Olabisiomotosho v. City of Houston

• Decision Date: 30 August 1999
• Docket Number: No. 98-20027,98-20027
• Citation: 185 F.3d 521
• Parties: (5th Cir. 1999) SHARON OLABISIOMOTOSHO, Plaintiff-Appellant, v. CITY OF HOUSTON; ET AL.; Defendants, CITY OF HOUSTON; P. J. BARTLETT; K. L. RICHARDS; RENE BERTRAND, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 521

185 F.3d 521 (5th Cir. 1999)

SHARON OLABISIOMOTOSHO, Plaintiff-Appellant, v. CITY OF HOUSTON; ET AL.; Defendants, CITY OF HOUSTON; P. J. BARTLETT; K. L. RICHARDS; RENE BERTRAND, Defendants-Appellees.

No. 98-20027

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 30, 1999

Rehearing Denied Sept. 29, 1999.

[Copyrighted Material Omitted]

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

Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE,¹ District Judge.

CARL E. STEWART, Circuit Judge:

The district court granted summary judgment in favor of each defendant. For the reasons set forth below, we affirm.

FACTUAL & PROCEDURAL BACKGROUND

While driving her two children home from school on December 3, 1993, plaintiff-appellant Sharon Olabisiomotosho stopped to help a stranded motorist. Two Houston police officers, defendants-appellees P. J. Bartlett and K. L. Richards, pulled up behind her in a marked patrol car, used their onboard computer to check her license plates, and learned that the plates displayed on Olabisiomotosho's car had been issued for another vehicle. Olabisiomotosho drove the motorist to a telephone and then back to the stranded car. As Olabisiomotosho began to drive away, the officers pulled her over, requested her driver's license, and determined that there were outstanding warrants for her arrest. The officers then arrested Olabisiomotosho on the outstanding warrants and for displaying fictitious license plates. At the same time, they discovered that she possessed a second driver's license bearing her picture but a different name and a Social Security card in the name of Dashaun R. Davis.

Olabisiomotosho has suffered from severe chronic asthma since childhood and was using a prescription Ventolin inhaler at the time of her arrest. She requested permission to retrieve her inhaler from her car before she was transported from the scene. One of the officers retrieved it from her car and permitted her to use it. By the time she arrived at the City of Houston jail, however, she was coughing, wheezing, experiencing shortness of breath, and had difficulty keeping up with the officers. Although she told her arresting officers that she needed to slow down or see a doctor, they maintained their pace, told the booking officer that Olabisiomotosho was asthmatic, and departed. After waiting there for approximately thirty minutes, she was then taken to a jail cell where she stayed until her judicial hearing the next morning. According to her deposition testimony, when Olabisiomotosho asked two prison officials - the first being the official who took her to her jail cell, and the second beingan unidentified female "trustee" dressed in an orange uniform - whether she could see a doctor, she was told that the clinic was closed. Between the time she was taken to her jail cell and the next morning, Olabisiomotosho claims she was "[c]oughing really bad [and] wheezing really loud." Furthermore, according to Olabisiomotosho, no one asked her about her medical condition during the booking process, and she was not medically screened. Defendant-appellee Rene Bertrand was the Houston jail clinic assistant on duty the night of Olabisiomotosho's arrest, and was required to screen all new inmates for medical problems.²

The next morning, after pleading guilty to the offense of displaying fictitious license plates, Olabisiomotosho was remanded to the custody of the police until her fines and costs were paid or discharged. During her court appearance, Olabisiomotosho was unable to stand upright, and municipal court Judge Victoria C. Dawson asked her what was wrong. Olabisiomotosho explained that she was suffering from chronic asthma and that no medical attention was provided to her because the jail's clinic was closed. The judge responded that the clinic was never supposed to be closed and ordered a guard to take her to the jail clinic for treatment.

The officer did not do so. Instead, jail personnel placed her in a holding cell and then led her to an eating area, where she fainted. Jail officials treated her for an asthma attack and transported her to a local emergency hospital, where she lapsed into a coma, required a respirator, and temporarily lost her eyesight. No permanent physical harm came from this ordeal; however, Olabisiomotosho alleges that she is experiencing "recurring periods of anxiety and distress."

Olabisiomotosho subsequently brought suit under 42 U.S.C. 1983 (1994) against Bartlett, Richards, and Bertrand (collectively, "individual defendants"), as well as against defendant-appellee the City of Houston ("City").³ In her first amended complaint, she claimed that she suffered damages because of negligence, cruel and unusual punishment, the deliberate denial of medical treatment while in police custody, and unlawful arrest. She did not, however, plead to enforce the consent decree entered in Morgan v. City of Houston, No. H-76-0629 (S.D. Tex. Sept. 25, 1989), which requires Houston City jails to inter alia provide detainees with incoming medical screens and a twenty-four hour on-call physician. The defendants moved to dismiss or, alternatively, for summary judgment. On November 20, 1997, the magistrate judge recommended that the defendants' motion for summary judgment be granted. Olabisiomotosho objected, but the district court ultimately adopted the magistrate judge's memorandum and recommendation in its entirety. Olabisiomotosho brought this timely appeal.

DISCUSSION

I

We review de novo the entry of summary judgment, see Morris v. Cowan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998), applying the same standards as did the district court. See Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir. 1987). After consulting applicable law in order to ascertain the material factual issues, we consider the evidence bearing on the issues, viewing the facts and the inferences to be drawn therefrom in the light most favorable to the nonmovant. See King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). We resolve factual controversies in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts. See McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995). Conclusory allegations, speculation, and unsubstantiated assertions are not evidence. See Douglass v. United States Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996). Summary judgment is properly granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

II

Olabisiomotosho contends that the City, Bartlett, Richards, and Bertrand incurred liability under 1983 when they violated her Eighth and Fourteenth Amendment rights by failing to attend to her medical needs in a timely fashion. Section 1983 creates a private right of action for redressing violations of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). Of course, 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere. See Albright v. Oliver, 510 U.S. 266, 271 (1994).

Although Olabisiomotosho apparently suffered harm both as a pretrial detainee and as a convicted prisoner, her argument on appeal only addresses her rights as a pretrial detainee. The constitutional rights of a pretrial detainee flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment, see Bell v. Wolfish, 441 U.S. 520, 535 (1979), which provides that no state shall "deprive any person of life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. XIV, 5. These protections, whether procedural or substantive, are not triggered, however, by negligent inaction. See Davidson v. Cannon, 474 U.S. 344, 348 (1986).

This court sitting en banc has recently clarified the proper analysis applicable to constitutional challenges by pretrial detainees. See Scott v. Moore, 114 F.3d 51 (5th Cir. 1997) (en banc); Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc); see also Flores v. County of Hardeman, 124 F.3d 736 (5th Cir. 1997) (applying this analysis). We begin by deciding whether to classify the "challenge as an attack on a 'condition of confinement' or as an 'episodic act or omission.'" Scott, 114 F.3d at 53. The former category would include such claims as "where a detainee complains of the number of bunks in a cell or his television or mail privileges." Id. The latter category, on the other hand, occurs "where the complained-of harm is a particular act or omission of one or more officials." Id. We find that the case before us falls into the latter category. Olabisiomotosho's complaint turns on Bartlett's and Richard's alleged failure to take better care of her, and Bertrand's failure to medically screen her and secure her to treatment. Such a complaint perfectly fits the definition of the episodic omission.

In an episodic act or omission case, we employ different standards depending on whether the liability of the individual defendant or the municipal defendant is at issue. See Hare, 74 F.3d at 649 n.14. For the individual defendant, the plaintiff "must establish that the official(s) acted with subjective deliberate indifference to prove a violation of [her] constitutional rights." Flores, 124 F.3d at 738-39 (affirming summary judgment as to an individual defendant because there was no genuine issue of material fact indicating that he acted with deliberate indifference). Subjective deliberate indifference means "the...