail
officials, was deliberately indifferent to her serious medical needs by (1) assigning Licensed
Vocational Nurses (“LVNs”) to perform the intake receiving and screening processing of
prisoners at the El Paso County Detention Facility (“EPCDF”); (2) denying her the use of a
wheelchair and requiring her to use crutches; (3) delaying and denying treatment; and (4)
denying her pain medicine after she returned from UMC. Id. at 33-34. Cadena alleges that these
acts or omissions were the result of alleged policies, customs, practices, and conditions of
confinement of the County that constitute a deliberate indifference to a substantial risk of serious
harm. (Doc. 1:31, 38).

2

Documents filed in this cause are referred to as (Doc. [docket entry number]:[relevant page
number]). Plaintiff’s and Defendants’ summary judgment evidence will be referred to as (“P.” or
“D.” respectively Ex(s)). References to evidence supplied by Corizon and Dr. Salazar, in their
separate motion for summary judgment will be referred to as (“D. Ex(s). exhibit number:
relevant page number”) and evidence supplied by the County will be referred to as (“D. Ex(s).
exhibit letter: relevant page number”). Documents used in depositions will be labeled as (“Dep.
Ex. exhibit number: page number”).
2

Finally, Cadena asserts a First Amendment claim under § 1983 that she was denied
access to a jail handbook, and the jail staff failed to send her grievance letter to the Inspector
General. Id. at 37.
Cadena alleges that the resulting mental anguish, emotional distress, ongoing pain,
weakness, swelling, disfigurement, and nerve damage, prevents her from engaging in prior
activities. Id. at 31, 38.
FACTS OF THE CASE
The Court has reviewed the summary judgment evidence offered by the parties. Except
where otherwise indicated, the following facts are undisputed.
Cadena was a pre-trial detainee at the EPCDF from June 23, 2014, through July 18, 2014.
(Doc. 1:4, 23). Corizon had a contract with El Paso County in 2014 to provide medical services
to inmates held at EPCDF, and Dr. Salazar was Corizon’s medical director and physician for
EPCDF. (P. Exs. 4-7, 25A:11-12, 28).
On June 18, 2014, April Cadena broke her leg from unclear circumstances outside of
EPCDF. (D. Ex. B: 14-15). Five days later, Cadena was found sniffing paint in a park and was
arrested for an outstanding warrant. (D. Ex. I). When she was arrested, Cadena had a wheelchair,
medicine, and discharge instructions from Providence Hospital (“Providence”) regarding a
surgery performed there on her right leg on June 22, 2014. (P. Ex. 18:23-25). At EPCDF, Nurse
Stephanie Portillo, LVN, (“Nurse Portillo”) performed the initial inmate intake. (P. Exs. 10,
25A:49-50, 25B). Nurse Portillo removed Cadena’s boot and bandages, asked her if she could
walk, and noted that she could stand independently, which Cadena did for a brief moment before
sitting back down. (P. Exs. 18:28-29, 25B:Dep. Ex. 5). That same day, through telephone, Dr.
Salazar ordered Norco two times a day for two weeks, follow-up with orthopedic in two weeks,

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crutches, a lower bunk, wound care for the leg, and recommended that Cadena be housed in
lockdown for her safety. (P. Exs. 25A:67-68, 25B:Dep. Exs. 5, 8:22). The County disputes that
Cadena’s wheelchair was ever taken away. (Doc. 62).
Later that day, Officers Davila and Pina took Cadena to EPCDF medical clinic, insisting
that she use the crutches, catching her when she started to fall, and retrieving a wheelchair to
escort her to the clinic. (P. Exs. 18:38-40, 19:58-59). At the clinic, Nurse Charlie Fuentes
(“Nurse Fuentes”) told Cadena there was no space on the floor for an inmate in a wheelchair but
that he would ask the doctor. (P. Ex. 17:26-27). When Cadena returned to her cellblock, only the
crutches were left with her. (P. Ex. 18:43, 27).
On June 25, 2014, at 1037 hours (10:37 a.m.), Cadena was examined by Corizon
Physician Assistant Keith Barnes, who entered orders, including that she “may keep” the
wheelchair. (P. Exs. 25A:77-78, 25B:Dep. Exs. 7:154, 8:22). Later that day, it was reported that
Cadena fell. Cadena states that she was required to walk from her cell to the cellblock door with
her crutches to retrieve her food tray. When she attempted to place her tray on the table, her
drink spilled and she slipped and fell on her right leg. (P. Exs. 17:33-34, 164-69, 200-01, 18:4348). The time Cadena fell is in dispute. (Doc. 1:10, Doc 62: 5).
After Cadena’s fall, Nurse Fuentes examined Cadena, administered emergency care,
made several calls to Dr. Salazar, and eventually sent her to UMC’s emergency room. (P. Exs.
18:53-58; 25B:Dep. Exs. 9, 10). In his notes, Nurse Fuentes reported that Cadena had fallen, she
had a pain level of 10+, a deformity distal from the knee, unable to move her toes with only
partial movement of her big toe, unable to feel tactile stimulus to the outside aspect of her foot
and palpation of the foot, and her vital signs. (P. Exs. 25A:79-81, 25B: Dep. Ex. 9).

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Cadena arrived at UMC at 2045 hours (8:45 p.m.). (P. Ex. 11:1, 5). UMC records reflect
her chief complaint was pain and swelling of her right lower extremity after a fall. Id. at 5. A
pain scale of 10 was noted. Id. The emergency room physician noted “ortho recommends [follow
up] with her ortho surgeon tomorrow. CAM boot and non weight bearing status” and
“[r]ecommend [follow up with] original surgeon at Providence for further evaluation.” (P. Ex.
11:4). Officer Gallardo and Cadena remember the doctors telling her that she needed surgery
again, and that she would have to go back to Providence because UMC had no records for her.
(P. Ex. 20:17-21). The doctors asked Officer Gallardo if they needed to have Cadena transferred
to Providence or if she would take her there. (P. Ex. 18:63). Officer Gallardo responded that she
would take Cadena to Providence. Id. Instead of following the recommendations from UMC,
Officer Gallardo returned Cadena to EPCDF. (P. Ex. 20:21-22, 26).
Cadena returned to EPCDF at 0210 hours (2:10 a.m.). (P. Ex. 19: Dep Ex. 1:2). EPCDF’s
morning report notes that Cadena has returned from UMC and is pending a follow up
appointment at Providence Hospital on June 26, 2014. Id. Dr. Salazar testified that he reviewed
documents from the clinic and from UMC. (P. Ex. 25A:71, 81, 92-95, 114-20). Afterwards, Dr.
Salazar issued an order which states “No meds ordered at this time” and “[follow up] with
surgeon today.” (P. Ex. 25A:99-101, 25B:Dep. Ex. 8). Dr. Salazar, in his deposition, said his
order was that no new medicine be administered because the previous order for medication was
still in effect. Id. Cadena disputes this interpretation of Dr. Salazar’s orders due to Dr. Salazar’s
unclear handwriting. (P. Ex. 25A:99-101: Doc. 67:15-16). Cadena indicates that the order
actually states “No meds ordered at floor time,” and that order effectively denied Cadena any and
all pain medication. (Doc. 67:16).

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On June 26, 2014, Cadena was scheduled for an appointment at the Texas Tech
Orthopedic Clinic on July 14, 2014. (P. Ex. 25A:113). Dr. Salazar testified that he was aware
that he could have referred Cadena to any orthopedic surgeon and could have called other
surgeons for an appointment, but that he saw no need to do so since she already had an
appointment set up with Texas Tech. (P. Ex. 25A:112-13). On June 27, 2014, Dr. Salazar
prescribed Norco to be given three times a day and proscribed additional medication. (P. Exs.
25A:122, 25B:Dep. Exs. 5, 8:22).
Cadena received wound care for her leg and the blister on her heel on June 27, 28, 29,
and July 1, 4, 6, 9, 10, 11, 12, and 15, from nine or ten nurses who would have seen her leg and
the alleged deformity. (P. Exs. 25A:137-38, 25B:Dep. Ex. 18). Cadena testified that her leg was
twisted with the foot facing the middle of her body and that cell mates would ask why nothing
had been done for her. (P. Ex. 18:93-94; 27). Her pain levels ranged from 3/10 to 10/10. (P. Exs.
25A:137-38, 25B:Dep. Ex. 18). Corizon’s records indicate that Cadena refused medical care on
July 8, 14, 16, 17, and 18, 2014, and refused medication several times as well. (D. Ex. 2:953,
955, 957, 959, 961, 972-73, 1012-13).
On July 14, 2014, Cadena was taken to the Texas Tech Orthopedics Clinic and an
unspecified mechanical complication of the internal orthopedic device implant was assessed. (D.
Ex. 4:4237). Cadena recalls the orthopedic doctor was surprised that she had not had the surgery
and asked why they had waited so long. (P. Ex. 18:95-96). Dr. Abdelgawad’s findings and
recommendations, given to Corizon staff, sought preauthorization for a revision surgery
scheduled for July 18, 2014. (P. Exs. 25A:142-143, 25B:Dep. Ex. 21). The Texas Tech
Orthopedic clinic sent a fax marked “Urgent” to EPCDF clinic nurse indicating that surgery was

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scheduled and authorization was needed as soon as possible; the fax included a description of the
surgery and a cost estimate. (P. Exs. 25A:143-47, 25B:Dep. Ex. 22).
On July 14, 2014, Corizon RN Aguilar emailed for approval for Cadena’s surgery, noting
that the fracture was suffered prior to detention, to which Commander Vargas responded that he
needed to check on the status of her charges since the injury occurred outside the facility. (D. Ex.
11:Dep. Ex. 8:2; P. Ex. 26:26, 35-36, Dep. Ex. 8). On July 16, 2014, Corizon’s Health Service
Administrator, Deborah Martinez, RN, sent an email to Commander Vargas reminding him of
the upcoming appointment, to which he responded that the possibility of getting release was
being investigated because her injury was a preexisting condition. (P. Ex. 26:Dep. Ex. 8). Less
than an hour later, Executive Chief Deputy Sylvia Aguilar approved the surgery. (D. Ex. 11:Dep.
Exs. 8:1, 14).
On July 17, 2014, at 1100 hours (11 a.m.), Corizon cancelled Cadena’s preoperative
appointment and surgery, noting that it needed to be rescheduled so she could attend a court
setting. (P. Exs. 15, 25B:Dep. Ex. 14:9; D. Ex. 11:Dep. Ex. 14). Corizon’s staff secured a new
surgery date of July 22, 2014, with preoperative appointment on July 21, 2014. (P. Ex. 25B:Dep.
Ex. 14).
On July 18, 2014, Cadena attended court, and she was released from EPCDF later that
day. (P. Ex. 15). Cadena was taken to the WSAT, where Nurse Daphne Jones, R.N., an employee
of the UMC onsite clinic, informed Cadena that the sheriff did not want to pay for the surgery
and that she would have to make her own financial arrangements; a social worker helped Cadena
get discounts from UMC and Texas Tech. (Doc. 1:23).
On July 21, 2014, Cadena attended her preoperative appointment, and on July 22, 2014,
Dr. Abdelgawad, Texas Tech orthopedic surgeon, performed the surgery at UMC. (D. Ex.

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3:7327; P. Ex. 25B:Dep. Ex. 14). Dr. Abdelgawad revised the Providence’s earlier work on the
broken leg, and was able to obtain 100% correction of the varus deformity. (P. Ex. 12; D. Ex.
3:7327). Cadena was released from UMC on July 28, 2014, with a wheelchair and instructions
that she could resume activities as tolerated and be weight bearing as tolerated within 24 to 48
hours. (D. Ex. 3:7327, 7389).
Cadena argues that the fall at EPCDF caused her to have nerve damage in her leg.
Specifically, Cadena contends she is unable to do things she used to do, including swimming,
walking quickly, wearing high heels, and riding a bicycle. (P. Ex. 17:204-08). She has leg pain,
numbness, disfigurement, and swelling in her ankle and foot. (P. Ex. 17:206-11).
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is proper where the pleadings and evidence on file demonstrate that

“there is no genuine issue as to any material fact and that the moving party is entitled to
summary judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); FED.
R. CIV. P. 56(a). A party seeking summary judgment bears the initial burden of proving the
absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the movant
carries this burden, the burden shifts to the nonmovant to show the existence of a genuine issue
for trial. Id. at 324–25. The nonmovant may not satisfy its burden with “some metaphysical
doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by
only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(internal citations omitted). Nor does the mere existence of a factual dispute itself preclude the
granting of summary judgment, St. Amant v. Benoit, 806 F.2d 1294, 1296 (5th Cir. 1987), the
ultimate inquiry is whether the evidence is so “one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
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In reviewing a motion for summary judgment, all justifiable inferences to be drawn from
the underlying evidence must be viewed in the light most favorable to the party opposing the
motion. Aubrey v. School Bd. of Lafayette Parish, 92 F.3d 316, 318 (5th Cir. 1996). “If the
record, viewed in this light, could not lead a rational trier of fact to find for [the nonmoving
party], there is no genuine issue for trial, and summary judgment is proper. If, on the other hand,
the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment is
improper.” Kelley v. Price-Macemon, Inc., 992 F. 2d 1408, 1413 (5th Cir. 1993) (internal
citations omitted).
II.

Summary Judgment Evidence
The County objects to certain statements in Cadena’s second declaration (P. Ex. 28) and

certain statements within the declaration of Alberto Puebla. (P. Ex. 29). Parties may object to
summary judgment evidence on the grounds that it cannot be presented in a form that would be
admissible. FED. R. CIV. P. 56(c)(2). “The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is anticipated.” FED. R. CIV. P.
56(c)(2) 2010 amendment subdivision (c). A court may not consider hearsay evidence nor may it
consider unauthenticated documents. Johnson v. Spohn, 334 F.App’x 673, 677–78 (5th Cir. 2
009); Martin v. John W. Stone Oil Distrib. Inc., 819 F.2d 547, 549 (5th Cir. 1987).
a. Cadena’s Second Declaration
In Cadena’s response to the County’s motion for summary judgment (Doc. 67), Cadena
attaches a second declaration (P. Ex. 28). The County objects to the statements made by Cadena
regarding her current incarceration as irrelevant. (Doc. 70:4). In paragraph 7 of Cadena’s second
declaration, Cadena states she is currently incarcerated, and she views her current incarceration
as punishment.

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Under Federal Rules of Evidence 401, evidence is relevant if “(a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” FED. R. EVID. 401. Cadena’s current incarceration does
not make any fact in her original complaint more or less probable, nor does it have any
consequence in determining the current lawsuit against the County. The Court finds Cadena’s
current incarceration and her perception of being punished as irrelevant.
b. Puebla’s Declarations
The County makes several objections to Alberto Puebla’s declaration (Doc. 70:4). First,
Puebla’s knowledge of lockdown procedure in October 2017 is irrelevant because the events in
dispute occurred in 2014. Id. Second, the comments made by Chavez to Puebla are hearsay. Id.
Finally, Puebla’s own experiences occurred in 2017 and are irrelevent to the current lawsuit. Id.
The Court overrules the County’s objections regarding Puebla’s knowledge of lockdown
procedures and Puebla’s own experiences in EPCDF. Although Puebla’s position as a trustee
took place later than the period which Cadena was detained, his knowledge is relevant because it
tends to show that nearly four years later, the alleged deficiencies still occur. See Palo v. Dallas
Cty., No. 3:05-CV-0527-D, 2007 WL 2140590, at *8 (N.D. Tex. July, 26, 2007) (finding
evidence produced years after the alleged misconduct relevant). Further, Puebla was an inmate at
EPCDF in 2014. His personal experiences during that period may cast doubt upon evidence
produced by the County.
The Court grants the County’s objection regarding Chavez’s statements to Puebla.
Chavez’s statements to Puebla are hearsay, and these statements do not fall within any hearsay
exceptions. FED. R. EVID. 801, 803(4). Chavez’s statements are excluded.

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III.

Americans with Disabilities Act (“ADA”)
Under the ADA, “no 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. The language of Title II generally tracks the language of Section 504 of the
Rehabilitation Act (“RA”); in fact, the statute specifically provides that “the remedies,
procedures and rights” available under Section 504 shall be the same as those available under
Title II. 42 U.S.C. § 12133; Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
To establish a prima facie case of discrimination under both the ADA and the RA, a
plaintiff must show “(1) that he has a qualifying disability; (2) that he is being denied the
benefits of services, programs, or activities for which the public entity is responsible, or is
otherwise discriminated against by the public entity; and (3) that such discrimination is by reason
of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). To have a qualifying
disability, a plaintiff must demonstrate “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” Id. at 499–500. This principle
has been extended to ADA claims in the prison context. McCoy v. Tex. Dep't of Criminal Justice,
No. C–05–370, 2006 WL 2331055, at *7 (S.D. Tex. Aug. 9, 2006). However, a prisoner does not
have a right “to demand that the prison implement a specific type of service, program, or activity
that is not already available or create a right for such inmate to be housed at a specific prison,
where alternate services, programs or activities might be available.” Douglas v. Gusman, 567
F.Supp.2d 877, 889 (E.D. La. 2008).

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In the current case, Cadena claims that the County failed to provide reasonable
accommodations or modifications and intentionally discriminated against her because of her
disability in violation of the ADA.
a. Failure to Provide Reasonable Accommodations or Modifications
Cadena claims the County failed to provide reasonable accommodations or modifications
by not providing her with adequate medical care and interfering with her treatments. (Doc. 1).
Specifically, the County did not provide adequate medical care when they assigned Nurse
Portillo, to perform her initial assessment, the County took away her wheelchair and gave her
crutches, and the County improperly delayed and interfered with her medical treatments. Id.
An accommodation or modification is considered reasonable if it is sufficient to provide a
disabled person “meaningful access to the benefit” offered by a public entity. See Alexander v.
Choate, 469 U.S. 287, 301 (1985). A plaintiff can satisfy the second and third prongs of the
prima facie case of disability discrimination by establishing that a public entity has failed to
make reasonable accommodations for a disabled person. Garrett v. Thaler, 560 F.App'x 375, 382
(5th Cir. 2014).
A critical component of a Title II claim for failure to accommodate is proof that the
disability and its consequential limitations were known. Jin Choi v. Univ. of Tex. Health Sci. Ctr.
at San Antonio, 633 F.App’x 214, 215 (5th Cir. 2015) (quoting Neely v. PSEG Tex., Ltd. P'ship,
735 F.3d 242, 247 (5th Cir. 2013)); Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir.
1996). Otherwise it would be impossible for the provider to ascertain whether an accommodation
is needed at all, much less identify an accommodation that would be reasonable under the
circumstances. Taylor, 93 F.3d at 164. Thus, the burden falls on the plaintiff “to specifically
identify the disability and resulting limitations,” Id. at 165, and to request an accommodation in
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“direct and specific” terms, Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001).
When a plaintiff fails to request an accommodation in this manner, he can prevail only by
showing that “the disability, resulting limitation, and necessary reasonable accommodation”
were “open, obvious, and apparent” to the entity's relevant agents. Taylor, 93 F.3d at 164.
In this case, it is not disputed that Cadena was disabled and her disability was open,
obvious, and apparent. Cadena arrived in EPCDF only one day after having surgery on her leg.
(Doc. 1). When she arrived, she was in a wheelchair and wearing a protective boot with
bandages underneath. Id. While she was in EPCDF, she repeatedly asked for a wheelchair. Id.
The issue turns on whether the County discriminated against Cadena by failing to provide
Cadena with reasonable accommodations or modifications in light of her disability. The
accommodation of Cadena’s disability need not be ideal; instead, it need only be reasonable and
effective. See Wells v. Thaler, 460 F.App’x 303, 313 (5th Cir. 2012) (holding that existing
accommodations were more than sufficient to give Plaintiff access to the library).
1. Medical Decisions
Cadena’s claims against the County regarding inadequate medical care and interference
with her medical treatment cannot constitute a violation of the ADA. The ADA is not violated by
“a prison’s simply failing to attend to the medical needs of its disabled prisoners.” Nottingham v.
Richardson, 499 F.App’x 368, 377 (5th Cir. 2012) (quoting Bryant v. Madigan, 84 F.3d 246, 249
(7th Cir. 1996)); See also Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.
2005) (indicating that the Rehabilitation Act is not intended to apply to medical treatment
decisions); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (holding that
medical decisions and medical negligence are not ordinarily within scope of ADA or RA).
Absent circumstances showing an outright denial of all medical services, mere disagreements

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with reasoned medical judgments do not state a violation of the ADA. Patterson v. Kerr Cty.,
No. SA-05-CA-0626-RF, 2007 WL 2086671, at *7 (W.D. Tex. July, 18, 2007).
There is no evidence of outright denial of all medical treatment by the County, nor is
there any indication that Cadena was treated differently because of her disability. Nurse Portillo,
Dr. Salazar, and Nurse Fuentes provided reasonable medical services to Cadena, and their
actions are not cognizable under the ADA. Once Cadena arrived in EPCDF, Nurse Portillo took
her initial assessment and contacted Dr. Salazar for further instructions. (Doc. 1). Subsequently,
Dr. Salazar ordered Norco two times a day for two weeks, follow-up with orthopedic in two
weeks, crutches, a lower bunk, wound care, and Cadena to be housed in lockdown. (P. Ex.
25A:67-68). Dr. Salazar proscribed crutches to Cadena due to discharge instructions from
Providence. (P. Ex. 1:2441). After falling in her jail cell, Nurse Fuentes provided emergency care
to Cadena before sending her to the emergency room at UMC. (P. Ex. 18:53-58).
While it is in dispute whether or not Dr. Salazar improperly delayed Cadena’s surgery,
his decisions to delay the surgery and any other subsequent medical treatments were based on his
own professional medical judgment. Thus, viewing the evidence most favorably to the Cadena,
even if Nurse Portillo was not qualified to perform the initial assessment of Cadena or that Dr.
Salazar was negligent in his treatment of Cadena, Cadena cannot recast her medical negligence
claims as ADA violations. These claims are better left to state law. See Patterson v. Kerr Cty.,
No. SA-05-CA-0626-RF, 2007 WL 2086671, at *7 (W.D. Tex. July, 18, 2007) (holding that
negligence claims against medical professionals are state law concerns and are not violations of
the ADA).
2. Food Delivery Policy
Cadena also contends that the County failed to provide reasonable accommodations or
modifications by not altering its existing food delivery policy. (Doc. 1: 48). Cadena claims that
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due to the County’s failure, she fell in her jail cell and suffered injuries to her already surgically
repaired leg. Id. Thus, the County’s food delivery policy violated its affirmative duty and
essentially denied Cadena meaningful access to her meals.
It is not in dispute that Cadena was disabled and her disability was clear and obvious.
Similar to the discussion earlier, Cadena did not have a duty to trigger reasonable
accommodations or modifications by requesting it. Even if Cadena had such a duty, Cadena
satisfied the requirement by repeatedly asking for a wheelchair.
It is, however, in dispute what EPCDF’s food delivery policy was. In its motion for
summary judgment, the County indicated that the food tray was hand delivered to Cadena, and
Officer Lopez assisted in feeding her. (Doc. 62:13). Further, it was the practice of EPCDF to go
into the lockdown cellblocks and feed the inmates personally. (D. Ex. Q 7:23-8:1) On the other
hand, in her own sworn declaration and in her deposition, Cadena indicated that the County
required Cadena to walk from her cell to the cellblock door to retrieve her food and then return to
her cell carrying both her food and her crutches. (Doc.1:28, Doc. 62:13, P. Exs. 17:33-34, 16469, 200-01, 18:43-48, 28:1). When Cadena attempted to retrieve her food with her crutches, she
slipped and fell on her right leg. (P. Ex. 28:1). Further, in the deposition of Commander Marco
Vargas, Vargas did not know if there were any written policies for feeding disabled inmates. (P.
Ex. 25:14).
Viewing the evidence in the light most favorably to Cadena, the Court finds that Cadena
has presented a genuine issue of material fact concerning whether or not the County provided
reasonable accommodations or modifications in its food delivery policy. Unlike the medical
decisions discussed earlier, the food delivery policy is not a medical decision and cannot be
protected under the ADA. According to Cadena’s version of the events, EPCDF’s food delivery

15

policy caused Cadena to fall in her jail cell, and she was subsequently denied benefits entitled to
other nondisabled inmates. Whether or not EPCDF directly delivered food to Cadena is a fact
issue for the jury to decide. Summary judgment on this claim is denied.
b. Intentional Discrimination
Cadena argues that the actions of Dr. Salazar and other County employees 3 constitute
intentional discrimination because they were deliberately indifferent in failing to provide
reasonable accommodations or modifications. (Doc. 67: 6-16). In turn, the County contends that
Cadena cannot demonstrate intentional discrimination because the actions of Dr. Salazar and
other employees are medical decisions that are not cognizable under the ADA, and Cadena
cannot show any discriminatory animus. Id. at 9-11. For Cadena to recover compensatory
damages, she must prove that the discrimination was intentional. Wells v. Thaler, 460 F. App'x
303, 311–12 (5th Cir. 2012) (citing Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.
2002)).
What constitutes intentional discrimination is undecided in the Fifth Circuit. In Perez v.
Doctors Hosp. at Renaissance, Ltd., the Fifth Circuit refused to clarify the meaning of intent
under Delano-Pyle. 624 F.App’x 180, 184 (5th Cir. 2015); See McCollum v. Livingston, no. 143253, 2017 WL 2215627, at *2 (S.D. Tex. May 19, 2017).
Other Circuits have used two approaches to define intentional discrimination. First, a
strict standard which requires the findings of discriminatory animus that shows prejudice, spite,
or ill will. Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012). Second,
under the “deliberate indifference” standard, the defendant knew that harm was substantially

3

The Court considered the County’s arguments against vicarious liability. (Doc. 70:7).The Court
would rather address the issue on the merits.
16

likely and failed to act on that likelihood. T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla.,
610 F.3d 588, 604 (11th Cir. 2010). Whatever the standard might be, Cadena has not met it.
In determining whether or not Cadena has satisfied the strict standard for intentional
discrimination, the Court agrees with the County that there is no evidence that demonstrates
prejudice, ill will, or malice, nor does Cadena present any affirmative evidence that shows
discriminatory animus towards her. Viewing the evidence in the light most favorably to Cadena,
she does not satisfy the strict standard.
Cadena has also not met the deliberate indifference standard. As discussed above, to meet
the deliberate indifference standard, Cadena must present evidence that show: (1) knowledge that
a federally protected right is substantially likely to be violated; and (2) failure to act despite that
knowledge. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 264 (3rd Cir. 2013).
Similar to Cadena’s earlier claim for failure to provide reasonable accommodations or
modifications, the first element of deliberate indifference requires the plaintiff to notify the
defendant of his or her disability. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).
The failure to notify requirement is waived if the disability is obvious. Id. In order to meet the
second element, “a failure to act must be a result of conduct that is more than negligent, and
involves an element of deliberateness.” Id.
In this case, the first element is satisfied. Cadena came to EPCDF one day after surgery.
She was in a wheelchair and wore a protective boot with bandages underneath. Cadena’s
disability was clear and obvious.
Medical decisions made by Dr. Salazar, Nurse Portillo, and Nurse Frank do not satisfy
the second element. Dr. Salazar, Nurse Portillo, and Nurse Frank provided adequate medical care
to Cadena, and they did not act with deliberate indifference. The evidence does not show any

17

deliberateness in their actions. While their actions may qualify as negligent, mere negligence is
insufficient. Duvall, 260 F.3d at 1139. Further, the decisions of Dr. Salazar, Nurse Portillo, and
Nurse Frank to give Cadena crutches, to delay her medical treatment and surgery, and to keep
her sedated in her cell are not cognizable under the ADA. Similar to the earlier discussion under
Failure to Provide Reasonable Accommodations or Modifications section, medical decisions do
not constitute violations of the ADA. Nottingham v. Richardson, 499 F.App’x 368, 377 (5th Cir.
2012) (quoting Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)).
EPCDF’s food delivery policy also does not satisfy the requirement of the second
element. While it is in dispute what the food delivery policy was at EPCDF, the evidence does
not show deliberateness. Dr. Salazar ordered Cadena crutches for her disability due to medical
instructions from Providence, and Officer Davila did not require Cadena to pick up her food
using her crutches or take away her wheelchair in order to intentionally discriminate against her
based on her disability. While the County and Officer Davila’s conduct may be negligent, mere
negligence is insufficient to satisfy this element. Duvall, 260 F.3d at 1139; Patterson v. Kerr
Cty., No. SA-05-CA-0626-RF, 2007 WL 2086671, at *7 (W.D. Tex. July, 18, 2007); Fitzgerald
v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005).
Finally, the County’s failure to comply with its affirmative obligation to provide
reasonable accommodations or modifications, by itself, cannot be found as intentional
discrimination. Falls v. Bd. of Comm’r of the New Orleans Reg’l Transit Auth., et al., NO: 162499, 2017 WL 2730781, at *5 (E.D. La. June 26, 2017). Cadena cites Bennet-Nelson v.
Louisiana Bd. of Regents, 431 F.3d 448 (5th Cir. 2005), and argues that “[w]hen a defendant
fails to meet its affirmative obligation to make reasonable accommodations, the cause of the
failure is irrelevant.” (Doc. 67:6). The Fifth Circuit has limited the holding of Bennet-Nelson to

18

an interpretation that solely concerns the Eleventh Amendment. Estate of A.R. v. Myzyka, 543
F.App’x 363, 365 n.2 (5th Cir. Oct. 16, 2013). Further, the holding of Perez contradicts Cadena’s
claim. Under Perez, the standards for intentional discrimination are not established. Perez v.
Doctors Hosp. at Renaissance, Ltd., 624 F.App’x 180, 184 (5th Cir. 2015).
IV.

Civil Rights Claims - § 1983
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
This is because “[t]he purpose of § 1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
As a pre-trial detainee, Cadena’s constitutional claims for deliberate indifference to her
serious medical needs arise under the Fourteenth Amendment. Gutierrez v. City of San Antonio,
139 F.3d 441, 452 (5th Cir. 1998). The applicable standard is the same, however, as it would be
had it arisen under the Eighth Amendment. Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir.
2001) (“This Court has recognized that there is no significant distinction between pretrial
detainees and convicted inmates concerning . . . medical care.”).
The County cannot be found liable on a theory of respondeat superior merely because it
employs a tortfeasor. Esteves v. Brock, 106 F.3d 674, 677 (5th Cir. 1997). It may, however, be
liable under § 1983 for constitutional harm caused by the execution or implementation of an
official policy, ordinance, regulation, decision officially adopted and promulgated by that body’s
policymakers, or a persistent, widespread practice of officials or employees, about which a
policymaker has actual or constructive knowledge, and which is so common and well settled as
19

to constitute a custom that fairly represents municipal policy. Monell v. Dept. of Soc. Svs. of the
City of New York, 436 U.S. 658, 690–91, 694 (1978). Allegations of isolated incidents are
generally insufficient to establish a custom or practice except where the decision maker
possesses final authority to establish municipal policy with respect to the action ordered.
Freeman v. Town of Hudson, 714 F.3d 29, 37–38 (1st Cir. 2013) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481–484 (1986)).
In addition to establishing the existence of a relevant policy or custom, Cadena must
establish that such policy or custom was the moving force behind the constitutional injury, which
requires “a direct causal connection” between the policy and the deprivation, “more than a mere
‘but for’ coupling.” Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992). The very
terms of such statute or policy, or the alleged custom, must be a proximate cause of the
constitutional violation. See Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980).
a. Classification of Cadena’s Claims
Constitutional challenges by pretrial detainees fall under two theories: “condition of
confinement” or “episodic act or omission.” Hare v. City of Corinth, Miss., 74 F.3d 633, 644–45
(5th Cir. 1996) (en banc). Under the condition of confinement theory, the “plaintiff is relieved
from the burden of demonstrating a municipal entity’s or individual jail official’s actual intent to
punish because intent may be inferred from the decision to expose a detainee to an
unconstitutional condition.” Shepard v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). A
condition is usually the result of an explicit policy or restriction e.g., the number of bunks per

20

cell, overcrowding, and telephone. Scott v. Moore, 114 F.3d 51, 53 n. 2 (5th Cir. 1997) (en
banc).4
In some cases, a condition may reflect an unstated or de facto policy, as evidenced by a
pattern of acts or omissions “sufficiently extended or pervasive, or otherwise typical of extended
or pervasive misconduct by [jail] officials, to prove an intended condition or practice.” Hare, 74
F.3d at 645. Proving a pattern is a heavy burden, one that has rarely been met. Shepard v. Dallas
Cty., 591 F.3d 445, 452 (5th Cir. 2009). Further, to constitute impermissible punishment, the
condition must be one that is “arbitrary or purposeless” or, put differently, “not reasonably
related to a legitimate goal.” Bell v. Wolfish, 441 U.S. 520, 539 (1979).
In contrast, if the alleged harm is a particular act or omission by one or more officials, the
action is an episodic act or omission case. Hare, 74 F.3d at 645. In an episodic act or omission
case, an actor usually is interposed between the detainee and the municipality, such that the
detainee complains first of a particular act or omission by the actor and then points derivatively
to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act
or omission. Scott, 115 F.3d at 54. Because the focus of the claim is one individual's misconduct,
the detainee is required to prove intent—one or more jail officials acted or failed to act with
deliberate indifference to the detainee’s needs. Hare, 74 F.3d at 648. Generally, “a pretrial
detainee’s claim of failure to provide medical care or protection from violence does not
4

Under Scott v. Moore, the following were deemed to be conditions of confinement cases:
Murphy v. Walker, 51 F.3d 714 (7th Cir. 1995) (revocation of telephone, television, and cigarette
privileges); Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315 (1st Cir. 1995)
(disciplinary segregation and denial of telephone and visitation privileges); United States v.
Millan, 4 F.3d 1038 (2d Cir. 1993) (length of pre-trial detention); Hause v. Vaught, 993 F.2d
1079 (4th Cir. 1993) (restriction on mail privileges); Brogsdale v. Barry, 926 F.2d 1184 (D.C.
Cir. 1991) (overcrowding); Lyons v. Powell, 838 F.2d 28 (1st Cir. 1988) (22-23-hour
confinement and placement of mattress on floor); Fredericks v. Huggins, 711 F.2d 31 (4th Cir.
1983) (policy of refusing detainees access to drugs for rehabilitation); Lareau v. Manson, 651
F.2d 96 (2d Cir. 1981) (overcrowding).
21

challenge a condition, practice, rule, or restriction, but rather attacks the episodic acts or
omissions of a state jail official, the question is whether that official breached his constitutional
duty to tend to the basic human needs of persons in his charge.” Id. at 645. Even If an employee
or agent of the municipality is found to be deliberately indifferent, the Court must then determine
whether the city may be held accountable for that violation. Scott, 114 F.3d at 54. In determining
whether a case falls under a theory of episodic act or omissions or conditions of confinement, the
court must determine the actual harms alleged first. Id. at 53.
In this case, because another actor is interposed between Cadena and the County,
Cadena’s claims, properly characterized, fault specific jail officials for their acts or omissions.
Cadena complains first of a particular act or omission by an actor and then points derivatively to
a policy, custom, or rule of the County that may have caused the harm. Thus, the Court will
determine if the individual acted with deliberate indifference before determining if the County
may be held liable.
b. Deliberate Indifference Standard
To demonstrate deliberate indifference, a prisoner must show that: “1) the official was
aware of facts from which an inference of substantial risk of serious harm could be drawn; 2) the
official actually drew that inference; and 3) the official’s response indicates the official
subjectively intended that harm to occur.” Thompson v. Upshur County, Tx., 245 F.3d 447, 458–
59 (5th Cir. 2001). Liability does not attach if the defendant merely should have known about a
risk but did not. Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999). Cadena
must establish actual knowledge. Shepard v. Hansford Cty., 110 F. Supp.3d 696, 709 (N.D. Tex.
2016).

22

“[D]eliberate indifference cannot be inferred merely from a negligent or even a grossly
negligent response to a substantial risk of serious harm.” Thompson, 245 F.3d at 459. Complaints
of negligence, neglect, or even medical malpractice do not give rise to constitutional claims.
Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
Nor can liability be premised on a mere disagreement with the medical care received.
Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999); Gibbs, 254 F.3d at 550. Rather, Plaintiff
must show that the officials “refused to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Thus,
“[a]s long as jail medical personnel exercise professional medical judgment, their behavior will
not violate a prisoner’s constitutional rights.” Wilkins v. Cty. of San Patricio, No. C-04-432,
2005 WL 2921648 at *6 (S.D. Tex. Nov. 4, 2005) (citing Youngberg v. Romeo, 457 U.S. 307,
322–23 (1982)). Additionally, the mere existence of continuing pain does not, in and of itself,
demonstrate deliberate indifference. Ruiz v. Mercado, No. M-14-921, 2016 WL 1166040 at *8
(S.D. Tex. 2016) (citing Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) (complaints of pain
and discomfort from alleged inattention and misdiagnosis of injury failed to establish deliberate
indifference)). Thus, deliberate indifference, especially in a medical context, is an extremely
difficult standard to meet. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
c. LVNs
Cadena contends that the County was deliberately indifferent and did not have a
legitimate government interest by assigning LVNs to perform intakes. First, Cadena’s claim
against the County must be categorized as an episodic act or omission case. The actual harm in
this case is not the County’s policy of assigning LVNs to perform intakes at EPCDF, but the
23

actions of Nurse Portillo examining Cadena and taking away her wheelchair. Cadena does not
connect the actions of Nurse Portillo to her status as a LVN. See Scott v. Moore, 114 F.3d 51, 53
(5th Cir. 1997) (en banc) (“Although, in her amended state petition, Scott complains generally of
inadequate staffing, i.e., ‘by having only one individual on duty, and/or by not having a female
member present when female prisoners are confined,’ the actual harm of which she complains is
the sexual assaults committed by Moore during the one eight-hour shift-an episodic event
perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted
by the aforesaid general conditions.”).
Nurse Portillo did not act with deliberate indifference. Cadena cannot establish that the
Nurse Portillo actually knew of and disregarded an excessive risk to her health. Cadena must
show actual knowledge. Shepard v. Hansford Cty., 110 F. Supp.3d 696, 709 (N.D. Tex. 2016).
Further, Nurse Portillo’s initial assessment of Cadena qualifies as medical judgment. “Medical
decisions that may be characterized as ‘classic example[s] of matter[s] for medical judgment,’
such as whether one course of treatment is preferable to another, are beyond the [Constitution’s]
purview. Such matters are questions of tort, not constitutional law.” Snipes v. Detella, 95 F.3d
586, 590–91 (7th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 107 (1976)). Without
wanton disregard to Cadena’s medical needs, Nurse Portillo did not act with deliberate
indifference. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Thus, even assuming that
Nurse Portillo was not qualified to perform intakes, Cadena still fails to satisfy the deliberate
indifference standard, because Nurse Portillo’s acts of medical negligence are insufficient.
Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
In support of her argument, Cadena offers Dr. Salazar’s deposition to support her
assertion that LVNs are not qualified to perform assessments, but the County still assigned

24

LVNS to perform such duties, knowing that it posed a serious risk of harm. (P. Ex. 25A: 63–64).
During Dr. Salazar’s deposition, he indicated that LVNs are not qualified to provide assessments,
but Dr. Salazar referenced the nursing board as the ultimate authority regarding any job
limitations. Id. Cadena has not offered into evidence the standards as set forth by the nursing
board, nor has she offered any other evidence to support her claim that LVNs are not qualified to
perform the inmate assessment outside of Dr. Salazar’s statements. In contrast, the County offers
the expert report of Dr. Robert Jones to establish that, under the Texas Nurse Practice Act, there
was nothing to prohibit the LVNs to perform the intake, and that they are qualified to provide the
care rendered to Cadena. (D. Ex. G: 8822). Viewing the evidence in the light most favorable to
Cadena, Cadena’s evidence is insufficient for a rational fact finder to conclude that the County
was deliberately indifferent.
d. Medical Decisions by Dr. Salazar
Cadena further contends that the County was deliberately indifferent and did not have a
legitimate government interest by leaving medical decisions to Dr. Salazar. Similar to the
discussion above, Cadena’s claim against the County must be recast as a case that falls under the
theory of episodic act or omission. The actual harms alleged are: (1) Dr. Salazar’s decision to
take away Cadena’s wheelchair; (2) Dr. Salazar denying Cadena pain medication; and (3) Dr.
Salazar’s interference with Cadena’s medical treatment. Dr. Salazar and his actions are
interposed between Cadena and the County. Even if Dr. Salazar was found to be deliberately
indifferent, his decision must be then be attached to an official policy or custom of the County.
Cadena alleges that Dr. Salazar took away her wheelchair knowing that it posed a
substantial risk of serious harm and interfered with her doctor’s instructions. (Docs. 1:33).
Cadena’s discharge instructions from Providence stated that she should “use crutches as
25

directed.” (P. Ex. 1:2441). The same instructions also state “Discharge Activity: Progressive
Ambulation, Up with assistive device.” (P. Ex. 1:2428). Based on these instructions, Dr. Salazar
proscribed Cadena with crutches. Viewing the evidence in the light most favorable to Cadena,
Dr. Salazar’s action do not satisfy the deliberate indifference standard. Dr. Salazar was not aware
of a risk for serious harm, did not take away Cadena’s wheelchair with any intent to harm, and
did not interfere with Cadena’s treatment by taking away the wheelchair. While the doctor from
Providence did provide Cadena with only a wheelchair, the instructions provided by Cadena’s
doctor is clear. Even if it should have been clear that Cadena could only use a wheelchair,
medical malpractice does not give rise to constitutional claims. Fielder v. Bosshard, 590 F.2d
105, 107 (5th Cir. 1979). Instead, Cadena must show that Dr. Salazar intentionally mistreated her
or mistreated her with wanton disregard, and she has failed to do so. Merely should have known
is insufficient under the deliberate indifference standard. Olabisiomotosho v. City of Houston,
185 F.3d 521, 528 (5th Cir. 1999). Cadena must show Dr. Salazar had actual knowledge.
Shepard v. Hansford Cty., 110 F. Supp.3d 696, 709 (N.D. Tex. 2016).
Further, a prisoner’s disagreement with the doctor’s medical decisions, absent
exceptional circumstances, does not constitute deliberate indifference. See Gobert, 463 F.3d at
346. Likewise, the denial of a physician or treatment of the inmate’s choice is insufficient as a
matter of law to support a deliberate indifference claim. See Hunt v. Barry Telford Unit, No.
5:15cv152, 2017 WL 1100721, at *4–5 (E.D. Tex. Mar. 24, 2017) (failure to summon inmate’s
preferred specialist and to perform inmate’s preferred test and procedures do not amount to cruel
and unusual punishment). Thus, Cadena’s disagreement with Dr. Salazar’s choice of providing
her with crutches is insufficient to satisfy the deliberate indifference standard.

26

Cadena claims Dr. Salazar acted with deliberate indifference by delaying or denying her
pain medication after her fall on June 25, 2014. After Cadena had fallen in her jail cell, Nurse
Fuentes provided her with emergency care, evaluated the injury, and made several calls to Dr.
Salazar. (P. Ex. 18:53-58). After some time, Cadena was transported to UMC. (P. Ex. 18:59).
When Cadena returned from UMC, Dr. Salazar issued an order that stated “No meds ordered at
this time” (P. Ex. 25B). Dr. Salazar testified that the order was for no new medicine to be
administered, and this order did not revoke the previous order for Norco. (P. Ex. 25A:100-101).
Cadena disputes this interpretation of Dr. Salazar’s order with nothing but her own logic and Dr.
Salazar’s unclear handwriting. Even if the order stated “No meds at floor time,” Cadena has
failed to produce evidence that shows the change from “this time” to “floor time” effectively
revoked all pain medication given to her. In Cadena’s own deposition, Cadena admits that she
continued to receive Norco after her fall on June 25, and she may have also received Colace and
Dulcolax. (P. Ex. 17:56-58). Further, on June 27, 2014, Dr. Salazar ordered an increase in the
amount of Norco given to Cadena. (P. Exs. 25A:122, 25B: Dep. Exs. 7:159, 8:22).
Viewing the evidence in the light most favorable to Cadena, Cadena has not offered
evidence from which a reasonable trier of fact could infer that Dr. Salazar was aware that serious
harm could occur if he did not give Cadena any additional pain medication, nor could a
reasonable trier of fact find that Dr. Salazar intentionally denied Cadena new pain medication
intending for harm to occur. In fact, Dr. Salazar did not deny Cadena any pain medication and
actually increased the amount pain medication given to her. Further, as discussed previously, the
mere existence of continuing pain does not, in and of itself, demonstrate deliberate indifference.
Ruiz v. Mercado, No. M-14-921, 2016 WL 1166040 at *8 (S.D. Tex. 2016) (citing Mayweather
v. Foti, 958 F.2d 91, 91 (5th Cir. 1992). Even assuming Dr. Salazar should have proscribed

27

Cadena more medication, Dr. Salazar cannot be found liable by merely exercising his
professional judgment. Cadena’s disagreement with Dr. Salazar’s medical decision does not
amount to deliberate indifference unless Cadena shows it was made with wanton disregard.
Cadena also claims that the County was deliberately indifferent and did not have a
legitimate government interest by failing to provide her with prompt, adequate medical care.
(Doc. 1:35). In Cadena’s response to the County’s motion for summary judgment (Doc. 67:2122) and in her complaint (Doc. 1:35), Cadena claims that Dr. Salazar knew that she had a serious
need for surgery, but Dr. Salazar denied and delayed scheduling her follow-up appointment and
surgery, knowing that it posed a substantial risk of serious harm.
Dr. Salazar did not act with deliberate indifference in delaying Cadena’s follow-up
appointment and surgery. In order to establish a constitutional claim for medical delay, Cadena
must show that Dr. Salazar acted with deliberate indifference and substantial harmed occurred as
a result. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Cadena fails to do so.
Cadena fell in her jail cell on June 25, 2014, and was taken to the emergency room at
UMC. On July 14, 2014, Cadena was taken to the Texas Tech Orthopedics Clinic for further
evaluations by Dr. Abdelgawad. (D. Ex. 4:4232). Afterwards, a revision surgery was scheduled
for July 18, 2014. (P. Ex. 25A:144). On July 17, 2014, Dr. Salazar rescheduled Cadena’s surgery
so she could attend a court setting. (P. Ex. 15). Cadena’s surgery finally occurred on July 22,
2014. (P. Ex. 3:7327). Although Dr. Salazar did not follow UMC discharge recommendation of
following up the next day, Dr. Salazar considered such recommendation and exercised his own
professional medical judgment in determining to accept an appointment with Dr. Abdelgawad
for July 14, and to later delay the scheduled surgery until July 22. See Fuller v. Harris County
Sheriff Dept., 2007 WL 1672100 at *4 (S.D. Tex. June 8, 2007) (“a medical care provider’s

28

failure or refusal to follow another medical care provider’s treatment recommendations does not,
standing alone, constitute an Eighth Amendment violation.”).
Viewing the evidence in the light most favorable to Cadena, no reasonable trier of fact
could infer that Dr. Salazar acted with deliberate indifference, nor could a reasonable trier of fact
find that Dr. Salazar acted pursuant to County policy. Dr. Salazar and the County were attentive
to Cadena’s medical needs. Cadena was provided emergency care, pain medication, and wound
care. Cadena was proscribed a lower bunk bed and was isolated from the general population for
her own safety. Further, Dr. Salazar made the decision to delay Cadena’s appointment and
surgery according to his own professional medical judgment, and Cadena’s disagreement with
Dr. Salazar’s decisions is insufficient for a constitutional claim. Stewart v. Murphy, 174 F.3d
530, 535 (5th Cir. 1999). In order to prevail, Cadena must show Dr. Salazar engaged in a wanton
disregard for her medical needs, and she has failed to do so. Johnson v. Treen, 759 F.2d 1236,
1238 (5th Cir. 1985).
Finally, Cadena contends that the County was deliberately indifferent to her serious
medical needs by delaying her follow-up appointment and surgery based on the consideration of
non-medical factors, such as preferred providers, cost, and anticipated release. First, Dr. Salazar
did not act with deliberate indifference, and he gave Cadena adequate medical care. Cadena was
given wound care for her broken leg, she was sent to the emergency room after her fall, she was
given pain medication, and her surgery was approved. Cadena does not get to pick and choose
her medical services. Cadena’s disagreement with the Dr. Salazar’s medical decisions, absent
exceptional circumstances, does not constitute deliberate indifference. See Gobert, 463 F.3d at
346. Further, even if Dr. Salazar was deliberately indifferent, Cadena has failed to provide
evidence that links the actions of Dr. Salazar pursuant to County policy.

29

e. Food Delivery Policy
Cadena alleges that the County, through Dr. Salazar and Corizon staff, knew that she
could not use crutches. (Doc. 1:33). Despite such knowledge, the County and Dr. Salazar failed
to advise the jail staff to move her to another cellblock where she could eat in a dayroom, and did
so with deliberate indifference, resulting in her falling and suffering severe pain and injury. Id.
Cadena produced evidence that indicated Corizon staff were aware of her difficulty using
crutches. Cadena’s evidence also shows that after her visit to the medical clinic on June 25th, and
before she fell in her cell, an order was entered that she “May keep wheelchair.” (P. Exs.
25A:77; 25B:Dep. Ex. 8: 22). Pursuant to that order, instructions were given to the detention
officers that read: “Doctor recommends that inmate keep wheelchair and is placed on a lower
bunk.” (P. Exs.25A:77-78, 25B:). According to Cadena, however, she did not have her
wheelchair when she fell in her cell.
Viewing the evidence in the light most favorable to Cadena, Cadena’s evidence is
insufficient to support a finding of deliberate indifference. Cadena does not produce any
evidence that Officer Davila required her to pick up her food with her crutches in order to
intentionally harm her. While Officer Davila’s conduct may be negligent, mere negligence is
insufficient to satisfy this element. In order for Cadena to prevail on this issue, she must show
that Officer Davila had actual knowledge. Shepard v. Hansford Cty., 110 F. Supp.3d 696, 709
(N.D. Tex. 2016). Liability does not attach if the defendant merely should have known about a
risk but did not. Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999). Because
Officer Davila did not act with deliberate indifference, it is irrelevant to find if his actions were
pursuant to County policy.

30

f. Failure to Train
In Cadena’s complaint, she argues that the County failed to train its staff regarding the
needs of mobility-disabled prisoners who use mobility aids and failed to train its staff to keep
accurate records of mobility and special accessibility considerations for each prisoner booked
into EPCDF. (Doc. 1: 36). The County, in its motion for summary judgment, claims there was no
link between its policies and the violation of Cadena’s rights, nor do the actions of the County
and its staff amount to deliberate indifference. (Doc. 62:17). Cadena does not respond to the
County’s argument. (Doc. 67).
“In resolving the issue of a city's liability, the focus must be on adequacy of the training
program in relation to the tasks the particular officers must perform.” City of Canton v. Harris,
489 U.S. at 390, 109 S.Ct. 1197. A plaintiff must show that (1) the municipality's training policy
or procedure was inadequate; (2) the inadequate training policy was a “moving force” in causing
violation of the plaintiff's rights; and (3) the municipality was deliberately indifferent in adopting
its training policy. Valle v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010). It is not enough to
show “that an otherwise sound program has occasionally been negligently administered” or to
prove that an injury “could have been avoided if an [employee] had had better or more training.”
Harris, 489 U.S. at 391.
Cadena has not offered evidence regarding what training was inadequate, she has not
offered evidence that shows a pattern of constitutional violations similar to her alleged violation,
and she has not offered evidence that the County had notice of such pattern. While one jail staff
member may be negligent in his or her duties, there is no evidence that connects this negligent
behavior to the County, nor is there evidence that these alleged incidents were not isolated
occurrences. Cadena cannot show that the County’s training policy, or the lack of one, was the
moving force behind her claims. Viewing the evidence in the light most favorable to Cadena, the
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Court does not find any evidence that indicate the County was deliberately indifferent in failing
to train its staff. The County is entitled to summary judgment on these claims.
g. First Amendment
In Cadena’s complaint, she alleges that the County violated her First Amendment rights
by not mailing her letter to the Inspector General and by denying her a handbook on jail
grievance procedures. (Doc. 1: 37). The County argues that Cadena fails to show a County policy
or regulation that is the moving force behind an employee’s alleged failure to send her letter, and
Cadena does not have a constitutional right to a handbook. (Doc. 62: 18-19). Cadena does not
respond to County’s argument. (Doc. 67).
“A prison inmate is entitled to [her] First Amendment right to freedom of expression so
long as it is not inconsistent with [her] status as a prisoner and does not adversely affect a
legitimate state interest.” Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989). Thus, such rights
may be limited for valid penological objectives, “including deterrence of crime, rehabilitation of
prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).
Further, "before a prisoner may prevail on a claim that his constitutional right of access to the
courts was violated, he must demonstrate 'that his position as a litigant was prejudiced by his
denial of access to the courts.'" McDonald v. Steward, 132 F.3d 225, 230–31 (5th Cir. 1998)
(citation omitted). Finally, a delay in a prisoner’s mail may be actionable under § 1983 if the
delay was intentional and the delay prejudiced the prisoner legally. Richardson v. McDonnell,
841 F.2d 120, 122 (5th Cir. 1988). An isolated incident without any harm does not give rise to a
constitutional violation. Id. Cadena’s mail to the Inspector General regarding her grievances
against EPCDF should be categorized as legal mail. See Berenguel v. Bell, 283 F. App’x 293,
296 (5th Cir. 2008) (indicating that letters to prison grievance officials should be categorized as
legal mail).
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Cadena’s position as a litigant was not prejudiced. Not mailing her letter has not damaged
her lawsuit in any shape or form. Further, Cadena has not shown that the action of a single
employee was intentional, has not shown that an official policy caused the alleged violation, and
has not produced any evidence that the alleged violation was widespread. The failure to mail her
letter to the Inspector General was an isolated incident that did not harm Cadena in any way.
Cadena’s constitutional rights were not violated when EPCDF failed to give her a
personal grievance handbook. The majority of case law, regarding failure to give out handbooks,
illustrates prisoners’ failure to exhaust their administrative remedies because they were not given
a handbook. See e.g., Legget v. Lafayette, 608 F.App’x 187, 191 (5th Cir. 2015); Davis v.
Fernandez 798 F.3d 290, 295 (5th Cir. 2015). The case law in those situations determines
whether or not an inmate had a fair opportunity—if the inmate was not given a handbook—to
discover what the jail’s grievance procedures were. Davis, 798 F.3d at 295–96. If an inmate had
a fair opportunity despite not receiving an handbook, his § 1983 claims are barred by his failure
to exhaust his administrative remedies. Id. If an inmate did not have a fair opportunity, that
inmate was not required to exhaust his administrative remedies. Id. at 296. Cadena suffered no
harm here because she had access to a law library and some form of a handbook from that
library. (D. Ex. C:107). This handbook, at the very least, provided her with the information to
send her letter to the Inspector General. Id. Even if Cadena did not have access to a handbook or
if the law library was insufficient, her § 1983 claim is still unaffected. Further, simply not giving
her a handbook, by itself, is not a valid constitutional claim. Standing alone, there is no inherent
constitutional right to effective grievance procedures. See Labit v. Landry, No. 6:11–cv–0574,
2012 WL 1458108 *9 (W.D. La. Mar. 27, 2012). “A prison official's failure to comply with a
state administrative grievance procedure is not actionable under § 1983 because a state

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administrative grievance procedure does not confer any substantive constitutional right upon
prison inmate.” Brown v. LeBlanc, No. 09–1477–P, 2013 WL 1947180 * 5 (W.D. La. Mar. 27,
2013). Finally, this Court agrees with the County that even if Cadena had a constitutional right
for a handbook, Cadena cannot show that any County policy was the moving force behind the
alleged failure to provide Cadena with a handbook.
V.

Punitive Damages
In Cadena’s complaint and in her response to County’s motion for summary judgment,

Cadena argues she is entitled to economic damages, noneconomic damages, attorney’s fees,
costs, and punitive damages. (Doc. 1: 38, Doc. 67:27). As a matter of Law, punitive damages are
not recoverable under the under § 202 of the ADA and § 504 of the RA. Barnes v. Gorman, 536
U.S. 181, 190 (2002); Edler v. Hockley Cty. Com’rs Court, 589 F.App’x 664, 671 (5th Cir.
2014). Similarly, Cadena’s punitive damage claim based upon § 1983 must also be denied. See,
e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Therefore, the claims for
punitive damages asserted by Cadena are dismissed.
VI.

Causation
In its motion for summary judgment, the County presents evidence that Cadena’s fall in

EPCDF did not cause Cadena’s injuries. (Doc. 62: 2). The County points to the opinion of two
experts, Dr. Small and Dr. Jones, who both indicated that the treatment provided to Cadena for
her first surgery—outside of EPCDF—caused the necessity for the second surgery. (D. Ex. G;
8821, 8836). Because Cadena failed to show intentional discrimination under the ADA and
because the Court granted the County’s motion for summary judgment on Cadena’s 1983 claims,
the County’s causation claim is moot.

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CONCLUSION
For all the foregoing reasons, it is the RECOMMENDATION of this Court that the County’s
motion for summary judgment (Doc. 62) be GRANTED in part and DENIED in part.

SIGNED this 12th day of February, 2018.

ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN 14 (FOURTEEN) DAYS AFTER BEING SERVED WITH A COPY OF
THIS REPORT, SHALL BAR YOU, EXCEPT UPON GROUNDS OF PLAIN ERROR, FROM
ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS
AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE. FED. R. CIV. P.
72 (EFFECTIVE DEC. 1, 2009).

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