Maria Arenas v. John Calhoun

Filing 49

ORDER GRANTING 34 Defendant's Motion for Summary Judgment; Plaintiff's claims are DISMISSED WITH PREJUDICE. DENYING 46 Motion to Strike. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARIA ARENAS, individually,

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Plaintiff,
v.
JOHN CALHOUN, in his individual
capacity,
Defendant.

Civil Action No. SA-16-CV-1203-XR

ORDER
On this date, the Court considered the status of the above captioned-cased. After careful
consideration, the Court hereby DENIES Plaintiff’s Motion to Strike (Docket no. 46) and
GRANTS Defendant’s Motion for Summary Judgment (Docket no. 34).
BACKGROUND
I.

Factual Background
Plaintiff Maria Arenas is the mother of Richard Tavera, deceased. Docket no. 1 at 1.

Tavera had a history of severe mental illness, including civil commitment and attempted suicide.
Id. at 2–3. On December 7, 2014, Tavera, while incarcerated at Smith State Prison in Tattnall
County Georgia, took his own life. Id. at 2.
Defendant John Calhoun was employed as a correctional officer by Smith State Prison at
the time of the incident. Id. at 1. Plaintiff alleges that Defendant witnessed Tavera attempting to
hang himself by tying one end of his bedsheet around a sprinkler on the ceiling of his cell and the
other end around his neck. Id. at 3. Plaintiff alleges that, although Defendant saw Tavera

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beginning to take his own life, Defendant did not intervene to save him, and instead he stood
back and watched. Id. Plaintiff alleges that Defendant called other officers, but that Defendant
and the three other officers who appeared did not open the door until seven minutes after Tavera
began his suicide attempt. Plaintiff alleges that Defendant did not contact EMS until at least
fifteen minutes after he first witnessed Tavera attempting to hang himself and that EMS did not
arrive at the prison until over thirty minutes after Defendant first saw Tavera beginning to hang
himself. Id.
Defendant argues that he did not believe, and had no reason to believe, that Tavera was
suicidal prior to the suicide. Docket no. 34 at 1. Defendant also argues that after he discovered
Tavera attempting suicide, he immediately called for backup, obtained a key to the cell, and
entered the cell after his supervisors determined it was safe to enter. Id.
Defendant states that when Tavera entered the Georgia prison system, he was given a
routine diagnostic physical exam. Id. at 4. Although the records did not indicate that Tavera was
taking any medications or having any active physical problems other than a sinus infection,
toothache, and bleeding gums, the records did indicate that he had a history of mental illness and
attempted suicide. Id. Subsequently, a psychologist conducted an evaluation on January 7, 2013,
and found that Tavera had not taken any medication in the previous two years and “appears
stable at this time.” Id. The psychologist classified Tavera as a “Level I” mental health inmate,
which Defendant states means no mental health services were needed. When Tavera was
transferred to Smith State Prison (“SSP”), where he hanged himself, the intake sheet indicates
that Tavera “had no chronic medical problems,” was taking no medication, and was not a mental
health patient. Id. at 5.

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Defendant states that on December 6, 2014, the day before Tavera’s suicide, the SSP
medical staff examined Tavera for complaints of chest pain. Id. Tavera was reportedly “very
uncooperative” during the assessment and refused to identify his pain level. Id. A nurse gave
Tavera a sternum rub, notified a doctor of the issue, and submitted a referral for an EKG. Id.
After the exam, Defendant alleges that Tavera refused to go to the hospital and refused to return
to his general population dorm. Id. Tavera was then sent to an administrative segregation
dormitory, “pending an investigation into his refusal to return to general population.” Id. The cell
was a single-man cell with a small window in the cell door. Id.
Defendant alleges that he began his shift on December 7, 2014, at around 6:00 p.m. Id.
Prior to this shift, Defendant alleges he had never seen Tavera or interacted with him. Id.
Defendant alleges he had no knowledge of Tavera’s attempted suicide in 2008, his mental
illnesses, or why Tavera was in administrative segregation, other than the fact that the sheet
outside of Tavera’s cell stated “pending investigation.” Id. at 6. Plaintiff alleges that Defendant
knew that Tavera was “depressed” and had been in solitary confinement for several days. Docket
no. 39 at 3.
Defendant states he conducted rounds in the dormitory every thirty minutes, as required
by Georgia Department of Corrections (“GDOC”) policy. Docket no. 34 at 6. During one of
those rounds, Defendant allegedly asked Tavera how he was doing, but Defendant does not recall
Tavera’s exact response. Id. Defendant, however, states that “nothing about the response caused
him any concern or caused him to believe Tavera might be suicidal.” Id. Plaintiff, on the other
hand, states that when Defendant first observed Tavera, he spoke with Tavera and observed him
to appear “depressed just by his demeanor.” Docket no. 39 at 6.

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Defendant, based on surveillance video of the prison facility, states that at 22:49 that
night, he looked through the window in Tavera’s cell door and saw a sheet, with one end tied
around a sprinkler head and the other end tied around Tavera’s neck. Docket no. 34 at 6; Prison
Video at 22:49. Defendant alleges that he was unable to see Tavera’s feet through the window
and did not know if Tavera’s feet were on the bed, a pile of books, “or any other object that
would have kept him from actually hanging.” Docket no. 34 at 6. Defendant argues he did not
know whether the suicide attempt was “fake” or “genuine.” Id. at 6–7.
Defendant alleges that, upon observing the scene, he immediately called for backup
assistance on his radio four times. Id. at 7. Defendant states Officer Adam Haas responded to his
fourth call, told Defendant assistance was on the way, and relayed the emergency to Defendant’s
supervisors. Id. Defendant then allegedly went to retrieve the key to the dormitory cells, but the
officer on duty at the control room allegedly inadvertently gave Defendant the wrong key, of
which Defendant was unaware at the time. Id.
Defendant states that at 22:53, he placed the key on his desk and wrote some notes, and
one minute later, Sgt. Shelby arrived. Id.; Prison Video at 22:53:02. Defendant argues that Sgt.
Shelby banged on the cell door and yelled at Tavera for a response for ten seconds. Docket no.
34 at 7. At this point, Officer Haas arrived at the dorm, and shortly thereafter, Lt. Dickson
arrived. Id. at 8. Lt. Dickson allegedly looked in the cell, assessed the situation, and instructed
the officers to open the cell door. Id. Defendant states that, following unsuccessful attempts to
unlock the cell, he realized he must have the wrong key, and then ran back to the control room.
Id. After Defendant returned with the correct key, the surveillance video shows that the cell door
was opened at 22:56:07. Prison Video at 22:56:07. Defendant alleges he then entered the cell

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with the other officers to remove Tavera from the noose and place him on the floor. Docket no.
34 at 8. Officer Haas and Sgt. Shelby allegedly took turns performing CPR, to no avail, while Lt.
Dickson notified others, including EMS, about the suicide. Id.
Defendant states Sgt. Mitchell arrived with an AED unit, and the officers took turns using
it on Tavera, to no avail. Id. at 8–9. EMS allegedly arrived at 11:19 p.m. Id. at 9. After Tavera
was removed from the noose, Defendant allegedly operated a hand-held camera to capture the
officers’ actions in accordance with SSP policy. Id.
Defendant alleges that he did not enter Tavera’s cell because it was unsafe and doing so
would have violated GDOC policy. Id. Specifically, Defendant states that SSP has a policy and
practice that forbids officers from entering an inmate’s cell alone. Id. at 10. Officers must wait
until a sufficient number of officers are present to safely enter the cell. Id. at 10–11. Although
GDOC policy allows two officers to enter an administrative segregation cell, Defendant states
that the actual practice is to wait until multiple officers are on the scene. Id. at 11.
Plaintiff, on the other hand, states that GDOC policy requires officers who come upon a
suicide to “immediately cut down the hanging inmate.” Docket no. 39 at 3. Plaintiff further
argues that Defendant did absolutely nothing, other than talk on the radio and complete
paperwork, after he found Tavera taking his own life and while he asphyxiated. Id. at 7. Plaintiff
argues that Defendant did nothing until there were four officers present, did not enter the cell
until seven minutes after Tavera began his suicide attempt, and took another minute to untie the
ligature and lower Tavera to the ground. Id. at 8.

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II.

Procedural History
On November 28, 2016, Plaintiff filed suit against Defendant, in his individual capacity,

in this Court under 42 U.S.C. § 1983, alleging that Defendant’s inactions related to Tavera’s
suicide constituted deliberate indifference and violated Tavera’s Eighth Amendment rights. 1 Id.
at 4. Because Defendant has since moved from Georgia to Texas, venue is proper in this Court
under 28 U.S.C. § 1391(b)(1). Plaintiff has also filed a companion suit against Defendant’s
supervising officers in the Southern District of Georgia. Arenas v. Georgia Dep’t of Corr., et al.,
CV 4:16-320, 2017 WL 1754770, at *1 (S.D. Ga. May 3, 2017).
On November 29, 2017, Defendant filed his Motion for Summary Judgment. Docket no.
34. Plaintiff filed her response on December 22, 2017, and Defendant filed his reply on January
9, 2018. Plaintiff then filed a Motion to Strike certain evidence that Defendant used in his reply.
Docket no. 46. The Court will first evaluate Plaintiff’s Motion to Strike, then turn to Defendant’s
Motion for Summary Judgment.
PLAINTIFF’S MOTION TO STRIKE
Plaintiff asks the Court to “strike untimely evidence, a declaration of Steve Upton, that
Defendant only provided in his reply brief to support his motion for summary judgment.” Docket
no. 46 at 1. Plaintiff argues that Defendant, in his reply, disclosed an undated declaration by
GDOC Director of Operations Steve Upton, despite the fact that Upton appears in no prior
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As stated in the courts’ March 20, 2017, Order (Docket no. 18), although Plaintiff’s
complaint alleges that Defendant is liable for violating Tavera’s Eighth and Fourteenth
Amendment rights, Plaintiff does not appear to invoke substantive rights under the Fourteenth
Amendment. The Court reads the complaint as invoking the Eighth Amendment’s guarantees
against cruel and unusual punishment, which are made applicable to the states by operation of
the Fourteenth Amendment. See Hinojosa v. Livingston, 807 F.3d 657, 654–55 n.5 (“The
complaint invokes the Fourteenth Amendment simply because it is by that provision—and that
provision alone—that the Eighth Amendment’s guarantee applies against the States; the Eighth
Amendment does not apply of its own force to the States.”).
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disclosures, has not been discussed in any depositions, and after Plaintiff had no idea Defendant
would rely on Upton’s testimony. Plaintiff asserts that the Court should strike Upton’s
declaration because Defendant presented an undesignated, undisclosed witness for expert
testimony in his reply after the close of discovery. Plaintiff argues she has not had the
opportunity to discover or evaluate Upton’s statements and the basis for them.
In response, Defendant argues that after Plaintiff took depositions in the companion suit
pending in the Southern District of Georgia, during which Plaintiff allegedly questioned the
deponents about GDOC procedures that are inapplicable to this case, Plaintiff used testimony
from those depositions as the meat of her response to Defendant’s motion for summary
judgment. Defendant asserts he had no choice but to use Upton’s non-expert testimony in his
reply brief because Upton is familiar with the meaning and application of the policy Plaintiff
addresses. Defendant states he never identified Upton as a witness in initial or pre-trial
disclosures because “Plaintiff never revealed in discovery the erroneous theory that was
developed after Defendant filed his motion for summary judgment and that was employed for the
first time in Plaintiff’s opposition to the motion.” Docket no. 47 at 2. Thus, Defendant argues, he
did not know until Plaintiff’s response was filed that Upton would be needed.
Under Rule 37(c), “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c). When considering whether to exclude evidence
that was not properly designated, such as from an undisclosed witness, courts consider the
following four factors: “(1) the explanation for the failure to identify the witness; (2) the

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importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.” Geiserman v. MacDonald, 893 F.2d 787,
791 (5th Cir. 1990).
After considering these factors, the Court finds that Upton’s declaration should not be
excluded. First, Defendant has explained his failure to previously identify the witness. Defendant
states that Plaintiff deposed two defendants in the Georgia companion suit and asked about a
standard operating procedure of the GDOC for the first time on December 11, 2017, which
followed Defendant’s October 31, 2017, deadline for filing Rule 26(a)(3) disclosures and the
October 27, 2017, deadline for completion of discovery in this case. These depositions also
followed Defendant’s November 29, 2017, motion for summary judgment. Defendant contends
that it was not until Plaintiff raised arguments about this standard operating procedure for the
first time in her response brief that Defendant determined he needed to use Upton as a fact
rebuttal witness. Plaintiff listed “GDOC Policy – Suicide Prevention (2005 Effective)” in her
pre-trial disclosures, but she did not identify the specific standard operating procedure discussed
in the response brief, and it is the interpretations acquired from the depositions taken in the
companion case on that standard operating procedure that Plaintiff includes in her response brief.
Given that these depositions on a specific procedure previously not raised in this case took place
after Defendant filed his motion for summary judgment, Defendant has shown good cause for
including Upton’s declaration in his reply brief. Further, because Upton’s declaration addresses
arguments raised by Plaintiff in her response brief, the Court finds that Upton’s declaration is
important evidence to consider, but the Court will only consider it for the limited purpose of a
fact rebuttal witness in response to Plaintiff’s arguments.

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Also, the Court finds the potential prejudice to Plaintiff is not high. Plaintiff contends that
“the prejudice of allowing an allegedly disinterested ‘expert’ to testify is high.” Docket no. 48 at
5. Plaintiff further contends that Upton’s declaration is cumulative “and not so unique to justify
allowing it” when compared to the declaration of Warden Stanley Williams, which was used as
evidence in Defendant’s motion for summary judgment. Id. at 4. Plaintiff states that “[t]he real
prejudice, however, would be allowing Defendant to call an additional, undesignated (and
unretained) expert who, unlike Williams, is not facing personal liability for the death of
Plaintiff’s son.” Id. at 5. The Court does not decide today the admissibility of Upton’s testimony
at trial, only whether the evidence attached to Defendant’s reply brief should be considered in
support of Defendant’s motion for summary judgment. As stated above, the Court will consider
Upton’s declaration only for the purpose of a fact rebuttal witness in response to Plaintiff’s
response brief, and thus, Plaintiff will suffer minimal prejudice, if any. Because the potential
prejudice to Plaintiff is low, a continuance that will create substantial delay is not necessary.
Accordingly, Plaintiff’s motion to strike is denied.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

Legal Standard
The court shall grant summary judgment 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. FED. R.
CIV. P. 56(a). To establish that there is no genuine issue as to any material fact, the movant must
either submit evidence that negates the existence of some material element of the non-moving
party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the evidence in the record is insufficient to

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support an essential element of the non-movant’s claim or defense. Lavespere v. Niagra Machine
& Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once
the movant carries its initial burden, the burden shifts to the non-movant to show that summary
judgment is inappropriate. See Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991).
In order for a court to conclude that there are no genuine issues of material fact, the court
must be satisfied that no reasonable trier of fact could have found for the non-movant, or, in
other words, that the evidence favoring the non-movant is insufficient to enable a reasonable jury
to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.4 (1986). In making this determination, the court should review all the evidence in the record,
giving credence to the evidence favoring the non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes
from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000).
II.

Application
Defendant argues he is entitled to summary judgment because there is no evidence that he

was aware of a substantial risk that Tavera would commit suicide prior to the suicide, and when
Defendant did discover the suicide attempt, the evidence demonstrates that he responded
reasonably. Defendant also argues that he is entitled to qualified immunity.
A. There is no genuine dispute of material fact that Defendant was not aware of a
substantial risk that Tavera would commit suicide prior to the suicide.
Defendant argues that there is no evidence that he was aware of any risk of harm to
Tavera prior to the suicide. Accordingly, Defendant argues that Plaintiff cannot establish
Defendant violated the Eighth Amendment prior to Tavera’s suicide.

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“[T]he treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). In its prohibition of
“cruel and unusual punishments,” the Eighth Amendment places certain duties on prison
officials, “who must provide humane conditions of confinement; . . . ensure that inmates receive
adequate food, clothing, shelter, and medical care,” and “take reasonable measures to guarantee
the safety of the inmates.” Id. If a prison official acts with deliberate indifference “to a
substantial risk of serious harm to an inmate,” that official violates the Eighth Amendment.
Farmer, 511 U.S. at 828.
For an official to act with deliberate indifference to such a substantial risk, that official
must be subjectively aware of that risk. Id. An official owes inmates protection from harm during
confinement, but such an official can only be held liable under the Eighth Amendment if the
official “had subjective knowledge of a substantial risk of serious harm . . . but responded with
deliberate indifference to that risk.” Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir.
1996). The correct standard is not whether the official “knew or should have known,” but
whether the official “gained actual knowledge of the substantial risk of suicide and responded
with deliberate indifference.” Id.
In sum, a plaintiff must show that the official “was aware of facts from which an
inference of an excessive risk to the prisoner’s safety could be drawn, and that the employee
actually drew an inference that such potential for harm existed.” Anderson v. Dallas Cty. Texas,
286 F. App’x 850, 860 (5th Cir. 2008). “Deliberate indifference is an extremely high standard to
meet.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). The

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“failure to alleviate a significant risk that [the official] should have perceived, but did not” is
insufficient to show deliberate indifference. Id. (quoting Farmer, 511 U.S. at 838).
Defendant states that prior to his December 7, 2014, shift, he never saw Tavera or had
any interactions with him. Docket no. 34-1 at 2. Defendant states that he was not aware of
Tavera’s mental illness or the fact that Tavera previously attempted suicide in 2008. Id.
Defendant further states that he did not know why Tavera was placed in administrative
segregation, other than the fact that the sheet outside of the cell said “pending investigation.” Id.
Defendant also states that, when doing rounds on the night in question, after Defendant asked
Tavera how he was doing, although Defendant cannot recall Tavera’s exact response, he does
remember that “nothing about [Tavera’s] response caused [Defendant] any concern or led [him]
to believe that [Tavera] might be suicidal.” Id. Plaintiff presents no evidence that disputes
Defendant’s contention that he had no knowledge of a substantial risk of Tavera’s suicide prior
to the actual suicide, and the video surveillance of the scene does not refute Defendant’s
statements. To the extent that Plaintiff argues Defendant violated the Eighth Amendment prior to
Defendant discovering Tavera’s suicide attempt, Plaintiff presents no evidence that Defendant
subjectively knew of a substantial risk that Tavera would commit suicide. See Smith v. Blue, 35
F. App’x 390 (5th Cir. 2002) (finding no dispute of material fact that officer did not know of
suicide risk where inmate was taken off suicide watch, inmate appeared to be doing well, and
inmate did not say or do anything that would have made the risk of suicide “obvious” to officer).
Accordingly, the Court finds that there is no genuine dispute of fact that Defendant had no
subjective knowledge of a substantial risk of suicide.
B. There is no genuine dispute of material fact that Defendant’s response to the
suicide was not made with deliberate indifference.
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Next, Defendant argues that after he became aware of Tavera’s suicide, he responded to
the incident reasonably to where he did not violate the Eighth Amendment. Defendant states that
when he discovered Tavera hanging from his cell, he then knew of a substantial risk of harm to
Tavera. But Defendant argues he did not respond with deliberate indifference to that risk; rather,
he reasonably responded to the risk of harm in light of a legitimate safety concern in the prison
context.
A prison official who actually knows “of a substantial risk to inmate health or safety may
be found free from liability if [the official] responded reasonably to the risk, even if the harm
ultimately was not averted.” Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting
Farmer, 511 U.S. at 844). As previously stated, “[d]eliberate indifference is an extremely high
standard to meet.” Domino, 239 F.3d at 756. A plaintiff cannot meet this extremely high standard
by only showing the officer acted negligently. Jacobs v. W. Feliciana Sheriff's Dep’t, 228 F.3d
388, 395 (5th Cir. 2000).
Defendant argues that after he discovered that Tavera was attempting suicide, he
immediately took steps to help Tavera: he radioed for help four times right away, he retrieved a
key he believed was for Tavera’s cell, ran back to the control room for the correct key after he
realized he had the incorrect key, and opened the cell door on Lt. Dickson’s orders when there
were four officers present. The cell door was opened almost seven minutes after Defendant
initially discovered Tavera attempting suicide.
Defendant and the other officers then worked to remove Tavera from the noose and
placed Tavera on the floor. While the other officers performed CPR on Tavera, Defendant
videotaped the officers’ efforts. Defendant argues this all occurred “in the context of a prison

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officer constrained by policy—for legitimate security reasons—to call and wait for security
backup before entering an inmate’s cell in situations of this kind.” Docket no. 34 at 16.
Defendant contends that there is a legitimate safety risk when officers enter an inmate’s cell, in
part because inmates may fake or stage injuries to themselves to lure officers into a cell, and it
would have been unreasonable and potentially unsafe for Defendant or any other officer in a
similar situation to enter Tavera’s cell alone. Defendant argues he responded reasonably by
immediately calling for help, acquiring the key to Tavera’s cell, opening the cell when ordered,
and helped to remove Tavera from the noose.
Plaintiff, on the other hand, argues that Defendant did nothing but make radio calls and
fill out some paperwork “during the essential seven minutes after he discovered Tavera.” Docket
no. 39 at 12. Plaintiff contends that Defendant did not respond reasonably to Tavera’s suicide by
only calling his supervisors and taking no physical action because this situation called for an
immediate physical response, rather than to wait for backup. 2
Plaintiff’s arguments and the evidence provided regarding the actions that Defendant
took amount to alleging that Defendant was negligent, or at most grossly negligent. But even
evidence of gross negligence does not amount to deliberate indifference. Thompson v. Upshur
Cty., Tex., 245 F.3d 447, 459 (5th Cir.2001) (“[D]eliberate indifference cannot be inferred
merely from a negligent or even a grossly negligent response to a substantial risk of serious
harm.”). In cases where a plaintiff claims deliberate indifference with respect to proper medical
risk, for example, courts require a showing that a defendant “refused to treat [an individual],
2

Throughout Plaintiff’s response brief, she cites to language from the Court’s March 20,
2017, order denying Defendant’s motion to dismiss. In this prior order, however, the Court only
considered the adequacy of Plaintiff’s allegations to survive a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). The Court taking Plaintiff’s allegations as true at the motion to
dismiss stage does not address the question of whether a genuine dispute of material fact exists.
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ignored his complaints, intentionally treated him incorrectly, or engaged in similar conduct that
would clearly evince a wanton disregard for any serious medical needs.” Domino, 239 F.3d at
752 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
Plaintiff has presented no evidence that Defendant refused to respond to Tavera’s suicide
when he discovered it, ignored the suicide attempt, intentionally treated Tavera incorrectly, or
acted in such a way to demonstrate a wanton disregard for the risk to Tavera’s life. If Defendant
had in fact “done nothing” after he discovered Tavera attempting suicide, this would present a
genuine dispute of material fact as to whether Defendant acted with deliberate indifference. See
Pinchback v. Leon-Gomez, No. 6:15-CV-805-RWS-KNM, 2017 WL 5632444, at *6–8 (E.D.
Tex. Mar. 7, 2017), report and recommendation adopted, No. 6:15-CV-805-RWS-KNM, 2017
WL 5634636 (E.D. Tex. Mar. 22, 2017) (finding a genuine dispute of material fact as to whether
a nurse acted with conscious disregard of serious risk to prisoner’s health where there was a
factual dispute if the nurse completely refused to treat the prisoner). But Plaintiff has only
presented evidence that Defendant perhaps acted with negligence, or at most gross negligence,
by taking actions that did not avert the threat to Tavera’s life and that Plaintiff alleges were
insufficient. Such evidence does not rise to the level of deliberate indifference. See Hyatt v.
Thomas, 843 F.3d 172, 179–80 (5th Cir. 2016) (granting summary judgment and finding
defendant acted reasonably, and not with deliberate indifference, when she responded to the
prisoner’s suicide risk by withholding means for self-harm, placed the prisoner under
surveillance, and informed her relieving officer of a potential suicide risk). Plaintiff attempts to
distinguish Hyatt by arguing that in Hyatt, the officer took “some, ultimately ineffectual,
precautions” and that the officer was no longer in the jail facility when the suicide occurred.

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Even so, the key finding in Hyatt that “while not ideal, [the defendant’s] failure to exercise even
greater care to avoid [the prisoner’s] suicide did not amount to deliberate indifference” similarly
applies to the present case.
Plaintiff also argues that a specific GDOC standard operating procedure required
Defendant to immediately enter Tavera’s to cut him down from the noose. The procedure,
entitled “Managing Potentially Suicidal, Self-Injurious and Aggressive Behavior,” states, “It is
the policy of the [GDOC] that inmates/probationers who are potentially suicidal, self-injurious,
and/or physically aggressive will be identified, and referred for further evaluation and/or
appropriate stabilization/management.” Docket no. 39-3 at 2. The procedure applies to “all State
Institutions, Boot Camps, Transitional Centers, Probation Detention Facilities and County
Institutions,” but such institutions are only subject to the procedure “only to the extent that when
a mental health crisis is suspected by staff the inmate/probationer will be transferred, as soon as
possible, to an appropriate evaluating facility. . . for evaluation.” Id. Under this procedure, if “an
inmate/probationer is discovered hanging . . . staff will immediately initiate appropriate first-aid
measures.” Id. at 13. The procedure goes on to say that “[i]n the event that any
inmate/probationer is found hanging, the correctional officer will call for backup by radio or
telephone and then immediately cut down the hanging inmate/probationer and initiate CPR
procedures.” Plaintiff argues that, under this procedure, Defendant should have not only called
for backup, but also immediately entered Tavera’s cell to cut him down. Plaintiff submits as
evidence the depositions of Lt. Dickson and Sgt. Shelby to support her argument that the policy
required Defendant to immediately enter Tavera’s cell. As stated above, however, this procedure
applies to prisoners “who are potentially suicidal, self-injurious, and/or physically aggressive”

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who will then “be identified, and referred for further evaluation and/or appropriate
stabilization/management,” and a facility is only subject to the procedure after a mental health
crisis is suspected and a prisoner is transferred for evaluation. Plaintiff has presented no evidence
that such was the case for Tavera, and thus, has presented no evidence that this specific standard
operating procedure applied to Defendant when he discovered that Tavera was attempting
suicide.
Plaintiff further argues that even if the facility’s policy is to wait for backup before a
single officer enters the cell, such a policy is dangerous and unreasonable. Plaintiff’s arguments,
however, still fail to evince that Defendant’s actual actions amount to deliberate indifference.
Although, as Plaintiff argues, Defendant stated in his deposition that he thought that Tavera was
indeed killing himself, this does alter the analysis that the actions Defendant took in response to
discovering Tavera did not amount to deliberate indifference. Plaintiff finally argues that there
was no justification for Defendant to not immediately call 911 after he discovered Tavera
hanging in his cell, even though Defendant knew Tavera would need outside medical attention as
soon as possible. Plaintiff, again, offers evidence that Defendant was at most grossly negligent in
his decision to not immediately call 911, rather than call for backup, enter the cell when ordered
to, and assist in removing Tavera from the noose before CPR was performed.
As discussed above, deliberate indifference is an extremely high standard to meet. At
most, Plaintiff only presents evidence of gross negligence. There is no dispute in the record that
Defendant did more than “nothing,” and the fact that the harm was not averted does not impose
liability on Defendant. Plaintiff presents no evidence that Defendant refused to respond to
Tavera’s suicide when he discovered it, ignored the suicide attempt, intentionally treated Tavera

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incorrectly, or acted in such a way to demonstrate a wanton disregard for the risk to Tavera’s
life. Although the parties dispute as to what the proper or ideal response to Tavera’s suicide
attempt may have been, there is no genuine dispute of material fact that Defendant did not act
with deliberate indifference. The Court need not analyze Defendant’s arguments on qualified
immunity.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Strike (Docket no. 46) is DENIED, and
Defendant’s Motion for Summary Judgment (Docket no. 34) is GRANTED. Plaintiff’s claims
are hereby DISMISSED WITH PREJUDICE. The Clerk is directed to issue a Judgment in favor
of Defendant, and that Plaintiff takes nothing on its claims. Defendant may submit its Bill of
Costs within 14 days in the form directed by the Clerk should it desire to pursue these costs.
It is so ORDERED.
SIGNED this 13th day of February, 2018.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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