*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10116

HELEN ROSE OMOILE AKANNI,

on behalf of NELLIE ROSE AKANNI,

Plaintiff-Appellee-Cross-Appellant,

v.

JOHN DOES 1-100,

Defendants,

DALLAS COUNTY, TEXAS,

Defendant-Appellant-Cross-Appellee,

Appeal from the United States District Court

for the Northern District of Texas

(3:93-cv-1506-r)

April 12, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

I. INTRODUCTION

Helen Rose Omoile Akanni filed the present action against

Dallas County, Texas in Texas state court, alleging violations of

42 U.S.C. § 1983 and the Texas Tort Claims Act, Tex. Civ. Prac. &

Rem. Code §§ 101.001-.109. Following removal, the district court

dismissed Akanni’s cause of action under § 1983 but retained

pendent jurisdiction over her claims under the Texas Tort Claims
 

1Akanni’s daughter had fallen asleep under a bed at Akanni’s

apartment and had not responded to her mother’s calls.

 

2Akanni, a native Nigerian, describes keening as “a cultural

response to highly emotional and/or traumatic incidents whereby the

Nigerian woman positions herself in a kneeling fashion, raises her

arms to and from the ground as if worshiping, and wails loudly and

continuously.”

2

Act. A jury returned a $7,500 verdict in Akanni’s favor. Dallas

County appeals this verdict and the trial court’s revision of the

verdict to award pre-judgment interest. Akanni cross-appeals the

dismissal of her § 1983 claim. We hold that Akanni had no claim

cognizable under state or federal law. We affirm in part and

reverse in part.

Akanni and the City of Dallas Police Department have had

a turbulent relationship. The question in this case, however, is

whether the indifference and mismanagement of her situation by the

Dallas police also extended to the County. 

On May 15, 1991, while searching for her daughter, Akanni

was involved in an automobile accident. Distraught over the fact

that her daughter was missing1 and shaken by the accident, Akanni,

who suffers from schizophrenia, began to keen2 and cry out for her

lost child. Responding to the accident, City of Dallas police

officers observed Akanni’s odd behavior and arrested her for D.W.I.

The arresting officers failed to conduct a field sobriety test or

administer a breathalyser at the scene. During the arrest, the

officers informed Akanni that she could file a missing persons

report on her child from the police station.
3

Akanni was transported to the Lew Sterrett Jail, a

facility operated by the Dallas County Sheriff. She was not videotaped at her arrest and booking despite City of Dallas procedures

prescribing the actions for persons charged with offenses involving

alleged intoxication. During the book-in, Akanni had to be

physically restrained by officers, signed the booking information

sheet as “The Lord,” and was subjected to a strip search by a male

officer. She was also not permitted to file a missing persons

report. At the request of City of Dallas officers, a County nurse

drew a sample of Akanni’s blood during the book-in. The sample was

immediately returned to the City of Dallas for custodial purposes;

however, the City did not deliver the sample to the Dallas County

forensics laboratories for testing until May 17.

Following her May 15 book-in, Akanni was placed in a

behavioral observation cell. Once there, Akanni continued to

exhibit strange behavior. In an effort to control her, jail

officials consulted with Dallas County psychiatrist Dr. Michael

Pittman by telephone and, on his advice, administered a combination

of sedatives to Akanni by injection. The treatment, a combination

of Haldol and Cogentin that Akanni had been prescribed previously,

was administered twice on May 16 and once again on May 18. Dr.

Pittman spoke personally with Akanni on May 21, learned of her

history of schizophrenia, and recommended a course of regular

medication. Akanni refused the treatment. On May 22, Akanni’s
 

3Over the seven days of her incarceration, Akanni’s two-year

old daughter had been alone in Akanni’s apartment. Advised of the

daughter’s “abandonment,” the City of Dallas dispatched officers to

Akanni’s home and, once again, arrested Akanni -- this time for

Abandonment of a Child.

4

brother posted bond, and Akanni was released.3 The analysis of

Akanni’s blood was not completed by the County and reported to the

City of Dallas until May 28, 1991 -- 11 days after the sample had

been delivered to the County. The tests were negative for alcohol

and controlled substances.

Over the next several months, Akanni was periodically

admitted to Terrell State Hospital and Parkland Hospital for

treatment of her psychiatric disorder. On December 29, 1991,

Akanni was arrested for disorderly conduct. Once again, she was

brought to the Dallas County jail. After consulting with Dr.

Pittman, County officials administered Haldol and Cogentin for her

behavioral problems. Although a psychiatric examination was

scheduled for December 31, Akanni was released prior to the

appointment. The release occurred at 2:30 a.m. on the 31st.

Unaware of her surroundings and disoriented following her release,

Akanni wandered aimlessly for several miles before orienting

herself.

Following these incidents, Akanni filed the present

action in state court against the City of Dallas and Dallas County.

The defendants removed the action to federal court. Prior to

trial, the City of Dallas settled Akanni’s claims. The district

court dismissed the § 1983 claim against Dallas County for alleged

failure to provide appropriate medical care to Akanni during her
5

incarcerations at the county jail, but Akanni’s claims under the

Texas Tort Claims Act were allowed to proceed to trial. Following

a jury verdict in Akanni’s favor, Dallas County timely appealed.

III. ANALYSIS

A. Deprivation of Medical Care

The district court properly dismissed Akanni’s § 1983

claims against Dallas County. Under the Fourteenth Amendment, pretrial detainees must be provided adequate medical care during

incarceration. See Hare v. City of Corinth, 135 F.3d 320, 324 (5th

Cir. 1998) (quoting Hare v. City of Corinth, 74 F.3d 633, 650 (5th

Cir. 1996) (en banc)). A denial of medical care rises to the level

of a constitutional claim, however, only if there is deliberate

indifference of the authorities. Akanni argues that during neither

of her incarcerations was she seen by a doctor or provided any

medical care to allay her mental distress, and, in the early

morning hours of December 31, 1991, she was released without regard

to her known psychiatric condition. 

The summary judgment record clearly indicates that Dallas

County employees did not deprive Akanni of medical care and, in

fact, sought on several occasions to calm Akanni in order to

protect her and County employees from harm. During both

incarcerations, Akanni was placed in a behavioral observation cell.

When necessary, County officials consulted a psychiatrist who

prescribed medication to sedate Akanni. During her first visit,

Akanni also met personally with Dr. Pittman but refused his offer

of further treatment for her condition. Moreover, Akanni’s
6

December 31 release from jail prior to a scheduled appointment with

Dr. Pittman did not violate her rights as a pretrial detainee under

the Constitution. Accordingly, without our even reaching the

question of imputing liability against the County, the district

court properly dismissed Akanni’s claims under § 1983.

B. Texas Tort Claims Act

A governmental unit, such as Dallas County, is entitled

to sovereign immunity unless waived. See University of Texas Med.

Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); Tex. Civ. Prac. &

Rem. Code § 101.001(3)(B) (defining county as governmental unit for

purposes of Texas Tort Claims Act). Under the Texas Tort Claims

Act, Dallas County may be held liable for personal injury caused by

its use of tangible personal property. See Tex. Civ. Prac. & Rem.

Code § 101.021(2). Only Dallas County’s use of tangible personal

property can create liability -- non-use is insufficient. See

Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584-85 (Tex. 1996).

Moreover, the County must have used “tangible personal property” to

cause the injury. Information is not tangible personal property.

See York, 871 S.W.2d at 178-79.

The district court characterized Akanni’s claims against

the County as misuse of a blood sample. We disagree. Akanni did

not allege that the blood was improperly analyzed, stored, or

processed. The County neither mishandled nor improperly processed

the blood, and the results were correctly and accurately reported.

As such, Akanni’s reliance on Salcedo v. El Paso Hosp. Dist., 659

S.W.2d 30 (Tex. 1983), is misplaced. In Salcedo, a case severely
 

4See Dallas County Mental Health and Mental Retardation v.

Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998) (explaining limits to

holding in Salcedo). Other cases relied upon by the plaintiff,

such as City of Houston v. Arney, 680 S.W.2d 867 (Tex. App. --

Houston [1st Dist.] 1984, no writ) and Texas Dep’t of Corrections

v. Winters, 765 S.W.2d 531 (Tex. App. -- Beaumont 1989, writ

denied), have also been overruled or criticized. See York, 871

S.W.2d at 179 (rejecting Arney); Sawyer v. Texas Dep’t of Criminal

Justice, 983 S.W.2d 310, 312 (Tex. App. -- Houston [1st Dist.]

1999, no writ) (criticizing Winters).

7

limited by the march of Texas law,4 the El Paso Hospital District

was denied immunity based on a hospital physician’s misdiagnosis of

a heart attack. See 659 S.W.2d at 33. The court found the

physician had misused an electrocardiogram by failing to properly

interpret the graph produced by the machine. See id.

Conversely, Akanni’s claim against the County is premised

on the County’s failure to supply the results of her blood test to

City of Dallas officials in a timely manner -- i.e., failing to

supply information about the test results. To that extent,

Akanni’s case is indistinguishable from York, a case in which the

Texas Supreme Court found that a failure to timely diagnose a hip

injury due to the mishandling of medical records did not fall

within the Texas Tort Claims Act waiver of immunity. See York, 871

S.W.2d at 178-79; see also Thornhill v. Ronnie’s I-45 Truck Stop,

Inc., 944 S.W.2d 780, 784-86 (Tex. App. -- Beaumont 1997, writ

dism’d by agr.) (State Fire Marshal immune from liability based on

failure to timely act on internal recommendations).

IV. CONCLUSION

The trial court properly dismissed Akanni’s claims under

§ 1983. However, the court improperly denied Dallas County
8

immunity from suit under Texas law. Processing Akanni’s blood

sample in a more timely fashion would not have hastened her release

-- only reporting the test results to the City of Dallas could have

effected her liberation. This failure to supply information does

not fall within the Texas Tort Claims Act’s limited waiver of

sovereign immunity. It is unnecessary to reach the other issues

raised by the parties. Accordingly, we reverse the judgment for

Akanni and affirm the dismissal of claims against the County under

§ 1983.

AFFIRMED IN PART; REVERSED IN PART.