860 F.3d 803 (5th Cir. 2017), 16-20003, Hicks-Fields v. Harris County

Docket Nº:16-20003
Citation:860 F.3d 803
Opinion Judge:PATRICK E. HIGGINBOTHAM, Circuit Judge:
Party Name:MARIE A. HICKS-FIELDS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; EVANGELINE E. CAMPBELL, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; JASON HICKS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; NORMAN F. HICKS, JR., individually...
Attorney:For MARIE A. HICKS-FIELDS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, EVANGELINE E. CAMPBELL, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, JASON HICKS, individually and as representative of the estate of Norman F. Hic...
Judge Panel:Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
Case Date:June 26, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Plaintiffs, heirs of Norman F. Hicks, Sr., filed suit against the County and other defendants under 42 U.S.C. 1983, the Texas Tort Claims Act, and the Texas Wrongful Death Act. The district court ultimately granted summary judgment and final judgment for the County. The Fifth Circuit affirmed and held that plaintiffs have not met their evidentiary burden of showing a genuine dispute of material... (see full summary)

 
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860 F.3d 803 (5th Cir. 2017)

MARIE A. HICKS-FIELDS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; EVANGELINE E. CAMPBELL, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; JASON HICKS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; NORMAN F. HICKS, JR., individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, Plaintiffs - Appellants

v.

HARRIS COUNTY, TEXAS, Defendant - Appellee

No. 16-20003

United States Court of Appeals, Fifth Circuit

June 26, 2017

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Texas.

For MARIE A. HICKS-FIELDS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, EVANGELINE E. CAMPBELL, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, JASON HICKS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, NORMAN F. HICKS, JR., individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, Plaintiffs - Appellants: Marion M. Reilly, Rudy O. Gonzales, Jr., Robert C. Hilliard, Esq., John B. Martinez, Hilliard Munoz Gonzales, L.L.P., Corpus Christi, TX.

For HARRIS COUNTY, TEXAS, Defendant - Appellee: Lisa Rice Hulsey, Assistant County Attorney, Keith Adams Toler, Esq., Assistant County Attorney, County Attorney's Office, for the County of Harris, Houston, TX.

Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

OPINION

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PATRICK E. HIGGINBOTHAM, Circuit Judge:

While being temporarily segregated in an attorney visitation booth, Norman F. Hicks, Sr., punched Harris County Detention Officer Christopher Pool in the face, prompting a responsive punch from Pool. As Hicks fell down, he struck his head on a concrete ledge in the booth. There were two other officers on the scene, one of whom looked through a window in the door and saw Hicks starting to lift himself off the ground. They left Hicks there, who some fifteen minutes later was found without respiration or a pulse. Jail clinic staff were summoned to render aid, and while Hicks recovered a pulse, he slipped into a coma from which he did not recover. His survivors appeal summary judgment regarding any liability of the county for the officers' actions. We affirm.

I.

Norman F. Hicks, Sr., was arrested in Oklahoma and extradited to Texas, where he was booked into the Harris County Jail. Jail staff knew Hicks had a history of schizophrenia, and Harris County detention officers requested multiple psychiatric evaluations based on Hicks' behavior. Nine days after his arrival, Hicks was involved in an altercation with another inmate and was placed in an attorney booth as a temporary holding cell, a common practice at the jail. After more than two hours, Harris County Corrections Officers Joseph Jameson, Christopher Taylor, and Christopher Pool noticed that Hicks had urinated and defecated in the booth and transferred him to a different booth.

On observing Hicks--now in the new booth--raise a plastic chair above his head, Jameson asked Hicks to push out the chair and Hicks' shoes, which Hicks did. He also threw out his shirt, soiled with feces, which struck Pool in the chest and hands. Accounts differ as to what happened next. Jameson says that Pool stepped into the booth to place Hicks' shirt inside. Taylor says that Pool caught the shirt, yelled a profanity, and threw the shirt back into the booth. According to both accounts, 72 year-old Hicks punched Pool in the mouth. The 23 year-old corrections officer responded with a counter-punch to Hicks' face. As Hicks fell backwards into the booth, his head struck a concrete ledge. Jameson then closed the booth door.

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Taylor stated that he looked through the window, saw no blood on Hicks or anywhere in the booth, and saw Hicks pushing himself up and shaking his head. Jail protocol required that inmates receive medical attention following a use-of-force incident, but no assistance was summoned until Sergeant Steven Wichkoski came by to check on Hicks fifteen minutes later. Finding Hicks lying motionless on the floor, he called for prison clinic staff. Exhibiting no respiration nor pulse, Hicks was transferred to Ben Taub hospital where he recovered a pulse and survived in a coma until life support was terminated six days later. An autopsy determined that the manner of death was homicide and the cause of death was " [c]omplications of cardiac arrest due to atherosclerotic and hypertensive cardiovascular disease following blunt head trauma with nasal bone fracture."

II.

Plaintiffs, as heirs of Hicks, brought this suit against Harris County, Pool, and other unnamed deputies in the Harris County State District Court. Plaintiffs' original petition appeared to assert claims under the Texas Tort Claims Act, the Texas Wrongful Death Act, and for " negligent implementation of the policy on securing mentally ill criminal offenders." Four months later, Plaintiffs filed a first amended petition, alleging a cause of action for assault against the individual defendants, restating the claims under the Texas Tort Claims Act and the Texas Wrongful Death Act against Harris County, and containing new claims under 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendment rights to due process of law and for " failure to properly supervise and train its Deputies." Defendants timely removed the case to the federal district court, where it was referred to a magistrate judge.

Fourteen months later, Plaintiffs voluntarily dismissed the unnamed deputies without prejudice and sought leave to file a second amended petition. On March 12, 2014, the court denied the motion for want of good cause.1 On February 27, 2015, Defendant Harris County moved for dismissal under Rule 12(b)(6), judgment on the pleadings, and summary judgment on the basis of governmental immunity, the lack of an official policy or custom, and a lack of facts demonstrating specific inadequacies in Harris County's policies or customs. On April 10, 2015, Plaintiffs moved to dismiss their claims against Pool with prejudice, which the court granted. In their response to Harris County's motions, Plaintiffs again asked for leave to amend the complaint. On May 19, 2015, the court again denied leave, stating: Discovery concluded months ago. The dispositive and nondispositive motions deadline has passed. The court denied a motion for leave to amend filed by Plaintiffs in February 2014 because Plaintiffs failed to demonstrate good cause as required by Federal Rule of Civil Procedure 16. Plaintiffs' pending motion does nothing to prompt the court to change its ruling.

On November 23, 2015, a magistrate judge entered a memorandum and recommendation to the district court recommending a grant of summary judgment for Harris County. On December 30, 2015, the district court, adopting the memorandum and recommendation, granted summary judgment and entered final judgment for Harris County. Plaintiffs timely appealed.

III.

We review a district court's grant of summary judgment de novo, applying the same standard as the district

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court,2 and a district court's evidentiary rulings for abuse...

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