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NO. 07-06-0104-CR IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 23, 2007 ______________________________
COLBY W. LYNCH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-407207; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Colby W. Lynch, was convicted by a jury of injury to a child and sentenced to life imprisonment. Presenting four issues, Appellant contends (1) the trial court erred by allowing the State to present expert testimony after it failed to comply with pretrial discovery orders, (2) the trial court erred by allowing the State to admit a golf club as demonstrative evidence, (3) the State failed to prove that the object that caused the victim's injuries was unknown, and (4) the State asserted facts at trial that were not alleged in the indictment. We affirm.
Appellant was charged with three counts of injury to a child after hospital personnel discovered multiple injuries on his girlfriend's three-year-old daughter. The victim was taken to University Medical Center in Lubbock after her mother found her nonresponsive and suffering from seizure-like symptoms in Appellant's apartment. Upon arrival, pediatric surgeon Dr. Christopher Blewett diagnosed the victim with a serious head injury caused by blunt-force trauma. After further observation, Dr. Blewett discovered that the victim also suffered from numerous cuts and bruises that he believed were nonaccidental and indicative of a pattern of abuse. Investigators learned that the victim lived with her mother and two older brothers in Appellant's apartment. As a result of the investigation, Appellant was arrested for child abuse.
Following his arrest, the State proceeded to jury trial on the count in the indictment alleging that Appellant intentionally and knowingly caused serious bodily injury to the victim by striking her with an unknown object. Several days prior to trial, Appellant moved to exclude the State's expert testimony on the ground that the State failed to comply with pretrial discovery orders. At a hearing on the motion, the trial court concluded that the State's witness lists adequately gave notice of the expert witnesses that were expected to testify at trial and denied Appellant's motion. Appellant was subsequently convicted and filed this appeal.
By his first issue, Appellant contends the trial court erred by denying his motion to exclude expert testimony because the State "willfully and intentionally" failed to comply with pretrial discovery orders. Specifically, Appellant alleges the State failed to timely disclose pictures in its possession and Dr. Blewett's medical reports and curriculum vitae. He also alleges the State failed to divulge the nature and summary of its experts' testimony, which resulted in "trial by ambush" and prejudiced his defense. We disagree.
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We must uphold the trial court's decision to admit the evidence as long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 889 (Tex.Crim.App. 2002); Hernandez v. State, 205 S.W.3d 555, 558 (Tex.App.-Amarillo 2006, pet. ref'd).
Despite Appellant's contention, we find no record of the pretrial discovery orders that form the basis of his allegations of noncompliance. The record indicates that the trial court was aware of Appellant's motion for discovery but does not show whether the trial court granted or denied the motion. Apparently, Appellant's discovery motion was addressed at a pretrial hearing on April 1, 2005. At the hearing, defense counsel explained that he had taken advantage of the State's open-file policy but expressed concern that the files had been updated. Defense counsel then requested to receive all available medical records at least six weeks prior to trial. The trial court stated, "I'll set it 45 days before trial."
In response to Appellant's motion for discovery, the prosecutor informed the court that the State was still receiving updated medical records and that it would plan a meeting with defense counsel in the upcoming weeks to "see what they have and then get copies of all these things to him." Following the prosecutor's remarks, the trial court moved on to defense counsel's next motion. The record is silent as to whether the State's proposed meeting ever took place.
In this case the record reflects that there was no oral or written order granting or denying Appellant's discovery motion. Because Appellant complains about a violation of a discovery request, we find that the failure to obtain a ruling on his discovery motion leaves nothing for review. Appellant's first issue is overruled.
By his second issue, Appellant contends the trial court erred by allowing the State to admit a golf club, similar to one found in Appellant's apartment, as demonstrative evidence of the weapon used to inflict the injuries sustained by the victim. On direct examination, the prosecutor questioned Detective Bill Carter about a golf club found leaning against the wall in the victim's bedroom. The detective speculated that some of the linear marks found on the victim could have resulted from being struck with that club. He also testified that investigators did not retrieve the club from Appellant's apartment. The prosecutor then introduced a golf club that it believed was similar to the one found in Appellant's apartment. The detective confirmed that it had similar characteristics, and the State offered to admit the club for demonstrative purposes. Defense counsel immediately objected that the club served no purpose but to prejudice the jury and that use of a golf club was not alleged in the indictment. The trial court overruled Appellant's objection and the club was admitted.
Citing Miskis v. State, 756 S.W.2d 350 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd), Appellant contends it was error to admit the club as demonstrative evidence because (1) there was no evidence that the original club was unavailable, (2) there was no evidence that the original club would have been admissible at trial, (3) the club was irrelevant considering the charge alleged in the indictment, (4) the club was more prejudicial than probative, (5) the jury was not instructed that the State's club was not used in the commission of the offense, and (6) there was no evidence that the State's club was similar to the club owned by Appellant. We disagree.
First, Appellant's objections at trial pertained only to relevance and whether the club was more prejudicial than probative. Therefore, the remainder of his contentions were not brought to the attention of the trial court and present nothing for review. See Tex. R. App. P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (explaining that objections below that do not comport with those on appeal are generally not preserved for review). With respect to the issues preserved, Appellant contends the evidence has no probative value because the indictment alleged that the victim's injuries were caused by an "unknown object." Without citing any supporting authority, Appellant claims that admitting the club constituted reversible error.
The record, however, reveals that the State did not attempt to prove that the club was the actual object used to inflict the serious bodily injury suffered by the victim. Instead, the State merely introduced the club as an example of the type of object that could have caused the victim's linear injuries. In this regard, we find that the club did have some probative value and did not unfairly prejudice his defense. Thus, the trial court did not abuse its discretion and we overrule Appellant's second issue.
By his third issue, Appellant contends the evidence was factually insufficient to support his conviction because the State failed to prove an essential element alleged in the indictment. He claims that, by submitting evidence that a golf club may have been used, the State disproved that the victim's injuries were caused by an object unknown to the grand jurors as alleged in the indictment. Alternatively, he contends that the grand jury should have returned an indictment alleging that he struck the victim with a golf club. We disagree.
When an appellant challenges the factual sufficiency of the evidence, we review all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006). We will not reverse a conviction and order a new trial unless we find some objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In other words, we cannot conclude that Appellant's conviction is "clearly wrong" or "manifestly unjust" simply because we disagree with the jury's verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
Furthermore, when an indictment alleges that an injury was caused by an unknown object and the evidence at trial does not show what type of object was used, there is a prima facie showing that the object was unknown to the grand jury. Maston v. State, 819 S.W.2d 839, 847 (Tex.Crim.App. 1991). If, however, the evidence at trial shows that a specific object was used to inflict the injury, an issue is raised with respect to whether the grand jury had information as to the object used. Id. Only then must the State prove that the grand jury did not know the identity of the object used to inflict the injury and that it used due diligence in its attempt to identify the object. Id.
As previously stated, the record in the present case reveals that the State submitted the club as a demonstrative example of the type of object that could have caused the linear marks discovered on the victim. There was no attempt by the State to show that the victim's injuries were actually caused by the golf club found in Appellant's apartment. In fact, they established evidence to the contrary. For example, the State elicited testimony from multiple witnesses that the victim's injuries could just as easily have been caused by a belt, a hand, a fist, a wall, a floor, or any number of unknown household objects. These witnesses also testified that there was no way of knowing exactly what object caused the victim's numerous injuries.
The evidence in this case simply does not establish that a golf club was the only possible object that caused the victim's injuries. It merely raises that scenario as one of many possibilities. Thus, the State was not obligated to prove that the grand jury exercised due diligence in ascertaining the identity of the unknown object. (1) We find that this evidence was sufficient to support the charge alleged in the indictment and the jury's finding of guilt beyond a reasonable doubt. Accordingly, Appellant's third issue is overruled.
By his fourth and final issue, Appellant claims the State committed reversible constitutional error by presenting an indictment alleging that he struck the victim with an unknown object and then "ambushing" him at trial with evidence that the object was a golf club. Again, the record is clear that the State proceeded on the theory that the victim's injuries could have been caused by any number of unknown objects. The golf club was admitted only as a demonstrative exhibit of the type of object that could have caused some of the linear marks on the victim. The State made no attempt to link the club, or any other object, as the instrument that caused the numerous other injuries to the victim. Therefore, we overrule Appellant's fourth issue.
Accordingly, the trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
1. Even so, the record shows that the State called the grand jury foreman as its first witness. She testified that, based on the available evidence, the grand jury was, in fact, unable to determine the exact object used by Appellant.
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NO. 07-09-00102-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 20, 2010
MICHELLE ROCHA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF RAYMOND DWAYNE BINGLE, APPELLANT
v.
POTTER COUNTY, TEXAS, ET AL., APPELLEE
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 91,748-B; HONORABLE DAVID L. GLEASON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Michelle Rocha, appeals the trial courts grant of appellees, Potter County, plea to the jurisdiction and motion for summary judgment relating to Rochas 42 U.S.C. § 1983 claims.[1] We affirm.
Factual and Procedural Background
On October 24, 2001, Raymond Bingle, the 19-year-old son of Rocha, was arrested on charges of aggravated sexual assault of a child and possession of drug paraphernalia. He was incarcerated in the Potter County Detention Center while awaiting trial on these charges. In accordance with Potter County Detention Center policy, Bingle was screened to assess whether he presented any special housing, medical, or mental health issues. During this screening, Bingle denied having ever attempted to commit suicide and denied having suicidal thoughts at the time of the screening. Nonetheless, the screening officer concluded that Bingle presented special management concerns due to psychological impairment, mental deficiency, and suicide risk.
On or about December 11, 2001, Bingle was involved in a fight with another inmate. As a result of this incident, Bingle was rescreened. The rescreening again classified Bingle as presenting management concerns due to psychological impairment, mental deficiency, and suicide risk. Bingle was served with a review board notice for his involvement in the fight, but he waived his right to a hearing and accepted a sanction of ten days of lockdown and loss of privileges. Bingle was placed in a fishbowl cell that allowed officers to more closely observe the inmates in the cells. However, it appears that the reason that Bingle was placed in this cell was due to his involvement in the fight rather than because of his suicide risk.
On December 25, 2001, Bingle was denied the opportunity to visit with his family because the visitation list had been filled. This upset Bingle and he threatened to throw a fit or do something if he was not allowed to see his family. However, Bingle did not expressly threaten to commit suicide.
On December 26, 2001, Officers Gasparovich and Dorrance went on duty overseeing the A pod in which Bingle was being housed. Gasparovich and Dorrance were not aware that Bingle had been classified as a suicide risk. As a result, Bingle was checked in the same manner as any other inmate housed in A pod. When Gasparovich and a trustee took Bingle his breakfast, the trustee discovered that Bingle had hanged himself with a sheet that he had tied to the railing of his shower. Gasparovich called a medical officer, who checked Bingle for a pulse, but did not find one.
On December 31, 2003, Rocha, Bingles mother, filed her First Amended Petition wherein she claimed, inter alia, that appellees, Potter County and Sheriff Mike Shumate, were responsible for Bingles suicide pursuant to § 1983 and the Texas Tort Claims Act, see Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005). On May 23, 2008, as a result of a rule 11 agreement between the parties, Rocha filed her Second Amended Petition, which reasserted her § 1983 claims but omitted her claims under Texas law. On October 13, 2008, Potter County and Shumate filed their Plea to the Jurisdiction and Motion for Summary Judgment. In her response, Rocha voluntarily dismissed her claims against Shumate as being duplicative in nature. On February 28, 2009, the trial court entered its judgment granting Potter Countys Plea to the Jurisdiction and Motion for Summary Judgment, dismissing Rochas claims, and assessing costs of court against Rocha. On March 30, 2009, Rocha filed her Notice of Appeal.
By one issue, Rocha appeals. Rocha contends that more than a scintilla of evidence was presented to raise a genuine issue of material fact on her § 1983 and Texas Tort Claims Act claims[2] and that there were insufficient grounds for the trial court to grant Potter Countys Plea to the Jurisdiction. While Rochas appellate brief presents only one issue, we will address the trial courts grant of Potter Countys jurisdictional plea and summary judgment motion separately.
Plea to the Jurisdiction
Standard of Review
A plea to the jurisdiction is a proper pleading for challenging a courts subject matter jurisdiction over a claim. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisdiction is filed, the plaintiff bears the burden of alleging facts that affirmatively show that the trial court has subject matter jurisdiction over plaintiffs claims. See Tex. Assn of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). As such, consideration of a plea to the jurisdiction must begin by focusing on the plaintiffs petition to determine whether the facts pled affirmatively demonstrate the trial courts jurisdiction over the case. State v. Holland, 221 S.W.3d 639, 642-43 (Tex. 2007). However, in some instances, evidence may be relevant to the jurisdictional issue. Id. at 643. When evidence is relevant to the jurisdictional issue, the reviewing court must consider this evidence to determine whether the evidence raises a fact question regarding the jurisdictional issue. Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If the evidence raises a fact question regarding the jurisdictional issue, the court cannot grant the plea and the fact question must be resolved by the fact finder. Id. at 227-28.
Generally, a county has no sovereign immunity from a § 1983 claim. County of Dallas v. Sempe, 151 S.W.3d 291, 299-300 (Tex.App.Dallas 2004, pet. dismd w.o.j.). To present a valid claim for a violation of § 1983, a plaintiff must plead facts showing that: (1) a policy or custom existed, (2) the governmental policymakers actually or constructively knew of the policys existence, (3) a constitutional violation occurred, and (4) the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). A plaintiffs description of the policy or custom and its relationship to the constitutional violation cannot be conclusory; it must contain specific facts. Spiller v. City of Texas City, Police Dept, 130 F.3d 162, 167 (5th Cir. 1997).
Analysis
A review of Rochas live pleading reveals that each of these elements of a § 1983 claim were alleged. She specifically alleges that Potter County had eight policies or customs of which policymakers were aware and that were the moving force behind a violation of Bingles Fourth and Fourteenth Amendment rights. However, our review of Rochas live pleading leads to the conclusion that the factual allegations do not support her claims of Potter Countys policies and customs. The facts pled are not sufficient to support that Potter County had these claimed policies or customs nor how these policies or customs were the moving force behind the violation of Bingles constitutional rights. Thus, we conclude that Rochas live pleading fails to provide specific facts sufficient to present a prima facie claim that Potter County violated Bingles constitutional rights. See id.; Meadowbriar, 81 F.3d at 532-33.
However, both parties presented significant amounts of evidence to the trial court that might be relevant to the jurisdictional issue. We must consider this evidence. See Miranda, 133 S.W.3d at 227. Since the issue of whether this evidence is sufficient to establish a prima facie case for a § 1983 claim is subsumed within the issue of whether Rocha has presented sufficient evidence to raise a fact question on the elements of her claim, we will review this jurisdictional evidence in our analysis of Rochas issue regarding the trial courts grant of summary judgment. See id. However, we will conclude that the evidence does not raise a fact issue regarding whether Rocha has sufficiently pled a cause of action under § 1983.
Consequently, we affirm the trial courts grant of Potter Countys Plea to the Jurisdiction.
Summary Judgment
By its summary judgment motion, Potter County asserted both no-evidence and traditional grounds. See Tex. R. Civ. P. 166a(c), (i); Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004) (permitting motions combining no-evidence and traditional grounds). We review both no-evidence and traditional grounds for summary judgment de novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004).
Standard of Review No-Evidence
Because a no-evidence motion for summary judgment is, essentially, a pretrial directed verdict, we apply the same legal sufficiency standard. Kelly v. Demoss Owners Ass=n, 71 S.W.3d 419, 423 (Tex.App.BAmarillo 2002, no pet.). A no-evidence motion for summary judgment is properly granted unless the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the elements challenged by the motion. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence Arises to a level that would enable reasonable and fair-minded people to differ in their conclusions.@ Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). On the other hand, less than a scintilla of evidence has been described as evidence Aso weak as to do no more than create a mere surmise or suspicion.@ King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In reviewing a summary judgment, we must view all of the summary judgment evidence in the light most favorable to the nonmovant and indulge every reasonable inference in his or her favor as well. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). However, when the summary judgment does not specify the grounds asserted in the motion that it was premised upon, it will be affirmed if any of the grounds presented are meritorious. Kelly, 71 S.W.3d at 422.
Standard of Review Traditional
In reviewing a traditional summary judgment, the following standards apply:
1. the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and
3. every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). Summary judgment is proper if the defendant disproves at least one element of the plaintiffs claims or establishes all elements of an affirmative defense to each claim. Id.
Law Applicable to Rochas § 1983 Claims
To establish a violation of § 1983, a plaintiff must prove that: (1) a policy or custom existed, (2) the governmental policymakers actually or constructively knew of the policys existence, (3) a constitutional violation occurred, and (4) the custom or policy served as the moving force behind the violation. Meadowbriar, 81 F.3d at 532-33. Liability for violations of constitutional rights may be established by a § 1983 claim, but § 1983 will not provide a remedy for violations of duties of care arising out of tort law, such as negligence. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L. Ed. 2d 433 (1979). Pretrial detainees possess a constitutional right to basic needs, such as medical care and safety, that flows from the procedural and substantive due process guarantees of the Fourteenth Amendment. Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). The failure to provide adequate protection against a pretrial detainees known suicidal impulses is actionable under § 1983. Rhyne v. Henderson County, 973 F.2d 386, 391-92 (5th Cir. 1992).
Rocha contends that her claims state challenges to both a condition of confinement and an episodic act or omission. Each of these types of challenges is governed by a different standard of review. See Flores v. County of Hardeman, 124 F.3d 736, 738 (5th Cir. 1997). The Fifth Circuit has interpreted § 1983 to prohibit plaintiffs from conflating claims concerning a prison officials act or omission with a condition of confinement complaint. See Anderson v. Dallas County, 286 F.Appx 850, 858 (5th Cir. 2008) (unpub. op.) (citing Flores, 124 F.3d at 738). A condition of confinement claim is a constitutional attack on general conditions, practices, rules[,] or restrictions of pretrial confinement. Flores, 124 F.3d at 738 (quoting Hare, 74 F.3d at 644). By contrast, a claim is an episodic act or omission claim when the harm complained of arises from a particular act or omission of one or more officials. Id. (citing Hare, 74 F.3d at 645).
Rocha appears to premise her contention that she has stated a condition of confinement claim on Potter Countys inadequate training and supervision and failure to comply with the policies in place when Bingle was assessed to be a suicide risk. However, proof of a single incident generally will not support a finding of inadequate training as a matter of custom or policy. Forgan v. Howard County, 494 F.3d 518, 522 (5th Cir. 2007). Looking at Rochas complaints as a whole reveals that she does not contend that Potter County did not have policies in place that, if followed, would have prevented Bingles suicide. Rather, Rochas contentions relate to the failure of Potter Countys employees to follow the policies that were in place. Rochas contentions are very similar to the claims asserted in other § 1983 claims based on suicides committed by detainees, and claims based on these sorts of contentions have consistently been determined to present episodic act or omission claims. See Forgan, 494 F.3d at 522 (claims of deviation from suicide policy require proof of deliberate indifference); Anderson, 286 F.Appx at 859 (failure to follow policies is a classic episodic-act-or-omission case); Flores, 124 F.3d at 738 (failure to take precautions under policy is an episodic act or omission case); Hare, 74 F.3d at 647-48 (failure to take a suicide threat seriously states an episodic act or omission case). Therefore, we will apply the standard applicable to episodic act or omission claims in our review of Rochas § 1983 claims.
Having concluded that Rochas § 1983 claims are episodic act or omission claims, to overcome summary judgment, Rocha must prove that a genuine issue of material fact exists that (1) a county employee violated Bingles constitutional rights with subjective deliberate indifference, and (2) the violation resulted from a county policy or custom adopted or maintained with objective deliberate indifference. Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997).
A prison official acts with subjective indifference if he knows that an inmate faces a substantial risk of serious bodily harm, yet disregards that risk by failing to take reasonable measures to abate it. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Stated another way, a plaintiff must show both that the employee was aware of facts from which an inference of an excessive risk to the prisoners safety could be drawn, and that the employee actually drew an inference that such potential for harm existed. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). Deliberate indifference is an extremely high standard to meet. Gobert, 463 F.3d at 346. It is the subjective culpability that is key; merely finding that a reasonable person would have known or that the defendant should have known is insufficient. Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994).
If a plaintiff is unable to show that a county employee acted with subjective deliberate indifference, the county cannot be held liable for an episodic act or omission. See Flores, 124 F.3d at 739. However, proof of an employees subjective indifference is insufficient without showing that the employees act resulted from a county policy adopted and maintained with objective deliberate indifference to the inmates rights. See Scott, 114 F.3d at 54. A county acts with objective deliberate indifference if it promulgates or fails to promulgate a policy or custom despite the known or obvious consequences that constitutional violations would result. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (internal quotations omitted). Further, there must be a direct causal link between the county policy and the constitutional violation. Id. at 580.
Analysis
In the present case, Rocha contends that the district court erred in granting summary judgment because genuine issues of fact exist. Rocha contends that Potter County employees were deliberately indifferent to Bingles medical needs because, while Bingle was assessed to be a suicide risk, this risk was not communicated to the officers on duty and, as a result, those officers did not comply with the countys suicide prevention policy. In addition, Rocha contends that the failures of the officers on duty were the result of Potter Countys policy or custom of allowing officers with inadequate training and supervision to be responsible for implementing these policies.
Because establishment of subjective deliberate indifference requires proof that the countys employee was actually aware of a substantial risk of serious bodily injury, we conclude that Rocha has failed to present more than a scintilla of evidence to establish her § 1983 claim. No evidence raised a fact issue regarding whether Officers Gasparovich and Dorrance were ever made aware that Bingle was on a suicide watch. In fact, Rocha complains that the officers were not aware of Bingles suicide risk.[3] In addition, Rocha has presented no evidence that Bingle acted in a manner that would give rise to an inference that he was a risk to commit suicide. Because Rocha has presented no evidence that either officer on duty knew that there was a substantial health risk, Officers Gasparovich and Dorrance could not have been deliberately indifferent toward such risk. See Calton v. Dallas County, No. 3:05-CV-2022-N, 2007 U.S. Dist. LEXIS 97628, at *16-*17 (N.D. Tex. June 25, 2007) (notice of suicide risk contained in medical record is insufficient without evidence of actual knowledge of suicide risk). Even if the evidence were sufficient to raise a fact issue regarding whether the officers should have known that Bingle was a suicide risk, at best, a fact issue would be raised as to whether the officers were negligent in failing to follow Potter Countys suicide prevention policy, but negligence will not support liability under § 1983. See Farmer, 511 U.S. at 837-38.
Further, while not named in Rochas petition, Rocha seems to contend that certain Potter County employees were aware of the suicide risk posed by Bingle, yet failed to ensure that the suicide prevention policy was implemented. However, the evidence would establish only that an Officer A. Moore and Shift Sergeant James Cook were aware of the suicide risk noted in the assessment and reassessment. However, there is no evidence that either of these officers ignored the risk of harm to Bingle. These officers prepared or acknowledged that the appropriate documentation was completed so that Bingle would be appropriately treated as a suicide risk. In addition, Rochas pleading states that she advised an unnamed duty nurse about the possibility that Bingle was a suicide risk. However, Rochas pleading acknowledges that she was reassured that Bingle would be screened for suicide risk, which the evidence establishes was done. Rocha further contends that she advised several unnamed members of the Detention Centers personnel that Bingle was afraid of other inmates. She was assured that Bingle would be placed in a cell by himself for his safety and well-being. Bingle was, in fact, placed in a cell by himself. Finally, Rocha contends that she informed unnamed Detention Center personnel that Bingle had discussed suicide during the 2001 holidays. However, because Rocha does not identify the individual or individuals to whom she gave this information, there is no evidence presented that those individuals failed to take appropriate precautions. We reiterate that a person having subjective knowledge that a detainee poses a substantial suicide risk is insufficient to establish subjective deliberate indifference without further proof that the person disregarded the risk by failing to take reasonable precautions. Gobert, 463 F.3d at 346.
It appears, from her live pleading and appellate brief, that Rochas contentions are predicated on the concept of collective knowledge. While the doctrine of collective knowledge does apply to some actions of law enforcement, see Woodward v. State, 668 S.W.2d 337, 345-46 (Tex.Crim.App. 1984) (probable cause determination may be based on what all officers knew rather than what the arresting officer personally knew), it does not apply to § 1983 claims. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). Further, it is clear that the test for deliberate indifference requires an analysis of what the individual actors knew and how they acted in the face of this information. See Gobert, 463 F.3d at 346.
Rocha bases her claims, in large part, on Potter Countys alleged violations of Texas Jail Standards. However, violations of state law are not actionable under § 1983. See San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 n.4 (5th Cir. 1991) (citing Jones v. Diamond, 594 F.2d 997, 1011 (5th Cir. 1979)). Administrative protocols do not establish constitutional rights for treatment of detainees. Whitt v. Stephens County, 236 F.Appx 900, 902-03 (5th Cir. 2007).
Rocha presents specific arguments that Potter Countys acts or omissions were the moving force behind Bingles suicide and that Potter Countys failure to follow its suicide prevention policy constituted a State-Created Danger. Both of these arguments go to the causation element necessary for a § 1983 claim and, as addressed above, if a plaintiff fails to establish that the defendant was both subjectively and objectively deliberately indifferent, causation is not reached.
Additionally, while Rocha has failed to present any evidence that would support her claim that any Potter County employee acted with subjective deliberate indifference in regard to Bingles suicide, we will address Rochas contention that Potter County failed to properly train or supervise its employees and that such failure was the moving force behind Bingles suicide.[4] To establish a claim for failure to train or supervise under § 1983, Rocha must show that: (1) Potter County failed to train or supervise the officers involved, (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of Bingles rights, and (3) the failure to train or supervise constituted deliberate indifference to Bingles constitutional rights. Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001). Deliberate indifference cannot be inferred merely from a negligent or even grossly negligent response to a substantial risk of harm. Id. This is so because to hold a county liable for the negligent acts of its employees would state a claim for respondeat superior, which is not actionable under § 1983. Ashcroft v. Iqbal, 2009 U.S. LEXIS 3472, 129 S.Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009); Monell v. Dept of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978). To establish that Potter County was deliberately indifferent in its training and supervision, Rocha must demonstrate a pattern of violations and that the inadequacy of the training and supervision is obvious and obviously likely to result in a constitutional violation. Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (quoting Thompson, 245 F.3d at 459).
The evidence does not raise a genuine issue of material fact regarding the training and supervision of Gasparovich or Dorrance.[5] The evidence establishes that Gasparovich had received a temporary jailers license prior to the date of Bingles suicide. Rochas complaints focus on the fact that, on the date of Bingles suicide, Gasparovich had not received classroom training in suicide prevention or even in performing cell checks. However, there is no evidence in the record that Gasparovichs on-the-job training did not include practical instruction in performing these tasks. Further, Rocha has identified no statute or regulation that prohibits temporary jailers license holders from performing the tasks required of a fully licensed jailer. In fact, the law authorizes the holder of a temporary jailers license to perform the functions of a jailer. See Tex. Occ. Code Ann. § 1701.310 (Vernon Supp. 2009). Thus, the evidence establishes that Potter County was in compliance with the applicable law in allowing Gasparovich to oversee the A pod of the Potter County Detention Center on the night of Bingles suicide. Further, Rochas evidence in no way establishes a pattern of violations such that the inadequacy of training and supervision is obvious and obviously likely to result in a constitutional violation. See Cousin, 325 F.3d at 637.
Rocha additionally argues that a genuine issue of material fact is raised as to Potter Countys training and supervision based on Potter Countys ratification of Gasparovichs actions that is the result of Potter County failing to take corrective or disciplinary action against Gasparovich. Ratification of an officers actions or omissions can impact whether a single incident can support a claim of inadequate training and supervision. See Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985). However, as addressed above, there is no evidence that Gasparovich was aware that Bingle posed a suicide risk. As such, there is no evidence that her actions were not appropriate for a pretrial detainee that was not classified as a suicide risk.
For the foregoing reasons, we conclude that Rocha has failed to provide any evidence that would raise a genuine issue of material fact regarding her § 1983 claims. Consequently, we affirm the trial courts grant of summary judgment in favor of Potter County.
Spoliation of Evidence
Finally, Rocha contends that Potter County was guilty of spoliation of evidence. Rochas allegation is that Potter County destroyed videotaped evidence that would establish how often officers checked Bingles cell. But, assuming that we were to conclude that Potter County was guilty of spoiling this evidence, such evidence would have no bearing on whether Gasparovich was aware that Bingle posed a suicide risk. Thus, even if we assume that Potter County spoiled this evidence and, therefore, presume that the evidence was unfavorable to Potter County, see Brumfield v. Exxon Corp., 63 S.W.3d 912, 920 (Tex.App.Houston [14th Dist.] 2002, pet. denied), Rocha has still not presented evidence that raises a genuine issue of material fact regarding her § 1983 claim.
Conclusion
Having overruled Rochas sole appellate issue, we affirm the trial courts judgment granting Potter Countys Plea to the Jurisdiction and Motion for Summary Judgment.
Mackey K. Hancock
Justice
[1] Further reference to 42 U.S.C. § 1983 will be to § 1983.
[2] While Rochas issue complains of the dismissal of her claims under the Texas Tort Claims Act, as previously noted, these claims were abandoned in Rochas live pleading. Consequently, at the time of the trial courts dismissal, Rochas state law claims were no longer part of the case.
[3] Actually, the facts known to the officers in charge at the time of Bingles suicide would lead to the more likely inference that he was housed in the A pod because of his recent involvement in a fight rather than because he was under a suicide watch.
[4] While the failure to train or supervise a specific individual could state a claim for an episodic act or omission, Rochas claims, as pled, would seem to require proof of a systemic failure and, therefore, be more properly classified as a condition of confinement. However, the Fifth Circuit has addressed claims of inadequate training and supervision as part of episodic act or omission cases. See Brumfield v. Hollins, 551 F.3d 322, 327-29 (5th Cir. 2008); Anderson, 286 F.Appx at 859-63 (5th Cir. 2008); Flores, 124 F.3d at 738-39. Thus, without expressing any opinion on whether Rochas training and supervision claims constitute episodic act or omission claims, we will address these claims.
[5] Actually, Dorrance is identified by Rocha not as an individual that lacked sufficient training, but rather as the individual that had been trained sufficiently that she could have prevented Bingles suicide if she had properly supervised Gasparovich.
Document Info
Docket Number： 07-06-00104-CR
Filed Date： 5/23/2007
Precedential Status： Precedential
Modified Date： 9/8/2015