Gilbert v. French
| Decision Date | 19 October 2009 |
| Docket Number | Civil Action No. H-06-3986. |
| Parties | Stephen GILBERT, Plaintiff, v. Steven FRENCH, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Tracy N. Leroy, Baker Botts LLP, Houston, TX, for Plaintiff.
Janis Kennedy Hampton, City of Bryan, Bryan, TX, William W. Krueger, III, Martin Disiere, Dallas, TX, Robert L. Hargett, Davis & Wilkerson, Austin, TX, Robert G. Smith, Jr., Lorance & Thompson, PC, Houston, TX, for Defendants.
This civil rights action stems from an armed robbery involving hostages committed by Plaintiff Stephen Gilbert ("Gilbert") and an accomplice at a Taqueria Arandas in Bryan, Texas. As he attempted to flee the scene, law enforcement officers shot Gilbert through both shoulders. Gilbert was taken to the hospital and admitted to the emergency room at approximately 10:30 p.m. Pain medication, morphine sulfate, was ordered at 11:45 p.m. and administered at 12:58 p.m. Gilbert alleges that the administration of morphine sulfate was intentionally delayed by law enforcement and attending health care providers in order to facilitate police questioning. Claiming that the delay violated his civil rights, Gilbert filed the instant suit under 42 U.S.C. § 1983.
Pending before the court are several motions. Defendants Detective Lori Anderson Berndt ("Anderson"), Detective Stephen Fry ("Fry"), and the City of Bryan, Texas (the "City") (collectively, the "City Defendants") filed a Motion for Summary Judgment [Doc. # 161].1 Defendants Doctor John Mason ("Dr. Mason") [Doc. # 159],2 Doctor Charles Williams ("Dr. Williams") [Doc. # 163],3 and St. Joseph Regional Health Center ("St. Joseph Hospital" or "Hospital") [Doc. # 162]4 have also each filed motions for summary judgment. The motions are ripe for decision. Upon review of all pertinent matters of record and applicable law, the Court concludes that each Defendant's motion should be granted.5
Plaintiff, Texas Department of Criminal Justice ("TDCJ") inmate Stephen Gilbert, alleges that after being shot in both shoulders by law enforcement officers, who were attempting to apprehend him while he was fleeing an armed robbery, he was impermissibly denied pain medication by physicians or other medical personnel at St. Joseph Hospital. Gilbert asserts that the decision to withhold pain medication was made at the behest of or, in agreement with, City law enforcement officers and was intended to coerce Gilbert—a suspect in the robbery—into answering the officers' questions concerning the crime. At some point following the questioning, Gilbert was arrested and charged with aggravated robbery with a deadly weapon. He was subsequently found guilty and sentenced to serve thirty years in Texas prison.
On December 19, 2004, at approximately 9:30 p.m., Gilbert and another man, Michael Hall ("Hall"), entered a Taqueria Arandas restaurant in Bryan, Texas. According to witnesses, Gilbert and Hall were both wearing masks over their faces; Gilbert was armed with a piece of pipe and Hall was carrying a gun. Upon entering the restaurant, Gilbert and Hall assaulted and restrained four of the five employees in the building. The fifth employee was able to exit the restaurant and contact police. However, it was not clear from her call how many men were robbing the restaurant or how many employees remained trapped inside. While police were en route, Gilbert and Hall demanded money from and robbed the employees at gunpoint.
Numerous police units quickly arrived on the scene and surrounded the restaurant. While positioning themselves, police learned that a 911 dispatcher heard over an open telephone line to the restaurant a male stating: "If they don't get no money someone is gonna die."6 During this time, an officer also observed through a restaurant window a masked man armed with a gun.
Soon thereafter, Hall, still masked, opened and looked out of the back door of the restaurant. Police announced themselves and ordered Hall to surrender. He refused and went back into the restaurant. A few minutes later, the door opened again and three men—Gilbert, Hall, and a hostage—exited. The hostage, Domingo Reyes ("Reyes"), was covered in blood and was being used by Gilbert and Hall as a shield between them and the police.
Police immediately demanded that Gilbert and Hall show their hands and get down on the ground. Both refused. Hall then shoved the hostage towards the police, revealing a large black handgun pointed at the officers. Gilbert and Hall immediately ran in opposite directions, ignoring police commands to stop. The officers then fired, hitting both Gilbert and Hall. Hall ultimately died from his injuries. Gilbert was shot twice—once in each shoulder—and within minutes was transported by ambulance to St. Joseph Hospital. Reyes was also transported to the Hospital for his injuries.
While Gilbert and Reyes were waiting for transport to the hospital, an unidentified officer reported that either Gilbert or Reyes (the transcript of officer radio communication does not identify which individual) told him that there were only two people involved in the robbery.7 However, because earlier reports indicated that there were three robbers, the responding officers were concerned that there was at least one remaining suspect holding at least three hostages.8 For almost an hour afterwards, from 10:22 p.m. to 11:08 p.m., the police continued to wait outside the restaurant for a tactical response team and civilian negotiators.9 As the police waited, a 911 operator continuously monitored the phone line inside the restaurant that had remained open. Every few minutes the 911 operator reported to police, "phone line open, still no sounds inside."10
At 11:20 p.m., the 911 operator heard movement inside the restaurant.11 At 11:34 p.m., the Bryan Assistant Chief of Police and one or more other officers at the scene were informed that either Reyes or Gilbert were at the hospital undergoing a CT scan and could not be interviewed.12 Thirty minutes later, at 11:50 p.m., the 911 operator again heard movement inside the store.13 At the same time, officers observed a man with blood on him, holding a butcher knife, and moving inside the store.14 Seconds later, the 911 operator reported that the phone line had been disconnected.15
Moments later, an employee left the restaurant and tried to flee in his car that was parked outside the store.16 The employee noticed someone wearing black and holding a gun, got scared, and ran back inside.17 At some point between 11:50 p.m. and 12:12 a.m., a female employee called 911.18 She told the 911 operator handling the call that she thought the suspects were still inside the building.19 Officers directed her to exit the front of the restaurant with two other employees and they quickly complied.20
By 12:12 a.m. on December 20, 2004, all the employees had made it to safety, but gave contradictory reports to the police.21 One employee reported that no one else was inside the building.22 However, another employee reported that an employee named Domingo was still inside the building, too scared to come out.23 At 12:32 a.m., police were still trying to verify whether the Domingo referred to by the employees was the same Domingo Reyes who had been used as a hostage in the initial confrontation and had already been taken to the hospital.24
Meanwhile the police were making preparations to enter the building.25 Police ultimately entered the building at 1:24 a.m.26 and at 1:59 a.m. the building was declared clear and secure.27
Gilbert was admitted into the Emergency Room of St. Joseph Hospital at 10:28 p.m. on December 19, 2004. Upon arrival, Gilbert was conscious and rated his level of pain as an "8" on a scale of 1 to 10.28 Dr. Charles Williams, the Emergency Room doctor on staff at the time, took charge of Gilbert's evaluation and stabilization.29 At 10:30 p.m., Dr. John Mason, a general surgeon, was paged. Dr. Mason arrived at Gilbert's room at 10:55 p.m.30 At 11:01 p.m., Gilbert again rated his level of pain as an "8" on a 1-to-10 scale.31 Shortly thereafter, Dr. Mason took over Gilbert's medical care from Dr. Williams.32 While Gilbert was in Dr. Williams' care, Dr. Williams neither proscribed nor administered pain medication to Gilbert.
Once Gilbert was in Dr. Mason's care, Dr. Mason ordered a CT scan to look for bullet fragments and to determine whether Gilbert had a punctured chest cavity. At 11:05 p.m. Gilbert was moved to the CT scan area and scanned.33 At 11:25 p.m., Gilbert was taken from the CT scanning area back to his room, his bandages were changed, and ice packs were placed on his shoulders.34
When Gilbert and Reyes arrived at the Hospital, Detectives Anderson and Fry were sent to determine whether there was a third robber holding hostages inside the restaurant.35 At the time Anderson and Fry were sent to the hospital, none of the hostages had exited the building and the police had not yet entered.36 Anderson and Fry arrived at the Hospital slightly before 11:25 p.m.37
At 11:25 p.m., Nurse Tracy Shimek ("Shimek") made the following notation in Gilbert's trauma flow chart:
MD aware of pt. c\o pain. Informed by MD to wait until police are done speaking to pt. Det. Fry & Det. Anderson @ BS.38
Shimek testified that, without abbreviations, her entry stated:
Medical doctor aware of patient complaint of pain. Informed by medical doctor to wait until police are done speaking to patient. Detective Fry and Detective Anderson at bedside.39
At approximately 11:30 p.m., Anderson began recording her first interview with Gilbert to confirm the number of robbers.40 Gilbert stated that there were just two robbers involved in the incident.41 Several times during this first...
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