Lozano v. Smith

• Decision Date: 03 November 1983
• Docket Number: No. 81-1538,81-1538
• Citation: 718 F.2d 756
• Parties: Randy Rene LOZANO, et al., Plaintiffs-Appellants, v. William French SMITH, et al., Defendants, Elton Faught, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 756

718 F.2d 756

Randy Rene LOZANO, et al., Plaintiffs-Appellants, v. William French SMITH, et al., Defendants Elton Faught, et al., Defendants-Appellees.

No. 81-1538.

United States Court of Appeals Fifth Circuit.

Nov. 3, 1983.

Lopez, Medina, Ramirez, Torres & Velasquez, Isaias D. Torres, Armando Lopez, Jose A. Medina, Rebecca J. Davis, Houston, Tex., for plaintiffs-appellants.

Perry Davis, Jr., James E. Nelson, Odessa, Tex., for defendants-appellees.

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

Before GARZA, REAVLEY and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from the judgment of the district court dismissing an action brought under 42 U.S.C. Sec. 1983 against appellees, principally Elton Faught, the former Sheriff of Ector County, Texas, Randy Tenney, one of Faught's Deputy Sheriffs, and Jackie Perkins, one of the jailers at the Ector County jail. Appellees were sued both individually and in their respective official capacities for the alleged violation of the civil rights of Larry Ortega Lozano ("Lozano"), a 27-year-old emotionally disturbed pretrial detainee being held in the Ector County jail, in Odessa, Texas. Lozano suffered a fatal injury in the course of being restrained and subdued there by several officers of the Sheriff's Department on the night of January 22, 1978. Appellants are the children of Lozano by his first wife. The primary questions on appeal are (1) whether the district court erred in setting aside, for lack of sufficient evidentiary support, the jury finding that the Sheriff failed to supervise the jail facilities and the personnel of his department so as to protect Lozano's constitutional rights; and (2) whether the jury findings that Deputy Tenney and Jailer Perkins used excessive force in restraining and subduing Lozano on the night of his death, but that, in doing so, they acted in good faith, are in conflict. We hold that there is insufficient evidence to support the jury finding that the Sheriff wrongfully failed to supervise his facilities and personnel. However, we further hold that the referenced jury findings respecting the liabilities of Tenney and Perkins are in irreconcilable conflict, and we therefore reverse and remand the case for a new trial as to their liability (and damages) in that regard only. In all other respects, we affirm the district court's judgment.

I. FACTS

Though the evidence is conflicting or unclear in many of its details, the following account summarizes the principal events developed at trial. On the night of January 10, 1978, at about ten o'clock, two deputies of the Ector County Sheriff's Department, Leroy Murphy and Gene Kloss, were dispatched to the scene of a minor traffic accident in the City of Odessa, Texas, where they found a Dodge pickup which had been driven into a street-side barbed wire fence. Lozano was standing by the pickup, and he identified himself to the deputies as its driver. Lozano was asked twice by the deputies to show his driver's license, but each time he refused. The deputies then placed Lozano under arrest. ¹

As the deputies were conducting a pat-down search of Lozano, Lozano struck Deputy Murphy on the cheek. The deputies then attempted to handcuff Lozano, and at that point, a struggle ensued. At one point during this struggle, Deputy Kloss hit Lozano "very hard" with a flashlight, causing a deep cut on Lozano's forehead. The deputies were eventually able to force Lozano to the ground, and to handcuff him with the help of a nearby resident.

After Lozano was handcuffed, Kloss radioed for help and Deputies Dee Johns and Darry Davis responded to his call. Because Johns and Davis's patrol car was equipped with a protective screen, it was decided that they would take Lozano to the county jail. Deputies Murphy and Kloss followed them.

During the ride to the jail, Murphy and Kloss's car pulled beside the other patrol car at a stop and Lozano was asked by both Murphy and Johns if he wanted to go to a hospital for treatment of his head wound, but Lozano said he did not. However, upon arrival at the Ector County courthouse, where the county jail is located on the second floor, Lozano asked Johns to take him to the hospital, and Johns told Lozano that he would be taken there after he was booked. Lozano assented, and they entered the courthouse.

The deputies took Lozano upstairs to the booking office. During the booking process, Johns asked Lozano to remove his belt. Lozano did so, and threw it across the desk at Johns. Lozano lunged at Johns, and another struggle took place, this time with Deputies Johns and Davis. Blows were exchanged by both sides, and Lozano kicked at the deputies. The deputies were unable to subdue or control Lozano, and Davis called for assistance. Captain Bob Eaton, Patrol Sergeant Mike Harrison, and Deputy Murphy responded to Davis's call and helped subdue Lozano, who was then placed in a security or padded cell. ²

Later, Lozano, Davis, and Johns were taken to the emergency room of the hospital, treated for cuts and bruises, and released. Lozano had cuts and scrapes on his head and facial areas, and bruises on his abdomen and legs. He was x-rayed and given medication. After being released from the hospital, Lozano was returned to the jail and placed again in a padded cell. ³

Deputies Kloss and Murphy, the arresting officers, jointly filed a complaint charging Lozano with aggravated assault on a peace officer and with resisting arrest. Complaints charging Lozano with aggravated assault on a peace officer were also filed by Deputies Johns and Davis based on the incident at the jail. In addition, Murphy, Johns, and Davis each filed a complaint charging Lozano with criminal mischief based on the destruction of some of Murphy's and Johns's clothing by Lozano during his struggles with them. ⁴

Shortly after Lozano's arrest, the Sheriff's Department contacted the Permian Basin Community Center for Mental Health & Mental Retardation ("MHMR"), located in Odessa, and asked them to send a counselor to talk with Lozano. On January 12, 1978, Elva Hurst of MHMR visited with Lozano at the jail. Her report of this visit was admitted into evidence and states that Lozano "was in terrible physical condition. His face was black and blue and so swollen his eyes were shut. He kept lifting his eyelids with his fingers so he could look at me." At trial, Hurst testified that when this visit occurred, Lozano's face looked like "raw hamburger." According to her report, Lozano had been hospitalized for several weeks in Austin, Texas, in August 1977, for a nervous breakdown. ⁵ After his dismissal, he had participated in group therapy at MHMR in Pecos, Texas.

Another MHMR worker, Arnold Salinas, visited Lozano the next day, January 13, 1978. Lozano was also seen at the jail by a psychiatrist, Dr. Charles Z.K. Mitis. Salinas, Hurst, and Natalie Rothstein, the Emergency Services Coordinator at MHMR, also visited Lozano on January 18, 1978. Meanwhile, MHMR had been seeking to make arrangements to have Lozano admitted to the state mental hospital at Big Spring, Texas, for psychiatric treatment. Rothstein testified, "I contacted the District Attorney's office ... to see if charges could be ... dropped ... so that Larry could be admitted to the state hospital because the Mental Health Code does not allow commitment to a state hospital if there are any kind of charges pending against the potential patient." ⁶ Rothstein further testified The Sheriff, Elton Faught, testified that it was the policy of his office to seek transfer of inmates with mental problems or suicidal tendencies to a mental health facility. He further testified that MHMR made his office aware that Lozano should be in a mental hospital, and that it was his understanding that "[MHMR] had conferred with the district attorney's office, the county attorney's office and were in the process of getting him committed--Of going through the court, legal court process to get him committed." ⁸ The Sheriff added that MHMR and his office discussed the possibility of withdrawing the complaints charging Lozano with aggravated assault. ⁹ Although the misdemeanor charges were dismissed before Lozano's death, the felony charges remained pending against Lozano, ¹⁰ and he therefore remained in jail. ¹¹

that an Assistant District Attorney informed her that his office could make no determination about the charges filed against Lozano until he was indicted. ⁷

Early in the morning of Sunday, January 22, 1978, Lozano began creating a disturbance among the inmates of the southwest cell block, where he had been confined for several days. The jailer on duty, Harold In her January 22, 1978 report, which plaintiffs put in evidence, Hurst states:

                Farnum, moved Lozano into the east green room, which was a padded cell.  Later that day, Lozano began creating another disturbance, and Deputy (or Captain) George Olesh called Hurst at MHMR and told her that Lozano had "gone berserk."    Hurst testified that she then contacted Dr. Mitis, who made arrangements for Lozano to be admitted to the Medical Center Hospital in Odessa.  At 2:15 p.m., Lozano was taken to this hospital and placed in a security room on the fifth floor.  However, the hospital refused to admit Lozano unless the Sheriff's office furnished a deputy to stand guard over him.  Upon learning this, Olesh again called Hurst, and asked her if it were possible to make arrangements for Lozano to be taken to Big Spring State Hospital, since the Medical Center wanted a guard, and he could not spare a man for this job.
                

"I told [Olesh] that I thought it would be impossible for us to make that kind of arrangements that the best I could do was call our Emergency Services Coordinator, Natalie Rothstein and have her get in touch with him. I proceeded to give Natalie a call at her residence. She agreed to take care of calling the deputy."

Rothstein, in her report, which pla...