Jimenez v. Brown et al

Filing 87

ORDER AFFIRMING REPORT AND RECOMMENDATIONS: GRANTS 70 Motion for Summary Judgment, filed by Lisa Nolan, GRANTS 71 Motion for Summary Judgment,, filed by Delia Castro, Randy Brown, Jan Quintana, Martina, 80 Report and Recommendations. Signed by Judge David A. Ezra. (wg)

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

BOBBY JIMENEZ,

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§
Plaintiff,
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vs.
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§
SHERIFF RANDY BROWN, JAN
§
QUINTANA, LISA NOLAN, CAPT. §
DELIA CASTRO, and SGT.
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MARTINA VILLARREAL ,
§
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Defendants.
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________________________________ §

CV. NO. 5:13-CV-877-DAE

ORDER AFFIRMING MEMORANDUM AND RECOMMENDATION
Before the Court are the Objections (Dkt. # 88) to Magistrate Judge
John W. Primomo’s Memorandum and Recommendation (Dkt. # 80) filed by
Defendants Jan Quintana, Delia Castro, Lisa Nolan, Martina Villarreal, and
Medina County Sheriff Randy Brown (collectively, “Defendants”). After
reviewing the Objections and the supporting and opposing memoranda, the Court
AFFIRMS the Memorandum and Recommendation (Dkt. # 80)
BACKGROUND
Plaintiff Bobby Jimenez (“Jimenez” or “Plaintiff”) is an inmate in the
custody of the Texas Department of Criminal Justice—Correctional Institutions
1

Division. He attests that, in the early morning hours of October 14, 2011, an
officer of the Castroville Police Department stopped him on suspicion of driving
while intoxicated. (“SJ Resp.,” Dkt. # 72 at 2.) He further attests the officer
transported him in the police car’s K–9 unit dog cage twice that evening: first,
when he was transported from the stop location to the hospital for a blood test, and
second, when he was transported from the hospital to Medina County Jail (the
“Jail”). (Id. at 2–4.) According to Jimenez, the cage was littered with animal
excrement. (Id.)
Jimenez arrived at the Jail shortly after 3:00 a.m. and went through the
booking process at roughly 8:30 a.m. (Id. at 6.) Although he was unhurt, he attests
that he was covered in animal excrement. (Id.) That day, he was not permitted to
shower. (Id.)
On October 15, 2011, intense itching awoke Jimenez. (Id. at 7.)
Upon investigation, he observed red dots on his stomach, face, arms, legs, and
buttocks. (Id.) He explained to the officer on duty, Gary Morin (“Morin”), that he
needed a shower. (Id.) After checking with his supervisor, Sergeant Martina
Villarreal (“Villarreal”), Morin told Jimenez that he would need to wait to shower
until he was moved to the general population. (Id. at 7–8.) He was then permitted
to rinse off his face and arms. (Id. at 8.) Morin also brought Jimenez two
packages of hydrocortisone cream. (Id.) Later that night, Jimenez was again
2

awoken by itching on his body. (Id. at 9.) He spoke with another officer on duty,
Estrada, who informed Jimenez that medical conditions would not be addressed at
night unless they were life threatening. (Id.)
On October 16, 2011, Jimenez was transferred to the general
population and permitted to shower. (Id. at 10.) Jimenez attests that he filled out a
sick call form on that day to set an appointment for October 20, 2011, the next time
an appointment would be available.1 (Id.) He did not receive a medical
appointment on October 20, 2011. (Id. at 11.) Subsequently, he filled out another
sick call form requesting an appointment on October 27, 2011. (Id. at 12.) He did
not receive a medical appointment on October 27, 2011. (Id. at 12.)
After complaining to Villarreal about his condition and his inability to
obtain a medical appointment, Jimenez received another sick call form from
Villarreal. (Id. at 12–13.) Another officer, Delia Castro (“Castro”), then brought
Jimenez a tube of hydrocortisone, which she said was at the direction of the
medical team. (Id. at 13.) In an attempt to receive a medical appointment on
November 3, 2011, the date of the next available medical appointment, Jimenez
submitted sick call forms on October 27, 2011, October 31, 2011, and again on
November 2, 2011. (Id. at 15; id., Ex. 42 (showing sick call request on 10/27).)
1

The Jail provides medical care through a contract Physician’s Assistant, who
visits the Jail for two hours once a week. (Dkt. # 70, Ex. C at 1; Dkt. # 71, Ex. B at
2.) When the Physician’s Assistant is not at the facility, jail staff can call her
regarding patient complaints. (Dkt. # 71, Ex. B at 2.)
3

Nevertheless, he did not receive a medical appointment on November 3, 2011. (Id.
at 15–16.)
After placing several sick calls the following week, Jimenez received
a medical appointment on November 10, 2011. (Id. at 16; id., Ex. 22B.) During
this appointment, Castro provided security in the room. (Id. at 16–19.) Lisa
Nolan, the physician’s assistant that provides service at the Jail, ran a vital check
on Jimenez and examined his rash. (Id. at 16, 18.) She concluded that his rash was
caused by “the water.” (Id. at 18.) Jimenez disagreed, and their disagreement led
Castro and another officer to remove Jimenez from the examination room. (Id. at
18–19.) As Jimenez was leaving, Nolan told him that she was prescribing him a
lotion. (Id. at 19.) At some point during this examination, Nolan also told Jimenez
that she wanted to examine him again on November 17. (Id. at 27.)
The next day, Villareal provided Jimenez with a medicated body
wash, an anti-histamine, and an anti-fungal lotion. (Id. at 20; id., Ex. 22 (recording
medication administration); id., Ex. 22A (same).) After using the body wash,
Jimenez experienced severe burning across his body. (Id. at 21.) In response, an
officer told him to scrub off the body wash. (Id.)
On November 14, Jimenez submitted a sick call slip requesting
treatment for his rash. (Id. at 27.) He also submitted a request for information
about dental treatment because he was experiencing tooth pain. (Id.; id., Ex. 31.)
4

On November 15, Jimenez sustained a fall in the shower, which resulted in
significant wrist pain. (Id. at 27–28.) He submitted a sick call slip requesting an
appointment to evaluate his wrist. (Id., Ex. 32.) According to Jimenez, Officer
Soliz assured Jimenez that he would receive an appointment with Nolan regarding
his wrist and rash. (Id. at 27–28.) In response to Jimenez’s complaints about tooth
pain, Jimenez was also scheduled for a dental examination on November 17. (Id.
at 26–27.)
On November 17, Soliz escorted Jimenez to see the dentist. (Id. at
28.) When Jimenez learned that he was to see the dentist and would be unable to
see Nolan, he demanded to see Nolan and asked that his dental appointment be
cancelled. (Id. at 29.) In a heated exchange, Jan Quintana, Medina County
Detention Center Jail Administrator (“Quintana”), told him that he could not see
Nolan and brought Jimenez to see the dentist. (Id.) Although Jimenez did see the
dentist, he was unable to see Nolan regarding his wrist or rash on November 17.
(Id. at 30; id., Ex. 32.) However, Nolan prescribed naproxen to Jimenez in
response to the request. (Id., Ex. 32.) Separately, his dentist also prescribed
ibuprofen and an antibiotic. (Id., Ex. 33 (recording clindamycin and ibuprofen
prescriptions); id., Ex. 34 (recording administration of medications); id., Ex. 35
(ibuprofen prescription).)
On November 18, Jimenez submitted a sick call slip requesting an
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appointment on November 24 regarding his rash and his wrist. (Id. at 32; id., Ex.
38.) He did not receive a medical appointment on November 24. (Id.) On
November 27, 2011, Jimenez submitted a request for emergency medical treatment
to Quintana because the fungus had affected his anal opening. (Id. at 33.)
On November 28, he also submitted a sick call slip requesting an
appointment. (Id.) The same day, Officers Castro and Morin entered his cell to
examine the lights. (Id.) Jimenez asked them for help with his condition. (Id.)
After he showed his body to Morin, Jimenez attests that Castro and Morin set up
an appointment for Jimenez with Nolan at 2:00 p.m. (Id. at 34; see also id., Ex. 46
(undated sick call slip requesting 2:00 p.m. appointment for rash on lower
abdomen and legs in handwriting different from Jimenez’s other sick call slips).)
Nolan was unable to see Jimenez, but directed the officers to provide Jimenez with
Nystatin/Triamcinalone cream. (Id.) Instead, Castro provided him with foot
fungus cream from Wal-Mart. (Id. at 35.)
Jimenez received an appointment with Nolan on December 1. (Id.,
Ex. 46.) During the appointment, Nolan indicated that she planned to order blood
work for Jimenez because she was concerned about his high blood pressure. (Id. at
36.) When Jimenez tried to call attention to his skin condition, Castro, who was
also present in the examination room, cut him off and interfered with the treatment.
(Id.) As Jimenez was leaving, Nolan stated that she was prescribing him with body
6

wash. (Id.) When Castro prevented him from having further conversation with
Nolan, he became upset and engaged in a heated exchange with Castro and
Quintanta. (Id.)
On December 2, Jimenez received an anti-fungal body wash, as well
as oral anti-fungal and high blood pressure medications. (Id., Ex. 47.) Although
he completed the body wash regimen, the treatment did not eliminate the rash. (Id.
at 36.) Sometime thereafter, Jimenez placed a sick call request for an appointment
on December 15, but did not receive an appointment. (Id. at 39–40.) He continues
to suffer from small outbreaks of the rash. (Compl. at 17.)
On November 14, 2013, Jimenez filed an amended complaint against
Quintana, Castro, Nolan, Villareal, and the Medina County Sheriff Randy Brown,
alleging the facts described herein. (Dkt. # 6.) Defendants filed the instant
motions to dismiss, or in the alternative, for summary judgment, on May 5, 2014.
(Dkt. # 70 (filed by Nolan); Dkt. # 71 (filed by remaining defendants jointly.) In
response, Jimenez filed a “Pro-Se Motion to Deny Defendant’s Motion for
Summary Judgment.” (Dkt. # 73.) Defendants timely submitted responses. (Dkts.
## 74, 75.)
On July 8, 2014, Magistrate Judge Primomo issued his Memorandum
and Recommendation, which concluded that the Court should grant Nolan’s
motion, grant summary judgment for the remaining individual defendants, and
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deny summary judgment as to the claims against Brown in his official capacity.
(“M&R,” Dkt. # 80 at 1–2.) On July 22, 2014, Defendants filed their objections to
the Magistrate Judge’s Memorandum and Recommendation, contending that the
motion for summary judgment should be granted as to the claims against Brown in
his official capacity because (1) the Memorandum wrongly concluded that episodic
acts constituted a policy, practice, or custom of Medina County and (2) the
Memorandum incorrectly found that the Jail’s correctional officers were not
trained to evaluate medical conditions. (Dkt. # 85 at 3–5.) On August 15, 2014,
Jimenez submitted his response to Defendants’ objections, indicating that he
agreed with the Magistrate Judge’s findings. (Dkt. # 86 at 2.)
LEGAL STANDARDS
I.

Review of a Magistrate Judge’s Memorandum and Recommendation
Any party may contest the Magistrate Judge’s findings by filing

written objections within fourteen days of being served with a copy of the
Memorandum and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections
must specifically identify those findings or recommendations that the party wishes
to have the district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A
district court need not consider “[f]rivolous, conclusive, or general
objections.” Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987)
(quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled
8

on other grounds by Douglass v. United States Auto. Ass’n, 79 F.3d 1415 (5th Cir.
1996)).
The Court must conduct a de novo review of any of the Magistrate
Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). On the other hand, findings to which no specific objections
are made do not require de novo review; the Court need only determine whether
the Memorandum and Recommendation is clearly erroneous or contrary to
law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
II.

Motion for Summary Judgment
A movant is entitled to summary judgment upon showing that “there

is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see
also Meadaa v. K.A.P. Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). A
dispute is only genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden, the nonmoving party must
9

come forward with specific facts that establish the existence of a genuine issue for
trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703,
706 (5th Cir. 2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
(5th Cir. 2000)). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012) (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In deciding whether a fact issue has been created, “the court must
draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Kevin M. Ehringer
Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation
are not sufficient to defeat a motion for summary judgment.” United States v.
Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of
Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
In prisoner pro se cases, “[s]ummary judgment, although a useful
device, must be employed cautiously because it is a final adjudication on the
merits.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989). As the Fifth
Circuit has described: “Because [summary judgment] consequences are so severe,
10

. . . we must always guard against premature truncation of legitimate lawsuits
merely because of unskilled presentations.” Id. (internal quotation marks omitted)
(quoting Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980)).
DISCUSSION
In his Memorandum and Recommendation, the Magistrate Judge
concluded that the right to privacy and right to medical care claims against Nolan
should be dismissed, as should the denial of medical care claims against Quintana,
Castro, and Villareal. (R&R at 8–15.) However, the Magistrate Judge also found
that a genuine issue of fact remains as to the denial of medical care claim against
Brown in his official capacity. (Id. at 15.)
Defendants Quintana, Castro, Martina, and Brown object to the
Magistrate Judge’s findings that a fact issue exists regarding Brown’s liability in
his official capacity for denial of medical care. (Dkt. # 85 at 2.) Jimenez did not
file objections to the Memorandum and Recommendation. 2
I.

Claims Against Lisa Nolan
Because no party objects to the Magistrate Judge’s findings regarding

the claims against Nolan, the Court reviews the findings only to determine if they
2

Following Defendants’ Objections, Jimenez submitted a documented titled
“Plaintiff’s Reply to Defendant’s Objection to Memorandum and Recommendation
Docket 80.” (Dkt. # 86.) Although the Court must liberally construe pro se
pleadings, the Court does not construe this Response as an objection to the
Memorandum because Jimenez states, “Plaintiff agrees with Judge Primomo [sic]
decision and will support his findings.” (Id. at 2.)
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are clearly erroneous or contrary to law. The Court agrees with the Magistrate
Judge that Jimenez has failed to show a violation of his right to privacy or right to
medical care by Nolan. Jimenez first alleges a right to privacy claim, premised on
the fact that Nolan permitted Castro to be present in the examination room during
Jimenez’s medical exam. As the Magistrate Judge observes, the Fifth Circuit has
expressly ruled that cross-sex surveillance of prisoners is constitutional when it
furthers a penological interest. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
Given Nolan’s testimony, the Magistrate Judge correctly concluded that there was
a valid penological interest in Castro’s presence in the room and that Fifth Circuit
case law therefore forecloses Jimenez’s right to privacy claim against Nolan.
The Court also agrees that Jimenez has failed to show a violation of
his right to medical care by Nolan. Jimenez alleges that Nolan’s failure to see him
on various occasions, her failure to diagnose the correct cause of his rash, and her
failure to prescribe him appropriate medications violated his constitutional right to
adequate medical care. As the Magistrate Judge observes, a pretrial detainee has
the clearly established right not to be denied attention to his serious medical needs
by the deliberate indifference of jail personnel. Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010). However, the Magistrate Judge correctly concludes that
Jimenez’s summary judgment evidence fails to establish that Nolan was
deliberately indifferent to Jimenez’s serious medical needs, since the facts alleged
12

can only establish, at the worst, that Nolan was negligent in her treatment of
Jimenez.
Accordingly, Jimenez cannot prevail on his constitutional claims
against Nolan as a matter of law, and summary judgment in favor of Nolan is
proper.
II.

Claims Against County Defendants in Individual Capacities
Because no party objects to the Magistrate Judge’s findings regarding

the claims against the County Defendants in their individual capacities, the Court
reviews the findings only to determine if they are clearly erroneous or contrary to
law. The Court agrees that Jimenez has failed to show a violation of his right to
medical care against the county defendants. The basis of Jimenez’s complaint is
that Villareal and Estrada barred him from showering for two days, despite his
intense itching, and that he was unable to obtain an appointment with Nolan until
November 10, over three weeks after his arrival at the Jail. He also contends that
Castro violated his right to privacy by being present during his medical
examination.
Although episodic acts and omissions causing delay in medical care
can rise to a constitutional violation, those delays must be a result of deliberate
indifference by jail staff resulting in substantial harm. Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993). As the Fifth Circuit has described:
13

Deliberate indifference in the context of an episodic failure to provide
reasonable medical care to a pretrial detainee means 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 occur. However, deliberate
indifference cannot be inferred merely from a negligent or even a
grossly negligent response to a substantial risk of harm.
Thompson v. Upshur Cnty., 245 F.3d 447, 458–59 (5th Cir. 2001) (internal
citations omitted). “[D]eliberate indifference is an extremely high standard to
meet”; it requires the plaintiff to 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.’” Domino v. Tex. Dep’t Crim. Justice, 239 F.3d 752, 756 (5th Cir.
2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
There is no evidence in the record that, by denying Jimenez a shower,
the officers wantonly disregarded a serious medical need. Instead, the evidence
shows that the officers complied with general policy by providing him a shower
before his transfer into the general jail population and, in the meantime, providing
him with hydrocortisone cream to relieve his itching. The Court agrees with the
Magistrate Judge that “[w]hile [Jimenez] was undoubtedly extremely
uncomfortable from the itching caused by the rash [in his first 62 hours at the Jail],
there is no basis in the summary judgment evidence for concluding that Jimenez
suffered substantial harm as a result of the inaction by Sgt. Villareal.” (M&R at
14

14.)
Similarly, the Court agrees that there is no evidence in the record that
Castro, Quintana, and Villareal denied Jimenez access to medical care on the days
that he requested sick call. Jimenez’s summary judgment evidence suggests that
the delay in receiving care was because the Jail only provided access to the
physician’s assistant once a week for two hours. The Court also agrees that any
alleged interference by Castro and Quintana during Jimenez’s medical
examinations did not affect Nolan’s ability to provide appropriate and necessary
medical treatment to Jimenez during his visits.
Finally, the Court agrees that Jimenez cannot establish facts showing
that Castro violated his right to privacy for the reasons discussed supra, section I.
Accordingly, Jimenez cannot prevail on his constitutional claims against the
individual county defendants as a matter of law, and summary judgment in favor of
the individual county defendants is proper.
III.

Claims Against Brown
Because Defendants object to the Magistrate Judge’s findings

regarding the claims against Brown in his official capacity, the Court reviews the
findings de novo. The Court addresses Defendants’ specific objections in Section
IV, infra.
Jimenez alleges that Brown violated his rights by promulgating
15

“administrative polic[ies] and procedures.” (Dkt. # 6 at 3.) His specific factual
allegations identify the following policies as the basis for his claim: (1) the
showering policy preventing pretrial detainees from showering before moving into
the general population; (2) the policy preventing guards from addressing medical
conditions at night, unless those conditions are life-threatening; (3) the medical
policy, which only provides detainees access to in-person medical care once a
week for two hours; and (4) a custom of throwing away complaints.
A.

Individual Versus Official Capacity Liability
Because “Section 1983 offers no respondeat superior liability,”

supervisory officials are not vicariously liable for the actions of their
subordinates. Pineda, 291 F.3d 325, 328 (5th Cir. 2002); Thompkins v. Belt, 828
F.2d 298, 303 (5th Cir. 1987). However, § 1983 imposes supervisory liability
when a supervisor who was not personally involved in the events giving rise to the
constitutional violation nevertheless (1) fails to adequately train or supervise the
officers involved in the constitutional deprivation, and that failure gave rise to the
deprivation, or (2) “implement[s] a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional
violation.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011); Thompson v.
Upshur Cnty., Tex., 245 F.3d 447, 459 (5th Cir. 2001); Thompkins, 828 F.2d at
304 (internal quotation marks omitted).
16

A supervisory official can also be liable in his official capacity if he is
the type of “final policymaker” whose decisions represent the decisions of the
county. City of St. Louis v. Praprotnik, 485 U.S. 112, 123–24 (1988) (noting that
“identification of policymaking officials is a question of state law”); accord Valle
v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010). In that instance, the case is
effectively a suit against the municipality. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989).
Because Jimenez does not identify whether he brings claims against
Brown in his individual or official capacity, the Court must look to the course of
the proceedings to determine the nature of his claims. See Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985) (holding that in cases where the plaintiff fails to
specify whether officials are sued personally or in their official capacity, the court
must make the determination based on the “course of proceedings”); accord United
States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 402–03 (5th Cir.
2004). Factors relevant to the inquiry include the substance of the complaint, the
nature of relief sought, and statements in dispositive motions and
responses. See United States ex rel. Adrian, 363 F.3d at 402–03.
Here, the course of proceedings demonstrates that claims alleged
against Brown are official capacity claims. The claims against Brown are
significantly different than those alleged against the other defendants: while
17

Jimenez alleges conduct-based claims against the other defendants, he alleges
policy-based claims against Brown. (Dkt. # 6 at 3.) In their Motion for Summary
Judgment, Defendants address their liability in both their individual and official
capacities. In addressing the individual capacity claims, Defendants limit their
discussion to conduct-based claims, rather than the policy-based claims. (See Mot.
at 6–10.) Defendants address the policy claims only to the extent that they impact
municipal liability. (See id. at 10–12.) While Jimenez has proceeded pro se, his
Response does not suggest that Brown should be liable in his individual capacity.
Given the nature of the claims and the manner in which they have been addressed
by the parties, the Court construes the claim against Brown to be a claim against
Brown in his official capacity.
B.

Nature of Claims
When bringing a constitutional challenge, a pretrial detainee can

proceed under two alternative theories: a “conditions of confinement claim” or an
“episodic acts or omissions” claim. Shepherd v. Dall. Cnty., 591 F.3d 445, 452
(5th Cir. 2009). A conditions of confinement claim is a challenge to the broad
policies and practices of a jail that ultimately cause a plaintiff’s injuries. Id. Most
frequently, the condition is “the manifestation of an explicit policy or restriction:
the number of bunks per cell, mail privileges, disciplinary segregation, etc.” Id.
Less frequently, the condition “reflect[s] an unstated or de facto policy, as
18

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 a
condition or practice.’” Id. (internal editing marks omitted).
When a plaintiff “cannot establish the existence of any officially
sanctioned unlawful condition,” a plaintiff can bring an episodic acts or omissions
claim, which challenges particular wrongs committed by individual defendants
against the plaintiff. Id. “In these cases, an actor is usually interposed between the
detainee and the municipality, such that the detainee complains first of a particular
act of, 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.” Id. (internal quotation marks omitted).
Analytically, conditions of confinement and episodic acts and
omissions claims impose different culpability standards. While plaintiffs setting
forth a traditional episodic acts and omissions claim must show that the defendants
acted with deliberate indifference, plaintiffs setting forth a conditions of
confinement claim are “relieved from the burden of demonstrating . . . actual intent
to punish because . . . intent may be inferred from the decision to expose a detainee
to an unconstitutional condition.” Id.
In his claims against Brown, Jimenez identifies specific policies as the
moving force behind the constitutional violations that he alleges. His focus is not
19

on the particular acts of Brown; it is on the failure of Brown’s policies to provide
him with adequate care. Accordingly, the Court finds that Jimenez’s claims
against Brown are properly analyzed as conditions of confinement claims. See,
e.g., Smith v. Kaufman Cnty. Sheriff’s Office, No. 33:10-CV-703-L-BK, 2011 WL
7547621, at *13 (N.D. Tex. Dec. 14, 2011), report and recommendation adopted
sub nom. Smith v. Kaufman Cnty. Sheriff, 2012 WL 850777 (N.D. Tex. Mar. 14,
2012) (finding that “[p]laintiff’s policy-based claims” against the sheriff were
conditions of confinement claims because his allegations about failure to receive
timely treatment arose out of inadequate policies at the jail).
C.

Sufficiency of the Evidence—Conditions of Confinement Claim
As discussed above, a suit brought against a county official is a suit

against the county. Will, 491 U.S. at 71. A county is liable under § 1983 for
constitutional violations arising out of policies or practices officially adopted and
promulgated by the government’s officers. City of St. Louis v. Praprotnik, 485
U.S. 112, 121 (1988); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Because a county cannot incur § 1983 liability under a respondeat superior theory,
it can only be liable “for acts directly attributable . . . ‘through some official action
or imprimatur.’” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847–48 (5th
Cir. 2009) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir.
2001)).
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To establish municipal liability under § 1983, a plaintiff must prove
that (1) a policy maker promulgated (2) an official policy or custom that (3) was
the moving force behind the violation of the plaintiff’s constitutional
rights. Monell, 436 U.S. at 694; accord Zarnow v. City of Witchita Falls, Tex.,
614 F.3d 161, 166 (5th Cir. 2010).
1.

Policy or Custom

A policy or custom is either (1) a written policy statement, ordinance,
or regulation officially promulgated by county officials, or (2) a widespread
practice of municipal officials or employees that is “so common and well-settled as
to constitute a custom that fairly represents municipal policy.” Peterson, 588 F.3d
at 847 (quoting Piotrowski, 237 F.3d at 578).
Of the four policies and practices that Jimenez identifies, only two are
sufficient to move past this first prong. To support his claims that the Jail has a
policy that guards cannot address non-life-threatening medical conditions at night
or that the guards discard complaints, Jimenez presents only his own statements
that he was told the policies existed. Jimenez’s hearsay recitations of third-party
statements and own conclusory statements are insufficient to meet his burden at the
summary judgment stage. Accordingly, there is insufficient evidence to show a
policy or practice that Medina County guards cannot address non-life-threatening
medical conditions at night or that they discard inmates’ complaints.
21

There is sufficient evidence in the record, however, to show that there
were policies in place regarding medical staffing and showering. According to the
record evidence, the Jail contracts its medical staff through the Medina County
Hospital, which provides the Jail with a Physician’s Assistant to see detainees and
inmates at the facility for two hours each week. (Dkt. # 70, Ex. C at 1; Dkt. # 71,
Ex. B at 2.) To obtain an appointment with the Physician’s Assistant, a detainee
must fill out a “sick call slip.” (Dkt. # 71, Ex. B at 2.) The sick call slips are
screened by jail staff and then forwarded to the Physician’s Assistant for review.
(Dkt. # 73, Ex. 50.) The Physician’s Assistant reviews all sick call slips provided
to her and, based on her medical knowledge, decides which inmates need an
appointment. (Id., Ex. 14.) In addition, jail staff can call the Physician’s Assistant
regarding patient complaints at the times when the Physician’s Assistant is not at
the facility. 3 (Dkt # 71, Ex. B at 2.) The jail staff screening the sick call slips have
no medical field training, but have received training on recognizing and referring
sick call requests for health services through a mandatory corrections officer
training administered by the Texas Commission on Law Enforcement Officer
Standards and Education (“TCLOSE”). (Id., Ex. 21; Obj., Ex. A at 11–16.)
Though it is likely that there are written documents setting forth these
3

Defendants assert in their Objections that inmates are also provided emergency
care through a local hospital, but the document that they cite as evidence
supporting the statement does not contain such information. (Obj. at 3.)
22

statements as written policy, Jimenez has not provided such evidence to the Court.
Nevertheless, because the practices are so widespread, they are at the very least a
widespread practice sufficient to give rise to municipal liability.
Additionally, the record demonstrates that there is a written policy
statement on showering, which provides “Inmates in holding will be showered as
needed but given at least 1 shower in 48 hours and must be showered before being
housed in population.” (“MSJ,” Dkt. # 71, Ex. A–4 at 2.) However, the written
policy does not provide, as Jimenez alleges, that detainees cannot shower before
moving into the general population. 4
2.

Moving Force

To show that a policy was the moving force behind the constitutional
violation, a plaintiff must show both causation and culpability. See Piotrowski v.
City of Hous., 237 F.3d 567, 580 (5th Cir. 2001). With respect to causation, the
plaintiff must show a direct causal link between the municipal policy and the
constitutional deprivation. Id. “Th[e] connection must be more than a mere ‘but
for’ coupling between cause and effect”; a showing of proximate cause is
necessary. Johnson, 379 F.3d at 310. Accordingly, a superceding or interfering
cause can bar liability. Murray v. Earle, 405 F.3d 278, 290 (5th Cir. 2005).
4

Jimenez does not present evidence that there is a custom or practice that detainees
cannot shower before moving into the general population that is so widespread as
to amount to policy. The only evidence he presents on this issue is his own
experience, which is insufficient to establish independently a custom or practice.
23

In a conditions of confinement case—unlike in an episodic acts and
omissions case—culpability is assessed under the test set forth in Bell v. Wolfish,
441 U.S. 520 (1979). Hare, 74 F.3d 633, 644–45 (5th Cir. 1996). Under the Bell
standard, a policy can give rise to liability when the condition at issue amounts to
punishment—that is, when the condition is not reasonably related to a legitimate
governmental objective. Id. at 539.
a.

Medical Care Policy

Pretrial detainees have a clearly established right to adequate medical
care while in custody. Brown, 623 F.3d at 253. Accordingly, Jimenez must show
that the medical care policies were deficient in providing constitutionally adequate
medical care and that he was subjected to those policies while seeking treatment
for his injuries.
In support of his claim, Jimenez presents an interrogatory from Nolan,
in which she states “I review all sick call slips given to me, however, I do not
always actually see everyone that placed a request. I use my medical knowledge
and any medical history I have regarding a particular inmate to decide who needs
to be seen.” (Resp., Ex. 14.) Jimenez also presents evidence showing that the
population of the Jail ranged from 69 to 84 detainees and inmates during the
months of October and November 2011. (Dkt. # 73, Exs. 1, 4, 5, 5A, 17, 18, 19,
22, 27, 23, 23A, 24.) Although Nolan is apparently available for off-duty calls, she
24

never provided such care for Jimenez even though he was repeatedly unable to see
her during her normal hours.
Jimenez presents evidence that, from October 16, 2011, to November
28, 2011, he submitted at least ten sick call slips requesting to be seen on nine
different occasions for reasons related to his rash.5 Nevertheless, Jimenez only
received two appointments: the first on November 10, almost a month after
submitting his first complaint, and the second on December 1. On three other
occasions that Jimenez could not be seen, Nolan prescribed him treatment without
seeing him for an appointment.
Throughout this period, Jimenez’s rash, which began as intense
itching on his stomach, face, arms, legs, and buttocks, worsened and eventually
spread to his anal opening. During this time, he also suffered a reaction to
prescribed medication. He continues to suffer small outbreaks of the rash.
Drawing all inferences in favor of Jimenez, there is a question of fact
as to whether the jail was able to provide constitutionally adequate medical care to
detainees during the two hours each week that the Jail provides and whether the
limited availability of care caused Jimenez’s injuries. Accordingly, there is a
genuine issue of material fact as to whether the Jail’s policy regarding medical
5

Although Defendants contend that the they only received four sick call slips from
Jimenez, the Court must take the evidence in the light most favorable to the
plaintiff at the summary judgment stage. Kevin M. Ehringer Enters., 646 F.3d at
326.
25

staffing proximately caused the delay in medical care.
Finally, the Government presents no evidence as to a legitimate
governmental interest reasonably related to the delay in medical care. Given the
pattern of repeated delay in his ability to access medical treatment, Jimenez has
demonstrated sufficient evidence to raise a genuine issue of material fact as to
whether the delay in medical care constitutes punishment under the Bell
standard. See Shepherd v. Dall. Cnty., 591 F.3d 445, 455 (5th Cir. 2009)
(emphasizing that, in a conditions of confinement case, “a detainee challenging jail
conditions must demonstrate a pervasive pattern of serious deficiencies in
providing for his basic human needs; any lesser showing cannot prove punishment
in violation of the detainee’s Due Process rights.”).
b.

Showering Policy

There is no evidence that the Jail’s showering policy was the moving
force behind a constitutional deprivation on its own. See Hamilton v. Lyons, 74
F.3d 99, 107 (5th Cir. 1996) (finding that deprivation of a shower for three days
did not give rise to a constitutional violation); see also McKinney v. Grant Sheriff
Dep’t, No. 12-CV-937, 2013 WL 10987151, at *2 (W.D. La. Jan. 23, 2013), report
and recommendation adopted by 2013 WL 1098158 (W.D. La. Mar. 15, 2013)
(same). Moreover, even if Jimenez’s rash constituted an independent
constitutional violation, any delay in showering afforded by the policy was not the
26

proximate cause, since the delay in medical care constitutes a superceding cause.
Accordingly, the showering policy does not give rise to liability under § 1983.
3.

Promulgated by a Final Policy Maker

Because Jimenez has not presented evidence a written document that
lays out the policies regarding medical care and instead presents evidence to show
a custom, he must demonstrate that a final policymaker had actual or constructive
knowledge of the policies. See Bennett v. City of Slidell, 735 F.2d 861, 862 (5th
Cir. 1984) (en banc). “A municipal policymaker is someone who has ‘the
responsibility for making law or setting policy in any given area of a local
government’s business.’” Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir.
2010) (quoting Praprotnik, 485 U.S. 112, 125 (1988)). Whether an official has
policy making authority is a question of state or local law. Jett v. Dall. Indep. Sch.
Dist., 491 U.S. 701, 737 (1989).
Texas law is clear that a sheriff is a county’s “final policymaker in the
area of law enforcement,” including county jails. Colle v. Brazos Cnty., Tex., 981
F.2d 237, 244 (5th Cir. 1993); see also Tex. Loc. Gov’t Code § 351.041(a).
Accordingly, Sheriff Brown is a final policymaker for jail-related policy in Medina
County.
Although evidence of the medical policies comes from affidavits and
sworn testimony rather than contracts and employee manuals, there is a question of
27

fact as to whether Brown had at least had constructive knowledge of the policies.
Unlike in typical custom or practice cases where the custom or practice is
informally implemented by employees, the procedures in place regarding medical
care arose out of formal contracts between the Jail and Medina County Hospital.
As the final policymaker for the Jail, there is a question of fact as to whether
Brown had knowledge or can be attributed knowledge of those contracts.
Accordingly, because genuine questions of fact exist as to each of the
elements of the conditions of confinement claim against Brown, the Court
DENIES summary judgment on that basis. Accordingly, the Court AFFIRMS the
Magistrate Judge’s Memorandum and Recommendation, albeit on slightly different
grounds. See, e.g., Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A.,
754 F.3d 272, 276 (5th Cir. 2014) (quoting Holtzclaw v. DSC Commcn’s Corp.,
255 F.3d 254, 258 (5th Cir. 2001)) (“An appellate court may affirm summary
judgment ‘on any ground supported by the record, even if it is different from that
relied on by the district court.’”).
II.

Objections
Defendants object to the Magistrate Judge’s Memorandum and

Recommendation on two grounds. First, Defendants argue that the Magistrate
Judge wrongfully found that episodic acts of Nolan constituted a policy, practice,
or custom and improperly imputes respondeat superior liability on the county for
28

her actions. (Obj. at 3.) Second, Defendants argue that the Magistrate Judge
wrongfully concluded that the Jail’s officers were not trained to evaluate medical
conditions. (Id. at 4.) Because the Court resolves the claims against Brown in the
same way as does the Memorandum and Recommendation, the Court addresses
objections in turn.
A.

Episodic Acts as Policy, Practice, or Custom
Defendants first contend that the Magistrate Judge’s analysis of the

claims against Brown relied on (1) the fact that Nolan did not often see Jimenez,
despite his sick call requests and (2) the fact that Nolan is only available one day a
week for two hours, but ignores the fact that she is on-call for complaints and that
inmates have access to emergency care. (Id. at 3.) Accordingly, Defendants
contend that the Court is holding the County liable for Nolan’s actions, which
directly controverts the holding of Monell. (Id. at 4.)
As the Court has described at length, a county cannot be held liable on
a respondeat superior theory for the wrongdoings of its employees. However, the
county can be liable for implementing unconstitutional policies and customs.
Defendants mischaracterize the Magistrate Judge’s analysis as falling within the
first impermissible category, when, in fact, it falls squarely within the second.
Nolan’s hours at the facility are not particular wrongs committed by her: they are
the physical manifestation of the Jail’s medical policies. Moreover, the mere fact
29

of emergency services does resolve the question as to whether the Jail can provide
constitutionally adequate medical care within the constraints of its existing
policies. Accordingly, the claims are properly analyzed as policy-based claims.
B.

Training of Correctional Officers
Second, Defendants argue that the Magistrate Judge incorrectly

concluded that “Defendants acknowledge that Sheriff Brown, Administrator
Quintana and Capt. Castro were not trained medically” and “[p]resumably, other
correctional personnel at the jail have no medical training.” (Id. at 4.) The
Magistrate Judge’s conclusion was based on the County’s interrogatory response
submitted as an exhibit to Jimenez’s Response. In the interrogatory, Jimenez
requested a “[l]ist of training provided by Medina County in medical field. This
includes Jan Quintana/Delia Castro.” (Resp., Ex. 21.) Defendants responded,
“Neither Jan Quintana, nor Delia Castro were employed by Medina County in a
medical role and, as such, received no medical field training from Medina County.
Medina County contacts [sic] its medical services out to licensed healthcare
providers.” (Id.)
Given the evidence in the record, the Magistrate Judge reasonably
concluded that the Jail’s correctional officers did not have medical training, despite
their role in screening sick call slips. However, in their Objections, Defendants
provide additional evidence that shows that officers receive training on recognizing
30

and referring sick call requests for health services through a mandatory corrections
officer training administered by TCLOSE. The Court has incorporated this
evidence into its analysis in Section I.C.1, supra.
CONCLUSION
For the aforementioned reasons, the Court AFFIRMS the Magistrate
Judge’s Memorandum and Recommendation (Dkt. # 80), although does so on
different grounds with respect to the claims against Brown in his official capacity.
Accordingly, the Court GRANTS Nolan’s Motion to Dismiss and Motion for
Summary Judgment (Dkt. # 70), GRANTS the County Defendants’ Motion for
Summary Judgment (Dkt. # 71) as pertaining to the claims against Quintana,
Castro, and Villareal, and DENIES the County Defendants’ Motion for Summary
Judgment (Dkt. # 71) as pertaining to the claims against Brown in his official
capacity.
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 8, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

31