Feliz v. El Paso Cnty.

• Decision Date: 27 February 2020
• Docket Number: EP-19-CV-277-KC
• Citation: 441 F.Supp.3d 488
• Parties: Rosario FELIZ, Independent Administrator and Personal Representative of the Estate of Robert Gallegos, Deceased, Plaintiff, v. EL PASO COUNTY, Texas; and Unknown Deputies and Officers of the El Paso County Sheriff's Department, Defendants.
• Court: U.S. District Court — Western District of Texas

441 F.Supp.3d 488

Rosario FELIZ, Independent Administrator and Personal Representative of the Estate of Robert Gallegos, Deceased, Plaintiff,

v.EL PASO COUNTY, Texas; and Unknown Deputies and Officers of the El Paso County Sheriff's Department, Defendants.

EP-19-CV-277-KC

United States District Court, W.D. Texas, El Paso Division.

Signed February 27, 2020

Daniela Labinoti, Law Firm of Daniela Labinoti, P.C., Brett Allen Duke, Brett Duke, P.C., El Paso, TX, for Plaintiff.

Ruben Gabriel Duarte, El Paso County Attorney's Office, El Paso, TX, for Defendants.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant El Paso County, Texas's Motion to Dismiss for Failure to State a Claim, ECF No. 2. For the reasons set forth herein, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

This is a civil rights case filed by Plaintiff Rosario Felix,¹ as the independent administrator and personal representative of the estate of Mr. Robert Gallegos, who died while in the custody of El Paso County, Texas (the "County"). Defendants are the County and unknown deputies and officers of the El Paso County Sheriff's Department.² The following facts are derived from Plaintiff's Original Petition, ECF No. 1, which was filed in Texas state court, and are taken as true for the purposes of adjudicating the Motion to Dismiss. See Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002).

Mr. Gallegos was arrested on an unspecified date on unspecified charges and detained at the El Paso County Jail Annex, located at 12501 East Montana, El Paso, Texas 79938 (the "Jail Annex"). See Original Pet. ¶¶ 3, 8. On July 14, 2016, a Jail Annex psychologist diagnosed Gallegos with an "Unspecified Cognitive Disorder

Due to Chronic Alcohol Use and Alcohol Dependence, in a Controlled Environment." Id. ¶ 9. On September 6, 2016, Gallegos was found incompetent to stand trial, and on January 26, 2017, his diagnosis was changed to "Mild Neurocognitive Disorder, brain injury, Depressive Disorder NOS; and Alcohol Dependence in a Controlled Environment." Id. ¶¶ 8, 11. On seven occasions between September 17, 2016, and June 10, 2017, "Defendants identified Gallegos as a special needs inmate with possible mental illness, developmental disability and/or suicidal tendencies/ideation." Id. ¶¶ 10, 12.

At some point during his detention, Gallegos was housed in the same cell as a man identified only as "Chacon," who is allegedly "schizophrenic." Id. ¶ 13. On September 7, 2017, Chacon initiated an altercation with Gallegos by flipping a food tray at him. Id. ¶ 14. Gallegos slapped Chacon, who then punched Gallegos. Id. After the fight, Defendants returned Gallegos and Chacon to the same jail cell. See id. ¶¶ 13–15. In the early hours of the following morning, Chacon attacked Gallegos while Gallegos slept. Id. ¶ 15. Gallegos was brought to the emergency room at University Medical Center in El Paso, and then returned to the Jail Annex, where he was placed in solitary confinement. Id. ¶ 17.

That day, September 8, 2017, Gallegos was prescribed Claritin

, Tylenol 3, and Cephalexin. Id. ¶ 18. Defendants did not provide this medicine to Gallegos as prescribed or in accordance with the instructions of physicians, and at least some of the prescribed medicine was not given to Gallegos at all. Id. ¶¶ 21; 52. On September 11, 2017, Gallegos reported vomiting and abdominal pain, but Defendants refused to provide him with adequate treatment. Id. ¶¶ 19, 21–22, 52. Defendants also failed to observe Gallegos every thirty minutes, which is allegedly required by minimum jail standards for "inmates known to be assaultive, potentially suicidal, mentally ill, or who have demonstrated bizarre behavior." Id. ¶ 22. Defendants failed to conduct the required thirty-minute observations multiple times, on one occasion failing to observe Gallegos for over eleven hours. Id.

Then, on September 16, 2017, at 4:30 a.m., Gallegos was found without a pulse and declared dead shortly thereafter. Id. ¶¶ 20, 24. His cause of death was recorded as "Peritonitis

due to Ruptured Bowel." Id. ¶ 20.³

Plaintiff alleges that on October 30, 2017, the Texas Commission on Jail Standards (the "TCJS") determined that the Jail Annex violated several of its standards in connection with its custody of Mr. Gallegos, including:

a. Failure to provide procedures for the distribution of prescriptions in accordance with written instructions from a physician by an appropriate person designated by the sheriff/operator;

b. Failure to follow medical instructions of designated physicians;

c. Failure to separate health records reflecting all subsequent findings, diagnosis, treatment, disposition, special housing assignments, medical isolation, distribution of medications, and the name of any institution to which the inmates' health records has [sic] been released;

d. Failure of observation that shall be performed at least every 30 minutes in areas where inmates known to be assaultive, potentially suicidal, mentally ill, or who have demonstrated bizarre behavior are to be confined. Defendants failed to conduct visual fact [sic] to face observation of inmates in separation cells in accordance with minimum jail standards. Regarding Gallegos, Defendants exceeding [sic] the observations by as few as 2 minutes and by as many as 11 hours and 7 minutes.

Id. ¶ 25.

Officers employed at the Jail Annex were allegedly arrested for tampering with records after Gallegos's death. Id. ¶ 26. The Jail Annex took corrective action in response to the findings of the TCJS, but as of January 30, 2018, still failed to comply with all state standards. Id. ¶¶ 28–29.

II. DISCUSSION

A. Standard

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun , 312 F.3d at 733 ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

B. Analysis

Plaintiff seeks to hold the County liable for Gallegos's death through three sets of claims: 1) for violation of Gallegos's Eighth and Fourteenth Amendment rights, under 42 U.S.C. § 1983 ; 2) for discrimination against Gallegos as a disabled individual under the Rehabilitation Act, 29 U.S.C. § 794, and the Americans With Disabilities Act (the "ADA"), 42 U.S.C. §§ 12131 et seq. ; and 3) for the negligent use of tangible personal and real property, under the Texas Tort Claims Act (the "TTCA"), Tex. Civ. Prac. & Rem. Code § 101.001 et seq. (West 2019). The County seeks dismissal of all three causes of action, and the Court considers the County's arguments with respect to each claim in turn.

1. Plaintiff's constitutional claims under § 1983

The County makes two arguments for dismissal of Plaintiff's § 1983 claims. First, it argues that Plaintiff has not adequately alleged that Gallegos's Eighth or Fourteenth Amendment rights were violated. Specifically, the County argues that Plaintiff fails to adequately allege that any individual Defendant officers acted with deliberate indifference to Gallegos's medical needs, and that Gallegos simply had no constitutional right not to be housed with Chacon or placed in solitary confinement. Mot. ¶¶ 12–14. Second, the County argues that even if Gallegos's rights were violated, Plaintiff has not identified a municipal policy or a nexus between any such policy and Gallegos's death. Id. ¶¶ 15–21. Plaintiff responds that the factual allegations in her Original Petition describe cognizable constitutional violations and identify the specific municipal policies and practices pursuant to which they were carried out. Resp. 4–8.

As a preliminary matter, while "[t]he standard is the same as that for a prisoner under the Eighth Amendment," § 1983 claims brought on behalf of pretrial detainees invoke the protections of the Fourteenth Amendment. Cadena v. El Paso County , 946 F.3d 717, 727 (5th Cir. 2020). Thus, to the extent that Plaintiff brings a separate Eighth Amendment claim, the County's Motion to Dismiss is granted as to that claim.

Fourteenth Amendment "[c]onstitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a ‘condition of confinement’ or as an ‘episodic act or omission.’ " Shepherd v. Dallas County , 591 F.3d 445, 452 (5th Cir. 2009) (quot...