Tellez v. The GEO Group In.c et al

Filing 86

MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (rf)

FILED
IJNITEI) STATES DISTRICT CO1.JRI
FOR TH.E WESTERN DISTRICT OF TEXAS

AUG 0

1

2017

CLERK, U.S. DISTRICT CLERK
WESTERN D!.TRcT OF TEXAS
BY

RAYMONI) TELLEZ,

DEPUTY

Plaint 1ff,
Case No: 5:iS-ev.-465-RCL

V.

TUE GEO GROUP INC.,
Defendant.

MEMORANDUM OPINION
Plaintiff R)'mond Tellez. fbrmcrl\' an inmate at (he ('crttral Texas Detention Facility,
brings this negligence action against defendant The OFO Group. inc. ç'GI;iO"), ' which operates
the Central Texas Detention Facility, in connection with a stabbing assault perpetrated by other

inmates that he sulTh.red while an inmate at the Central l'cxas Detention Facility. Mr. Tellcz

originally brought claims for negligent supei'visioii (of inmates), lack ol supervision or training
(guards), and negligent implcnie.ntat.ion ot security policies or procedUreS. On February 9, 2016,

Magistrate Judge Prirnomo recommended that summary udgrnent be granted in favor ofdekndant
as to Mr. Tcllez's negligent training and supervision claims ECF No, 30j.

J

Ic recommended that

summary judgment be denied, however, with respect to Mr. I'e1lcz's claims regarding fiilure to
implement security policies or procedures. On August 15. 2016, Judge !3iery adopted this Report

and Recommendation and granted. summary judgment in favor

lIinthi1 aciiui. pro se, originally brought suit against 'the (il() (houp.
1)etcntinn Facility.

As noted

at trial,

the appropriate dckndant

s

of dcftmdant as to

Mr. Tcilez's

Inc., UFO, (iEO Group Facility,
the Gh() Group, inc.

and Central

negligent training and supervision claims and denied summary judgment as to Mr. Tellez's claim
concerning

negligent implementation of a policy/regulation [ECF No. 461.

This case was tried to the Court on January 4, 2017. The Court has considered the evidence
presented at tiial, the parties' proffered facts, the arguments of counsci, and the controlling legal
authority. The Court has also ascertained the credibility of each witness and evaluated the
probative value of all relevant evidence admitted at trial. Based upon the h)regOing, the Court

makes the following findings of fact and conclusions of law, It concludes that defendant The GEO
Group was negligent in failing to implement several policies and is therefbre liable to Mr. '.l'ellez.

The Court will award damages totaling $25,000.
.1.

FLNDINGS OF FACT

Defendant the GEO Group, Inc. operates the Central Texas Detention Facility. Mr. Tellez
is an inmate who, in October 2013, was incarcerated at

awaiting sentencing.

the

Central Texas Detention Facility while

He had been arrested and charged with intent to distribute a controlled

substance (cocaine) and possession of a firearm by a convicted felon on May 17, 2013. Several

months later, his drug charge was changed from cocaine to methamphetamine and he was charged

under a superseding indictment. On. June

1, 2016,

he was charged in a one count information with

participating in a racketeer influenced and corrupt organization ("RlCO') conspiracy. The pattern

of racketeering activity included thur murders, extortion, and

the

distribution of narcotics. Mr.

Tellez agreed to plead guilty to these charges, but has not yet been scntcnced.

Prior to his incarceration, Mr. Tellez was a 'general" in the Texas Mexican Mafia. As
such, he was the highest ranking member in San Antonio, with approximately 4,000 individuals

under

his

command. While incarcerated, Mr. Teliez began cooperating with the government,

becoming a confidential infbrmant against the Mafia. He has testified against several members of

2

the Mafia, resulting in their incarceration, and,

at

the time of trial, was expected to testify against

two more. The Mafla's penalty frw this cooperation S death. Titus, all

4,()O() of the Mafia memberS

previously under Mr. Tcilcz 's command were essentially mstriictcd to kill him.

This placed him at a higher risk of being assaulted by other inmates. As a result, he was
kept in protective custody, with instructions to keep him away from aH other inmates. Mr. TelIez

was thus held in a cell on the first floor in the medical .iepartment, The medical department

consists generally of three areas: 1) the main medical area/waiting area; 2) medical left; and 3)
medical right Medical

area. Medical right

leftthe female side...... consists ol eight cells, a guard's desk, and a shower

the male sideconsists of three cells and a shower area. The main medical

area/waiting area contains

a.

guard's desk, ] he three areas are oriented as fillows: if' one

eateN

the medical department, they will he standing in the main medical area/waiting area, theing the

guards desk

in the center. The entrance to medical left is to the left

entrance to medical right is

to the

of the guard's desk. The

right of the guard's desk. t3oth are along the same wall behind

the guard's desk. Medical left and medical right
locked doors. Mr. i'ellei was held in Cell

2 in

arc separated

from the main medical area by

medical right. The shower area was located across

from him.
On October 24, 201 3, two other inmates ....... Roland Contreras and Randy

Gonzaleswere

transported to the medical area, inmates Contreras and Gonzales arc members of the Mexican
Mafia, who, like other members

of the Mexican Mafia, sought to

1)LInisll

Mr. TcIlez ihr his

cooperation. Dne to this affiliation, they were housed in administrative segregation
from the general population -and were considered threats

as

imummies

to

separate

other inmates. Because of their stat us

housed in administrative segregatIon, according to GE() policy at the time oithc assault,

imitates Contreras and Gonzales were supposed to be strip searched helhre being transported out

of their cells, 0130 Officer Victoriono Chavarria was responsible for conducting the strip search.
They were not strip searched on October 24, 2013. They were also supposed to be pat searched
upon arrivin.g at the medical department. Officer Dianne Corona was responsible for conducting

the pat search. They were not pat searched on October 24, 201 3.
Once in the medical area, iiimatc Contreras' restraints were partially removed by Nurse

Mary Garcia for a foot soak treatment, so that at least one hand was free and uncuffed. This was
contrary to GEO policy, under which inmates Contreras and Gonzales were supposed to have been

restrained by leg and hand restraints. Nurse Garcia had been instructed on previuus occasions that
restraints were not to he removed from inmates kept in administrative segregationsuch as
inmates Co.ntreras and Gonzales without a doctor's order and authorization from the duty
warden.
On the evening of October 24, 2013, GEO Officer Candace Lundquist was on duty in the

medical department

She was responsible for the main medical area, medical left, and medical

right. During and around the time of the assault at issue, she was moving amongst the three areas,

sometimes leaving the guard's desk in the main medical area unattended.
Around 6:30 p.m., sometime afier inmate Conireras' restraints were removed, and while

Officer Lundquistwas in medical left

and therefore was absent from the main medical area where

inmates Contreras and Gonzales were locatedinmates Centreras and Gonzales got up, and
walked through the door separating the main medical area from medical right, where Mr. Tcllez
was being housed, According to (1130 policy, these doors were supposed to be kept locked. On
the evening of October 24, 2013, however, they were not locked. This fact was known to GEO
employees. At the time, Mr. Tellez was in the shower. He was attacked by inmates Contreras and
Gonzales. Inmate Contreras stabbed Mr. Tdllez with a sharpened object, i.e., a shank, while inmate

Goralcs acted

as a lookout. Mr. Teller, was stabbed several times and sutThred several stab

woundS and abrasions.

lie sufThred

from

puncture wounds to the right chest, right armpit, ipht

rib cage, right front leg. right lumbar, and rent right leg. He suffered

abrasions

to the top of his

head, neck, right lumbar, and rear right leg.

Afier the assault, Mr. Teller, was placed in hi

ecU where an initial assessment was

conducted by Nurse Garcia. Forty-five minutes later, he was taken to an assessment room for
evaluation, Mr. Tcllez was able to walk to these locations. His wounds were checked and cleaned,
but he

was not given any pain medication.

Dr. Samuel Morgan, the facility physician,

recommended that due the nature of Mr. Teller's injuries and the lack of ability to assess the extent
and Severity of his injuries, Mr. Teller be transferred off site for further assessment, but that there

was no need

fr an ambulance because Mr.

l'ellct's injuries were not life threatening. Mr. Tcllcz

was transported to the hospital by facility vehicle around :0O p.m. He waited for approximately

one hour at the hospital before receiving treatment. Three of' his stah wounds were closed with
staples and he was placed on pain medicine tor five days. Mi'. Teller was transported hack to the

jail and arrived at approximately 3:30 n.m. on October 25. 'I'lie same day Mr. 'Feller arrived back
at (lEo from the

hospitalOctober 25, 2013, the day afler the attack ........he was transferred

to

Guadalupe County Jail, where lie was housed in the medical department fir two weeks.
After conducting an investigation, GIiO issued a report finding that Officers Chavarria and
Lundquist committed acts of gross negligence in not ftlowing facility procedure.
Chavartia

and Lundquist and Nurse Garcia were terinianted as a result of this incident.

Officers

IL

CONCLUSIONS OF LAW
A.

Legal Standards

The elements of a negligence claim are
3) proximate cause, and 4) damages.

1)

the existence of a duty. 2) a breach of that duty,

IllS (Jedars Treaimcnt Ctr. of/)eSoio, lexas. Inc.

V.

Mason.

143 S.W,3d 794, 798 (Tex. 2004). As a general rule, "there is no duty to control the conduct

third parties

Salaar

Gollins, 255 S

.W3d 191,

19%

of

(Tex, App. 2008). An exception applies,

however, "when a special relationship exists between an actor and another that imposes a duty on

the actor to contrnl the other's conduct." Id. At least cite Texas Court of Appeals has determined
that prisons and jails have a special relationship with inmates in their custody which imposes on
them a duly to protect inmates from other inmates in ecilain circumstances. See Id. at 198-203.

Specifically, prisons "owe a duty

of reasonable care to prolect inmates

from harm [at the hands of

other inmates] when that harm is reasonably foreseeable." Id, at 2O3 sec also Minneci v. Pollard,
565 U.S. 118, 128 (2012) (citing Salazar as "specific authority indicating that state law imposes

general tort. duties of reasonable care (including medical care) on prison employees in every one

of the eight States where privately managed secure fldeial titcilitics arc currently located"); Doe
v.

The Geo Grp.,

Inc.,

No. SA...16CV-173-XR, 2017

WL $35209, at *5 (WD. Tex, Mar. 2, 2017)

(citing Salazar and stating "Texas law might impose a duty of care on p... 1801) staff').

The clement of proximate causation has two subelements: cause in fact and foresceability.
1115

Lcdars Teatnicni Cir.. 143 S.W.3d

at 79$

tn fact is established when the act or

emission was a substantial factor in bringing about the injuries, and without It, the harm would not

have occurred." Id. at 799. "Foresceabilitv exists when the actor as a person of ordinary
intelligence should have anticipated the dangers his negligent act creates
Inc. v. Hove, 92 S.W3d 450, 454 (Tcx. 2002).

6

ftr others."

Houston,

Analysis

B.

The Court finds that Mr. Tcllcz has demonstrated all of the elements of a negligence claim.
1.

Duly

First, GEO owed Mr. Tellcz a duty to protect him from attack in these circumstances. GEO
knew that as a government cooperator working against the Mexican Mafia, Mr. Teliez was in
danger of being attacked. Mr. Tcllez wasthus to be kept in protective custody away from all other
inmates. The inmates who attacked Mr. Tellez were members of the Mexican Mafia who were

considered to be threats to other inmates. As such, they were kept in administrative segregation.
Based on these facts, the Court concludes that under Salazar, harm to Mr. Tellez was reasonably
foreseeable.
2.

Breach

The Court next finds that GEO breached that duty. GEO policy states the following with
respect to strip searches of inmates in administrative segregation:
Upon arriving at the designated cell [the officer] will direct: the detainee to stand arid
remove his/her clothing for a strip search. The detainee will hand his/her clothing though
his/her cell to [the officer], which [the officer will physically inspect ftr contraband. [The
officer] will hand the clothing back to the detainee and watch the detainee get dressed.
[The officer will] [n]cver take [his/her] eyes off of the detainee during this process because
the detainee inside the cell may secure a weapon or other contraband while [the officer]
avert[s] [his/her] supervision, There will be no multiple clothing or double/triple layers of
clothing on the detainee when released from his/her cell. [The officer will] [h]ave the
detainee follow proper strip search procedures before returning the clothing or applying
restraints.

Pl,'s Trial Ex.

I

¶ 5. GEO Warden Barry testified that inmates Contreras and Gonzales should

have been strip searched before they reached the area where Mr. Tellez was being housed.
GEO policy states the following with respect to pat searches:

Detainees
be pat searched before entering into or departing from the Medical area..
All detainees are to he pat searched when entering or leaving the Medical Department.
NO
EXCEPTIONS! Although the Housing Unit Officer may have searched the detainee, you
are responsible fbr searching detainees entering or leaving the Medical Department.
7

PL's Trial Lx. 2 at

I

8. Warden Barry esti1ied thai inmates Conireras and Gonzales should have

been pat searched hefbrc they reached the area where Mr.

idle,. was being housed.

GEC) policy states the following with respect to restraints lbr inmates in administrative

segregaiion:
When the detainee is dressed. [the officer] will have the detainee turn aroUnd with [his/her)
back to you, place the waist chain on him/her. After placing the waist chain on the detainee,
[the otlIcerJ will apply the handeufis to them in the front of their body. [The officer] will
then have the detainee turn around again and place the leg-irons on them. AU restraints
will be locked prior to the detainee coming out of the cell.

PL's Trial Lx.

1

¶ 6. Warden Barry testified that inmates Contreras and Gonzales should have

been restrained by both leg restraints and hand restraints at the time of the attack. Etc also testified
that Nurse Garcia had been instructed cm previous occasions that restraints were not to be removed
from inmates in administrative segregation

such as inmates Contrcras and Gonzaleswithout a

doctor's oider and authorization from the duty warden.
GE() policy stales the following with respect to the locking of the medical doors: 'At times,
the Medical

stall shall, out of necessity, leave a room. At such time, they have been directed to

lock that space by locking the door. You are directed to vorit that they have done so" Pl.'s Trial
Lx. 2 at 2. Warden Barry testified that the doors to medical right........ where Mr. Tellez was
being

housedwere supposed to have been locked at the time of the attack,
On. the

day of the attack, none of these policies were lillowcd. Inmates Contreras and

Gonzales were not strip searched. They were not put searched. liunate Coiitieras restraints were

partially removed. The doors to medical iight were left unlocked while Officer Lundquist left the

main medical area and entered medical left, Such failure to implement policies was a breach of

GEO's duty to prevent harm to Mr. Tehiez.

3,

Mr.

l'dllcz

Damages
suffered damages. The Court will quantify his monetary damages in Part IlL

infra. but it is sufficient to state here that he suffered from several stab wounds, three of whIch
needed to be closed by staples. as well as several abrasions.
4.

'aiisaIion

GEO's breach was the proximate cause of Mr Teflez's injuries. Even tiough inmate
Contreras actuniiy iffihicted the injuries on Mr. Tellez GEO's thilure to implement the
above
described policies was the cause in {ict of Mr. TeIlez's injuries because these failures
were
substantial factors in bringing about the injuries. Inmates Contreras and Gonzales were not
strip
searched bcfbre leaving their cells. If they had been, guards would have found the
shank tucked

into the waistband of inmate Contreras. They were not pat searched upon ardvin at
th medical

department. Again, if they had been, guards would have thund the shank. inmate
Contreras'
shackles were partially removed by Nurse Garcia. If he had remained shackled as
required by

GEO polic:, ho would not have been able to retrieve the shank from his waistband and
use it to
stab Mr. Tellcz. Finally, thc doors to medical right were unlocked. This allowed
inmates Contieras

and Gonzales to enter the area containing Mr. 'l'ellez, even though he was supposed to
be kept
away from all other inmates. If any one of these policies had been followed, the attack
would not

have occurred as ii did. Warden. Barry

even

testiled that the assault was

a result

of a failure by

the GE() Group to strip search or pat search inmates Contreras and Gonzales,
properly restrain
them, monitor them, and lock the doors to Mr. Tellez's cell area.
The element of Ibresceability is also present. Inmates Contreras and Gonzales were known
to he dangerous inmates, Mr. Tellez was knoWn

to

be at risk of harm at the hands ot other inmates.

GEt.) should have anticipated that not searching and unshackling a dangerous

9

inmatewho was a

member of the same organization that Mr. Tcllez was actively testifying againstin the area where
Mr. Tellez was being held, and then leaving the only door separating Mr. Tellez from said

dangerous inmate unlocked, could lead to hann to Mr. Tellez.

Thus, having demonstrated all the elements of a negligence cause of action, the Court
concludes that judgment shall be entered in favor of Mr. Tellez. GEO is liable for any damages
that Mr. Tellez suffered, which are addressed in the following section.

lii.

DAMAGES
Mr. Tellez seeks the following in damages: $75,000 for physical pain sustained in the past;

$50,000 for physical pain which in reasonable probability he will sustain in the future; $100,000
for mental anguish sustained in the past; $50,000 for mental pain which in reasonable probability

he will sustain in the future; $50,000 for physical impairment sustained in the past; $50,OOO for
physical impairment which in reasonable probability he will sustain in the future; $50,000 for past
disfigurement; and $50000 for future disfigurement. The Court takes each in turn.
A.

Physical Pain

Plaintiffs may recover economic or noneconomic damages.

Noneconomic damages

include "damages awarded for the purpose of compensating a claimant for physical pain and
suffering." Tex. Civ. Prac. & Rem. Code Ann,

§

41.001(12). As described above, Mr. TelIez

suffered from several stab wounds and abrasions, which he described as painful. Mr. Tellez
testified that at the time of the attack, his pain level was a 10 on a scale of 1 to 10. The worst pain

was the result of the stab wounds to his upper right shoulder and to his right thigh.
Mr. Teilez was evaluated by CiEO staff following the attack, who found that he suffered
from superficial stab wounds, but no intrathoracie traumatic injuries, no acute traumatic injuries
to the abdomen or pelvis, no acute cardiopulmonary abnormalities, and no significant

10

abnormalities in the chest wall. Mr. Tellez was observed as oriented and was in no apparent
distress. Mr. Te1le testi lied that there was no discussion of physical pain while he was at GEO

before he was transported to the hospital.

After Mr. iellcz arrived at the hospital, he rated his pain as a 3 out of

I

0.2 Mc was described

as alert, oriented, and in no apparent distress. He was able to take deep breaths without pain. Mr.

Tellez was given pain medication shortly afier midnight. He was treated with staples to three of

the stab wounds, was given prescriptions thr ibuprofen and hydrocodonc, and was discharged as
stable. Dr. Morgan, the 0130 facility physician, ordered that the hydrocodonc prescrtption be

discontinued as narcotics arc typically not prescribed by the theility doctor and he determined that
the ibuprofen prescription would be sufficient for pain. Mi. Tcllez was kept on pain medication
for five days, but he testified that the medication did not help his pain. Warden I3arry visited Mr.

Teilez the morning after the attack. Warden Barry testified that Mr. Tcllez did not appear to he in
distress or pain, and that he spoke in a normal tone of voice.
Mr. Tcllcz testified that lie experienced pain in the months following the attack, He rated

this later pain as a 5 or 6 on a scale oil to 10. lie did not, however, visit the medical department
to complain about pain or impaIrment associated with the injuries sustained in the attack. He (lid,

however, complain about or request to visit the medical department on the Ihilowing dates fbr the
specified reasons:

1)

June

1,

2014 regarding blood work 2) July 24, 2014 regarding blood work;

3) August 30, 2014 regarding a bite; 4) October 29, 2014 regarding a spider bite; 5) November 2,

2014 regarding a bite; 6) November 30, 2014 regarding a staph inlèction; 7) February 6, 2015
1

regarding pain in his ankles; 8) March 3, 2015 regarding a staph infection; 9) Aigust 26, 2015

Mr Tcllcz testitird that at the time he gave this rating. he as undc the influence of medicatkii, because if he was
not, he would not have rated his pain as only 3 on a calo of I iluough 10. 1 lowevcr. this rating was
given after Mr.
Teltcz an-wed at the hospital and during his intake, which occurred sometime shortly aler 5:00 P.M.
According to
uncoutradicted testimony, Mr. i'clle was ilot given paul medication until midnight

regarding shoe inserts; 10) September and October 20! 5 and March 2016 regarding tbot
pain/inserts for his shoes; and

ii) March 7, 2016 regarding a filling in his tooth.

Mr. Tellez testified that he still experiences pain in his right shoulder and right

armand

that he suffers from cramps, that his arm falls asleep, and that he has difficulty lifting heavy

objectsbut that he does not need pain medication at this point. He also

testified that the area

where he was stabbed in the ribs bothered him and continues to at times bother him when he rotates

his body in a twisting motion. Mr. Tellez's wife testified that he still has sharp pains in his
shoulder, although not as frequently as he did after the attack.

The Court does not doubt that being stabbed

isa painful experience.

It does not, however,

find credible all of Mr. Tellez's descriptions of his pain following the attack and in the time that

has since passed. The stab wounds that Mr. TeIlez received were superficial, and only needed to

be closed by staples. No surgery was necessary. According to multiple observations from different
parties, Mr. TeIlez was not in apparent distress either immediately after the attack or in the morning
thereafter. He described his pain as a 3 out of 10 before receiving pain medicine, in the time that
has passed since the attack, Mr. Tellez has not complained

of or visited the medical department

for issues related to injuries sustained i.n the attack, despite having visited the medical department
many other times far issues such as spider bites, staph infections, and foot pain. Mr. Tellez

admitted that he no longer needs pain medication. Considering all of this, the Court finds that
$75,000 for past physical pain and $50000 for future physical pain are not warranted. The Court
will award $15,000 for past physical pain and $5,000 for future physical pain.

B.

Mental Anguish

Mental anguish is another category of noneconomic damages. Tex. Civ. Prac. & Rein.
Code Ann.§ 41.001(12). "To recover damages for mental anguish, a plaintiff must introduce

12

'direct evidence of the nature, duration, and severity of [his or her] mental anguish,
thus
establishing a substantial disruption in [his or hen daily routine' or evidence of 'a high degree o:f
mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or

anger.'" Pendergraft v. (2arrillo, 273 S.W.3d 362,
Wóodruff 901.

(Tex, App. 2008) (quoting Parkway

co. v.

S.W.2d 434, 444 (Tex. 1995)).

When asked how he felt mentally and emotionally during the attack, Mr. Tcllcz
testified

that he was mad and angry because he felt that he should been the one to inflict
damage on inmate
Contreras, as opposed to the other way around, but that inmate Contreras was not
shackled and
Mr. Tellez was. He also testified that the attack was frightening, and
that he believes he will

always have fear. He testified that he had trouble sleeping after the attack--and
still has dffiCUlt

off and onand that he experienced nightmares and paranoia. Mr. Tellez also
testified that he has
experienced fatigue, headaches, loss of appetite, nausea, dizziness, vomiting,
hypervigilance, and
anxiety. He testified that he thinks about the assault all the time and has had
flashbacks.
Mr. Tellez's wife testified that when she saw Mr. Tellez in the days after
the attack, he was

distraught and very upset, that he was crying and having difficulty expressing himself,

and that he

was having trouble sleeping. She also testified that now, years after the
attack, Mr. Tellez is

sleeping better, but that she believes he is still scared.
Again, however, the Court does not find Mr. Tellez's descriptions

of the mental anguish

he has allegedly suffered to be wholly credible. When asked about the attack,
Mr. Tellez's initial
response was that it made him angry that it was not a fair fight and that he did not win.
It was only

after a question from his attorney did Mr. Tcllez state that it was frightening.
Fuxihennore, Mr.
TelIez testified that henow lives in fear because of the attack perpetrated by
two members of the

Mexican Mafia as retaliation for his cooperation with the government, but isnot scared
about the

13

other approximately 3,998 members of the Mexican Mafia who also would like to see him dead.
Finally.

if Mr. Feltez is suffering from menial anguish, it may he attributable, at least in

other sources.

He testified that his involvement in four murders

ftr

part., to

which he is awaiting

sentencinghas caused him some mental distress. He also testified thai he lives

in fear for the

safety of his wife because the Mafia could potentially harm her in retaliation for his own actions,
and he had no ability to help her, a fact that weighs heavily on him.

The Couri finds that damages for mental anguish are not warranted here. Mr. Tellez has
not introduced evidence showing that he suffered from or currently suffers from such a
degree ol
mental anguish that it substantially disrupts his daily routine. And, although he and
his vife

testified that the attack was frightening and caused Mr. 1'elki. to suffer issues such as
nightmares,

paanoia. and anxiety, the Court finds that this testimony is severely discredited by other
testimony
prcseiited.

Most importantly, first, the testimony from Mr. Tellez indicating that his
initial

emotional reaction to the attack was not fear or anxiety, but rather anger because he
was at a

disadvantagedue to his shackles--in

a tight he was supposed to win. Second, Mr.

Tclkzs

testimony that he lives in fear due to this attack perpetrated by two members of the Mexican
Mafia
seeking revenge for his cooperation with the government, hut is not at all worried about
the other
several thousand Mafia members with similar goals. Thcrethre, considering all ol
the eVidenCe

presented, the Court finds that Mr. Tellcz has not demonstrated "a high degree of mental
pain and

distress that is more than mere worry, anxiety, vexation, embarrassment, or auger.'
l'endergrafi,
273 S.W3d at 3(7. Thus, the Court will award no damages

or the futureS

14

br menial

anguish, either

in the past

C.

Physical lmpairrnent

Physical impairment "encompasses the

lOSS

of the injured party's lifestyle, the effect of

which must be substantial and extend beyond any pain,

sufirim. mental anguish, lost wagc, or

diminished earning capacity." Pcndergrafl, 273 S.W.3d at 367,
Mr. Tellcz's

wile

testified that, shortly after the. attack:, Mr. Telkz's ability to move his

hand was jmpaired, that he was limping, he was unsteady on his
feet, and that he had difficulty

remaining seated. She also testified that now, years after the attack, Mr.
TeIlez is walking helter,

but still has difficuhy holding the telephone due to cramping in
his hand and arm. Mr. Tellez
testified that he has

suffered

impairment to his right arm, which falls asleep when he tries to write

letters. lie also has difficulty lifting heavy objects. After the
attack, Mr. Tellez walked with a
limp due to the staples in his leg, but no longer suffers from a
limp. He also testified that the area

where he was stabbed in the ribs bothered him and continues to at
times bother him when he rotates
his body in a twisting motion. Mr. Tellez does not think lie
needs any physical rehabilitation.

The Court also finds that damacs are not warranted for
physical impairment. Based on

the above described testimony of Mr. Tellez and his
beyond painfbr which

Mr.

wile,

he is already receiving damagcs

Telle's

impairment does not go

and is not so substantial that it affects

Mr. Tellcz's lifestyle. When asked whether he was impaired
from perthiming his daily routine,
Mr. Tellez responded that he may at some point be transfelTed to a
prison where he will no longer

be segregated from the rest of population, but admitted that he
had no way of knowing whether he
wouki ever he

population.

transferred to such a prison which allows exgang members to be in the
general.

Furthermore, Mr. Teflez admitted that he does not need any sort of
physical

rehabilitation. The current impairment ofto Mr. Teflez's arm

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cramping, filling asleep, difficulty

lifting heavy objectsand the former impairment of a limp while he had staples in his leg did not
and do not have a substantial effect on his lifestyle to warrant damages for physical impairment.

I).

Disfigurement

Damages are available for disfigurement. Disfigurement is "anything that 'impairs the
appearance of a person, or that which renders unsightly, misshapen or imperfect, or de!hrms in

some manner.'" Diamond 0//shore Sen, Ltd.

v.

Williams, 510 S.W3d 57, 76 (Tex, App. 2015).

Disfigurement damages are available for scarring, even when the scar is located on a part of the

body that is usually covered by clothing. Sec Id.

Damages may he available for future

disfigurement, and plaintiffi need not show proof of additional scarring or deformation. Hopkins
dy. Hosp.

Dist.

v.

Allen,

760 S.W.2d 341, 344 (Tex. App. 1988).

Rather, "recovery for future

disfigurement includes recovery for the future embarrassment caused by the disfigurement.
Plaintiffs who feel ugly, who hide their disfigurement under clothes and gloves, and who avoid

shaking hands, are embarrassed by their scars and may recover future disfigurement damages."
Id.

Mr. Tellez has three scars as a result of the attack. The first is located on his upper right

shoulder and is approximately one half inch long. The second is located on the right side of his
ribs and is approximately the size of a thumbnaU. The

third

is located on his right thigh and is

approximately one inch long. Because Mr. Tellez has suffered some scarring, he may recover
damages for disfigurement. The Court finds, however, that the scarring he suffered does not
warrant past disfigurement damages of $50,000. The scars are relatively small and Mr. Tcllez has
not testified that they are unusually unsightly in color, texture, shape, or otherwise. Therefure, the

Court finds that damages of $5,000 are appropriate for past disfigurement. The Court further finds
that damages for future disfigurement are not warranted. Mr. Tellcz has not testified that he is

16

embarrassed by the scars, nor has he testified thai he fiels ugly or

icls the need to hide the scars

under clothing. Thus, Mr. Tcllezs total damages award tbr disfiguration shall total S5,000.
IV.

('()NCLUSION
In accordance with the foregoing, the Court finds that

negligent in lading

to

dctndant The GEO Group was

implement policies and procedures, and is therefore liable to Mr. Tellcz.

Mr Tcllcz is entitled to $20,000 in damages for physical pain and $5.00()

Ir disfigurement, for a

total of $25,000,
A separate Order accompanies this Memorandum Opinion.

Datc

3L20t7
Rn cc C I am berth
United States District Judge

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