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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

SANDY HERRIN, Individually and §

as the Executrix of THE ESTATE OF §

RICHARD LEE McATEE, §

§

Plaintiff, §

§

vs. § Civil Action No. 7:03-cv-0259-R

§

ROBERT TREON, GARY JOHNSON, §

PAUL TAYLOR, RICHARD §

WILLIAMS, JAMES BLANFORD, §

SUSAN LANCASTER, TEXAS TECH §

UNIVERSITY HEALTH SCIENCES §

CENTER, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Now before the Court are Defendants Blanford, Williams, Taylor, Treon, and Johnson’s

motions for summary judgment. (Dkt. No. 49). For the reasons explained below, the Court

GRANTS Defendants Treon and Johnson’s motions for summary judgment but DENIES

Defendants Williams, Blanford, and Taylor’s motions for summary judgment in part.

I. BACKGROUND

This case arises out of a prison death. On June 3, 2002, Richard Lee McAtee was 18 years

old. He began serving a 10-year criminal sentence at the Allred Unit, a Texas state prison in Iowa

Park, Texas. On June 19, 2003, he was placed in administrative segregation (Ad Seg) at the

direction of prison staff. He killed himself shortly after, the victim of an apparent suicide by

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION

FILED

October 10, 2006

CLERK, U.S. DISTRICT COURT

 

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hanging. 

The only remaining witnesses to the suicide are prison officials. It is from the reports and

depositions of various prison employees that the Court has attempted to discern what happened in

the short period of time between McAtee’s transfer to the Ad Seg unit and the time that a doctor

officially pronounced McAtee dead. The evidence before the Court generally confirms that two

prison guards, Officers Richard Williams and James Blanford, saw McAtee shortly after arriving

in Ad Seg. He was angry – yelling and moving around his cell, refusing to put on his Ad Seg

jumper. At some point, one of the officers called for a supervisor – that is when the stories diverge

in legally significant ways. 

Although the supervisor, Sergeant Paul Taylor, claims he arrived at McAtee’s cell, saw him

hang himself, ordered the door to McAtee’s cell be “rolled” so that he and the other officers could

enter the cell, and immediately called for medical personnel, Nurse Susan Lancaster, the first and

only medical professional to arrive cellside found that McAtee was not breathing, had no pulse, and

his body was cool to the touch. 

Plaintiff Sandy Herrin, McAtee’s mother and the executrix of his estate, is suing Robert

Treon, Gary Johnson, Paul Taylor, Richard Williams, James Blanford, Susan Lancaster, and Texas

Tech University Health Sciences Center. 

Defendants present rough approximations of what they allege to be the “undisputed” facts

of the case. Herrin disputes all of the factual allegations made by Defendants. Upon closer

examination, many of the facts that are alleged to be undisputed are anything but. Instead, the

evidence surrounding McAtee’s death is highly circumstantial, hotly contested, inherently

contradictory, and obviously inconclusive. In many instances, the testimony of several witnesses

 

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– either by deposition or otherwise – varies significantly from either their prior testimony or the

testimony of other witnesses in the record, including other sworn voluntary statements and the

various unsworn incident reports that were prepared shortly after McAtee died. For that reason, the

Court believes that several reasonable, competing inferences may be drawn from the evidence in this

case which must necessarily be resolved in favor of the nonmovant. Because of the exceptional

nature of this case, the remarkably inconsistent evidence in the record, and the eerie uncertainty

about the circumstances of McAtee’s death, several of the motions for summary judgment now

before the Court cannot be resolved in Defendants’ favor on the inconclusive and contradictory

evidentiary record that was submitted in conjunction with these motions. 

As shown below, the Court finds that Warden Robert Treon and TDCJ Executive Director

Gary Johnson are entitled to summary judgment on all of Plaintiff’s claims. By contrast, the Court

finds that, as to the other movants – Officer Paul Williams, Officer James Blanford, and Sergeant

Paul Taylor – several genuine issues of material fact remain unresolved constraining the Court from

deciding, at this juncture, that these Defendants are entitled to qualified immunity. For this reason,

the Court denies these Defendants’ motions for summary judgment.

A. McAtee’s Institutional History and Functioning

McAtee suffered from severe psychological and developmental disorders when he first

arrived at the Allred Unit. During his intake interview, he informed prison officials that he had a

severe bowel disorder that rendered him fecally incontinent. He also informed prison officials that

he had contemplated suicide in the past and that his most recent suicidal ideation had occurred when

he was 17, shortly before his criminal trial. After speaking with the intake interviewer and the

 

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chaplain on staff, McAtee was immediately placed on suicide watch. He was also given bottom

bunk privileges and “Depends” adult diapers to wear because of his incontinence. Prison

psychiatrists diagnosed him as suffering from clinical depression. He was then placed on

antidepressants and was eventually released into the general prison population. 

McAtee was involved in several minor disciplinary infractions during his brief time at the

Allred Unit. The evidence before the Court suggests that many of those incidents involved

altercations with cellmates who McAtee claimed were attacking him or sexually abusing him, or

with medical staff, who, at times, denied his requests for Depends when he refused to submit to a

rectal exam. McAtee was also frequently cited for destroying his wristbands. 

Most significantly, McAtee was written-up for three “assaults” on officers. These incidents

served as the basis for the final decision to send him to Ad Seg, where he died. The first incident

occurred on November 5, 2002 when McAtee struck a passing guard on his shoulder from inside his

cell. The author of McAtee’s psychological autopsy report speculates that this may have been a

deliberate attempt to be moved to another cell. As a result of that incident, McAtee was given 15

days of solitary confinement. He made a 3" cut to his wrist the day after he was sent to serve his

disciplinary sentence. The second reported assault occurred in early May 2003 when McAtee

refused to submit to a strip search. McAtee reportedly climbed atop his bunk and threw a shampoo

bottle at a guard, striking him in the leg. The final incident occurred on May 29 when McAtee threw

a cup of water at an officer. Although his psychologist described the incident as yet another

deliberate attempt to be moved from his cell, McAtee was once again cited for assaulting an officer.

These three assaults served as the basis for placement in Ad Seg with the “worst of the worst”

offenders.

 

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According to the Psychological Autopsy Report, placement in Ad Seg “appears to have been

the stimulus that made death seem preferable to [McAtee] over interminable fear and pain and

humiliation.” When he reached the Allred Unit, McAtee “had virtually every possible strike against

him: . . . he was a small (5'6" tall, 130 lbs.), weak, illegitimate, immature teen who wore diapers,

cried and messed himself, and was labeled as a child molester. His intellect, physique, and fund of

coping skills were all totally inadequate for maximum security prison survival – and he knew it and

was terrified.” 

B. McAtee’s Death

McAtee met with an Allred Unit psychologist on the morning of June 19th. According to

McAtee’s psychological autopsy report, the psychiatrist who met with him that morning concluded

that he was not psychotic and was not suffering from a major depressive episode. The psychologist

did, however, report that McAtee told him the following: “I am doing fine. I have not been able to

get help from the guards. I am being terrorized by other inmates.” Shortly thereafter, at

approximately 10:15 a.m., McAtee visited the medical department of the Allred Unit, after having

made a sick call request two days earlier for constipation. McAtee was treated without incident. 

Later that day, Captain J.C. Boyle reported to the Allred Unit Administrative Segregation

Committee that McAtee was a threat to the physical safety of the Allred staff and other prisoners

given his three prior assaults on officers. The committee concurred and decided to reassign McAtee

to Ad Seg. McAtee was not present when this decision was made. 

At approximately 5:00 p.m. (about one hour before he hung himself), McAtee was escorted

with 10 other prisoners to the medical unit for a pre-segregation physical exam. While waiting for

 

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The guard who overheard these threats but who nevertheless escorted McAtee to administrative

segregation – Officer Nunez – was not named as a defendant in the lawsuit.

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the examinations, a group of security officers entered the infirmary and began yelling at the

offenders to get on their knees and submit to restraints. At this time, McAtee was told that he was

to be sent to Ad Seg. As he was escorted out of the infirmary, McAtee began threatening to kill

himself if was sent to Ad Seg. According to one nurse who as at the scene, McAtee was screaming,

“If you put me over there, I’m gonna kill myself!”1

The facts begin to conflict after McAtee was sent to Ad Seg. The most telling

acknowledgment of the factual disparities is in the Psychological Autopsy Report prepared by the

State after McAtee’s death. In it, the report’s author describes what happened after Sergeant Taylor

and other guards arrived at McAtee’s cell with the following disclaimer: “At this point there is some

discrepancy between the EAC report sent by Sgt. Taylor and the medical record report provided by

Ms. Lancaster, so some of what follows is therefore uncertain.” The following is a brief summary

of those events, as recounted by several defendants and witnesses and contained in the Appendix

to the parties’ summary judgment joint submission: 

1. Officer Blanford’s Story

Officers Richard Williams and James Blanford were the correctional officers assigned to

monitor McAtee’s section of the Ad Seg unit (the “E-pod”) when he died. Both officers have

completed unsworn witness statements for Warden Treon and sworn witness statements for the

Office of the Inspector General (OIG). 

In his sworn statement to the OIG, Officer Blanford states the following: “I . . . at

approximately 1815 [6:15 p.m.] approached 12EB-22 cell. At that time offender McAtee . . . was

 

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The “picket officer” is a officer positioned inside the control room who operates the doors inside the unit. 

According to Sergeant Taylor’s testimony, the picket officer is positioned to see “everyone” in the cell block. 

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alive and banging on his cell door. [Officer] Williams then told [Officer] Rubenzer to call for rank.

In the process of him calling for rank, offender placed a noose around his neck. I . . . could not

determine whether or not the offender was standing on his feet because of his sink and toilet

obstructing my view. Approximately 2 minutes later, rank arrived . . . .” (Emphasis added.) 

At that point, Officer Blanford claims that Sergeant Taylor took over the scene and tried to

get McAtee to take the noose off his neck. “Sgt. Williams opened the food slot and hit around with

a bean tool to try and get a response.” Approximately 1 to 2 minutes later Sergeant Taylor decided

to enter the cell “to cut down the offender . . . . We placed the offender on the floor and I . . . untied

the knot from around his neck. . . . When I got the knot loose, medical entered the cell and conducted

an inspection of the offender and then ordered us to move the offender to the runs.” Nurse Lancaster

then inspected McAtee again and escorted him to the emergency room in 10 Building.

2. Officer Williams’s Story 

In his sworn OIG statement, Officer Williams states that he confronted McAtee at

approximately 6:12 p.m. McAtee was banging, kicking and shouting, “I’m mad! I’m fucking

this shit all up!” Officer Williams then called “for a supervisor through the picket boss2

 . . .

Rubenzer. . . . Upon looking back into the cell [McAtee] went to the sink and placed a noose

over his neck. I immediately called the picket telling him, ‘[G]et help now he[‘s] going to

hang.’” 

Officer Williams claims that Sergeant Taylor arrived within 2 minutes and took over the

situation. “I cannot recall what [Sergeant Taylor] was saying to [McAtee] or if [McAtee]

 

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The “run” is the term used by prison employees to refer to the walkway in front of the cells. 

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responded as I was away from [the cell].” About a minute after Sergeant Taylor’s arrival, Taylor

ordered the guards to enter the cell. Upon entering the cell, Taylor applied hand restraints and

ordered Officer Williams to cut the noose from the vent.

In his unsworn report to Warden Treon, Officer Williams added a few details not in his

OIG statement. When Officer Williams first saw the noose McAtee used to hang himself, he

described it as a “noose made from a sheet.” Officer Williams also confirmed that when he cut

McAtee down from the vent, McAtee was placed on the floor. Nurse Lancaster then arrived,

entered the cell, and ordered the staff to move McAtee to the run in front of his cell.

Officer Williams was also deposed on January 19, 2005. At his deposition, Officer

Williams testified that after telling Officer Rubenzer to call a supervisor the first time, he left to

the other end of the “run”3

 to speak to another inmate for about a minute to a minute and a half.

When Officer Williams returned to McAtee’s cell he saw that McAtee was in the corner of his

cell, facing away from him, hands around his neck, with a ligature tied around his neck. Unlike

in his earlier statement to Warden Treon, in his deposition, Officer Williams claimed that he did

not know whether the ligature was a cloth or a sheet.

Officer Williams claims that he shouted to the picket officer, Officer Rubenzer, that

McAtee was attempting to hang himself. Williams claims that he instructed McAtee to stand up

and remove the ligature. He also claims to have told McAtee that he would not enter the cell to

save him. Williams later explained that TDCJ has an express policy of not permitting floor

officers to enter an Ad Seg unit for any reason unless the officer has the express approval of a

supervisor. The policy also requires that a team of officers be assembled before entering a cell in

 

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Ad Seg. For that reason, Officer Williams states that he told the picket officer McAtee was

hanging and to immediately summon a supervisor. 

Williams claims that Sergeant Taylor, Sergeant (Jayson) Williams, and other correctional

officers arrived shortly thereafter. They entered McAtee’s cell, and Officer Williams cut him

down. Officer Williams did not believe that McAtee was dead when they cut him down. Officer

Williams remembers that his body was warm, “very warm.” Instead of placing McAtee’s body

on the floor, as Officer Williams and Officer Blanford reported in their sworn OIG statements,

later in his deposition, Williams that McAtee’s body was placed on the bed.

3. Sergeant Taylor’s Story

In Sergeant Taylor’s sworn OIG statement, he claims to have responded to a call that an

offender on E-Pod was “attempting to hang himself.” Taylor makes no mention of an earlier

non-emergency call to McAtee’s cell. Taylor claims that when he arrived at McAtee’s cell, “we

observed offender McAtee . . . with a state sheet tied around his neck and the other end secured

to the air vent. . . . [McAtee] appeared to be holding his neck away from the noose with his

hands.” Taylor ordered McAtee to remove the sheet from his neck. McAtee “refused to obey

the order and stated ‘hell no, I’m going to do it.’” Taylor claims that at that moment McAtee

“removed his hands and dropped his neck into the noose.” 

Taylor’s statement differs significantly from Officers Blanford and Williams who claim

that McAtee’s back was to them and that they could not see his face. No other witness but

Taylor and Officer Scott claim to have heard McAtee speak or to have seen him drop his neck

into the noose. Officer Scott, who also responded to a call for additional staff, says he saw “Sgt.

 

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Taylor [give] orders for [McAtee] to submit to hand restraints and [McAtee] verbally refused,

then dropped from the side of the toilet.” Unlike Officer Scott though, Sergeant Taylor claimed

in his deposition that “[McAtee] didn’t jump from the toilet, he wasn’t even on the toilet.” 

Taylor claims after seeing McAtee drop into the noose, he immediately ordered the door

to McAtee’s cell “rolled open.” He placed hand restraints on McAtee and ordered Officer

Williams to cut the sheet down from the vent. Unlike the other witnesses, Taylor claims that

McAtee was immediately carried out to the run. Contradicting Officer Williams’s statement,

Taylor said he then ordered a video camera (Williams claimed that the camera arrived before

they entered the cell). In Taylor’s story, Nurse Lancaster arrived at about 6:18 p.m., evaluated

McAtee, and ordered him sent to the medical unit – presumably while McAtee was in the run. 

4. Officer Rubenzer’s Story

Officer Rubenzer was the picket officer at about 6:15 p.m. on the day of McAtee’s death. 

He claims that when Officer Williams called him over the speaker, Williams told him to “call for

rank because [McAtee] had hung himself.” (Emphasis added.) Contrary to Williams’s depiction

of calling for an attempted hanging, Rubenzer understood that McAtee had already hung

himself. Rubenzer also claims to have first made the call for rank at 6:20 p.m., 5 minutes after

Taylor clams to have been called and 2 minutes after Taylor, Williams, and Blanford claim that

Nurse Lancaster arrived. 

5. Nurse Lancaster’s Story

 

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Lancaster also notes in McAtee’s clinical records from TDCJ that she was called to building 12 for a

“Threatened hanging.” (Pl.’s App. 11). The word “Threatened” is capitalized in her own handwriting. 

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Nurse Susan Lancaster, arrived at McAtee’s cell after he hung himself. In a handwritten

sworn statement provided to the OIG, she reports, “At approx. 1810 [6:10 p.m.] security called

for a nurse in the 12 bldg. stating that they had an [inmate] threatening to hang himself.” 

(Emphasis added).4

 Lancaster claims that when she received “the message or the phone call,”

she was “seven to eight minutes” away from McAtee’s cell and had to pass through

approximately seven locked gates to get to the cell. 

Contradicting the stories of the other staff members present, Lancaster claims that when

she arrived at the cell, she saw McAtee in his boxer shorts, in a “semi kneeling position, hands

cuffed behind his back, face down, his torso leaning up/over the bunk.” Lancaster claims that

she asked security to turn McAtee over for inspection. When they did, she saw that his face was

cyanotic around the mouth and his pupils were “widely dilated” and “nonresponsive to

light/touch.” Contradicting Officer Williams’s account, Lancaster claims that McAtee was not

breathing, he had no pulse, and his body was “cool to the touch.” (Emphasis added.) 

Additionally, she observed clear fluids oozing from his nose and mouth and noted that he had

soiled his boxer shorts. The front of his neck bore a large ligature mark. Lancaster “does not

recall” seeing a chair, rope, bedsheet, or “extra piece of cloth” in McAtee’s cell. 

Lancaster claims that no one attempted to give McAtee CPR at the scene. She claims

that she did not commence CPR because she did not have a protective mouth shield and was

unable to locate one. She reportedly told officers at the scene, “I won’t breathe for him,”

meaning that she refused to commence mouth-to-mouth resuscitation without protection. 

Lancaster also testified in her deposition that she did not perform CPR on McAtee immediately

 

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An “ambu bag” is a manual resuscitator that is used to provide artificial ventilation to medical patients

with breathing difficulties. The device is used to introduce air into the lungs by means of a rubber squeeze bag

attached to a face mask. 

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because she thought he was dead when she arrived at his cell. 

McAtee was then taken to the emergency room in Building 10. According to Lancaster,

“[s]ecurity assisted” in getting McAtee to the emergency room in Building 10 and calling-in

other nurses – Neuman and Huff – from break. In her report, she states that “CPR was not

started until an ambu bag was located [and] used.”5

 When asked at her deposition why she did

not take a mouth shield with her when she responded to the initial call, she testified that she only

did so “[b]ecause the message or the phone call [she] received said that he was threatening to

hang himself.” 

Amy Newman, the R.N. who assisted in performing CPR on McAtee once in the ER,

claimed that McAtee was “pale in color” and “cool to the touch” when he arrived at the ER. She

also claims that an officer at McAtee’s gurney stated that “we had a weak pulse earlier,”

contradicting Nurse Lancaster’s deposition testimony that McAtee had no signs of life when she

arrived. 

6. Summary of the Inconsistencies

Upon the evidence presented in the summary judgment submissions, the Court cannot

determine even the must rudimentary facts surrounding McAtee’s death. First, witnesses and

reports fail to agree on the method of hanging – whether McAtee jumped from a toilet, the bed,

or a chair (although no chair was in the cell). Although one witness says that McAtee jumped

from the toilet, Sergeant Taylor disagreed. The other witnesses give no explanation about how

 

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McAtee was able to get himself into a position to actually hang from the ceiling vent.

Witnesses and reports also disagree about what instrument was used to hang McAtee. 

The autopsy report claims a rope was used; other witnesses claim that either a sheet or a piece of

cloth was used. The prison staff evidently did not preserve the instrument of death.

The witnesses disagree about whether McAtee’s back or his face was to the guards. 

Although Officers Williams and Blanford claimed not to be able to see McAtee’s face, Sergeant

Taylor not only claims to have seen his face, but also says he saw McAtee’s lips moving when

McAtee spoke to Taylor.

Most disturbing and also legally significant are the divergent views about the timeline

relevant to McAtee’s attempt to hang himself and the arrival of medical assistance. First, Officer

Williams claims that when he first called for assistance McAtee was merely belligerent, not

suicidal. However, Officer Rubenzer only recalls one call to a supervisor in which McAtee had

already hung himself. Sergeant Taylor said he responded to an attempted hanging. Nurse

Lancaster also responded to a threatened hanging. 

The next point of disagreement comes over where the body was placed when it was cut

down. Some guards say the body was placed on the cell floor, Sergeant Taylor said the body

was immediately taken to the run outside the cell, and Nurse Lancaster said the body was laying

over the bed in the cell when she arrived. But more importantly, the witnesses disagree over the

state of the body when the guards cut McAtee down. Some guards say he was alive, breathing,

very warm to the touch, and had a weak pulse. Yet, when Nurse Lancaster arrived, only minutes

later, McAtee was dead. His face was cyanotic around the mouth with clear fluids oozing from

it. His body, according to Nurse Lancaster, was cool to the touch.

 

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Perhaps more disturbing than the factual discrepancies are the omissions in the evidence

submitted to the Court. Defendants present a rather remarkable story that guards witnessed

McAtee’s suicide attempt, that none of them can explain how he hung himself from the ceiling

vent, that at one moment he was talking with a guard, and that the next moment he slid his neck

into a noose and instantly died with no struggle. The Defendants present a story where everyone

reacted instantaneously to the threatened suicide yet when McAtee was cut down from the vents,

only minutes later his body was cold and he was nonresponsive. On this contradictory and

incomplete factual record, credibility determinations are paramount. 

II. ANALYSIS

Defendants have moved for summary judgment on several issues. Foremost, Defendants

argue that they are each entitled to qualified immunity on Plaintiff’s constitutional claims. They also

contend that they are entitled to summary judgment on Plaintiff’s state law claims. In response,

Plaintiff asserts that, based on the evidentiary record before the Court, summary judgment on the

issue of qualified immunity is not appropriate at this time. Plaintiff has not responded to

Defendants’ motions for summary judgment on her state law claims. 

A. Summary Judgment Standard

Summary judgment is appropriate under Rule 56 (c) of the Federal Rules of Civil Procedure

when there is no genuine issue as to any material fact in the case and the moving party is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

 

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322, (1986); Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997). 

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together

with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

See Celotex, 477 U.S. at 323; Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir.

1998). Where the non-movant bears the burden of proof on a claim upon which summary judgment

is sought, the movant may also discharge its initial burden by showing that there is an absence of

evidence to support the nonmoving party’s case. See Celotex, 477 U.S. at 325. Once the movant

has met its initial burden, the non-movant must set forth specific facts, by affidavits or otherwise,

showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir.

1998). Summary judgment will be granted “against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

When weighing the evidence on a motion for summary judgment, the court must decide all

reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v.

Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus & Greenville

R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). “[A] court ‘should give credence to the evidence

favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that evidence comes from disinterested witnesses.’” Bazan

ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 492 (5th Cir. 2001) (quoting Reeves v. Sanderson

Plumbing Prods. Inc., 530 U.S. 133, 151 (2000)) (emphasis added). “Credibility determinations,

 

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the weighing of the evidence, and drawing of legitimate inferences from the facts are jury functions,

not those of a judge.” Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). As long as there

appears to be some support for the disputed allegations such that “reasonable minds could differ as

to the import of the evidence,” the motion for summary judgment must be denied. Id. at 250.

B. Plaintiff’s Claims Under 42 U.S.C. § 1983

1. Qualified Immunity

The doctrine of qualified immunity shields government employees who are performing

discretionary functions “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001). To properly invoke the

defense of qualified immunity, a government official must show that the challenged conduct

occurred while he or she was acting in his or her official capacity and that such action was within

the scope of his or her discretionary authority. Beltran v. City of El Paso, 367 F.3d 299, 303 (5th

Cir. 2004). Once a defendant has properly invoked the defense of qualified immunity, the plaintiff

bears the burden of establishing that the defendant-official is not entitled to qualified immunity

before the case can proceed any further. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th

Cir. 2002) (en banc). 

A court must evaluate a qualified immunity defense in proper sequence. The threshold

question is whether, on the plaintiff’s version of the facts, the officer’s conduct violated a

currently-existing constitutional right. See Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (per

 

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curiam) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)).

If the plaintiff fails to allege a constitutional violation, then the defendant is entitled to

qualified immunity and the court need not inquire any further. Saucier, 533 U.S. at 201. If,

however, the plaintiff has shown a violation of a constitutional right, the court must then determine

whether the defendant’s actions were “objectively reasonable” in light of “clearly established law”

at the time of the alleged violation. Id.; Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).

The requirement that the law in question be clearly established is designed to ensure that

officers have fair notice of proscribed conduct. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). As

the Supreme Court has explained, “[t]he relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202 (citing Wilson, 526 U.S. at 615).

“This is not to say that an official action is protected by qualified immunity unless the very action

in question has previously been held unlawful; but it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” Hope, 536 U.S. at 739 (citing Mitchell v. Forsyth, 472 U.S. 511,

535, n.12 (1985) and Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Prior cases involving

“fundamentally similar” or “materially similar” facts can provide especially strong support for a

conclusion that the law is clearly established, however, they are not necessary to such a finding.

Hope, 536 U.S. at 741. In this regard, “[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id. at 741. “The law can be clearly

established even without prior cases that are on all fours with the present case, ‘so long as the prior

decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’”

Johnson v. Johnson, 385 F.3d 503, 525-26 (5th Cir. 2004) (quoting Hope, 536 U.S. at 740). 

 

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2. Clearly Established Constitutional Violation

The Court must now determine if Plaintiff has alleged a violation of a constitutional right.

Brosseau, 543 U.S. at 197. Plaintiff claims that Officers Williams and Blanford, Sergeant Taylor,

Warden Treon, and TDCJ Executive Director Johnson each violated McAtee’s rights under the

Eighth and Fourteenth Amendments. She also contends that the officers’ conduct interfered with

her rights as a parent under the Fourteenth Amendment. 

After carefully scrutinizing the most recent complaint filed in this case – Plaintiff’s Third

Amended Complaint – the Court has discerned seven alleged constitutional violations. Plaintiff

contends that Defendants Williams, Blanford, Taylor, Treon and Johnson violated McAtee’s rights

under the Eighth and Fourteenth Amendments by (1) failing to protect him from a known risk of

death from suicide by placing him in an administrative segregation cell that was also

improperly-equipped with the dangerous instrumentalities that he used to kill himself; (2) failing to

remove those objects when it became apparent that he was suicidal; and (3) failing to properly react

to abate the risk of suicide once they discovered that McAtee was either hanging or attempting to

hang himself. Additionally, Plaintiff claims that Defendants violated McAtee’s constitutional rights

by (4) promulgating, enforcing, or complying with the TDCJ do-not-enter policy, a policy which,

she argues, is constitutionally deficient because it does not permit officers any discretion to enter

a cell to rescue an inmate during an attempted suicide, even when the officer knows that the inmate

is near death and may be rescued without peril. Plaintiff also claims that (5) Defendants Taylor,

Treon, and Johnson failed to adequately supervise and train their subordinates which resulted in a

deprivation of McAtee’s constitutional rights. In the alternative, Plaintiff alleges that (6) Defendants

intentionally murdered McAtee. Lastly, she argues that (7) Defendants violated her substantive due

 

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process rights to family relations by causing her son’s death. Plaintiff argues that these

constitutional rights derive from the Eighth Amendment prohibition on cruel and unusual

punishment and the Fourteenth Amendment’s due process clause.

a. Eighth Amendment

The Eighth Amendment’s prohibition against cruel and unusual punishment imposes certain

duties and obligations on prison officials. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Those

duties and obligations include “humane conditions of confinement, . . . adequate food, clothing,

shelter, and medical care, and . . . reasonable measures to guarantee the safety of the inmates.” Id.

(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Clearly the government has an

“obligation to provide medical care for those whom it is punishing by incarceration.” Estelle v.

Gamble, 429 U.S. 97, 103 (1976). Two elements must be satisfied to show that a prison official

violated a prisoner’s Eighth Amendment right: the alleged deprivation is “sufficiently serious” and

a prison official is deliberately indifferent. Farmer, 511 U.S. at 834. “Deliberate indifference” is

established where a prison official subjectively knows that an inmate faces “a substantial risk of

serious harm” but nevertheless “fails to take reasonable measures” to protect the inmate from risk.

Id. at 847; Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc). 

In the Fifth Circuit, the medical care requirement established in Estelle includes both

physical and psychological injuries. “Deliberate indifference” to either a serious physical injury or

a “failure to take the steps necessary to protect against a detainee’s suicidal tendencies” may result

in a due process violation. Burns v. City of Galveston, 905 F.2d 100, 103 (5th Cir. 1990) (citing

Partridge v. Two Unknown Police Officers of City of Houston, 791 F.2d 1182 (5th Cir. 1986). For

 

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example, both a “failure to act to save a detainee from suffering from gangrene might violate the

duty to provide reasonable medical care . . . [and] a failure to take any steps to save a suicidal

detainee from injuring himself may also constitute a due process violation under Bell v. Wolfish.”

Partridge, 791, F.2d at 1187. In the Fifth Circuit, prison officials owe a constitutional duty to

protect a prisoner with known or obvious suicidal tendencies from self-inflicted harm. See Jacobs

v. West Feliciana Sheriff’s Dept., 228 F.3d 388, 394 (5th Cir. 2000); Flores v. Hardeman County,

124 F.3d 736 (5th Cir. 1997) (citing Hare v. City of Corinth, 74 F.3d. at 644). 

Deliberate indifference as applied to medical care can be “manifested by prison doctors in

their response to the prisoner's needs or by prison guards in intentionally denying or delaying access

to medical care.” Estelle 429 U.S. at 104-105. This delay, however, “can only constitute an Eighth

Amendment violation if there has been deliberate indifference, which results in substantial harm.”

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). “Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact . . . and a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious. Farmer, 511 U.S. at

842. So a prison official must show that he or she was “unaware even of an obvious risk to inmate

health or safety.” Id. at 844. 

In the present case, there are sufficient factual inconsistencies that could lead a jury to

conclude that the officers were deliberately indifferent to McAtee’s need for medical attention.

These inconsistencies include (1) when the guards first saw a noose around McAtee’s neck; (2)

when a call for a supervisor was made; (3) what was said in the call for a supervisor; (4) the time

of arrival of a supervisor; (5) at what point guards actually entered McAtee’s cell; (6) at what time

medical personnel were called and arrived (7) McAtee’s body temperature at arrival of first medical

 

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personnel; and more generally (8) when McAtee actually died and in what manner.

Assuming the truth of the allegations in her complaint, the Court finds that Plaintiff has

properly alleged several violations of the Eighth Amendment. As mentioned previously, a prison

official may be liable for deliberate indifference by failing to take reasonable measures to protect

an inmate from a known or obvious substantial risk of serious harm. This includes, as Plaintiff

alleges, failing to protect an inmate from a known or obvious risk of suicide; placing the inmate in

an improperly-equipped cell, in conscious disregard the inmate’s known or obvious self-destructive

tendencies; failing to remove dangerous objects when it is apparent that an inmate is imminently

suicidal; and failing to properly react when discovering that an inmate is either hanging or

attempting to hang himself. Plaintiff also alleges an Eighth Amendment claim that Defendants acted

with deliberate indifference to McAtee’s medical needs by promulgating and enforcing prison

policies that manifested such indifference toward suicidal inmates. Finally, Plaintiff’s allege that

Defendants murdered McAtee and have conspired to cover up the murder. The intentional murder

of a prisoner in custody would also raise an Eighth Amendment claim. 

These Eighth Amendment rights were clearly established by June 2003. By then, it was

clearly established law that a state official exhibits deliberate indifference by intentionally delaying

medical treatment to an inmate despite being aware that the inmate has a life-threatening condition

or an urgent medical situation that would be dangerously exacerbated by further delay. See

Thompkins v. Belt, 828 F.2d 298, 301 (5th Cir. 1987); Tlamka v. Serrell, 244 F.3d 628, 633 (8th Cir.

2001); Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994). It was

also clearly established in the Fifth Circuit and other jurisdictions in June 2003 that prison officials

owe a constitutional duty to protect a prisoner with known or obvious suicidal tendencies from

 

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22

self-inflicted harm. See Jacobs, 228 F.3d at 393-94; Lewis v. Parish of Terrebone, 894 F.2d 142,

145 (5th Cir. 1990) (“One need not find a ‘goose case’ to imbue a warden at a jail with a

constitutional duty to protect a prisoner prone to suicide from self-destruction.”); see also Sanville

v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001); Yellow Horse v. Pennington County, 225 F.3d

923, 927 (8th Cir. 2000); Ellis v. Washington County, 198 F.3d 225 (6th Cir. 1999). Plaintiff has

also properly alleged a violation of the Eighth Amendment through her alternative claim of murder.

It is beyond a doubt that the Eighth Amendment prohibits the intentional murder of an inmate by

prison officials. 

Lastly, Plaintiff contends that Williams, Blanford, and Taylor violated the Eighth

Amendment when they intentionally stood-by and watched him hang, refusing to immediately enter

the cell and rescue him. This conduct, Plaintiff argues, was deliberately indifferent to McAtee’s

obvious medical needs. Additionally, Plaintiff contends that defendant-supervisors Taylor, Treon

and Johnson also acted with deliberate indifference by promulgating or enforcing a

constitutionally-overbroad do-not-enter policy that did not permit officers to enter a cell under any

circumstance, even when the officer actually knows that an offender, who does not pose a danger

to officers, is committing suicide. In this regard, Plaintiff contends that the prison policy itself is

deliberately indifferent to the medical needs of suicidal inmates because it does not permit officers

any discretion to enter a cell, even when they know – not merely suspect – that a harmless inmate

is taking his own life. Similarly, Plaintiff claims that Defendant Taylor, Treon, and Johnson

exhibited deliberate indifference by failing to train their subordinates, like Officers Williams and

Blanford, about how to properly respond to an inmate attempting to commit suicide in a manner that

would avoid unnecessary delay in rescuing an inmate from certain death.

 

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6

Williams was the officer who eventually cut the ligature. However, Williams’ statements regarding

whether the ligature was a sheet or piece of cloth are inconsistent. 

23

I. Claims Against Sergeant Taylor, Officer Williams, and Officer Blanford

Officers Williams and Blanford claim to have summoned for a supervisor when they first

became aware that McAtee was threatening to hang himself. However, their stories conflict

regarding what they actually saw that justified calling a supervisor and what they did in the minutes

between calling for a supervisor and Sergeant Taylor’s arrival. 

It is possible that a reasonable juror could infer from other circumstantial evidence in the

record that Officers Williams and Blanford may have been aware that McAtee was in imminent

danger of committing suicide but that they nevertheless acted unreasonably (i.e., with deliberate

indifference to that risk) by not summoning a supervisor before he began to hang. Relevant to this

determination is what Williams and Blanford actually saw and heard when they first interacted with

McAtee and whether the officers truly believed that McAtee was hanging when they saw him with

the noose around his neck before Taylor arrived. 

For instance, Officer Williams testified at his deposition that he first summoned a supervisor

when he finally saw McAtee hanging. At the time, he claims to have seen McAtee in the corner of

his cell, facing away from him, “with his hands up around his neck.” Once he saw that a ligature

– “the string or sheet or rope, whatever it was”6

 – was tied around McAtee’s neck, he shouted to

the picket officer to summon ranking officers, nurses, and a video camera, all of which, he claims,

arrived before Sergeant Taylor made the decision to enter McAtee’s cell. This is corroborated by

picket officer J. Rubenzer’s incident report. In that report, Rubenzer claims that at approximately

6:20 p.m., Williams told him to call for “rank” because McAtee “had hung himself.” 

This version of the facts presumes that McAtee would have had to prepare a ligature,

 

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properly tie it taut around the metal slats of the wall vent, and properly position himself into the

noose, all within a brief minute-and-a-half period, a highly implausible proposition. If anything, a

jury might find the officers’ accounts to be incredible and may determine that they actually saw

McAtee making preparations but failed to do anything about it; instead they left him alone to prepare

his demise and warned him that they would not enter the cell to rescue him under any circumstance.

A reasonable juror could also determine that Sergeant Taylor acted with deliberate

indifference, watching McAtee hang himself while refusing to enter his cell immediately to save him

and failing to call for medical assistance when McAtee’s life-threatening situation became apparent.

Sergeant Taylor claims that McAtee was still alive when Taylor arrived cell side and that after

exchanging words with McAtee, McAtee hung himself. However, Sergeant Taylor’s story about

how McAtee hung himself differs from another officer’s who was at the scene. In fact, Taylor offers

no explanation of how McAtee put himself into a position to hang from a vent in the ceiling even

though Taylor claims to have watched him hang himself.

Sergeant Taylor claims to have entered the cell immediately, hand-cuffed McAtee, cut him

down, and moved him onto the run outside his cell. Taylor also claims to have immediately called

for medical care, which in his story, arrived only minutes later. However, no witness can explain

how McAtee went from sliding his neck into a noose to immediate death. Neither can anyone

explain how McAtee’s face became cyanotic, how clear fluids poured from his mouth, how he lost

bowel control, and how his body became cool to the touch when, according to the guards’ stories,

he hung for only seconds and medical assistance arrived within a couple of minutes. 

 Under these inconsistent and incomplete facts, a reasonable jury could conclude that Taylor,

Blanford, and Williams deliberately did not respond timely to McAtee’s suicide threats, that they

 

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delayed calling for medical help, and that the delay in entering his cell and calling for medical care

caused McAtee’s death. The relevant historical facts pertaining to Sergeant Taylor, Officer Williams

and Officer Blanford are in dispute, and therefore, this case is appropriate to send to a jury. See

Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (citation omitted). Credibility

assessments and choices between conflicting versions of events are ordinarily matters for a jury to

resolve, not the court on summary judgment. See Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir.

2002) (holding that in light of “several diametrically opposed summary judgment affidavits” on the

issue of probable cause, qualified immunity turned on fact issues that “must be resolved by further

proceedings in the trial court”); see also, Athridge v. Rivas, 312 F.3d 474, 478 (D.C. Cir. 2002);

Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2d Cir. 1999); Abraham v. Raso, 183 F.3d 279, 287

(3d Cir. 1999) (“Cases that turn crucially on the credibility of witnesses’ testimony in particular

should not be resolved on summary judgment.”); Pimentel v. U.S. Drug Enforcement Admin., 99 F.

Supp.2d 420, 431 (S.D.N.Y. 2000) (“The inconsistencies between the DEA’s records and plaintiff’s

account of the seizure can only be resolved based upon credibility assessments, which lie within the

exclusive province of the jury.”). This is especially true in this unique situation – where prison

employees are the only living witnesses to the relevant historical events of that day and, as named

defendants in the case, have a strong incentive to provide a misleading and unimpeachable factual

account. See, e.g., Bazan ex rel. Bazan, 246 F.3d at 492 (citing Reeves v. Sanderson Plumbing

Prods. Inc., 530 U.S. at 151). In this situation, “[T]he court may not simply accept what may be a

selfserving account by the officer. It must also look at the circumstantial evidence that, if believed,

would tend to discredit the police officer's story, and consider whether this evidence could convince

a rational fact finder that the officer acted unreasonably.” Abraham, 183 F.3d at 294 (quoting Scott

 

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7

 The individual that was primarily responsible for the decision to send McAtee to administrative

segregation – Captain Boyle – was not sued. Officer Nunez was also not sued even though he was the individual

who led McAtee away from the infirmary in handcuffs on his visibly lacerated wrists while he threatened to commit

suicide. None of the persons who overheard his threats to commit suicide – Captain Boyle, Nurse Newman, Officer

Nunez, or any of the guards on staff in administrative segregation during McAtee’s noisy escort – were sued.

8

By contrast, there is evidence that the person (or persons) escorting McAtee to the administrative

segregation cell were aware of McAtee’s threats of suicide but nevertheless placed him the cell, which contained a

bedsheet and a vent that could be used as a tying point for a makeshift noose. Those individuals would have also

noticed the visible hesitation cuts on McAtee’s wrists since they first placed him in handcuffs in the infirmary and

must have removed them sometime before placing him in his cell. Yet, as stated previously, those individuals were

not sued. 

26

v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). 

Because there are “multiple factual issues in dispute,” the Court cannot determine at this

juncture whether Sergeant Taylor, Officer Williams and Officer Blanford’s conduct was objectively

reasonable as a matter of law. See, e.g., Bazan ex rel. Bazan, 246 F.3d at 492; Gutierrez v. City of

San Antonio, 139 F.3d 441, 445-51 (5th Cir. 1998). Accordingly, on Plaintiff’s Eighth Amendment

claim alleging that Defendants Taylor, Blanford, and Williams failed to properly react when finding

McAtee hanging or attempting to hang himself, Defendants’ motion for summary judgment is

DENIED.

Despite construing the facts in the light most favorable to Plaintiff, the Court finds that

Defendants Taylor, Williams and Blanford are entitled to summary judgment on Plaintiff’s claim

that, in spite of McAtee’s threats of suicide, they placed him in an improperly-equipped

administrative segregation cell. There is no evidence in the record that indicates that any Defendant

was responsible for the initial decision to send McAtee to Ad Seg or were even present while he was

threatening to kill himself as he was being escorted away from the infirmary.7

 There is also no

evidence that any of Defendants participated in the decision to house McAtee in an improperly

equipped cell or to give him the instrumentalities that he allegedly used to kill himself.8

 There has

 

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been an adequate time for discovery to proceed in this case, and to the extent that any such claim

may have been viable, it was Plaintiff’s burden to produce evidence through discovery to withstand

summary judgment on the issue of qualified immunity. Because Plaintiff has not provided any

evidence that any of Defendants were personally involved in any of those relevant decisions, no

genuine issue of material fact remains, and Defendants are entitled to judgment as a matter of law.

Therefore, on Plaintiff’s claims that Defendants Taylor, Blanford, and Williams failed to protect

McAtee from a known or obvious risk of suicide, placing McAtee in an improperly equipped cell

or failing to remove dangerous objects from his cell, the Court GRANTS Defendants’ motion for

summary judgment.

The Court also GRANTS Defendants’ motion for summary judgment on Plaintiff’s claim

that Defendants murdered McAtee. It is true that the record before the Court raises serious questions

about how and when McAtee died. However, Plaintiff has presented the Court with nothing more

than doubts about the prison officials’ explanations regarding how and when McAtee committed

suicide, what different guards witnessed, and what instrument was used in hanging McAtee.

Although those doubts will be relevant to a jury’s credibility determinations regarding Plaintiff’s

Eighth Amendment claims, they are not enough to support a claim that Sergeant Taylor, Officer

Williams, and Officer Blanford actually intentionally murdered McAtee.

ii. Claims Against Gary Johnson and Warden Treon

It is well settled law that supervisory personnel like Warden Treon and Executive Director

Johnson cannot be held vicariously liable under §1983 for the acts of their subordinates under the

theory of respondeat superior. See Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978).

 

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Rather, to state a valid claim against a supervisory official like Treon and Johnson, a plaintiff must

establish a causal connection between the acts or omissions of the defendant and the resulting

constitutional deprivation. See, e.g., Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (per

curiam); Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). 

An inmate seeking to hold a supervisor liable for deliberate indifference to the inmate’s

medical needs may show that the supervisor “promulgated or failed to promulgate policies” that

manifested deliberate indifference toward the serious medical needs of prisoners or detainees.

Thompson v. Upshur County, 245 F.3d at 459. A supervisor may also be held liable under §1983

for failure to properly supervise and train subordinate officers who cause a deprivation of

constitutional rights. Wever v. Lincoln County, 388 F.3d 601, 606-07 (8th Cir. 2004). The plaintiff

must demonstrate that the supervisor was deliberately indifferent to or tacitly authorized the

offending acts. Id. This requires a showing that the supervisor had notice that the training

procedures and supervision were inadequate and likely to result in a constitutional violation. Id. 

Plaintiff contends that Treon and Johnson are not entitled to qualified immunity because they

acted in an objectively unreasonable manner by adopting or enforcing a constitutionally-defective

“do-not-enter” policy that “directly [e]nsured” McAtee’s death. Plaintiff argues that the policy was

constitutionally overbroad since it did not grant low-level prison officers the discretion to open a cell

door to rescue a dying inmate under any circumstance, even if the officer was accompanied by other

officers and was certain that rescuing the inmate would not pose a threat of danger. In this regard,

Plaintiff contends that the prison policy itself is deliberately indifferent to the medical needs of

suicidal inmates like McAtee because it does not permit officers any discretion to enter a cell in an

emergency situation, if they desire to do so. Instead the policy requires the officer to wait for a

 

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supervisor’s approval and a team of officers to enter, whatever the circumstances.

Even if the Court were to assume for the sake of argument that the TDCJ do-not-enter policy

was unconstitutional or that it was unconstitutionally applied at the time of McAtee’s death, there

is absolutely no evidence that Treon or Johnson were in any way responsible for promulgating or

enforcing the policy with respect to McAtee. Officer Williams testified at his deposition that a TDCJ

training video instructs officers about the proper protocol when encountering an inmate that appears

to be hanging. Williams claims that he was forewarned that inmates may stage a suicide attempt in

order to assault prison staff when they enter the cell. Therefore, to ensure officer safety, he claims

that he was told to always summon a supervisor for permission to enter a cell and to await a team

of officers before entering. Yet, Plaintiff has failed to present any evidence that either Treon or

Johnson designed the policy, approved it, or were even aware of it. In fact, the policy is not even

contained in the evidentiary record. Cf. Thompson, 245 F.3d at 459; Wever, 388 F.3d at 606-07.

More fundamentally, there is no evidence in the record that Treon or Johnson’s conduct or

the policy itself caused McAtee’s death. In fact, no witnesses claim that they were delayed in

entering McAtee’s cell after his hanging due to the policy. The policy was never used as a reason

that entry was delayed. Instead, the guards deny that they delayed at all in entering McAtee’s cell

once McAtee began to hang. In the absence of such evidence, the Court GRANTS Defendants

Treon and Johnson’s motion for summary judgment on Plaintiff’s §1983 claims. See Wagner v.

Bonner, 621 F.2d 675, 679 (5th Cir. 1980) (requiring a §1983 plaintiff to “establish a causal

connection between an act of the supervisory official and the alleged constitutional violation”).

b. Fourteenth Amendment 

 

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In her complaint, Plaintiff also contends that the Defendants violated McAtee’s Fourteenth

Amendment substantive due process “right to life.” She asserts that the defendants also violated

McAtee’s substantive due process rights when they affirmatively placed him in a “state-created

danger” by transferring him – a known suicidal inmate who had been threatening to commit suicide

during transport – into an improperly equipped administrative segregation unit. Also, Plaintiff

contends that Defendants breached the “special relationship” that exists between an inmate and a

guard by failing to rescue McAtee as he hung, an act which she also contends independently shocks

the conscience. Lastly, Plaintiff argues that Defendants violated her own substantive due process

rights by severing her parental relationship with her child. 

Even assuming the truth of Plaintiff’s allegations, she cannot state a claim under the

Fourteenth Amendment because McAtee was an incarcerated prisoner at the time of the alleged

constitutional violations. As an initial matter, the Supreme Court “has always been reluctant to

expand the concept of substantive due process.” Collins, 503 U.S. at 125. For that reason, when

an explicit textual provision of the Constitution protects against the challenged government action,

the claim alleged should be analyzed under that specific provision alone and not under the more

general guarantee of substantive due process. See Armendariz v. Penman, 75 F.3d 1311, 1328 (9th

Cir. 1996) (en banc). 

With respect to the prison setting, the Supreme Court has held that the Fourteenth

Amendment due process clause does not afford a convicted prisoner any greater protection than the

Eighth Amendment’s cruel and unusual punishment clause. Graham v. Connor, 490 U.S. 386, 395

n.10 (1989) (“Any protection that ‘substantive due process’ affords convicted prisoners . . . [is] at

best redundant of that provided by the Eighth Amendment.”); Whitley v. Albers, 475 U.S. 312, 327

 

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(1986) (“It would indeed be surprising if . . . conduct that shocks the conscience or afford[s]

brutality the cloak of law, and so violates the Fourteenth Amendment, were not also punishment

inconsistent with contemporary standards of decency and repugnant to the conscience of mankind,

in violation of the Eighth [Amendment].”)(internal citation omitted). For that reason, the Fifth

Circuit has held that the Eighth Amendment “serves as the primary source of substantive protection

to convicted prisoners . . . [and] controls over more generalized notions of substantive due process.”

Austin v. Johnson, 328 F.3d 204, 210 n.10 (5th Cir. 2003) (internal citations omitted). Because

Plaintiff’s allegations on behalf of McAtee may only be brought under the Eighth Amendment, she

cannot state a claim under the Fourteenth Amendment on behalf of McAtee. Instead, the Court has

construed her allegations accordingly under the Eighth Amendment. 

To the extent that Plaintiff has alleged that defendants have violated her constitutional rights

as a parent, the rights that she asserts do not apply in this situation. The cases that she relies upon

pertain to limited situations involving the state’s ability to interfere with parental education of

children and the right to interfere with the right to family association. Those cases do not carve out

a right for every affected parent to bring a constitutional claim against state officials for harm to their

adult, incarcerated children. As a parent, Plaintiff’s only recourse is provided by state tort law in

a wrongful death action. For that reason, Defendants’ motion for summary judgment on that lone

claim is hereby GRANTED. 

B. State Law Claims

Plaintiff brought claims against all Defendants based on state law negligence and negligence

per se. Plaintiff claims that (1) Defendant Treon failed to screen, train and supervise State

 

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employees; (2) Defendant Johnson promulgated a policy that prevented a floor guard from entering

a cell to save the life of an inmate who was hanging; (3) Defendant Treon enforced a policy that

prohibited guards from taking proper steps to prevent McAtee’s death; (4) Defendants Johnson and

Treon furnished McAtee with instruments that were unsafe for a potentially suicidal inmate; (5)

Defendants Williams, Blanford and Taylor failed to implement policies that would have prevented

McAtee from having a dangerous instrumentality in his cell; (6) Defendants Treon and Johnson

failed to train employees properly which led to McAtee being put in an Ad Seg cell rather than a cell

in the medical department; (7) all Defendants failed to provide safe and appropriate conditions of

confinement; (8) and Defendants Johnson and Treon failed to adopt or enforce policies governing

the humane treatment of inmates, including the separation and classification of inmates. 

1. Eleventh Amendment Immunity

Many of Plaintiff’s negligence claims are worded as if she is suing TDCJ itself or

Defendants in their official capacities. For example, Plaintiff uses the term “the State”

interchangeably with Defendants when discussing Defendants’ negligence. Plaintiff’s Third

Amended Complaint includes language such as, “The Defendant State effectively permitted a

condition to exist whereby Richard McAtee had access to cloth, sheet, rope . . . ,” and “Defendant

State’s negligence in placing Richard Lee McAtee in the wrong cell and standing by and watching

while he hung to death was a proximate cause of the injuries and damages claimed herein.” 

To the extent that Plaintiff’s claims are claims against TDCJ or Defendants in their official

capacities, Plaintiff’s claims are barred by the Eleventh Amendment. Sherwinski v. Peterson, 98

F.3d 849 (5th Cir. 1996).

 

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2. Official Immunity

To the extent that Plaintiff’s state law claims attempt to hold Defendants liable in their

individual capacities, they are entitled to official immunity from suits arising from the performance

of their (1) discretionary duties in (2) good faith as they are (3) acting within the scope of their

authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Plaintiff’s negligence

claims are unsupported by any summary judgment evidence. Plaintiff failed to provide the Court

with any evidence that these Defendants were personally involved in any policy-making or training.

Plaintiff also failed to present any evidence that these Defendants had any special knowledge

concerning McAtee and his suicidal propensities. 

Therefore, the Court GRANTS summary judgment for Defendants on all of Plaintiff’s state

law negligence and negligence per se claims. 

III. CONCLUSION

The conflicting scenarios described in the evidentiary appendix convinces the Court that

reasonable jurors could disagree about genuine issues of material fact pertaining to the manner in

which Defendants Williams, Blanford, and Taylor interacted with Richard Lee McAtee. Ultimately,

a jury must decide what actually occurred on the day of McAtee’s death, and this determination is

relevant, if not dispositive of whether Defendants are entitled to qualified immunity. Accordingly,

the Court DENIES Defendants Williams, Blanford, and Taylor’s motions for summary judgment

on Plaintiff’s Eighth Amendment claim under 42 U.S.C. § 1983 (that Defendants failed to properly

react to abate the risk of death once they discovered that McAtee was either hanging or attempting

 

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to hang himself) and GRANTS summary judgment on all other claims brought by Plaintiff.

Defendants Treon and Johnson’s motions for summary judgment are GRANTED in their entirety.

IT IS SO ORDERED

ENTERED: October 10, 2006

___________________________________

JUDGE JERRY BUCHMEYER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

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