Alvarez v. The Geo Group, Inc. et al

Filing 49

SECOND REPORT AND RECOMMENDATIONS recommending to DENY 45 Motion to Dismiss, 38 Motion to Dismiss, 39 Motion to Dismiss, 44 Motion to Dismiss. Signed by Judge Nancy Stein Nowak. (mailed on 8/30/10, by certified mail or forwarded electronically)(rf)

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Alvarez v. The Geo Group, Inc. et al Doc. 49 UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION M A R IA DEL CONSUELO ALVAREZ, P la i n t i f f , v. T H E GEO GROUP, INC.; & V A L VERDE COUNTY; D e f en d a n ts. § § § § § § § § § C IV IL ACTION NO. S A -0 9 -C V -0 2 9 9 OG (NN) S E C O N D REPORT AND RECOMMENDATION TO: H o n o ra b le Orlando Garcia U n ited States District Judge T h is report and recommendation addresses the pending motions to dismiss. I have authority to enter this report and recommendation under 28 U.S.C. § 636(b) and the district judge's order of referral.1 This is my second report and recommendation in this case. My first report and reco m m en d atio n addressed the first four motions to dismiss (docket entry #s 7, 8, 11 & 19). The d efen d an ts have moved to dismiss each time the plaintiff amended her complaint. The first two p en d in g motions to dismiss (docket entry #s 38 & 39) are moot because they address the first am en d ed complaint. After those motions were filed, the plaintiff amended her complaint to dismiss th e individual defendants.2 The remaining defendants are: The GEO Group, Inc., a private co n tracto r operating the Val Verde Correctional Facility and County Jail (the jail), and Val Verde C o u n ty, Texas (the County), a governmental entity which contracted with The GEO Group for 1 Docket entry # 20. Docket entry # 43. 2 operation of the jail. The last two pending motions (docket entry # 44 & 45) address the plaintiff's seco n d amended complaint. The motions are brief, but appear to rely on Rule 12(b)(6). A d efen d an t in a civil action may move to dismiss under Rule 12(b)(6) for "failure to state a claim u p o n which relief may be granted."3 T h e GEO Group's motion. The GEO Group asked for dismissal of the plaintiff's section 1 9 8 3 claim.4 The GEO Group argued that the claim fails because the plaintiff failed to allege liab ility under the framework set out in Monell v. Department of Social Services.5 To state a claim u n d er Monnell, a plaintiff must allege "a policymaker; an official policy; and a violation of co n stitu tio n al rights whose `moving force' is the policy or custom."6 To state a claim for go v ern m en tal liability based on a lack of training, the plaintiff must allege inadequate training p ro ced u res; that inadequate training caused the constitutional violation; and the deliberate in d ifferen ce of the policymaker.7 Although the GEO Group characterized the plaintiff's allegations ab o u t policy as conclusory and insufficient to state claim, that is an inaccurate characterization of th e plaintiff's second amended complaint. The plaintiff alleged that she was severely injured while co n fin ed at the jail when without warning a defective steel door slammed closed and latched shut o n her right hand. The blow severed her middle finger and nearly severed two other fingers. The p lain tiff alleged violations of her Fifth Amendment right to due process and the Eighth Amendment 3 Fed. R. Civ. P. 12(b)(6). Docket entry # 44, pp. 1-2. Monell v. Dep't. of Social Services, 436 U.S. 658, 694 (1978). Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Pineda v. City of Houston, 291 F.3d 325, 332 (5th Cir. 2002). 4 5 6 7 2 prohibition against cruel and unusual punishment. The plaintiff alleged the following: 4 6 . On information and belief, Defendants, acting at the level of official policy and cu sto m , with deliberate, callous, and conscious indifference to Plaintiff's co n stitu tio n al rights, authorized, tolerated, and institutionalized the practices and ratified the illegal conduct herein detailed, proximately causing the deprivation of P lain tiff's due process and cruel and unusual punishment rights, and the resulting in ju ry suffered, by: a. Failing and refusing to provide health treatment for Plaintiff following a catastro p h ic injury to her hand; b . Failing and refusing to take adequate preventive measures upon discovery o f dangerous and defective facilities which led to the severing of Plaintiff's fin ge rs ; c. Physically and mentally abusing Plaintiff by forcing her to change her sh irt (while in horrific pain and while clutching her severed fingers in her h an d ) prior to transporting her to an emergency room; d . Mentally abusing Plaintiff by ridiculing her upon having her fingers sev ered , forcing her to clean up the blood with a towel prior to taking her to an infirmary, and claiming that she would now be less of a woman. 4 7 . Defendants all knew of the consistent pattern of failing to provide prompt m ed ical treatment to injured inmates, as well as the dangers and risks involved in n o t timely transporting those inmates with medical emergencies to the appropriate m ed ical facility. Particularly in regard to severed limbs and digits, Defendants had n o policy in place to increase the likelihood of reattachment by prompting icing d o w n the severed body-part (or otherwise) and rapidly transporting the inmate to a facility capable of performing re attachment surgery. 4 8 . Defendants had prior knowledge of the dangers and defective facilities which led to the severing of Plaintiff's fingers, and despite this prior knowledge, none of th e Defendants corrected the problem at the detention center. The wrongful acts an d /o r omissions of Defendants constitute reckless disregard and conscious in d ifferen ce to the Plaintiff's safety and physical well-being and posed a substantial risk of harm in violation of her right to due process and to be free from cruel and u n u su al punishment under the Eighth and Fourteenth Amendments of the United S tates Constitution. 4 9 . Furthermore, the above-described wrongful acts constitute evidence that D efen d an ts acted willfully, deliberately, maliciously, or with reckless disregard of P lain tiff's safety in violation of 42 U.S.C. § 1983. 3 50. Defendants['] wrongful acts and/or omissions and its failure to training and/or su p erv ise their employees, agents and servants, including, but not limited to, their co rrectio n al officers, nurses and health services administration constitutes deliberate in d ifferen ce to Plaintiff's safety, and was the cause of violations of her right to due p ro cess of law, and to be free from cruel and unusual treatment pursuant to the E igh th and Fourteenth Amendments of the Untied States Constitution, and 42 U .S .C . § 1983. Defendants were deliberately indifferent to Alvarez' serious medical n eed s, health, safety and civil rights by failing to train its officials and employees to p ro p erly address the serious medical and physical needs of its inmates. The co n stitu tio n al duty was implicated in recurrent situations and the failure to train and su p erv ise the employees in this area created an extremely high risk that co n stitu tio n al violations would ensue. 5 1 . Furthermore, the Defendants' pattern of unconstitutional conduct and policies w ere so pervasive as to constitute actual or constructive knowledge of the conduct o n the part of policy makers, whose deliberate indifference to the unconstitutional p ractices is evidenced by a failure to correct the situation once the need for training an d supervision became obvious. 5 2 . The aforementioned lack of supervision, policymaking, and training was a m o v in g force behind the alleged constitutional violations herein and the Plaintiff's su ffered injuries and damages . . . .8 T h ese allegations are sufficient to state a claim because they allege a policymaker; an official p o licy; and a violation of constitutional rights whose "moving force" was the policy or custom. The p lain tiff's allegations about inadequate training alleged inadequate training procedures; that in ad eq u ate training caused the constitutional violation; and the deliberate indifference of the p o licym aker. The GEO Group's motion should be denied. T h e County's motion. The County first asked for dismissal of the plaintiff's negligence claim .9 The County argued that the negligence claim must be dismissed because the plaintiff alleged "her injury was neither caused by . . . County's employees nor by the County's employees' u se or misuse of tangible property."1 0 The County relies on the fact that detention guards at the jail 8 Docket entry # 43. Docket entry # 45, p. 2. Docket entry # 45, p. 2. 9 10 4 are employed by The GEO Group. The plaintiff, however, pleaded Texas agency law. The ev id en ce in this case shows the County authorized The GEO Group to act on its behalf in managing in tergo v ern m en tal contracts for the detention of non-County inmates and the detention of nonC o u n ty inmates like the plaintiff.1 1 "In determining whether a principal is vicariously responsible fo r the conduct of an agent, the key question is whether the principal has the right to control the agen t with respect to the details of that conduct."1 2 That question is not before the court. It is en o u gh that the plaintiff pleaded Texas agency law. T h e County also asked for dismissal of the plaintiff's premises liability claim because the p lain tiff failed to allege the County had actual knowledge of the problem with the cell door. G en erally, the duty a landowner owes a licensee is not to injure the licensee through w illfu l, wanton, or grossly negligent conduct. An exception to the general rule is th at if the landowner has knowledge of a dangerous condition and the licensee does n o t, the landowner has a duty either to warn the licensee or to make the condition reaso n ab ly safe.1 3 A lth o u gh the County complained that the plaintiff failed to allege the County had actual knowledge, th e second complaint alleges actual knowledge--"The Defendants had actual knowledge of the d an ger."1 4 Thus, the County is not entitled to dismissal of the premises liability claim on this basis. T h e County next asked for dismissal of the plaintiff's section 1983 claim. The County co m p lain ed that the plaintiff failed to meet the Monell pleading standard.1 5 That argument is ad d ressed above. The second amended complaint states a claim under Monell. 11 See docket entry # 22, exh. 2, ¶ 3.04 State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 627 (1998). City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (1997). Docket entry # 43, ¶ 70. Docket entry # 45, pp. 3-4. 12 13 14 15 5 The County also complained that the plaintiff did not plead facts constituting deliberate in d ifferen ce. The plaintiff's allegations, however, are sufficient to plead deliberate indifference. For example, the plaintiff alleged, "Defendants all knew of the consistent pattern of failing to p ro v id e prompt medical treatment to injured inmates, as well as the dangers and risks involved in n o t timely transporting those inmates with medical emergencies to the appropriate medical facility."1 6 Fin ally, the County complained that the complaint alleges The GEO Group, not the County, cau sed the plaintiff's injury. To prevail on her section 1983 claim, the plaintiff must prove that she w as injured as a result of the County's acts or omissions. Many of the allegations in the second am en d ed complaint refer to acts or omissions by employees of The GEO Group. Other allegations, h o w ev er, address issues of jail management. Contracts for the operation of the jail show the County retain ed control over various aspects of the jail's management. Because the County retained co n tro l, factual allegations about acts or omissions by The GEO Group employees do not defeat the p lain tiff's claim. Evidence about the extent and effect of the County's control may ultimately d efeat the plaintiff's claim, but the plaintiff has sufficiently pleaded her claim. The County is not en titled to dismissal of the section 1983 claim. R eco m men d a tio n. For the reasons discussed herein, I recommend denying the motions to d ism iss the second amended complaint (docket entry #s 44 & 45). The motions to dismiss the first am en d ed complaint (docket entry #s 38 & 39) may be denied as moot. Instru ctio n s for Service and Notice of Right to Object/Appeal. The United States D istrict Clerk shall serve a copy of this report and recommendation on all parties by either (1) 16 Docket entry # 43, ¶ 47. 6 electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt req u ested . Written objections to this report and recommendation must be filed within 14 days after b ein g served with a copy of same, unless this time period is modified by the district court.1 7 Such p arty shall file the objections with the clerk of the court, and serve the objections on all other parties an d the magistrate judge. A party filing objections must specifically identify those findings, co n clu sio n s or recommendations to which objections are being made and the basis for such o b jectio n s; the district court need not consider frivolous, conclusive or general objections. A p arty's failure to file written objections to the proposed findings, conclusions and recommendations co n tain ed in this report shall bar the party from a de novo determination by the district court.18 A d d itio n ally, failure to file timely written objections to the proposed findings, conclusions and reco m m en d atio n s contained in this memorandum and recommendation shall bar the aggrieved p arty, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factu al findings and legal conclusions accepted by the district court.1 9 S IG N E D on August 28, 2010. _____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE 17 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 ir. 2000). 19 18 Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996). 7

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