Ramirez et al v. Bexar County et al

Filing 111

THIRD REPORT AND RECOMMENDATIONS re 104 Motion for Summary Judgment, filed by Bexar County, Texas, be GRANTED 90 Motion for Summary Judgment, filed by Bexar County Hospital District,be GRANTED; Accepting the recommendation will moot the following : 87 Motion to Amend Complaint filed by Eric Ramirez, 84 Motion for Miscellaneous Relief, filed by Eric Ramirez, 89 Motion for Leave to File Document, filed by Bexar County Hospital District 92 Motion for Leave to File Document, filed by Bexar County, Texas. Signed by Judge Nancy Stein Nowak. (mailed on 9/29/2011 by certified mail, or sent via electronic transmittal)(rg.)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JONATHAN RAMIREZ by and through
ERIC RAMIREZ, Administrator,
Individually and in his Representative
Capacity on Behalf of the Estate of
Jonathan Ramirez, Deceased,

§
§
§
§
§
§
Plaintiff,
§
v.
§
§
BEXAR COUNTY, TEXAS;
§
UNKNOWN, UNNAMED OFFICERS/
§
EMPLOYEES OF THE BEXAR COUNTY §
SHERIFF’S OFFICE, Individually and
§
Officially,
§
BEXAR COUNTY HOSPITAL DISTRICT,§
d/b/a University Health Systems,
§
§
Defendants.
§

CIVIL ACTION NO.
SA-10-CV-0296 FB (NN)

THIRD REPORT AND RECOMMENDATION
TO:

Honorable Fred Biery
Chief United States District Judge
The matters before the Court are defendants’ motions for summary judgment.1

This report and recommendation recommends granting those motions and dismissing
this case for lack of subject matter jurisdiction.

1

Docket entry #s 90 & 104.
1

Brief summary of the case. This case arose from the suicide of a Bexar County
Jail inmate—decedent Jonathan Ramirez. Jonathan’s death occurred on August 7, 2009.
The lawsuit was filed by Eric Ramirez under Texas’s survival statute as Jonathan’s
surviving father and personal representative of Jonathan’s estate.2 As defendants, Eric
named Bexar County, Bexar County Sheriff’s Office, Sheriff Amadeo Ortiz, and
unknown sheriff’s office employees. Eric alleged violations of constitutional rights
under 42 U.S.C. § 1983, racial discrimination under 42 U.S.C. § 1981, and state-law
negligence. Eric later amended the complaint to name the Bexar County Hospital
District as a defendant.3 Since that time, certain claims and defendants have been
dismissed.4
One month prior to the expiration of the statute of limitations, Eric’s attorney
provided documentation to opposing counsel revealing that Eric’s parental rights were
terminated on May 6, 2004. Eric moved to amend the complaint to name Jonathan’s

2

Docket entry # 1.

3

Docket entry # 33.

4

Docket entry # 45 (dismissing: claims against Ortiz in his official capacity, claims
against the Sheriff’s Office, claims under 42 U.S.C. § 1981, claims for violations of First
and Fifth Amendments, claims for state law negligence, claim under Texas Wrongful
Death Act, and claim under Texas Tort Claims Act); docket entry # 56 (dismissing
claims for violations of Fourth and Fourteenth amendments, claims against Ortiz in his
individual capacity, and claim against the Hospital based on alleged use of excessive
force).
2

sister, Monalisa Ramirez, as plaintiff on August 16, 2011.5 Shortly thereafter, the
defendants filed the dispositive motions which are the subject of this report and
recommendation. In their motions, the defendants asked the court to dismiss the
amended complaint because: (1) Eric lacked standing or legal capacity to file this case,
and (2) the statute of limitations having expired, no estate was pending and no heir filed
any claims on behalf of Jonathan’s estate. Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”6
Standing to file this lawsuit. “Standing is a jurisdictional requirement that
focuses on the party seeking to get his complaint before a federal court and not on the
issues he wishes to have adjudicated."7 To have standing, a plaintiff must have suffered
a concrete injury.8 Standing must exist at the time of filing a lawsuit.9 Otherwise, the

5

Docket entry # 87.

6

Fed. R. Civ. P. 56(a).

7

Pederson v. La. St. Univ., 213 F.3d 858, 869 (5th Cir. 2000).

8

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (explaining that to have
standing, a plaintiff must have suffered an “injury in fact,” that is, an invasion of a
legally protected interest which is concrete and particularized).
9

Pederson, 213 F.3d at 869 (“The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence
(mootness).”). See also Utah Ass’n of Counties v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006)
(stating that the court determines standing as of the time the action is brought); Anjelino
v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 1999) (“Standing is established at the pleading
3

court lacks subject matter jurisdiction.
The concrete injury alleged in this case is the violation of Jonathan’s rights under
the Eighth Amendment.10 Ordinarily, a plaintiff may not claim standing to vindicate the
constitutional rights of a third party.11 By filing this case, Eric sought to vindicate the
constitutional rights of Jonathan as a deceased party. Federal law does not address
whether a civil rights action brought under section 1983 survives the death of a
plaintiff.12 To determine whether a section 1983 action survives death and who may
assert such a claim, the court “must look to state survival statutes to determine who
may bring a section 1983 claim.”13
Under Texas’s survival statute, an action for a decedent’s claim “survives to and

stage by setting forth specific facts that indicate that the party has been injured in fact or
that injury is imminent, that the challenged action is causally connected to the actual or
imminent injury, and that the injury may be redressed by the cause of action.”).
10

Eric’s claims under the Eighth Amendment are: (1) a claim against the County
for failing to protect Jonathan from himself, failing to provide appropriate medical
treatment, and using excessive force; (2) a claim against the Hospital for deliberate
indifference to Jonathan’s serious medical needs; and (3) a claim against unknown
sheriff’s office employees for failing to protect Jonathan from himself, failing to provide
appropriate medical treatment, and using excessive force.
11

See Barrows v. Jackson, 346 U.S. 249, 255 (1953).

12

Matis v. Joseph, No. 05-2615, 2008 WL 3850489, at * 1 (E.D. La. Aug. 14, 2008)
(“Section 1983 does not on its face set forth a survival action or an action for wrongful
death. In such situations, the most analogous state law is then applied as the federal rule
unless that law is inconsistent with the purposes of Section 1983.”).
13

Handley v. City of Seagoville, 798 F. Supp. 1267, 1269 (N.D. Tex. 1992).
4

in favor of the heirs, legal representatives, and estate of the injured person.”14 The
documentary evidence in this case shows that this case was not filed by an heir, legal
representative or someone with capacity to represent the estate of injured person.
Whether Eric is Jonathan’s heir. Texas defines “heir” as a person “entitled
under the statutes of descent and distribution to the estate of a decedent who dies
intestate.”15 Jonathan died intestate and left no wife. Where a person dies intestate
leaving no wife, the person’s father may inherit the decedent’s estate if the decedent has
no children.16 Jonathan had no children. Eric is not an heir, however, because he
previously relinquished his parental rights. Although Eric’s attorney did not know Eric
lacked parental rights when the case was filed, the record now includes a 2004 statecourt order terminating Eric’s parental rights.17 The termination order is premised on
Eric’s affidavit of relinquishment of parental rights.18 In the affidavit, Eric stated that he
specifically and irrevocably relinquished the right to represent Jonathan in a legal action
and to inherit from and through his children.19 The effect of the termination decree is

14

Tex. Civ. Prac. & Rem. Code § 71.021(b).

15

Tex. Probate Code Ann. § 3(o).

16

See Tex. Probate Code Ann. § 38.

17

Docket entry # 90, A-2.

18

Docket entry # 91, ex. D.

19

Id. at para. 3.
5

that the law no longer recognizes Eric as Jonathan’s father. Accordingly, Eric lacked
standing to sue as an heir.
Whether Eric is Jonathan’s legal representative. It is undisputed that Eric is not
Jonathan’s legal representative. The record includes Eric’s affidavit voluntarily
relinquishing his parental rights, to include the right to represent Jonathan in a legal
action.20 Eric lacked standing to sue as a legal representative.
Whether Eric can sue on behalf of Jonathan’s estate. A decedent’s estate “is not
a legal entity and may not properly sue or be sued as such,”21 but Texas law provides
for capacity for a third party to sue on the estate’s behalf.22 Capacity is a plaintiff’s legal
authority to go into court to prosecute a lawsuit.23 A plaintiff has capacity to sue when
he “has legal authority to act, regardless of whether it has a justiciable interest in the
controversy.”24 “In general, only the estate’s personal representative has the capacity to

20

Id.

21

Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). See Nootsie, Ltd. v.
Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996) (“A plaintiff has
standing when it is personally aggrieved, regardless of whether it is acting with legal
authority; a party has capacity when it has the legal authority to act, regardless of
whether it has a justiciable interest in the controversy.”).
22

Lovato, 171 S.W.3d at 849.

23

Jones, 182 S.W.3d at 457.

24

R & R White Family Ltd. P’ship v. Jones, 182 S.W.3d 454, 457 (Tex.
App.–Texarkana 2006, no pet.).
6

bring a survival claim.”25
Here, Eric lacked legal authority to file this lawsuit on behalf of Jonathan’s estate.
Eric’s irrevocable relinquishment of the right to represent Jonathan in a legal action and
termination of his parental rights bars Eric from ever obtaining authority to act on the
behalf of Jonathan’s estate. Eric lacked legal capacity to file this lawsuit.
Whether the proposed amendment cures Eric’s lack of capacity. Eric seeks to
amend his complaint to name Jonathan’s sister as the representative of Jonathan’s
estate.26 On June 13, 2011, Jonathan’s eighteen-year-old sister, Monalisa, applied for
letters of administration in the state probate court, seeking an appointment as
administrator of Jonathan’s estate and stating that Eric is disqualified from serving as
administrator of Jonathan’s estate.27 In his motion for leave to amend—filed two
months later on August 16, 2011—Eric characterized the amendment naming Monalisa
as the estate’s representative as a name change. Eric contends his proposed third
amended complaint relates back to the original filing date.28
“When a person is appointed administrator of an estate,…she acquires the

25

Lovato, 171 S.W.3d at 850.

26

Docket entry # 101, pp. 5-6.

27

Docket entry # 90, exh. B.

28

Docket entry # 101, p. 8.
7

capacity to assert a survival claim on the estate’s behalf.”29 “The relation-back doctrine
has been applied to cure capacity issues, but it cannot retroactively
create…jurisdiction.”30 Although the Supreme Court of Texas has allowed alleged
personal representatives to obtain the probate court’s authority to represent an estate
after filing a lawsuit on behalf of an estate, that court has not permitted subsequent
pleadings to create jurisdiction over new parties retroactive to the original filing of the
suit.31 By amending, Eric seeks to circumvent the statute of limitations and create
jurisdiction.
At this point, even Monalisa lacks capacity to sue on behalf of Jonathan’s estate.
She has not been appointed as the administrator of Eric’s estate. The Supreme Court of

29

Gomez v. Texas Windstorm Ins. Ass’n, No. 13-04-598-CV, 2006 WL 733957, at * 1
(Tex. App.—Corpus Christi Mar. 23, 2006, pet. denied).
30

Armes v. Thompson, 222 S.W.3d 79, 84 (Tex. App.—Eastland 2006, no pet.)
(discussing creation of personal jurisdiction). In Austin Nursing Center v. Lovato, the
Supreme Court of Texas held that a post-limitations amendment cured the plaintiff’s
pre-limitations lack of capacity where she filed a timely original petition alleging her
representative status to bring a survival claim and then acquired capacity to maintain
the survival claim after the expiration of the statute of limitations.” See Lovato, 171
S.W.3d at 852–53. In Lorentz v. Dunn, 171 S.W.3d 854, 856 (Tex. 2005), the Supreme
Court of Texas determined a “survival claim was not time-barred because the plaintiff,
who was not an heir and did not have capacity to represent the estate at the time of
filing the original petition, cured her pre-limitations lack of capacity through her
post-limitations appointment as administrator of the estate.” Damian v. Bell Helicopter
Textron, No. 02–08–00210–CV, 2011 WL 3836464, at * 12 (Tex. App.—Fort Worth
Aug. 31, 2011, no pet. h.) (designated for publication).
31

See Armes, 222 S.W.3d at 84.
8

Texas has never permitted a third party without capacity to file pre-limitations a lawsuit
on behalf of a decedent, and then substitute post-limitations a different third party who
also lacks capacity to substitute as plaintiff in hopes of obtaining capacity and curing
jurisdiction.32 There is no authority for permitting Eric to overcome limitations by
substituting a plaintiff. The error of Eric’s authorities lies in his reliance on cases in
which the plaintiff had standing to sue in the first instance. Eric lacked standing
because he is neither an heir, legal representative or administrator of Jonathan’s estate.
Eric’s motion to amend. Federal Rule of Civil Procedure 16(b) governs the
amendment of pleadings after the deadline set by the scheduling order has expired.33
The deadline for amending pleadings in this case—September 17, 2010—has expired.
Rule 16(b) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.”34 “The good cause standard requires the ‘party seeking relief

32

But see Flores v. Cameron Cnty., 92 F.3d 258, 273 (5th Cir.1996) (permitting
surviving mother who lacked capacity to sue on behalf deceased son’s estate to amend
her complaint to name herself as plaintiff and temporary administrator of son’s estate
even though limitations period had expired); Davis v. Preston, 16 S.W.2d 117, 118 (Tex.
1929) (permitting surviving spouse’s post-trial, post-limitations amendment to
substitute herself as plaintiff administrator of deceased husband’s estate in lieu of
herself as a plaintiff individually); Pratho v. Zapata, 157 S.W.3d 832, 842 (Tex. App.—Fort
Worth 2005, no pet.) (permitting decedent wife’s post-trial, post-limitations amendment
to substitute as plaintiff decedent’s daughter as administrator of decedent’s estate
because wife pleaded and proved standing as an heir at the time of trial).
33

S&W Enterprises v. SouthTrust Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003).

34

Fed. R. Civ. P. 16(b).
9

to show that the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.’”35 In determining whether the good-cause standard has been
met, the court considers four factors: (1) the movant’s explanation for the failure to
timely move for leave to amend, (2) the importance of the amendment, (3) potential
prejudice in allowing the amendment, and (4) the availability of a continuance to cure
such prejudice.36
Eric’s explanation for failing to timely ask to amend. Eric’s explanation for not
timely asking to amend is that he did not know he relinquished his parental rights.
That explanation is incredible considering the clarity of his affidavit relinquishing his
parental rights.37 Had the Hospital’s attorney not pressed Eric to prove his standing
and/or capacity, Eric would have pursued this case despite having relinquished his
parental rights. When questioned by his attorney, Eric reported that Child Protective
Services (CPS) had been involved with his family, but stated that his parental rights had
not been terminated. When the attorney pressed Eric to review Jonathan’s CPS case,
Eric became agitated and stated he no longer wanted to be involved in this case. That
reaction is inconsistent with his stated intention to vindicate the violation of Jonathan’s

35

S&W Enterprises, 315 F.3d at 535 (citation omitted).

36

S&W Enterprises, 315 F.3d at 536.

37

Docket entry # 91, ex. D.
10

rights.
Even when it became apparent that Eric was disqualified from pursuing
Jonathan’s claims in this case, Eric delayed in requesting leave to amend. Monalisa
applied for letters of administration on June 13, 2011. Eric’s attorney provided the
defendants’ counsel with a copy of the order terminating Eric’s parental rights on July 6,
2011. Yet Eric did not move to amend his complaint until August 16, 2011, after the
statute of limitations expired. There is no adequate explanation for the untimely
request leave to amend. Eric’s explanation for his failure to timely amend weighs
against an amendment.
The importance of the amendment. The amendment is critical to the presentation
of Jonathan’s claims. However, Eric voluntarily and irrevocably relinquished all rights
and duties with respect to Jonathan. Jonathan’s eighteen-year-old sister did not step
forward to intervene or apply to become personal representative for the estate until
after it was discovered that Eric cannot serve as Jonathan’s representative in this
lawsuit. In this situation, the court must question whether vindication of Jonathan’s
rights has sufficient importance to either Eric or Monalisa. On balance, this factor
weighs neither for or against the amendment.
Potential prejudice and the availability of a continuance. The passage of time has
already prejudiced the defendants’ abilities to defend themselves. Adding a new

11

plaintiff would necessarily require extending the scheduling order deadlines to allow
the defendants to conduct discovery as to Monalisa. The scheduling order deadlines
have been extended several times. The passage of time resulting from another delay
will prejudice the defendants’ abilities to defend themselves even further. A
continuance cannot cure prejudice resulting from the passage of time. The prejudice in
allowing the amendment and the inability of a continuance to cure that prejudice weigh
against the proposed amendment.
Conclusion. Eric filed this case without standing or legal capacity. Eric is not a
survivor under Texas’s survival statute. Accordingly, this case was not filed by a
survivor within the statute of limitations and should be dismissed.
The good-cause factors weigh against allowing Eric to amend his complaint. Eric
failed to show good cause for failing to timely move for leave to amend. Even if the
court had acquired jurisdiction within the statute of limitations, because Eric failed to
establish good cause for his late-filed motion for leave to amend, there would be no
basis for amending the complaint to substitute Monalisa as the plaintiff.
The court lacks subject matter jurisdiction because the case was not filed by a
survivor. To the extent, Eric relies on case law about a defendant’s waiver of capacity
for failing comply with Texas Rule of Civil Procedure 93,38 that rule’s requirements have
38

Docket entry # 101, p. 2 (relying on Nootsie, Ltd. v. Williamson Cnty. Appraisal
Dist., 925 S.W.2d 659, 662 (Tex. 1996). See Nootsie, 925 S.W.2d at 662 (explaining that
12

no bearing in this case.39 Likewise, the arguments about attorney representations in July
and August 2011, when it became apparent that Eric’s parental rights had been
terminated, have no bearing on whether the court has subject matter jurisdiction.
Recommendation. I recommend granting the motions for summary judgment
(docket entry #s 90 & 104) and dismissing this case for lack of subject matter jurisdiction.
Accepting this recommendation will moot the following motions: (1) motion to exclude
testimony of defendants’ expert witness (docket entry # 84); (2) Eric’s opposed motion
to file the third amended complaint (docket entry # 87); (3) the Hospital’s opposed
motion to file an amended answer (docket entry # 89); and (4) the County’s opposed
motion to file an amended answer (docket entry # 92).
Instructions for Service and Notice of Right to Object/Appeal. The United
States District Clerk shall serve a copy of this report and recommendation on all parties
by either (1) 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 requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,

Texas Rule of Civil Procedure 93(1) requires a verified pleading to challenge the
plaintiff’s legal capacity to sue and stating that failing to comply with the rule waives
the right to complain about capacity).
39

Fed. R. Civ. P. 1 (providing that Federal Rules of Civil Procedure govern civil
actions in federal court).
13

unless this time period is modified by the district court.40 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties. A
party filing objections must specifically identify those findings, conclusions or
recommendations to which objections are being made and the basis for such 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
recommendations contained in this report shall bar the party from a de novo
determination by the district court.41 Additionally, failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court.42
SIGNED on September 29, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

40

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

41

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335,
340 (5th Cir. 2000).
42

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
14