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 civil rights action arising from the death of a

pretrial detainee, the question presented by defendant’s summary

judgment motion is whether a reasonable jury could find the

defendant liable under 42 U.S.C. § 1983 on a Fourteenth Amendmentbased conditions of confinement claim. Concluding that the

plaintiff who has responded to defendant’s motion has raised

genuine issues of material fact, but that the plaintiff-intervenor

who has not responded has not raised fact issues that preclude

summary judgment, the court grants the motion in part and denies it

in part.

I

The relevant background facts of this case are set out in the

court’s opinion granting in part and denying in part a prior motion

for summary judgment filed by defendants Dallas County and Dallas

 

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1Plaintiffs named Sheriff Valdez as a defendant in her

capacity as Sheriff of Dallas County. In Palo I the court

dismissed the claims against Sheriff Valdez on the ground that they

were duplicative of the claims against the County. Palo I, 2006 WL

3702655, at *8. 

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 Dallas County’s motion.

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County Sheriff Lupe Valdez (“Sheriff Valdez”). See Palo ex rel.

Estate of Palo v. Dallas County, 2006 WL 3702655, at *1 (N.D. Tex.

Dec. 15, 2006) (Fitzwater, J.) (“Palo I”).1 The court therefore

recounts them only briefly, adding subsequent procedural history

that necessarily was not set out in the prior opinion.

 Frank Nelson Palo, Jr. (“Frank”), a pretrial detainee, died

while in the custody of the Dallas County Jail. Plaintiff Kathy

Palo (“Palo”), as administratrix of Frank’s estate, and intervenorplaintiff Chree Palo (“Chree”), Frank’s surviving widow, sued

Dallas County under 42 U.S.C. § 1983, alleging that it deprived

Frank of his Fourteenth Amendment due process rights when it failed

to provide him with proper medical treatment.2

 

In Palo I the court addressed a summary judgment motion filed

by Dallas County and Sheriff Valdez. It granted the motion in part

and denied it in part. See Palo I, 2006 WL 3702655, at *9. The

court denied the motion to the extent plaintiffs sought to recover

under § 1983 for a Fourteenth Amendment violation based on a

 

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condition of confinement, because defendants did not adequately

address the claim in their motion. Id. at *7. 

Dallas County later obtained court approval to file a

supplemental motion for summary judgment that addresses this cause

of action. It maintains that plaintiffs have failed to plead

sufficient facts to support such a claim. And it contends there is

no evidence that the conditions of confinement that existed while

Frank was detained in the Jail deprived him of reasonable and

adequate medical care or otherwise caused his death. Dallas County

therefore posits that plaintiffs have failed to establish a viable

due process claim based on the conditions of confinement.

Palo opposes the motion, but Chree has not filed a response.

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

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 the affirmative exercise of

its power 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.

 

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Hare v. City of Corinth, Miss., 74 F.3d 633, 638-39 (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 stem from “both the procedural and

substantive due process guarantees of the Fourteenth Amendment.”

Id. at 639 (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. Because Palo was a pretrial detainee, the

inquiry in this case focuses on whether Dallas County’s actions

amounted to a violation of his Fourteenth Amendment due process

rights.

To determine the appropriate standard to apply in analyzing

constitutional challenges brought by pretrial detainees under

§ 1983, 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 challenge is

to the “general conditions, practices, rules, or restrictions of

pretrial confinement.” Hare, 74 F.3d at 644. By contrast, in an

“episodic act or omission” case, the complained-of harm is a

particular act or omission of one or more officials, and the case

 

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focuses on “whether [the] official breached his constitutional duty

to tend to the basic human needs of persons in his charge.” Id. 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). 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.” Hare, 74

F.3d at 647-48. 

Both Dallas County and Palo appear to argue that in evaluating

Palo’s conditions of confinement claim, the court must apply the

“deliberate indifference” standard articulated in Hare. These

arguments, however, ignore the Fifth Circuit’s clear instructions

in Hare, where it explained that

the Bell test retains vitality only when a

pretrial detainee attacks general conditions,

practices, rules, or restrictions of pretrial

confinement. When, by contrast, a pretrial

detainee’s claim is based on a jail official’s

episodic acts or omissions, the Bell test is

inapplicable and hence the proper inquiry is

whether the official had a culpable state of

mind in acting or failing to act.

Id. at 643; see also Grabowski v. Jackson County Pub. Defenders

Office, 47 F.3d 1386, 1398 (5th Cir. 1995) (“[I]n all conditions of

confinement actions, medically related or otherwise, it is not

necessary for a pretrial detainee to establish that the official

involved acted with ‘deliberate indifference in order to establish

 

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a due process violation.”). 

In a § 1983 condition of confinement case, 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. 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. It requires a court to decide whether “the disability

is imposed for the purpose of punishment or whether it is but an

incident of some other legitimate governmental purpose.” Id.

(citing cases). 

To determine whether the condition is an unconstitutional

punishment, the court asks whether the “particular condition or

restriction of pretrial detention is reasonably related to a

legitimate governmental objective.” Id. at 539. If it is, the

condition or restriction does not amount to unconstitutional

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

not reasonably related to a legitimate goal——if it is arbitrary or

purposeless——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. 

This court has already granted summary judgment dismissing

Palo’s episodic act or omission claim. Palo I, 2006 WL 3702655, at

 

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*6. In deciding the present summary judgment motion, it considers

only the sufficiency of the pleadings and evidence to support

Palo’s conditions of confinement claim. Thus any evidence or

arguments that Palo has tendered in support of a finding of

“deliberate indifference” are inapposite, because the test

articulated in Bell assumes “intent” and therefore does not require

a showing of “deliberate indifference.” See Hare, 74 F.3d at 644-

45.

Dallas County contends that it is entitled to summary judgment

because Palo has not adequately pleaded a jail conditions case and,

even if she has, she has not established such a claim arising from

the conditions of Frank’s confinement. 

III

The court turns first to Dallas County’s contention that Palo

has failed adequately to plead a conditions of confinement claim.

A

Fed. R. Civ. P. 8(a) provides that pleadings must contain “a

short and plain statement of the claim showing that the pleader is

entitled to relief.” The essential function of notice pleading is

to “give the defendant fair notice of what the plaintiff’s claim is

and the grounds upon which it rests.” Oliver v. Scott, 276 F.3d

736, 741 (5th Cir. 2002) (citing Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168

(1993)). A pretrial detainee can allege a § 1983 claim for a

 

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3

In Palo I the court held that defendants had not moved for

summary judgment concerning a conditions of confinement claim.

Palo I, 2006 WL 3702655, at *7. In doing so, it stated that,

“Palo’s complaint [could] 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 . . . .” Id. Having

now considered the question in detail, the court concludes for the

reasons explained that Palo has pleaded a conditions of confinement

claim.

4See, e.g., Olabisiomotosho v. City of Houston, 185 F.3d 521,

526 (5th Cir. 1999) (holding that plaintiff’s “complaint turns on

[the arresting officers’] alleged failure to take better care of

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Fourteenth Amendment due process violation arising from the

conditions of confinement by pleading facts that support the

finding that he was subjected to jail conditions that were not

reasonably related to a legitimate governmental objective. See

Bell, 441 U.S. at 539.

B 

The court concludes that Palo has pleaded a conditions of

confinement claim.3 A significant component of Palo’s complaint

focuses on the acts or omissions of the nurses and officers at the

Jail. Dallas County argues in its summary judgment motion that

“the instant case does not fit well within the conditions of

confinement category, and in fact, bears a closer resemblance to

cases involving episodic acts of detention officials.” D. Br. 4.

Dallas County is correct that, to the extent Palo challenges the

individual acts of the Jail officials and staff, these allegations

should properly be characterized as asserting an episodic act or

omission claim.4 This follows from the fact that 

 

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her and Bertrand’s [the jail clinic assistant on duty the night of

plaintiff’s arrest] failure to medically screen her and secure her

to treatment. Such a complaint perfectly fits the definition of

the episodic omission.”); Stephens v. Dallas County, Tex., 2007 WL

34827, at * 6 (N.D. Tex. Jan. 4, 2007) (Kinkeade, J.) (classifying

case as “one involving episodic acts or omissions” when complaint

alleged that pretrial detainee “did not receive his required

prescription medications for several days while detained in the

jail.”). 

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[i]n an episodic act or omission case, an

actor usually is interposed between the

detainee and the municipality, such that the

detainee complains first of a particular act

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. 

Stephens v. Dallas County, Tex., 2007 WL 34827, at *5 (N.D. Tex.

Jan. 4, 2007) (Kinkeade, J.) (citing Scott v. Moore, 114 F.3d 51,

53 (5th Cir. 1997) (en banc)). 

The distinction between an episodic act or omission case and

a conditions of confinement case is illustrated in Scott. There,

the Fifth Circuit concluded that although the plaintiff had

generally complained of jail conditions that permitted an officer

on duty to sexually assault her, “the actual harm of which she

complains is the sexual assaults committed by [the defendant]

during the one eight-hour shift——an episodic event perpetrated by

an actor interposed between Scott and the city, but allegedly

caused or permitted by the aforesaid general conditions.” Scott,

114 F.3d at 53. The panel held that because “Scott did not suffer

from the mere existence of the alleged inadequate staffing, but

 

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only from Moore’s specific sexual assaults committed on but one

occasion,” the claim was properly treated as an act or omission

claim and analyzed under the framework articulated in Hare. Id. at

53-54. 

Unlike Scott, Palo’s complaint does not focus solely on the

acts or omissions of the staff on duty at the Jail. Rather, she

also attacks the Jail medical care system itself. In Scott the

plaintiff would not have been sexually assaulted had it not been

for the actions of the guard; here, Palo alleges that subjecting

Frank to the inadequate system of medical care caused him to suffer

a deprivation of his constitutional rights. Accordingly, the

presence vel non of the individual actors does not alter the

fundamental nature of the claim. 

Palo alleges in her complaint that Dallas County “failed to

implement policies, practices and procedures that respected

[Frank’s] constitutional rights to adequate medical care and

treatment, access to the courts, and freedom from punishment as a

detainee.” Compl. 2. She avers that Dallas County deprived Frank

of his constitutional rights by “failing to provide proper medical

treatment, through indifference to his health needs, and through

erroneous procedures.” Id. at 6. Palo also asserts that 

Defendants, acting pursuant to official

policies, practices, and customs, and with

deliberate, callous, and conscious

indifference to the constitutional rights of

[Frank], and all other detainees in the Dallas

County Jail facilities failed to implement the

 

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policies, procedures, and practices necessary

to provide constitutionally adequate medical

care and services. The policies, procedures,

and practices which have been implemented

actually may have interfered with, or

prevented [Frank] from receiving adequate and

necessary medical care and services. 

Id. at 7. Finally, she alleges that Dallas County “failed and

refused to implement policies, practices, or procedures, and failed

to train their personnel adequately on the appropriate policies,

practices, and procedures regarding the treatment of detainees with

hypertensive cardiovascular disease,” and that Dallas County knew

that death or serious injury would in reasonable probability occur

as a consequence. Id. at 8.

In her summary judgment opposition brief, Palo contends that

“Dallas County’s policies and procedures are of a type and nature

that precluded confined individuals with a pre-existing medical

condition, from receiving adequate and timely medical care.” P.

Br. 3-4. She augments the allegations of her complaint by

identifying the “policies, practices and procedures” that she

maintains deprived Frank of his constitutional rights. Id. at 13.

Palo contends that Frank received unconstitutional treatment due

to, inter alia, inadequate Jail conditions that allowed serious

deficiencies in the form of inadequate (1) intake screening, (2)

acute care, (3) chronic care, (4) access to health care, (5)

follow-up care, (6) record keeping, (7) medication administration,

(8) medical facilities, (9) staffing, training, and supervision,

 

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5

It is correct, of course, to say that although “‘the pleading

requirements under the Federal Rules are relatively permissive,

they do not entitle parties to manufacture claims, which were not

pled, late into the litigation for the purpose of avoiding summary

judgment.’” Jacobs v. Tapscott, 2006 WL 2728827, at *4 n.3 (N.D.

Tex. Sept. 25, 2006) (Fitzwater, J.) (quoting N. States Power Co.

v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004)). The

present case, however, is not one in which the plaintiff has failed

to plead a claim and has then attempted to assert it for the first

time in response to a summary judgment motion.

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and (10) quality assurance.5 Id. at 14. Palo maintains that these

conditions themselves violated Frank’s constitutional rights and

were the foreseeable product of the long-term inadequate staffing

and training in the Jail regarding the provision of medical care,

because the conditions prevented confined persons, such as Frank,

from receiving consistent and adequate care. Palo also asserts

that these conditions were not reasonably related to any legitimate

governmental purpose but were instead the byproduct of Dallas

County’s inadequate funding and inadequate monitoring of the

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

Contract.

The individual acts or omissions of prison officials and staff

are immaterial to Palo’s claim that the jail conditions

themselves——specifically, the inadequate system of care in the Jail

to which Frank was subjected during his pretrial

confinement——violated his constitutional right to be free from

punishment while confined as a pretrial detainee. The court

therefore holds that Palo has sufficiently pleaded a conditions of

 

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confinement claim, and it denies Dallas County’s motion to the

extent it seeks dismissal on this basis.

IV

Dallas County posits that plaintiffs have failed to adduce

competent summary judgment evidence that is sufficient to establish

any of the alleged inadequate conditions. It argues that there is

no evidence that any of the alleged conditions deprived Frank of

reasonable or adequate medical care or otherwise caused his death.

And it maintains that the undisputed evidence establishes that the

medical care that Frank received was reasonable, adequate, and

consistent with the standard of care in other detention facilities

in the state of Texas. 

Because Dallas County will not have the burden of proof at

trial on plaintiffs’ conditions of confinement claim, it can meet

its summary judgment obligation by pointing the court to the

absence of evidence to support it. See Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). Once it does so, plaintiffs must go

beyond their pleadings and designate specific facts showing there

is a genuine issue for trial. See id. at 324; Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

Plaintiffs’ failure to produce proof as to any essential element

renders all other facts immaterial. Edgar v. Gen. Elec. Co., 2002

WL 318331, at *4 (N.D. Tex. Feb. 27, 2002) (Fitzwater, J.) (citing

Celotex Corp., 477 U.S. at 323). An issue is genuine if the

 

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evidence is such that a reasonable jury could return a verdict in

plaintiffs’ favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Summary judgment is mandatory if plaintiffs fail

to meet their burden. Little, 37 F.3d at 1076. 

Dallas County objects to Palo’s summary judgment proof and

argues that she has failed to introduce competent evidence to

establish any of the alleged inadequate conditions at the Jail. It

does not, however, contend that if the allegedly inadequate

conditions of confinement are established, it nevertheless prevails

under Bell on the basis that the conditions are rationally related

to a legitimate government purpose. See Bell, 441 U.S. 538-39.

Accordingly, to withstand summary judgment, plaintiffs need only

adduce evidence that would permit a reasonable jury to find that

Frank was subjected to the complained-of conditions while he was

confined at the Jail. See id.

V

As noted, Chree has not responded to Dallas County’s motion.

Although Chree’s failure to respond does not permit the court to

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

accept Dallas County’s evidence as undisputed. See Tutton v.

Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990)

(Fitzwater, J.). Additionally, because Dallas County has pointed

to the absence of evidence to support Chree’s conditions of

confinement claim, she is obligated to produce evidence that

 

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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 restricted 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 conditions of confinement

claim. Accordingly, the court grants Dallas County’s motion for

summary judgment dismissing Chree’s claim.

VI

The court now considers Palo’s opposition to Dallas County’s

motion. It must first address Dallas County’s objections to

certain parts of the evidence on which Palo relies.

A

Palo has introduced various documents to raise a fact issue

regarding whether Frank was subjected to inadequate medical

conditions while confined at the Jail. Among them are a Report on

the Medical and Mental Health Programs of the Dallas County Jail

(“HMA Report”) prepared by Dr. Michael Puisis (“Dr. Puisis”) and

submitted by Health Management Associates (“HMA”). She also relies

on a report prepared by the Department of Justice (“DOJ”) regarding

its investigation of the Jail (“DOJ Report”). Dallas County moves

 

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6Dallas County also moves to strike Exhibit Nos. 1-4, 7, 9,

and 11-14 of Palo’s evidence appendix. Because the court

concludes, without considering the balance of the challenged

evidence, that Palo has met her summary judgment burden, it need

not decide any part of Dallas County’s motion to strike that is not

addressed in this memorandum opinion and order. In addressing

Dallas County’s evidence objections, the court has limited its

analysis to the evidence that Dallas County has moved to strike and

that the court is relying on to hold that Palo has raised a genuine

issue of material fact.

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to strike both reports.6 Because some of the contents of these

reports are material to the court’s conclusion that Palo has met

her summary judgment burden, the court must as a threshold matter

address Dallas County’s evidentiary objections to them. 

B 

Dallas County objects to the HMA and DOJ Reports, contending

that they are not relevant because they do not specifically address

the medical care that Frank received or pertain to the conditions

of his confinement during the period July 5-10, 2004.

“Relevant evidence means evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.” Brazos River Auth. v. GE Ionics,

Inc., 469 F.3d 416, 425 (5th Cir. 2006) (citing Fed. R. Evid. 401).

The “basic standard of relevance thus is a liberal one,” and the

trial court has broad discretion in determining whether to permit

evidence under Fed. R. Evid. 401. Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 587 (1993); see also E.E.O.C. v. Manville Sales

 

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Corp., 27 F.3d 1089, 1093 (5th Cir. 1994) (“The standard for

relevance is a liberal one.”).

Palo challenges the conditions of the Jail during Frank’s

confinement from July 5-10, 2004. To establish that Frank was

subjected to the conditions alleged, Palo submits the DOJ and HMA

Reports as proof that inadequate medical conditions were prevalent

at the Jail and not limited to the circumstances surrounding

Frank’s treatment. Without weighing the probative value of these

reports, the court concludes that they are relevant because they

lend support to Palo’s allegations that medical care at the Jail

during the period near Frank’s detention was systemically

inadequate, that the conditions did not improve over time, and that

during his confinement, Frank was subjected to these same

conditions.

The HMA Report was completed in February 2005 using

information Dr. Puisis obtained the previous year. The summary

judgment evidence does not demonstrate indubitably that any change

in medical care provided to detainees occurred at the Jail between

the time of Frank’s detention and the time of the HMA study, such

that the HMA Report would be rendered irrelevant to Palo’s

allegations regarding the medical care provided to Frank. Palo

bases her conditions of confinement claim on the premise that the

Dallas County Jail system suffered from a deeply-rooted systemic

deficiency that has persisted, unaddressed, for years. The

 

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existence of these widespread systemic problems only months after

Frank’s detention are relevant to the question whether during the

time Frank was detained he was subjected to the conditions of

confinement that serve as the predicate for his Fourteenth

Amendment claim. 

The DOJ Report was based on Jail inspections conducted during

the periods February 20-24, 2006 and March 20-23, 2006. Although

both inspections took place at times considerably later than the

period during which Frank was detained, the DOJ report is relevant

because it tends to show that nearly two years later, the alleged

systemic deficiencies had not been ameliorated. Merely because the

HMA and DOJ Reports were based on inspections conducted after

Frank’s detention does not render the Reports irrelevant to the

question whether the alleged unconstitutional conditions existed at

the Jail. Cf., e.g., Manville Sales Corp., 27 F.3d at 1094

(holding that long period of time over which remarks were made did

not suggest that evidence was not relevant; long time period might

indicate pattern of discriminatory comments and was directly

relevant to showing existence of discriminatory motive). 

C

Dallas County next objects to the HMA and DOJ Reports on the

ground that they are hearsay and that they contain statements that

are hearsay and hearsay within hearsay. The court overrules the

objections.

 

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The HMA and DOJ Reports are both excluded from the hearsay

rule as “public reports.” Fed. R. Evid. 803(8) applies to 

[r]ecords, reports, statements, or data

compilations, in any form, of public offices

or agencies, setting forth . . . matters

observed pursuant to duty imposed by law as to

which matters there was a duty to report . . .

[or] in civil actions and proceedings against

the Government in criminal cases, factual

findings resulting from an investigation made

pursuant to authority granted by law, unless

the sources of the information or other

circumstances indicate lack of

trustworthiness.

The HMA Report was completed as a result of a contract between the

Dallas County Commissioners Court and HMA “to perform a

comprehensive review of the medical and mental health services at

the Dallas County Jail.” P. July 18, 2006 App. 105. The DOJ

report was made under authority vested in the DOJ to investigate

possible federal constitutional violations and to bring suit

against a government entity that it found to be in violation of the

Constitution. Dallas County does not argue that these reports

indicate a lack of trustworthiness. The court therefore concludes

that they are admissible under the public reports exception to the

hearsay rule. 

Dallas County also challenges the Reports on the basis that

they contain statements that are hearsay and hearsay within

hearsay. Fed. R. Evid. 805 provides that “[h]earsay included

within hearsay is not excluded under the hearsay rule if each part

of the combined statements conforms with an exception to the

 

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hearsay rule provided in these rules.” Accordingly, to determine

whether statements within a public record are admissible, courts

examine the statements to determine whether they are hearsay and,

if so, whether they fall within an exception to the hearsay rule.

Here, however, Dallas County broadly objects to the Reports on

the ground that they contain hearsay within hearsay; it does not

specifically identify any part as containing hearsay within

hearsay. This court has rejected objections to summary judgment

evidence that are too general. Wooten v. Fed. Express Corp., 2007

WL 63609, at *25 (N.D. Tex. Jan. 9) (Fitzwater, J.) (“FedEx has not

demonstrated through its very general objections that the

underlying writings are not voluminous. . . . And because FedEx

does not object more specifically, the court need not address

whether other evidence on which it has relied in denying summary

judgment is inadmissible hearsay.”), appeal docketed, No. 07-10555

(5th Cir. May 18, 2007). Dallas County’s failure to offer specific

objections is a material fallacy, because it may be objecting to

parts of the Reports that are not hearsay. It is settled, for

example, that conclusions or opinions contained within an

investigatory report that is itself admissible under Rule 803 are

also admissible under the same Rule. See, e.g., Beech Aircraft

Corp. v. Rainey, 488 U.S. 153, 170 (1988) (“We hold, therefore,

that portions of investigatory reports otherwise admissible under

Rule 803(8)(C) are not inadmissible merely because they state a

 

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conclusion or opinion. As long as the conclusion is based on a

factual investigation and satisfies the Rule’s trustworthiness

requirement, it should be admissible along with other portions of

the report.”); Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,

1305 (5th Cir. 1991) (“Opinions and conclusions, as well as facts,

are covered by Rule 803(8)(C).”). Dallas County has not made clear

through its objections whether it considers to be hearsay within

hearsay the parts of the Reports that are in fact admissible. And

the only parts of the HMA and DOJ reports on which Palo relies are

those portions that constitute the conclusions or opinions of Dr.

Puisis and the DOJ, respectively. The court has already determined

that the Reports themselves are excluded from the hearsay rule

under Rule 803. The opinions and conclusions contained within the

Reports also constitute admissible evidence. Because Dallas County

has failed to point to inadmissible components of the Reports, the

court overrules its hearsay objections. 

D

Dallas County also objects to the HMA and DOJ Reports on the

grounds that they contain conclusory statements and speculation

that are not based on personal knowledge, and they contain opinions

based on hearsay and other inadmissible information. It argues

that to the extent that any portion of the exhibits may be

admissible, Palo has made no attempt to segregate and tender the

purported admissible portions from those that are inadmissible,

 

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and, given the volume of the exhibit, this is fatal to introducing

the admissible portion in evidence. Dallas County also objects to

the HMA and DOJ Reports on the basis that they do not have

sufficient or adequate foundation to support them and because they

have not been properly authenticated.

The HMA and DOJ Reports both contain findings from

investigations of the Jail undertaken pursuant to an official DOJ

investigation for the DOJ Report and a Dallas County Commissioners

Court contract for the HMA Report. Although the Reports may

include opinions, their findings are neither conclusory nor

speculative. Furthermore, as explained supra at § VI(C), the

opinions of Dr. Piusis and the DOJ are contained within public

reports and are admissible under Rule 803. Dallas County’s

argument that the findings are based on inadmissible hearsay is

insufficient because, as explained above, it has failed to identify

specifically the parts of the Reports that it contends are based on

hearsay. Dallas County’s objections based on lack of

authentication and foundation are also insufficient. Under Fed. R.

Evid. 901(a), “[t]he requirement of authentication or

identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” Palo has met

this standard. Finally, even if some defects remain, “the papers

of a party opposing summary judgment are usually held to a less

 

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exacting standard than those of the moving party.” Lodge Hall

Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir.

1987).

Accordingly, the court denies Dallas County’s motion to strike

the Reports. It will consider this evidence in deciding whether

Palo has adduced sufficient proof to present genuine issues of

material fact that require a trial. 

VII

A

 Palo contends that, since the early 1990s, Dallas County has

experienced problems with the delivery of medical care to persons

confined in its Jail system. In December 2004, months after

Frank’s death, Dallas County hired HMA and Dr. Puisis to conduct an

independent investigation concerning the provision of medical care

in the Jail system. Palo alleges that this independent evaluation

was prompted after several years of failed compliance with the UTMB

Interlocal Contract and generally accepted jail standards and

procedures. Under the UTMB Interlocal Contract, Dallas County

subcontracted the provision of medical services to UTMB. Palo

alleges that before entering into that contract, Dallas County knew

or should have known that UTMB was inexperienced in providing

medical services to its Jail population; that although the UTMB

Interlocal Contract established minimum staffing standards and

needs to guarantee the continuity and seamless administration of

 

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medical services, the manpower was inadequate to meet the needs of

the inmates at the Jail, and Dallas County did not follow the

standards, despite numerous failed inspections due to unacceptable

prisoner/guard ratios; and that Dallas County was aware of UTMB’s

lack of compliance with the UTMB Interlocal contract, but it failed

to take reasonable steps to enforce compliance. She cites the DOJ

Report, which found that the Jail “fails to provide inmates with

adequate medical care that complies with constitutional

requirements,” P. Feb. 20, 2007 App. 4, and specifically cited

inadequate intake screening, acute care, chronic care, treatment

and management of communicable disease, access to health care,

follow-up care, record keeping, medication administration, medical

facilities, specialty care, staffing, training, and supervision,

quality assurance, and dental care, id. Palo also alleges that

Dallas County’s intake screening fails to identify serious inmate

medical needs and places inmates at a risk of serious harm, and she

cites the DOJ findings that Dallas County’s care for inmates with

chronic medical conditions fails in the areas of assessment and

timely and adequate follow-up medical treatment, including proper

medication administration; that there are delays, beginning during

the intake process, in the treatment and administration of

medication; that inmates who are identified with chronic health

conditions are often not scheduled for follow-up medical

assessment; and that the process by which inmates are permitted to

 

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request medical care is inadequate and presents a significant

barrier to receiving adequate medical care. Palo maintains that

there are no protocols for collecting, processing, distributing,

logging, and triaging medical requests, and that administration of

medicines suffers significant delays, errors, and lapses, all of

which are typically caused by inaccurate or inadequate

documentation. She relies on the DOJ Report finding that the Jail

fails to administer medications in accordance with prescriptions,

maintain medication administration records concurrently with

distribution, and follow general standards of care to monitor and

adjust inmates’ prescribed medication regimens. Finally, Palo cites

the finding of the DOJ Report that the Jail maintains an

insufficient number of medical and custodial staff to provide

adequate medical services and fails to engage in consistent,

effective quality assurance review to track and trend medicalrelated incidents at the Jail.

Palo also relies on proof concerning Frank’s experience at the

Jail. She cites summary judgment evidence that Frank suffered from

medical problems, including congestive heart failure and Crohns’s

disease, and that these conditions were made known to the Jail when

Frank became a pre-trial detainee; that Frank informed the nurse

that he had congestive heart disease and congestive heart failure

and had taken Lasix approximately three days before; that after

speaking with Frank, Palo attempted to talk to someone at the Jail

 

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7Dallas County objects on the basis of hearsay to the part of

Palo’s affidavit in which she recounts the statements made by

Frank. Because the court is not relying on these statements, it

need not decide whether the evidence is admissible.

8Dallas County objects to the Activity Sheets for Jail on

7/9/2004 based on a lack of foundation, lack of authentication, and

lack of relevance. The court overrules the objection based on

relevance because the Activity Sheets are relevant to the question

of coordination between intake services and medical conditions in

the general population tank. The court also overrules the

objections based on lack of foundation and lack of authentication

because Palo has met the Fed. R. Evid. 901(a) standard. 

9

Dallas County also objects to Dr. Aiken’s expert report. The

court need not address the objection, however, because Palo relies

on Dr. Aiken’s report solely to assist in explaining the basis for

her conditions of confinement claim. She does not rely on any of

Dr. Aiken’s statements to establish that certain assertions are

fact. 

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to determine whether Frank was receiving proper medical care;7

that she spoke with Sergeant Porter, Sergeant Mitchell, and the

Chaplain, none of whom was able to provide her with any

information; and that Dallas County’s own records indicate that a

nurse was present on the floor several times a day, yet Frank was

still unable to get the required medication.8

Palo next points to the report of her expert witness, Dr.

James E. Aiken (“Dr. Aiken”).9 Based on his review of various Jail

documents, Dr. Aiken concluded that they gave “a confused

operational representation of [Frank’s] medical status. There is

no indication that medical services for the facility had

effectively communicated or advised security/operations of any

concerns, precautions or medical limitations regarding [Frank].”

 

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P. July 18, 2006 App. 157. Dr. Aiken detailed the problems that

can occur when there is a failure of communication between security

staff and medical staff, explaining:

The placement of prisoner population in

housing without proper evaluation and

coordination between operations/security,

medical and other various systems regarding

these substantive issues, endanger the wellbeing and basic protection guarantees of a

person incarcerated. . . . The primary origin

for this endangerment pertains to the fact

that persons confined to a jail cannot decide

to have a medical consult similar to a citizen

in a community. An inmate cannot

independently decide to enter a hospital,

visit a nurse or physician, or even obtain

life-sustaining medications without assistance

from the confinement operator (Defendants).

Confinement staff providing security and

operational logistics must intervene prior to

the delivery of medical service. The medical

delivery system of the jail must also

coordinate and interface with

security/operations in a seamless manner to

ensure the health-care, safety and well being

of the confined population.

Id. at 157-58. Palo also relies on Dr. Aiken’s expert report to

corroborate her argument that the Jail failed to achieve a

“coordinated seamless delivery between medical and security

operations.” P. Br. 12.

B

The court holds that Palo’s evidence raises genuine issues of

material fact concerning whether the Jail provided inadequate

 

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10Dallas County argues that even if there is an evidentiary

basis to support Palo’s allegations regarding the inadequate

conditions at the Jail, she has nonetheless failed to demonstrate

how Frank’s death was causally related to any alleged inadequacy.

The court disagrees. For Palo to prevail on her § 1983 claim, she

must establish “(1) a deprivation of a right secured by federal law

(2) that occurred under color of state law, and (3) was caused by

a state actor.” Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th

Cir. 2004) (citing Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir.

1986)). To succeed on her claim under § 1983, the injury the

plaintiff (or, in this case, the plaintiff’s decedent) suffers is

the constitutional violation itself. Regardless whether Frank’s

death was caused by inadequate medical conditions at the Jail, a

jury could still find that his constitutional rights were violated

by the unconstitutional “punishment” inflicted on him through the

inadequate medical conditions at the Jail. 

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medical care while Frank was detained there.10 Considering the

central intake form, Palo’s affidavit, and the HMA and DOJ Reports,

the court concludes that Palo has adduced sufficient evidence to

enable a reasonable jury to find that while Frank was incarcerated,

he was deprived of adequate medical care. Specifically, a

reasonable jury could find that the medical care provided at the

Jail suffered from various inadequacies, including inadequate

intake screening, follow-up care, medication administration, and

staffing, training, and supervision. The jury could also

reasonably find, based on the specific records from Frank’s

incarceration, that while he was a pretrial detainee, he was

subjected to these inadequate medical conditions. Dallas County

does not argue that the inadequate medical conditions of which Palo

complains were reasonably related to a legitimate government

purpose. Therefore, a reasonable jury could find under the Bell

 

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11The dismissal as to Sheriff Valdez follows from the court’s

decision in Palo I. See Palo I, 2006 WL 3702655, at *8.

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standard that the conditions to which Frank was subjected were not

reasonably related to a legitimate government purpose and therefore

“punished” Frank, in violation of his Fourteenth Amendment rights.

Bell, 441 U.S. 538-39. 

Accordingly, the court denies Dallas County’s motion for

summary judgment as to Palo. 

* * *

For the reasons set out, Dallas County’s January 23, 2007

supplemental motion for summary judgment is granted as to Chree’s

conditions of confinement claim and denied as to Palo’s conditions

of confinement claim. By Rule 54(b) final judgment filed today,

the court dismisses Chree’s action against Dallas County and

Sheriff Valdez.11

SO ORDERED. 

July 26, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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