King v. Polk Cnty., CIVIL ACTION NO. 9:17-CV-31
| Decision Date | 30 March 2020 |
| Docket Number | CIVIL ACTION NO. 9:17-CV-31 |
| Parties | ESTATE OF NATHAN KING, et al., v. POLK COUNTY, et al. |
| Court | United States District Courts. 5th Circuit. United States District Court of Eastern District Texas |
**NOT PRINTED FOR PUBLICATION**
MEMORANDUM OPINION AND ORDERPlaintiff, Timmie King1, individually and as personal representative of the estate of Nathan King, and on behalf of T.K. and N.K., minor children, and Plaintiff Rashad King, individually, proceeding pro se and in forma pauperis, filed this suit pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act, the Rehabilitation Act, and a Survival and Wrongful Death Action against the following defendants: Polk County, Polk County Sheriff Kenneth Hammack, Wanda Standley2, Melenda Cole, Health Horizons, Dr. Raymond Luna, Natalie Hoskowitz, Mary Conroy and Unknown Polk County Deputies/Officials.
Plaintiffs filed the Original Complaint on February 24, 2017 (Doc. #1). Plaintiffs assert claims pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), the Rehabilitation Act ("RA"), and a Survival and Wrongful Death Action.
Plaintiffs state that Nathan King, died on February 22, 2015 after being hospitalized for pulmonary tuberculosis. According to the complaint, Nathan King was a pre-trial defendant in the custody of the Polk County Jail for trespass and retaliation. Nathan King was arrested on July 20, 2014 and remained in pre-trial detention for seven months because he could not make bail. Nathan King was never convicted of either charge.
Plaintiffs state Nathan King had a documented diagnosis of schizophrenia and bipolar disorder. Nathan King was diagnosed with tuberculosis while in pre-trial detention. According to the complaint, he was immediately placed in segregation when he entered the jail and he remained in segregation until he was taken to the hospital. Plaintiffs allege Nathan King was transported to the hospital, over the objections of Melenda Cole, when he began to have noticeable weight loss and was unable to walk.3 Plaintiffs allege Wanda Standley was made aware of Nathan King's weight loss and his inability to walk but did nothing except order that he be given unlimited peanut butter and jelly sandwiches. Plaintiffs contend that Health Horizons did not provide access to testing for Nathan King after he asked for a tuberculosis test. Plaintiffs assert that Dr. Raymond Luna, the Polk County Jail's doctor, was aware of the sick call request but ignored the request. Natalie Hoskowitz and Mary Alice Conroy performed a follow-up psychological evaluation on Nathan King days before he was admitted to the hospital and, according to plaintiffs, disregarded his illness and physical changes and did nothing to provide any care for his illness.
Plaintiffs state that Nathan King died of a curable disease, tuberculosis, after the Polk County jail, Sheriff, nurses, physicians, and testing services willfully ignored his complaints andclearly visible deteriorating condition leading to his death. Plaintiffs specifically allege that the defendants were deliberately indifferent to Nathan King's serious medical needs.
Plaintiffs seek damages for mental anguish, pain and suffering, cost of medical bills and funeral expenses, punitive damages, attorneys' fees, and discrimination for disabled and loss of companionship, love and society and pre and post judgment interest and all other actual and legal and equitable remedies to which plaintiffs may be entitled.
After ordering plaintiffs to replead and receiving a response, the court ordered the Clerk of Court to issue process and the United States Marshal to serve process upon the defendants Polk County, C/O County Judge Sydney Murphy, Sheriff Kenneth Hammack, Wanda Standley, Dr. Raymond Luna, Melenda Cole, Natalie E. Hoskowitz and Dr. Mary Conroy (Doc. #12).4 Service was returned unexecuted as to defendant Hoskowitz.
Defendant Conroy filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on October 8, 2019 (Doc. #20). Defendant Luna filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 22, 2019 (Doc. #21). Defendants Cole, Hammack, Polk County, and Wanda Standley filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(5) and 12(b)(6) on October 24, 2019 (Doc. #22). Despite ample time to do so, plaintiffs have yet to file a response to the defendants' motions to dismiss and have failed to otherwise correspond with the Court. While the court will determine whether a motion to dismiss is properly presented and supported, and will not rule against a party solely for failing to oppose the motion, the failure to oppose "creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion." E.D. Tex. Local Rule CV-7(d).
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action if the court lacks jurisdiction over the subject matter of the plaintiff's complaint. FED. R. CIV. P. 12(b)(1). The Rule allows a party to challenge the subject-matter jurisdiction of a district court based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting the existence of jurisdiction bears the burden of proof once a court's subject-matter jurisdiction is challenged. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Federal Rule of Civil Procedure 12(b)(5) permits a challenge to the method of service attempted by the plaintiffs or the lack of delivery of the summons and complaint. See FED. R. CIV. P. 12(b)(5); Tinsley v. Comm'r of I.R.S., 19983 WL 59581, at *3 (N.D. Tex. Feb. 9, 1998). Failure to timely serve a defendant is grounds for dismissal without prejudice. Id.
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." In reviewing a Rule 12(b)(6) motion, the Court "accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [and] . . . Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 1949-50.
To defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must "nudge their claims across the line from conceivable to plausible" by pleading "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words,a plaintiff must establish "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 1937 (2009). Determining whether a complaint states a plausible claim for relief survives a motion to dismiss is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
Generally, courts should give plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case under Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). The court may deny leave to amend, however, if the defects are incurable or the plaintiffs have already alleged their best case. See id; Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
Plaintiffs assert claims pursuant to 42 U.S.C. § 1983, the ADA, the RA, and for wrongful death and survival actions under Texas law. Plaintiffs do not specify which claims are asserted against which defendants. Giving a liberal construction to plaintiffs' pleadings, the Court will presume plaintiffs is asserting all claims against all the defendants.
Because there is no specific federal statute of limitations governing claims brought under § 1983, federal courts look to the law of the state in which the action arose to determine the appropriate limitations period, usually borrowing the state's general personal injury statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v. Okure, 488 U.S. 235, 236 (1989); K.M.C. ex rel Nobre v. La. Dep't of Pub. Safety, 935 F.3d 437, 440 (5th Cir. 2019); Bargher v. White, 928 F.3d 439, 444 (5th Cir. 2019); Winzer v. Kaufman Cty., 916 F.3d 464, 470 (5th Cir. 2019); Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005); Piotrowski v. City ofHouston, 237 F.3d 567, 576 (5th Cir.), cert. denied, 543 U.S. 820 (2001); see also 42 U.S.C. § 1988.
Because § 1983 claims are most analogous to Texas personal injury claims, the applicable statute of limitations is two years, as set forth in § 16.003 of the Texas Civil Practice & Remedies Code. Winzer, 916 F.3d at 470; Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018); Jones v. Tex. Juvenile Justice Dep't, 698 F. App'x 215, 216 (5th Cir. 2017), cert. denied, 138 S.Ct. 1566 (2018); King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015).
The United States Court of Appeals for the Fifth Circuit, noting that discrimination claims are analogous to personal injury claims, has also applied Texas' two-year statute of limitations for personal injuries to claims brought pursuant to the ADA and RA. See Frame v. City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011) (citing Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir. 1992)), cert. denied, 565 U.S. 1200 (2012). Thus, plaintiffs were required to bring their claims "no later than the same calendar day two years following the accrual of the cause of action." Price, 431 F.3d at 893; see Winzer, ...
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