Alvarez v. The Geo Group, Inc. et al

Filing 26

REPORT AND RECOMMENDATIONS recommending to GRANT 7 Motion to Dismiss, recommending to GRANT 19 Motion to Dismiss, recommending to GRANT 8 Motion to Dismiss, recommending to DISMISS 1 Complaint filed by Maria Del Consuelo Alvarez, recommending to GRANT 11 Motion to Dismiss. Signed by Judge Nancy Stein Nowak. (mailed on 3/1/10, by certified mail or forwarded electronically)(rf)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION

M A R I A DEL CONSUELO ALVAREZ,

§ § P la in tif f, § v. § § T H E GEO GROUP, INC.; § V A L VERDE COUNTY; § D ' W A Y N E JERNIGAN, Former Sheriff of § V a l Verde County, in his Official Capacity; § A s s i s t a n t Warden Mark SCOTT, in his § O f f ic ia l and Individual Capacities; § O f f ic e r FNU BENAVIDES, in his/her § E m p l o y e e and Individual Capacities; § O f f ic e r FNU GARCIA, in his/her § E m p l o y e e and Individual Capacities; § O f f ic e r FNU GUZMAN, in his/her § E m p l o y e e and Individual Capacities; § O f f ic e r FNU HERNANDEZ, in his/her § E m p l o y e e and Individual Capacities; § O f f ic e r FNU MALDONADO, in his/her § E m p l o y e e and Individual Capacities; § C a p t a i n LUCIANO REYES, in his § E m p l o y e e and Individual Capacities; § O f f ic e r FNU SALDUVAS, in his/her § E m p l o y e e and Individual Capacities; § U N K N O W N SECURITY GUARDS, in his/ § h e r Employee and Individual Capacities; § § D e f e n d a n ts . §

C I V I L ACTION NO. S A -0 9 -C V -0 2 9 9 OG (NN)

R E P O R T AND RECOMMENDATION TO: H o n . Orlando Garcia U n ite d States District Judge T h is report and recommendation addresses four pending motions to dismiss and a motion to amend. I have authority to enter this report and recommendation under 28 U.S.C. § 636(b) and

t h e district judge's order of referral.1 N a t u r e of the Case. This case presents claims for the violation of civil rights and for s ta te law torts. At the time of her factual allegations, plaintiff Maria del Consuelo Alvarez was a fe d e r a l prisoner 2 detained at a Texas county jail--the Val Verde Correctional Facility and County J a il (the jail). The jail is operated by a private contractor--defendant The GEO Group, In c . -- u n d e r a contract with defendant Val Verde County, Texas (the County). The jail houses n o t only state prisoners, but also federal prisoners pursuant to an intergovernmental service a gre e m e n t between the County and the U.S. Marshals Service. In addition to naming as d e fe n d an ts The GEO Group and the County, Alvarez named the former County sheriff D'Wayne J e rn i ga n , Assistant Warden Mark Scott and several employees of The GEO Group who work as d e t e n t io n guards. A l v a re z alleges that she was severely injured while confined at the jail when without w a rn in g a defective steel door slammed closed and latched shut on her right hand. The blow s e v e r e d Alvarez's middle finger and nearly severed two other fingers. Alvarez alleges that d e s p ite cries for help from other inmates, detention guards took no action to release her from the d o o r . Once released, Alvarez alleges that she was not taken to on-site medical personnel for at le a s t 45 minutes and that she was not transported to the local hospital for another 65 minutes, d u rin g which time she was ridiculed and insulted by detention guards. Medical personnel at the lo c a l hospital reattached two of Alvarez's fingers, but the third finger could not be reattached. Alvarez alleges that in the weeks after the incident, detention guards ridiculed, laughed at, cursed,

1

Docket entry # 20. See Cause No. 2:05-CR-703-AML (2).

2

2

a n d insulted her about her mangled hand. T h e GEO Group, Warden Scott, the County and former sheriff Jernigan filed similar m o t io n s to dismiss under Rule 12(b)(6).3 A defendant in a civil action may move to dismiss u n d e r Rule 12(b)(6) for "failure to state a claim upon which relief may be granted." 4 T o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough fa c ts to state a claim to relief that is plausible on its face." "Factual allegations m u s t be enough to raise a right to relief above the speculative level, on the a s s u m p t io n that all the allegations in the complaint are true (even if doubtful in fa c t ) . " 5 A lv a r e z responded to two of the motions, in part, by asking for leave to file an amended co m p laint.6 T h e defendants styled their motions as motions to dismiss, but the motions relied on d o c u m e n t a tio n outside the pleadings, requiring consideration under Rule 56 of the Federal Rules o f Civil Procedure.7 After reviewing the motions, I determined that the district court needed a d d itio n a l briefing and documentation.8 The additional briefing addresses the nature of the C o u n t y's contract with The GEO Group and arrangements for confinement of federal prisoners. W i th the briefing complete, the motions are ripe for resolution. Because of the similarity
3

Fed. R. Civ. P. 12(b)(6). Id.

4

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic C o r p . v. Twombly, 127 S. Ct. 1955, 1974 (2007)).
6

5

Docket entry #s 14 & 15.

See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings a r e presented to and not excluded by the court, the motion must be treated as one for summary ju d gm e n t under Rule 56. All parties must be given a reasonable opportunity to present all the m a t e r i a l that is pertinent to the motion.").
8

7

Docket entry # 21.

3

o f the motions to dismiss, this report addresses the parties' arguments by defendant or claim as a p p lic a b le . Where documentary evidence is needed to resolve the motions, I treated the motions a s motions for summary judgment. S e c tio n 1983 claims against The GEO Group. The GEO Group maintains that it cannot b e sued under section 1983 because it acted under color of federal law rather than under color of s ta te law as required for a section 1983 claim. The GEO Group contends it acted under color of fe d e r a l law because Alvarez was a federal prisoner.9 T h e County contracted with The GEO Group to perform a function traditionally the e x c lu s iv e providence of the state--confinement of prisoners 10-- s p e c ific a lly, for the operation of th e jail.11 The County then entered into an agreement with the U.S. Marshals Service for the c u s t o d y, care, safekeeping and medical care of federal prisoners.12 As a prisoner, Alvarez was a

9

Docket entry # 7, p. 1.

See Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (Under the S u p r e m e Court's "public function" test, a private entity acts under color of state law "when that e n t it y performs a function which is traditionally the exclusive province of the state."). See docket entry # 22, Attachments 2-4, contracts between Wackenhut Corrections Corporation a n d its successor The GEO Group, and the County. See id., Attachment 1, Intergovernmental Service Agreement, between United States Marshals S e r v i c e and Val Verde Detention Center, which provides at Article I (page 2): T h e Local Government agrees to accept and provide for the secure c u s t o d y, care and safekeeping of federal prisoners in accordance with s t a t e and local laws, standards, policies, procedures, or court orders a p p lic a b le to the operations of the facility. W ith respect to Medical Services, Article III of the Agreement provides: T h e Local Government agrees to provide federal prisoners with the s a m e level of medical care and services provided to local prisoners.
12 11

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t h i r d - p a r ty beneficiary of both sets of contracts. The County's agreement with the U.S. Marshals S e rv ic e did not change the character of The GEO Group's function. Because The GEO Group a c t e d pursuant to its contract with the County, it acted in performance of a function traditionally th e exclusive province of the state,13 and thus acted as a state actor. Although no case law a d d r e s s e s the precise issue in this case, the Fifth Circuit has determined that "private p r is o n -m a n a g em e n t corporations [like The GEO Group] and their employees may be sued under § 1983 by a prisoner who has suffered a constitutional injury." 14 T h e GEO Group's reliance on the Supreme Court's decision in Corrections Services C o r p o r a tio n v. Malesko15 is misplaced. Plaintiff Malesko was a federal prisoner who sued a p r iv a t e halfway house and an individual employee of the halfway house after the employee re q u ire d that plaintiff use the stairs and refused to allow him to use the elevator which he had o th e rw i s e been authorized to use because of his heart condition. Plaintiff Malesko suffered a h e a rt attack, fell, and injured his head as a result. The Supreme Court declined to extend Bivens v . Six Unknown Federal Narcotics Agents 16 to support a claim against the private corporate e n tity. Malesko teaches that Bivens does not provide a remedy against The Geo Group. But A lv a r e z does not plead a Bivens claim against The Geo Group. Unlike Alvarez, Malesko was confined at a facility run by a prison management company

Rosborough, 350 F.3d at 461 (stating that "confinement of wrongdoers--though sometimes d e l e g a t e d to private entities--is a fundamentally governmental function").
14

13

Rosborough, 350 F.3d at 461. 534 U.S. 61 (2001). 403 U.S. 388 (1971).

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u n d e r contract with the federal government. Unlike the prison management contractor sued in M a l e s k o , The GEO Group confined federal prisoners under its contract with the County, not u n d er a contract with the federal government. Alvarez's federal criminal judgment did not c h a n ge the character of The GEO Group's function or its action. The GEO Group characterizes its role as part of a three-way relationship between The GEO Group, the U.S. Marshals Service, a n d the County,17 but the documents authorizing The GEO Group to operate the jail reflect no r e l a t io n s h i p between The GEO Group and the U.S. Marshals Service. The contractual documents s h o w that The GEO Group operates the jail because the County as a state entity--not a federal e n t ity-- a u t h o riz e d it to operate the jail. The GEO Group has not shown that Alvarez's status as a fe d e r a l prisoner insulates it from liability under section 1983 as a state actor so as to be entitled to d is m is s a l or summary judgment on this claim. T h e GEO Group also contends Alvarez's section 1983 claim fails because she did not a lle ge that an official policy was the moving force in the violation of a constitutional right.18 In re s p o n se , Alvarez asked to amend her complaint. "Rule 15(a) evinces a bias in favor of granting le a v e to amend, when justice so requires." 19 "The court should . . . give the plaintiff an o p p o r tu n i ty to amend [her] complaint, rather than dismiss it, if it appears that a more carefully d r a ft e d complaint might state a claim upon which relief could be granted." 20 To the extent a p l e a d i n g deficiency exists, Alvarez can correct the deficiency by amending her complaint. Once

17

Docket entry # 22, p. 4. Id., p. 2-3. Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). Fuller v. Rich, 925 F. Supp. 459, 461 (N.D. Tex. 1995).

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19

20

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th e district court resolves the motions to dismiss, I recommend that Alvarez be given the o p p o r tu n i ty to amend her complaint to cure pleading deficiencies. The GEO Group's motion to d is m i s s Alvarez's section 1983 claim should be denied. S e c t i o n 1983 claims against the County. The County makes the same essential a rgu m e n ts as The GEO Group about why Alvarez's section 1983 claims should be dismissed. The County's argument that Alvarez was a federal rather than a state prisoner fails because it fo c u s e s on Alvarez rather than the County as the named defendant.21 The contracts between The G E O Group and the County show that the County acted in performance of a function traditionally th e exclusive province of the state by contracting with The GEO Group to confine prisoners. The d o c u m e n ts show that the County retained control over various aspects of the jail's management. The County's argument about pleading deficiencies fails because Rule 15(a) favors amending o v e r dismissal and because pleading deficiencies can be addressed by an amended complaint. The County's argument that Alvarez's claim for liability for verbal and mental abuse should be d i s m is s e d 22 fails because it ignores Alvarez's physical injury.23 The County's motion to dismiss A l v a re z 's section 1983 claim should be denied. T o r t claims against The GEO Group. Relying on Alvarez's characterization of The

Henderson v. Thrower, 497 F.2d 125, 126 (5 th Cir. 1974) (court held that federal prisoner housed in city jail had 1983 claim for denial of medical care, focusing on defendant's control over conditions a n d jail operations, and not on status of plaintiff as a federal prisoner).
22

21

Docket entry # 11, p. 5.

See 42 U.S.C. § 1997e (e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody w i th o u t a prior showing of physical injury.").

23

7

G E O Group as the County's agent,24 The GEO Group argued that governmental immunity shields it from Alvarez's tort claims.25 The GEO Group relied on Texas case law determining that the S a n Antonio Water System, as an agent of the City of San Antonio, was entitled to governmental im m u n ity under the Texas Tort Claims Act.26 In response, Alvarez described the characterization in her complaint of The GEO Group as the County's agent as poorly worded and asserts that the c o m p l a in t read as a whole does not portray The GEO Group as an employee or a political s u b d i v i s i o n . 27 G o v e rn m e n ta l immunity is an affirmative defense. The defendant asserting an affirmative d e fe n s e bears the burden of establishing his defense. A plaintiff's factual allegations are in s u ffic ie n t to prove that a contractor is a government agent entitled to the defense of go v e rn m e n ta l immunity.28 To the extent that Alvarez unintentionally characterized The GEO G r o u p as a state agent, the deficiency can be corrected with an amended complaint. The GEO G r o u p 's motion to dismiss Alvarez's tort claims based on governmental immunity should be

24

See docket entry # 1, ¶ 8. Docket entry # 7, pp. 3-4.

25

See Zacharie v. City of San Antonio by & through San Antonio Water Sys. Bd. of Trustees, 952 S . W .2 d 56, 58 (Tex. App.--San Antonio 1997, no writ) (explaining that because Texas law gives a city the power to create a board to manage and control the city water system, a board created p u r s u a n t to that authority is agent of that city).
27

26

Docket entry # 14, p. 8.

See Loyd v. ECO Resources, 956 S.W.2d 110, 130 (Tex. App.--Houston [14 Dist.] 1997, no p e t .) (rejecting government contractor's claim that it was entitled to governmental immunity because th e contractor failed to submit documentary evidence negating its status as an independent c o n t ra c t o r ); Zuniga v. Navarro & Associates, 158 S.W.3d 663, 672 (Tex. App.--Corpus Christi 2 0 0 5 , writ denied) (determining that law firm did not prove on summary judgment that it was an a g e n t of a governmental entity and thus entitled to governmental immunity).

28

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d e n ie d . T o r t claims against the County. The County asked for dismissal of Alvarez's i n t e n t io n a l tort claims on grounds of governmental immunity.29 "A Texas governmental unit is ge n e ra lly immune from tort liability unless the legislature has waived immunity." 30 To the extent th a t Alvarez seeks to sue the County for an intentional tort,31 the County is immune from such c l a i m s because Texas has not waived its sovereign immunity for intentional torts.32 Alvarez's in te n tio n a l tort claims against the County should be dismissed. T h e County also maintains that it is immune from Alvarez's negligence claim because A lv a r e z 's allegations do not relate to the use of tangible property.33 The Texas Tort Claims Act w a i v e s governmental immunity for injury caused by a use of tangible personal property.34 This w a i v e r applies only when the governmental unit itself uses the tangible property.35 As tangible p ro p e rty, Alvarez identified a defective door--specifically, the door to cell number 112. The

29

Docket entry # 11, p. 2. Forgan v. Howard County, Tex., 494 F.3d 518, 520 (5th Cir. 2007).

30

Alvarez's complaint sues the individually named defendants for assault and all defendants for in t e n t io n a l infliction of emotional distress. See Tex. Dep't of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (explaining that the T e x a s Tort Claims Act specifically excludes waiver for intentional torts).
33 32

31

Docket entry # 11, p. 2.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005) ("A governmental unit in the state i s liable for . . . personal injury . . . caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas l a w ." ) .
35

34

San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004).

9

C o u n t y argued that it is immune because Alvarez, not the County, used the door.36 Under state la w , "use" means "to put or bring into action or service; to employ for or apply to a given p u rp o s e ." 37 "A governmental unit does not `use' personal property merely by allowing someone e ls e to use it and nothing more." 38 In this case, Alvarez has pleaded more. A l v a re z alleged that defendant detention guards ordered her to close the cell door by re m o v in g a book used to prop the door open.39 The County did not merely allow Alvarez to use th e door.40 Instead, the County employed the door for the purpose of confining Alvarez pursuant t o its contract with The GEO Group to operate the jail and its agreement with the U.S. Marshal to h o u se federal prisoners. Alvarez did not employ the door for her own use. Alvarez closed the d o o r because detention guards ordered her to close the door. Had the door operated properly, the d o o r would not have been propped open with a book and a guard in the Control Room could have c lo s e d the door. Alvarez's allegations are sufficient to allege the use of tangible property. I re c o m m e n d denying the County's request to dismiss Alvarez's negligence claim.
36

Docket entry # 18, p. 3. Cowan, 128 S.W.3d at 246. Id. Docket entry # 1, ¶ 22.
40

37

38

39

See Univ. Med. Ctr v. Harris, No. 07-09-0127-CV, 2009 WL 3925385, at * 4 (Tex. A p p .-- A m a r i ll o Nov. 19, 2009, no pet.) (designated for publication) (finding a waiver of immunity b y hospital for use of tangible property where surgeon left a towel inside a patient because the h o s p i ta l provided the towel and other surgical instruments and supplies, and hospital employees a s s i s t e d the surgeon; the hospital, through its employees, employed the towel for a given purpose); T e x . St. Tech. College v. Beavers, 218 S.W.3d 258, 266-67 (Tex. App.--Texarkana 2007, no pet.) (fin d in g a waiver of immunity by state technical college for use of tangible property where the s t u d e n t -p l a i n t i ff alleged the governmental unit negligently equipped a hydraulic engine hoist, in te n tio n a lly put the hoist into service for student use, and instructed the plaintiff on how to use the h o i s t ).

10

C l a im s against Jernigan. Alvarez sued Jernigan in his official capacity as the former C o u n t y sheriff and former chief administrative officer of the jail.41 Jernigan asked for dismissal o f the claims against him because he no longer holds the office of sheriff. Jernigan relies on two c a s e s , neither of which Alvarez challenged. In the first case--Zarrilli v. Weld--the District C o u rt for the District of Massachusetts dismissed the plaintiff's section 1983 claims brought a ga in s t former state officers in their official capacities, reasoning as follows: "It is well settled th a t actions against state officers in their official capacities are suits against the office and cannot b e maintained against the individual once that person is no longer serving in his or her official c a p a c ity." 42 The district court relied on the Supreme Court's decision in Hafer v. Melo,43 in w h i c h the Supreme Court distinguished official capacity lawsuits from individual capacity la w s u i ts , and Rule 25(d),44 allowing an official's successor to be automatically substituted as a p a rty if the original defendant dies or leaves office.45 The District Court in the Eastern District of V i rg in i a took a similar approach in a Title VII case, dismissing the plaintiff's claim against a fo r m e r sheriff because he no longer held the office of sheriff and thus lacked an official capacity in which he could be sued.46 This reasoning appears sound considering Rule 25's substitution
41

Docket entry # 1, 1st full ¶ & numbered ¶ 9 of complaint. Zarrilli v. Weld, 875 F. Supp. 68, 71 (D. Mass. 1995). 502 U.S. 21 (1991).

42

43

Fed. R. Civ. P. 25(d) ("An action does not abate when a public officer who is a party in an o ffi c i a l capacity . . . ceases to hold office while the action is pending. The officer's successor is a u t o m a t i c a l l y substituted as a party.").
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44

See Zarrilli, 875 F. Supp. at 71. See Briggs v. Waters, No. 2:06-CV-154, 2006 WL 1982758, 2 (E.D. Va. June 28, 2006), at *

46

2.

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p ro v is io n . Alvarez has not sought to substitute the current sheriff for Jernigan. I recommend d is m is s in g the claims brought against Jernigan in his official capacity. T o r t claims against The GEO Group employees. The County, The GEO Group, and A s s is ta n t Warden Scott asked for dismissal of the state-law claims against the individuallyn a m e d defendants under Texas's election-of-remedies provision because Alvarez characterized t h e individually-named defendants as County employees in her original complaint. 47 U n d e r the election-of-remedies provision, "[t]he filing of a suit . . . against a go v e rn m e n t a l unit constitutes an irrevocable election by the plaintiff and immediately and forever b a r s any suit or recovery by the plaintiff against any individual employee of the governmental u n it regarding the same subject matter." 48 "If a suit is filed under this chapter against both a go v e rn m e n ta l unit and any of its employees, the employees shall immediately be dismissed on the filin g of a motion by the governmental unit." 49 T h e election-of-remedies provision does not apply to the individually named defendants b e c a u s e the provision applies to "any individual employee of the governmental unit" and because th e individually named defendants are not employees of a governmental unit. Alvarez alleged th a t the individual defendants are employed by The GEO Group and the County,50 but The GEO G ro u p stated in its answer that it employed Scott and the detention guards.51 I recommend that

47

Docket entry # 11, p. 3. See also docket entry # 7, pp. 5-6 & docket entry # 8, p. 4. Tex. Civ. Prac. & Rem. Code § 101.106(a) (Vernon 2005). Tex. Civ. Prac. & Rem. Code § 101.106(e) (Vernon 2005). Docket entry # 1, ¶¶ 10 & 11. Docket entry # 10, ¶¶ 10 & 11.

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49

50

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A l v a re z be permitted to correct her allegation in an amended complaint. To the extent that the C o u n t y seeks to bind Alvarez to her original allegation that the individually named defendants a re County employees,52 the election-of-remedies provision applies only to employees of a go v e rn m e n ta l unit regardless of a plaintiff's allegations. Defendants have not shown that the e le c tio n of remedies provision has been extended to claims against non-governmental employees. The motion to dismiss the state law claims against the detention guards should be denied.53 R e co m m e n d a tio n . For the reasons discussed herein, I recommend GRANTING the m o tio n s to dismiss (docket entry #s 7, 8, 11 & 19) to the following extent: I recommend D IS M IS S IN G : (1) the intentional tort claims against the County and (2) the claims against J e rn iga n in his official capacity. I recommend DENYING the motions in all other respects. If the d is tric t judge accepts this recommendation, I recommend DENYING Alvarez's motion to amend, s u b je c t to re-urging. This approach would permit Alvarez to reconsider her proposed amendment in light of the district judge's rulings on the motions to dismiss. I also recommend reminding the d e t e n t io n guards about the need to answer.54 I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D i s tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the

52

Docket entry # 18, pp. 4-5.

The GEO Group made the same argument. Docket entry # 7, p. 5. If the district judge denies th e County's motion to dismiss the individually named defendants under the election-of-remedies p r o v is io n , the district court can dismiss The GEO Group's motion to dismiss the individually named d e fe n d a n t s under the election-of-remedies provision as moot. The detention guards did not file an answer. They apparently rely on the County's motion to d i s m is s .
54

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c le rk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a ft e r being served with a copy of same, unless this time period is modified by the district court.55 S u c h party shall file the objections with the clerk of the court, and serve the objections on all o t h e r parties and the magistrate judge. A party filing objections must specifically identify those fin d in gs , conclusions or recommendations to which objections are being made and the basis for s u c h objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d i s tric t court.56 Additionally, failure to file timely written objections to the proposed findings, c o n c lu s i o n s and recommendations contained in this memorandum and recommendation shall bar th e aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjectedt o proposed factual findings and legal conclusions accepted by the district court.57 S I G N E D on March 1, 2010.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

55

28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuña v. Brown & Root, 200 F.3d 335, 340 (5th C i r. 2000).
57

56

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

14