1

Chree, who is Frank’s widow, obtained leave of court on May

8, 2006 to intervene under Fed. R. Civ. P. 24 as a plaintiff. 

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KATHY PALO, as Administratrix §

of the Estate of Frank Nelson §

Palo, Jr., §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-0527-D

VS. §

 §

DALLAS COUNTY, AND LUPE §

VALDEZ, in her Official §

Capacity as Sheriff of §

Dallas County, Texas, §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this action by plaintiff Kathy Palo (“Palo”) and

intervenor-plaintiff Chree Palo (“Chree”)1 to recover under 42

U.S.C. § 1983 and Texas law arising from the death of Frank Nelson

Palo, Jr. (“Frank”) while he was in custody as a pretrial detainee

in the Dallas County Jail, defendants move for summary judgment.

For the reasons that follow, the court grants the motion in part

and denies it in part, concluding, inter alia, that Palo and Chree

are entitled to a trial of their conditions of confinement claim

based on the Fourteenth Amendment Due Process Clause.

I

In 2004 Frank, who suffered from hypertensive cardiovascular

disease, was booked into the Dallas County Jail pending charges of

 

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2The court recounts the evidence in a light favorable to Palo

as the summary judgment nonmovant and draws all reasonable

inferences in her favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard

Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater,

J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)). As

noted infra, Chree has not responded to defendants’ motion.

- 2 -

driving while license suspended and failure to leave

identification.2

 On intake he was interviewed and examined by a

University of Texas Medical Branch at Galveston (“UTMB”) nurse.

Dallas County had contracted with UTMB through the UTMB Interlocal

Contract to provide medical services to Jail inmates. During the

intake evaluation, Frank informed the nurse that he had a medical

history of Crohn’s disease, congestive heart disease, and

congestive heart failure and that he had taken Lasix, a diuretic

medication, approximately three days before his admission to the

Jail. The only medication recorded on the Central Intake

Evaluation Form was Lasix. The nurse examined Frank and took his

vital signs, all of which were within normal limits. After the

nurse determined that Frank did not have any health problems that

required immediate attention, he was referred to a UTMB physician

to schedule an appointment for further evaluation of his medical

condition and was assigned to a general population tank.

During his detention, Frank telephoned Palo to tell her he was

not getting the medicine he needed. He was crying, and he related

to Palo that he was scared. Palo in turn telephoned Dallas County

Jail personnel several times to ask whether Frank had been given

 

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3During the period when Frank was detained in the Dallas

County Jail and on the date he died, Sheriff Valdez was not yet the

Sheriff of Dallas County. This distinction is immaterial because

the § 1983 action against Sheriff Valdez in her official capacity

is, in effect, a claim against Dallas County. See, e.g., Kentucky

v. Graham, 473 U.S. 159, 165-66 (1985). The court dismisses the

action against Sheriff Valdez infra at § V. 

- 3 -

his medication. She spoke to two sergeants and the Jail Chaplain,

but she was not permitted to speak to a member of the medical staff

during any of her calls.

Five days after Frank’s initial intake, detention officers

found him lying on his bunk in an unresponsive or unconscious

condition. Electrodes were immediately placed, and one member of

the nursing staff performed chest compressions while another

ventilated Frank with an Ambu bag. This continued until paramedics

arrived. Immediately thereafter, Frank was transported by

ambulance to a local hospital, where he was pronounced dead by a

member of the medical staff. An autopsy revealed that he had died

as a result of hypertensive heart disease and that the manner of

his death was “Natural.” Frank was age 51 on the day he died.

Palo, as administratrix of Palo’s estate, filed this suit

under § 1983 and Texas law. She alleges that Dallas County and

Dallas County Sheriff Lupe Valdez (“Sheriff Valdez”), in her

official capacity,3 failed to provide Palo with immediate, timely,

and adequate medical care during his confinement in the Dallas

County Jail. Palo also asserts that this failure deprived Frank of

his rights and privileges under the Fifth, Eighth, and Fourteenth

 

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442 U.S.C. § 1988(a) and (b) provide for attorney’s fees and

expert witness fees for the prevailing party in a § 1983 suit. The

court will not discuss separately Palo’s request for relief under

§ 1988.

- 4 -

Amendments and other unspecified federal laws. She seeks to

recover under §§ 1983 and 19884

 and also asserts pendent Texas-law

claims. Chree obtained leave to intervene as a plaintiff. Her

complaint is based on the same factual and legal grounds as is

Palo’s. Defendants move for summary judgment. Palo opposes the

motion, but Chree has not responded to it. Because Chree has not,

except where the context otherwise requires, the court will refer

throughout this memorandum opinion and order to Palo as if she were

the sole plaintiff. 

II

A

“Section 1983 creates a private right of action for redressing

the violation of federal law by those acting under color of state

law.” Colson v. Grohman, 174 F.3d 498, 504 n.2 (5th Cir.

1999)(citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.

75, 82 (1984)). “Rather than creating substantive rights, § 1983

simply provides a remedy for the rights that it designates. Thus,

an underlying constitutional or statutory violation is a predicate

to liability under § 1983.” Harrington v. Harris, 118 F.3d 359,

365 (5th Cir. 1997) (citations and internal quotation marks

omitted) (quoting Johnston v. Harris County Flood Control Dist.,

 

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- 5 -

869 F.2d 1565, 1573 (5th Cir. 1989)). Palo bases her § 1983 claim

on allegations that the unconstitutional conduct of Dallas County

and Sheriff Valdez deprived Frank of due process under the Fifth

and Fourteenth Amendments, and that this conduct constituted cruel

and unusual punishment prohibited by the Eighth Amendment.

Although the state has an important interest in the

incarceration of pretrial detainees and convicted state prisoners,

[t]he State’s exercise of its power to hold

detainees and prisoners . . . brings with it a

responsibility under the U.S. Constitution to

tend to the essentials of their well-being:

“when the State by affirmative exercise of its

powers so restrains an individual’s liberty

that it renders him unable to care for

himself, and at the same time fails to provide

for his basic human needs . . . it

transgresses the substantive limits on state

action set by the Eighth Amendment and the Due

Process Clause.”

Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996)

(en banc) (quoting DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 200 (1989)). A pretrial detainee’s

constitutional rights, however, do not flow from the Eighth

Amendment; they stem from “both the procedural and substantive due

process guarantees of the Fourteenth Amendment.” Id. (citing Bell

v. Wolfish, 441 U.S. 520, 535 (1979)). Under the Fourteenth

Amendment Due Process Clause, confinement of a pretrial detainee

may not be punitive, because for pretrial detainees, there has not

yet been an adjudication of guilt. See Bell, 441 U.S. at 535-36.

Because Palo was a pretrial detainee, the inquiry in this case

 

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focuses on whether defendants’ actions amounted to a violation of

his Fourteenth Amendment due process rights.

B

To determine the appropriate standard to apply in analyzing

constitutional challenges under § 1983 by pretrial detainees, the

Fifth Circuit has directed courts first to classify the challenge

as an attack on a “condition of confinement” or as an “episodic act

or omission.” Flores v. County of Hardeman, Tex., 124 F.3d 736,

738 (5th Cir. 1997) (citing Hare, 74 F.3d at 644). In a condition

of confinement case, the constitutional attack is on the “general

conditions, practices, rules, or restrictions of pretrial

confinement.” Hare, 74 F.3d at 644. In this type of case, the

jail officials’ state of mind is not disputed because “an avowed or

presumed intent by the State or its jail officials exists in the

form of the challenged condition, practice, rule, or restriction.”

Id. Thus the inquiry in a condition of confinement case begins

with the presumption that intent exists and applies the test

articulated in Bell, upholding the condition or restriction if it

is reasonably related to a legitimate governmental objective. Id.

at 644-45; Bell, 441 U.S. at 539. 

By contrast, in a episodic act or omission case, the

complained-of harm is a particular act or omission of one or more

officials, and the case focuses on “whether [the] official breached

his constitutional duty to tend to the basic human needs of persons

 

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- 7 -

in his charge.” Hare, 74 F.3d at 645; Johnson v. Johnson County,

2006 WL 1722570, at *3 (N.D. Tex. June 21) (Fitzwater, J.), appeal

dism’d, No. 06-10762 (5th Cir. Oct. 13, 2006). 

In an episodic act or omission case, an actor

is usually interposed between the detainee and

the municipality, such that the detainee

complains first of a particular act of, or

omission by, the actor and then points

derivatively to a policy, custom or rule (or

lack thereof) of the municipality that

permitted or caused the act or omission. 

Id. If the act or omission in question “implement[s] a rule or

restriction or otherwise demonstrate[s] the existence of an

identifiable intended condition or practice,” or if the act or

omission was “sufficiently extended or pervasive, or otherwise

typical of extended or pervasive misconduct by other officials,”

then the court can presume intent and apply the Bell test

articulated above in determining liability. Hare, 74 F.3d at 645.

Otherwise, the party challenging the act or omission will be

required to show that the official’s action constituted “deliberate

indifference.” Id.; see also id. at 647-48 (“We hold that the

episodic act or omission of a state jail official does not violate

a pretrial detainee’s constitutional right to be secure in his

basic human needs, such as medical care and safety, unless the

detainee demonstrates that the official acted or failed to act with

deliberate indifference to the detainee’s needs.”). Palo maintains

that she is asserting both a “condition of confinement” claim and

an “episodic act or omission” claim.

 

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- 8 -

III

Defendants move for summary judgment dismissing Palo’s claim

based on an episodic act or omission, contending that she cannot

establish deliberate indifference of County officials to Frank’s

serious medical needs and cannot demonstrate that there was a

Dallas County policy of deliberate indifference to those needs.

A

A party alleging that an episodic act or omission resulted in

an unconstitutional violation of a pretrial detainee’s Fourteenth

Amendment rights is required to show that the official’s action

constituted “deliberate indifference.” Id. Unlike a condition of

confinement case, intent is not presumed. Id. at 645. Once Palo

establishes the “deliberate indifference” of the officials, she

must then show that “the violation resulted from a County policy or

custom adopted or maintained with objective deliberate

indifference.” Johnson, 2006 WL 1722570, at *4; see

Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir.

1999) (“To succeed in holding a municipality liable, the plaintiff

must demonstrate a municipal employee’s subjective indifference and

additionally that the municipal employee’s act ‘resulted from a

municipal policy or custom adopted or maintained with objective

deliberate indifference to the [plaintiff]’s constitutional

rights.’” (citing Hare, 74 F.3d at 649 n.14)).

 

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- 9 -

B

Defendants maintain they are entitled to summary judgment

because Palo has introduced no evidence of deliberate indifference

of County officials to the serious medical needs of Frank and no

evidence of a County policy of deliberate indifference to those

needs.

Because defendants will not have the burden of proof at trial,

they can meet their summary judgment obligation by pointing the

court to the absence of evidence supporting Palo’s claims. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once they do

so, Palo must go beyond her pleadings and designate specific facts

showing there is a genuine issue for trial. See id. at 324. An

issue is genuine if the evidence is such that a reasonable jury

could return a verdict for Palo. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In this case, Palo must adduce

evidence that would permit a reasonable jury to find that a Dallas

County official violated Palo’s clearly established constitutional

rights with subjective deliberate indifference, and that the

violation resulted from a County policy or custom adopted or

maintained with objective deliberate indifference. Id. Otherwise,

summary judgment must be granted for defendants. See Little v.

Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994) (per curiam).

As noted, Chree has not responded to defendants’ motion.

Although her failure to respond does not permit the court to enter

 

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- 10 -

a “default” summary judgment, it does allow the court to accept

defendants’ evidence as undisputed. Tutton v. Garland Indep. Sch.

Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.).

Additionally, because defendants have pointed to the absence of

evidence to support plaintiffs’ episodic act or omission claim,

Chree is obligated to produce evidence that creates a genuine issue

of material fact. “A summary judgment nonmovant who does not

respond to the motion is relegated to her unsworn pleadings, which

do not constitute summary judgment evidence.” Bookman v. Shubzda,

945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing

Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.

1991)). Because Chree is relegated to her unsworn pleadings, which

are not summary judgment evidence, she has failed to adduce proof

that is sufficient to create a genuine issue of material fact in

support of her claim based on an episodic act or omission. 

C

Deliberate indifference in the context of an

episodic failure to provide reasonable medical

care to a pretrial detainee means that: 1) the

official was aware of facts from which an

inference of substantial risk of serious harm

could be drawn; 2) the official actually drew

that inference; and 3) the official’s response

indicates the official subjectively intended

that harm occur.

Thompson v. Upshur County, Tex., 245 F.3d 447, 458-59 (5th Cir.

2001) (citing Hare, 74 F.3d at 643, 649-50). “[D]eliberate

indifference cannot be inferred merely from a negligent or even a

 

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grossly negligent response to a substantial risk of serious harm.”

Id. (citing Hare, 74 F.3d at 645, 649). Rather, “[d]eliberate

indifference is an extremely high standard to meet” and requires a

showing that “the officials ‘refused to treat [the prisoner or

detainee], ignored his complaints, intentionally treated him

incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.’” Domino

v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.

2001) (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985)).

Palo summarily contends that because Frank informed the intake

officer and nurse that he had congestive heart disease and

congestive heart failure for which he was taking daily medication,

Palo told two Jail sergeants and the Chaplain that Frank was not

receiving proper medical care or his medication, and Frank

subsequently died from heart failure, these facts are sufficient to

establish deliberate indifference on the part of the Jail

officials. But to overcome defendants’ summary judgment motion,

Palo must adduce evidence that is sufficient to permit a reasonable

jury to find, inter alia, that the officials who allegedly were

deliberately indifferent (1) were aware of facts from which an

inference of substantial risk of serious harm could be drawn, and

(2) actually drew that inference. Thompson, 245 F.3d at 458-59.

Palo has not produced evidence that would permit a reasonable jury

 

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5

Palo alleges in her response that she and Frank notified

defendants that Frank required medication due to congestive heart

failure. P. Resp. 4. She also asserts that defendants’ employees,

agents, and representatives were notified that Frank required

medical attention and failed to provide him with needed medications

id., that she and Frank repeatedly communicated with Jail security

and medical services personnel, putting them on notice of Frank’s

- 12 -

to find that any Jail official with responsibilities over the

general population tank knew about Frank’s heart condition or his

need for medication.

The summary judgment evidence would only permit a reasonable

jury to make the following findings. When Frank was admitted to

the Dallas County Jail, a UTMB central intake nurse interviewed and

examined him. Frank informed the nurse that he had congestive

heart disease and congestive heart failure and had taken Lasix

approximately three days before. After determining that Palo’s

vital signs were all within normal limits and that he did not have

any health problems that required immediate attention, he was

referred to a UTMB physician to schedule an appointment for a

further evaluation of his medical condition and was assigned to a

general population tank. There is no evidence that the nurse or an

intake officer informed the general population staff that Frank had

a heart condition or that he required medication. Nor is there

evidence that this failure to provide such information was a

deliberately indifferent act.

Palo complains that, while Frank was housed in the general

population tank, he requested and was denied his medication.5

 It

 

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medical needs, and that defendants knew of his condition, id. at 8.

Palo does not cite any summary judgment evidence in support of

these assertions. This court is not required to “comb the record”

in search of a genuine issue of material fact. “Rule 56 does not

impose a duty on the district court to sift through the record in

search of evidence to support a party’s opposition to summary

judgment.” Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir.

1996) (citing Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334,

1338 (5th Cir. 1996)). “Rule 56, therefore, saddles the non-movant

with the duty to ‘designate’ the specific facts in the record that

create genuine issues precluding summary judgment, and does not

impose upon the district court a duty to survey the entire record

in search of evidence to support a non-movant’s opposition.” Jones,

82 F.3d at 1338. Moreover, under N.D. Tex. Civ. R. 56.5(c), “[a]

party whose . . . response is accompanied by an appendix must

include in its brief citations to each page of the appendix that

supports each assertion that the party makes concerning the summary

judgment evidence.” The court need not, therefore, credit these

assertions, except to the extent that Palo has cited evidence that

Frank advised the intake nurse of his condition and that he had

taken Lasix, that Palo telephoned the Jail, was permitted to speak

to two sergeants and the Chaplain (but not to medical personnel),

and that she told them Frank was not receiving proper medical care

or his medication.

6In her response, Palo also asserts that defendants treated

Frank with indifference by failing to implement policies and

procedures to ensure continuity and quality of care that he needed

while under their care, custody, and control. This does not appear

to refer to an alleged episodic failure to provide reasonable

medical care; instead, it appears to assert a condition of

confinement claim.

- 13 -

is this conduct——the alleged denial of medication——that Palo

alleges to be deliberately indifferent.6

 But Palo has adduced no

evidence that any particular Jail official responsible for

detainees housed in the general population tank was aware of

Frank’s heart condition or of facts from which to draw the

inference that Frank was at a substantial risk of serious harm

 

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7Palo asserts that the degree of indifference reflected in the

failure to administer medications to Frank for a five-day period is

troublesome. P. Resp. 8. But if Jail officials were unaware that

he needed medication, this evidence would not reasonably permit the

finding that Jail officials were indifferent.

8Defendants filed objections on August 1, 2006 to certain of

Palo’s exhibits, and they challenge specifically her statement that

“Frank was crying and stated that he was not receiving medication

for his heart,” contending it is hearsay.

- 14 -

without medication.7 Palo has adduced no evidence that Frank told

a general population tank Jail official that he had a history of

heart disease or failure or that a particular Jail official denied

his request for his medication. Even if the hearsay that Palo

offers——Frank’s alleged statement that he was not receiving his

medication for his heart——is admissible,8 it would not permit a

reasonable jury to find that Frank requested his medication from a

particular Jail official with responsibilities over the general

population tank. Nor would it permit the finding that the Jail

official was aware of facts from which an inference of substantial

risk of serious harm could be drawn, i.e., that without his

medication Frank faced such a substantial risk, or that the Jail

official actually drew that inference.

Furthermore, even if Palo could establish that a particular

Jail official was aware of facts from which to draw an inference of

substantial risk of serious harm, she has not produced any evidence

that would permit a reasonable jury to find that the Jail official

subjectively intended that harm occur. Under Thompson, proof of

 

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- 15 -

deliberate indifference requires as the third element that the

official’s response indicate that the official subjectively

intended that harm occur. Thompson, 245 F.3d at 459. Palo devotes

no part of her response brief to the subjective intent of any Jail

official.

In sum, Palo has adduced no evidence from which a reasonable

jury could find that a particular Jail official denied Frank his

medication, assuming he requested it, while he was in the general

population tank. Nor has she produced evidence that would permit

a reasonable jury to find that a particular Jail official working

in the general population tank knew facts from which an inference

could be drawn that Frank faced a substantial risk of serious harm

or that the official actually drew that inference. Finally, Palo

points to no evidence that would enable a reasonable jury to find

that a specific Jail official subjectively intended that Frank

suffer harm. Palo has therefore failed to demonstrate a basis on

which a reasonable jury could find defendants liable based on

“deliberate indifference.”

D

Because a reasonable jury could not find that Palo has proved

an episodic act or omission claim, the court need not consider

whether she has adduced sufficient evidence for a reasonable jury

to find that the violation resulted from a County policy or custom

adopted or maintained with objective deliberate indifference.

 

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- 16 -

IV

The court now addresses whether Palo can recover under § 1983

on a Fourteenth Amendment-based condition of confinement claim.

In a § 1983 condition of confinement claim, the pretrial

detainee attacks the general conditions, practices, rules, or

restrictions of pretrial confinement, and courts apply the test

that the Supreme Court announced in Bell v. Wolfish. See Hare, 74

F.3d at 644. The Bell test is designed to “determin[e] whether

particular restrictions and conditions accompanying pretrial

detention amount to punishment in the constitutional sense of that

word.” Bell, 441 U.S. at 538. Under Bell the court asks whether

the “particular condition or restriction of pretrial detention is

reasonably related to a legitimate governmental objective.” Id. at

539. If the condition or restriction is related to a legitimate

governmental objective, it does not amount to unconstitutional

“punishment.” Id. “Conversely, if a restriction or condition is

not reasonably related to a legitimate goal . . . a court

permissibly may infer that the purpose of the governmental action

is punishment that may not constitutionally be inflicted upon

detainees qua detainees.” Id. “Pretrial detainees are entitled to

reasonable medical care, ‘unless the failure to supply it is

reasonably related to a legitimate governmental objective.’”

Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (citing

Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987)).

 

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- 17 -

Reading Palo’s response and brief together, it appears that

her condition of confinement claim is based on alleged inadequate,

inhumane, and extensive conditions that prevented detainees from

receiving consistent and adequate care; inadequate funding and

monitoring of the UTMB Interlocal Agreement; inadequate staffing

and lack of compliance with the standards set forth in the

Agreement; failure to properly train security personnel in managing

inmates’ medical needs; ineffective communication between UTMB

medical personnel and Jail security/operation personnel; a failure

to achieve coordinated seamless delivery between medical and

security operations; allowing intake security officers to perform

initial medical and mental health screening of inmates; an

inadequate policy regarding medication administration and

continuity of medical care; a policy of not meeting required

staffing numbers in the Jail; and a policy, practice, and/or

procedure of not providing any training on the identification and

care for inmates with preexisting medical conditions that required

continuous medical attention and needs. 

Defendants do not move for summary judgment with respect to a

conditions of confinement claim. Fairly read, their motion and

brief address only an episodic act or omission claim. See, e.g.,

Ds. Mot. 1-2; Ds. Br. 2-3 (arguing that Palo cannot establish

deliberate indifference). Although defendants challenge Palo’s

ability to establish that the County had a policy of deliberate

 

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- 18 -

indifference to Frank’s serious medical needs, because in a

conditions of confinement case the court presumes intent, see Hare,

74 F.3d at 644, this argument is necessarily addressed to Palo’s

episodic act or omission claim. And while Palo’s complaint can

perhaps be construed as not alleging a claim based on conditions of

confinement——which may explain why defendants did not address it in

their motion——defendants do not argue in their reply brief that

Palo failed to plead such a claim. They simply ignore the

conditions of confinement claim and address the episodic act or

omission claim.

Because defendants do not adequately address Palo’s condition

of confinement claim in their motion, it would be error to grant

summary judgment on a ground not raised. See, e.g., John Deere Co.

v. Am. Nat’l Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987).

Nor can the court grant summary judgment against Chree based on

this claim, despite her failure to respond. See John v. State of

La. (Bd. of Trustees for State Colls. & Univs., 757 F.2d 698, 708

(5th Cir. 1985) (holding that Rule 56 contemplates shifting burden,

nonmovant is under no obligation to respond unless movant

discharges initial burden, and if moving party fails to discharge

this burden, summary judgment must be denied, even if nonmoving

party has not responded to motion).

Accordingly, the court denies defendants’ motion to the extent

Palo and Chree seek to recover under § 1983 for a Fourteenth

 

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- 19 -

Amendment violation based on a condition of confinement.

V

Defendants move to dismiss Palo’s action against Sheriff

Valdez in her official capacity on the ground that it is

duplicative of her action against the County. The court agrees,

and it dismisses the actions of Palo and Chree against Sheriff

Valdez in her official capacity. 

A suit against a government official in her official capacity

is “only another way of pleading an action against an entity of

which [the official] is an agent.” Monell v. Dep’t of Soc. Servs.

of N.Y., 436 U.S. 658, 690 n.55 (1978). If the government entity

receives notice and an opportunity to respond, an “officialcapacity suit” is treated as a suit against the entity. Kentucky

v. Graham, 473 U.S. 159, 166 (1985). A suit against a municipal

official in her official capacity is not a suit against the

official personally, because the real party in interest is the

entity. Id. at 166. Thus there is no longer any need to bring

official-capacity actions. Accordingly, the court dismisses the

actions of Palo and Chree against Sheriff Valdez in her official

capacity. 

VI

Defendants maintain that Palo lacks standing to seek

prospective injunctive relief against them because her request for

such relief is moot in light of Frank’s death. Alternatively, they

 

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argue that Palo cannot obtain preliminary injunctive relief on the

merits. 

Although defendants frame their arguments in terms of

standing, they essentially contend that Palo’s request for

prospective injunctive relief should be dismissed as moot. While

the doctrines are related, standing and mootness are separate

inquiries. See, e.g., Bowman v. Corrs. Corp. of Am., 350 F.3d 537,

550 (6th Cir. 2003). Because defendants’ arguments for dismissal

of Palo’s request for injunctive relief focus on mootness, the

court will address that issue first.

The court holds that Frank’s death renders moot at least part

of Palo’s request for injunctive relief. To satisfy the “case or

controversy” requirement of Article III, a “plaintiff must show

that he has sustained or is immediately in danger of sustaining

some direct injury as the result of the challenged official conduct

and the injury or threat of injury must be both real and immediate,

not conjectural or hypothetical.” City of Los Angeles v. Lyons,

461 U.S. 95, 101-102 (1983) (quotation marks and citations

omitted). “Past exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse effects.”

O’Shea v. Littleton, 414 U.S. 488, 495-496 (1974). Courts

therefore hold, for example, that when a prisoner challenges prison

conditions after he is released from confinement, his claim for

 

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injunctive relief is moot, and the prisoner can no longer challenge

the prison conditions unless he can point to a concrete and

continuing injury. See Spencer v. Kemna, 523 U.S. 1, 7 (1998)

(“Once the convict’s sentence has expired, however, some concrete

and continuing injury other than the now-ended incarceration or

parole——some ‘collateral consequence’ of the conviction—-must exist

if the suit is to be maintained.”); Beck v. Lynaugh, 842 F.2d 759,

762 (5th Cir. 1988) (dismissing as moot prisoners’ claim for

injunctive relief concerning conditions of confinement when

prisoners were no longer confined in challenged facility).

Similarly, the death of a prisoner renders a claim for prospective

injunctive relief against the prison conditions moot. See Bowman,

350 F.3d at 550 (“Given the fact that [the prisoner] is dead, any

claim for injunctive relief is moot . . . .”). Although there may

be rare instances where a court holds that a case involving a

deceased prisoner is not moot, either because it is a class action

or because it is “capable of repetition yet evading review,”

Kremens v. Bartley, 431 U.S. 119, 133 (1977); Riverside v.

McLaughlin, 500 U.S. 44 (1991), Palo has presented no evidence that

Frank’s case fits into one of these categories. Even if Palo

establishes at trial that she is entitled to recover damages as

administratrix of Frank’s Estate, her request for prospective

injunctive relief related to Frank is moot in light of his death.

Palo also requests that the court enter an injunction ordering

 

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the County “to reform the policies, customs and practices governing

and relating to the medical services provided to detainees in the

Dallas County Jail System.” Compl. 10. This request may not be

moot because it relates to other detainees, not Frank. But Palo

does not argue, and she makes no attempt to show, that she has

standing to assert claims on behalf of other detainees. And absent

any indication that she is herself a detainee or is acting in some

capacity that would give her standing to sue on behalf of Dallas

County Jail detainees, it is clear she lacks standing.

Accordingly, the court does not reach the merits of Palo’s

request for prospective injunctive relief, and it dismisses the

request in part as moot and in part for lack of standing. 

VII

Defendants maintain that Palo’s pendent state-law claims

should be dismissed without prejudice once her federal-law claims

are dismissed. Alternatively, they argue that the court should

grant the motion for summary judgment on the merits, contending the

state-law claims are barred by sovereign immunity.

Because the court is not dismissing Palo’s § 1983 claim in its

entirety, it will reach the merits of defendants’ motion. Palo

sues defendants under Texas state law for intentional infliction of

emotional distress and failure to provide medical care. Defendants

argue that neither claim falls within an exception to sovereign

immunity. Palo has made no attempt in her summary judgment

 

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response brief to address this argument. Chree has not responded

to the motion. The court therefore concludes that their state-law

claims are barred by sovereign immunity, and they are dismissed

with prejudice.

* * *

For the reasons set out, the court grants in part and denies

in part defendants’ June 27, 2006 motion for summary judgment.

Palo’s and Chree’s actions against Sheriff Valdez in her official

capacity are dismissed with prejudice.

SO ORDERED.

December 15, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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