IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STANLEY SHEPHERD, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1442-D

VS. §

 §

DALLAS COUNTY, TEXAS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this lawsuit brought under 42 U.S.C. § 1983 against

defendant Dallas County, plaintiff alleges that he was denied

constitutionally adequate medical treatment while held as a

pretrial detainee at the Dallas County Jail (the “Jail”). Dallas

County moves for summary judgment. For the reasons that follow,

the court grants the motion in part and denies it in part.

I

Stanley Shepherd was arrested on a drug possession charge and

booked into the Jail as a pretrial detainee. Upon arrival,

Shepherd told the intake nurse that he had a history of

hypertension and other chronic illnesses and that he was taking

medications, including twice daily doses of the blood pressure

medication Clonidine. Shepherd had none of his medications with

him when he was booked, and he was dependent on the Jail medical

providers to dispense them.

One week later, Shepherd had a blood pressure reading over

175/101, and he again told a nurse that he required Clonidine.
1Shepherd attests to this in a sworn affidavit. Dallas County

objects both to this affidavit and the affidavit of his wife,

contending that they generally contain “conclusory statements.”

Dallas County does not specify these supposed conclusory

statements, nor does the court perceive any defects in the

statements on which it has relied in this decision. Accordingly,

the objections are overruled.

2Dallas County objects to this testimony as an improper expert

opinion, but the court does not rely on this testimony to show that

Shepherd was, in fact, experiencing a “hypertensive emergency.”

Rather, the relevance of this evidence is to show that at least one

of Shepherd’s treating nurses would have considered this blood

pressure reading to be dangerously high. Accordingly, this

objection is overruled. Dallas County also contends, without

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Three days later, Shepherd repeated his request for blood pressure

medication, and one nurse recorded in his records that Shepherd

“wants and insists on Clonidine.” The nurse prescribed a different

high blood pressure medication——hydrochlorothiazide. Although

prescribed, Shepherd rarely received the medication, sometimes

waiting weeks between single doses.1

Shepherd was later brought to the clinic complaining of a

severe headache, and his blood pressure was measured at 165/117.

Kathryn Flangin, M.D. (“Dr. Flangin”) ordered that Shepherd be

given one dose of Clonidine and that his blood pressure be checked

for three days. This was Shepherd’s first dose of Clonidine in the

Jail.

Shepherd’s blood pressure was checked again four days later

and recorded at 181/133, a blood pressure reading that is

considered by at least one of Shepherd’s treating nurses to be a

“hypertensive emergency.” P. App. 183.2 At that time, he was
citing authority, that this evidence is irrelevant absent proof

that it was reported to the policymaker. This objection rests on

a mistaken view of the law, see infra at §§ III(A) and IV(A), and

is overruled. Finally, Dallas County objects that this evidence is

pure conjecture. This objection is also overruled. The nurse’s

testimony was based on his personal experience and a review of

Shepherd’s medical records, not on conjecture. 

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given a single dose of nitroglycerin that reduced his blood

pressure to 148/93. Dr. Flangin also ordered that Clonidine be

administered to Shepherd twice daily for 60 days. Two days later,

Shepherd’s blood pressure was recorded at 242/132. A nurse noted

on Shepherd’s chart that he “has not received his Clonidine as

ordered.” Shepherd was administered an initial dose of Clonidine

at that time, which reduced his blood pressure to 158/100.

For the next seven weeks, no medical provider monitored

Shepherd’s blood pressure, nor did Shepherd receive his medication

as prescribed. Shepherd repeatedly complained about not receiving

his blood pressure medication. Shepherd’s wife, aware of the

situation, made numerous calls to the Jail——sometimes speaking with

medical staff——expressing her concern that Shepherd would have a

stroke if he did not receive his medication regularly.

Shepherd later went to the nurses station complaining of

left-sided weakness and lightheadedness. Mary Basham (“Nurse

Basham”), a nurse, measured Shepherd’s blood pressure at 189/125.

She reported the high blood pressure reading to Dr. Flangin, who

ordered the nursing staff to re-check his blood pressure that

evening and for the next three days, and ordered that he be given
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doses of Lasix and Lopressor. When Nurse Basham told Shepherd to

return to his cell, he protested that something was wrong. One

hour later, he was found lying on the floor of his cell, with

slurred speech, diaphoretic sweating, and left-sided weaknesses.

He was immediately taken by ambulance to the hospital. For the

next two days, Jail staff continued to indicate in Shepherd’s

records that they were administering Clonidine and other

medications to him, even though this would have been impossible

because he was no longer detained at the Jail.

At the hospital, doctors concluded that Shepherd had suffered

a stroke because of a hypertensive emergency. He remained

hospitalized for 26 days before being discharged to the Veterans

Administration rehabilitation center. He has been permanently

confined to a wheelchair since that time, has lost most of his

left-side functions, suffers impairment of his left eye and the

hearing in his left ear, and has slurred speech.

Shepherd filed this suit against Dallas County under § 1983,

alleging that the failure to provide him with proper medical care

violated his rights under the Fifth and Fourteenth Amendments, and

other unspecified federal laws. Dallas County moves for summary

judgment.
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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.,

869 F.2d 1565, 1573 (5th Cir. 1989)). Shepherd bases his § 1983

claim on allegations that the unconstitutional conduct of Dallas

County deprived him of due process under the Fifth and Fourteenth

Amendments.

B

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:

“[W]hen 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
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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)). Convicted prisoners derive

their right to have these basic needs met from the Eighth

Amendment’s prohibition on cruel and unusual punishment. Id.

Pretrial detainees, on the other hand, having not been adjudged

guilty of any crime and therefore not punishable at all, derive

their protections from the due process guarantees of the Fourteenth

Amendment. Id.; Bell v. Wolfish, 441 U.S. 520, 535-36 (1979).

These protections are said to be “at least as great as . . .

[those] available to a convicted prisoner.” Hare, 74 F.3d at 639

(internal quotation marks omitted). Therefore, because Shepherd is

a pretrial detainee, the operative question is whether he suffered

a violation of his Fourteenth Amendment rights. 

The applicable standard for making this determination depends

on whether the constitutional challenge is based on a “condition of

confinement” or 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). Where the claim is based on a condition of

confinement, “the constitutional challenge is to the ‘general

conditions, practices, rules, or restrictions of pretrial

confinement.’” Palo ex rel. Estate of Palo v. Dallas County, 2007

WL 2140590, at *2 (N.D. Tex. July 26, 2007) (Fitzwater, J.) (“Palo
- 7 -

II”) (quoting Hare, 74 F.3d at 644). By contrast, where the claim

is based on an episodic act or omission, “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 in his charge.’” Id.

(quoting Hare, 74 F.3d at 645).

Shepherd raises both types of challenges, and the court

addresses each in turn. 

III

A

In a § 1983 condition of confinement case, the pretrial

detainee attacks the general conditions, practices, rules, or

restrictions of pretrial confinement, and courts apply a 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.

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
- 8 -

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. Unlike an episodic

act or omission claim, a condition of confinement claim involves no

independent inquiry into the Jail officials’ state of mind, such as

whether they acted with “deliberate indifference.” Palo II, 2007

WL 2140590, at *2 (citing Hare, 74 F.3d at 643; Grabowski v.

Jackson County Pub. Defenders Office, 47 F.3d 1386, 1398 (5th Cir.

1995)). This is because the conditions perpetuated by Jail

officials “manifest[ ] an avowed intent to subject a pretrial

detainee” to those conditions. Hare, 74 F.3d at 644; see also id.

(“[E]ven where a State may not want to subject a detainee to

inhumane conditions of confinement or abusive Jail practices, its

intent to do so is nevertheless presumed when it incarcerates the

detainee in the face of such known conditions and practices.”).

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 only if it is

reasonably related to a legitimate governmental objective. Id. at

644-45; Bell, 441 U.S. at 539. 
- 9 -

B

The court turns first to Dallas County’s contention that

Shepherd has failed adequately to plead a conditions of confinement

claim.

 1

Fed. R. Civ. P. 8(a)(2) provides that a pleading that states

a claim for relief must be “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 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.

2

Dallas County argues in its reply brief that Shepherd has only

pleaded an episodic act or omission case, rather than a condition

of confinement case. In an episodic act or omission case
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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. 

Palo II, 2007 WL 2140590, at *4-*5 (internal quotation marks

omitted) (quoting Stephens v. Dallas County, Tex., 2007 WL 34827,

at *5 (N.D. Tex. Jan. 4, 2007) (Kinkeade, J.)). An instructive

example of an episodic act or omission case is found in Scott v.

Moore, 114 F.3d 51 (5th Cir. 1997). In Scott 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 complain[ed] 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.” Id. at 53. The

panel held that because “Scott did not suffer from the mere

existence of the alleged inadequate staffing, but 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. 

As this court has previously explained, a condition of

confinement claim based on inadequate medical treatment differs

from an episodic act or omission claim because, unlike in Scott, it
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“does not focus solely on the acts or omissions of the staff on

duty at the Jail. Rather, [it] also attacks the Jail medical care

system itself.” Palo II, WL 2140590, at *4. “In Scott the

plaintiff would not have been sexually assaulted had it not been

for the actions of the guard[,]” but in a condition of confinement

case, a plaintiff alleges that “the inadequate system of medical

care caused him to suffer a deprivation of his constitutional

rights.” Id.

3

Applying these principles to the present case, it is clear

that Shepherd has alleged a condition of confinement claim.

Shepherd avers that “there is no policy or procedure . . . for how

[new] inmates . . . are to receive their medication or be referred

to a physician . . . . Consequently, many inmates . . . fail to

receive medication for chronic illnesses such as hypertension.”

Compl. 5. He avers that “the process for evaluation of inmates

with chronic illnesses is grossly inadequate,” and that “none of

the inmates with chronic illnesses . . . are ever seen by a

physician for a clinical examination appropriate for their

condition.” Id. He alleges that “staffing levels at the Jail are

so inadequate that the nurses on duty are overwhelmed by the number

of requests for care[.]” Id. He maintains that, as a result,

nurses only examine “approximately 25% of the inmates requesting

care” for an “average of approximately three and a half minutes per
3Dallas County asserts that this case is analogous to Fifth

Circuit decisions that analyzed cases solely as episodic act or

omissions claims and required a showing of “deliberate

indifference.” See Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir.

2001); Sibley v. Lemaire, 184 F.3d 481, 488 (5th Cir. 1999). Those

decisions are distinguishable, however, because they involved

lawsuits against individual officials rather than against

municipalities. See Gibbs, 254 F.3d at 548; Sibley, 184 F.3d at

485-86, 488; see also Farmer v. Brennan, 511 U.S. 825, 834 (U.S.

1994) (holding that lawsuits against individual officials require

showing of “deliberate indifference”); Hare, 74 F.3d at 645

(holding that “deliberate indifference” standard is employed within

framework of episodic act or omission claim).

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patient including travel to and from housing units.” Id. 5-6.

The court need not recount the other allegations in Shepherd’s

complaint that support Shepherd’s condition of confinement claim,

because these are sufficient to give “fair notice” of that claim,

Oliver, 276 F.3d at 741, and, in particular, that Shepherd was

subjected to Jail conditions that were not reasonably related to a

legitimate governmental objective, see Bell, 441 U.S. at 539.3

Accordingly, the court overrules this ground for dismissing

the claim.

C

The court next considers Dallas County’s motion for summary

judgment on the condition of confinement claim. Dallas County

contends that Shepherd has failed to produce sufficient evidence to

show that he was denied his constitutional right to medical

treatment. 
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1

Because Dallas County will not have the burden of proof at

trial on Shepherd’s 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, Shepherd must go beyond

his 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).

Shepherd’s failure to produce proof as to any essential element

renders all other facts immaterial. Trugreen Landcare, L.L.C. v.

Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.)

(citing Edgar v. Gen. Elec. Co., 2002 WL 318331, at *4 (N.D. Tex.

Feb. 27, 2002) (Fitzwater, J.)). An issue is genuine if the

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

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

242, 248 (1986). Summary judgment is mandatory if Shepherd fails

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

2

In opposing summary judgment, Shepherd has introduced an

independent report by the consulting firm Health Management

Associates (“HMA”), commissioned by Dallas County almost one year

after Shepherd’s stroke. Michael Puisis, M.D. (“Dr. Puisis”)

performed the onsite analysis and prepared a report (the “HMA
- 14 -

Report”). The HMA Report revealed systemic failures in the medical

care provided at the Jail, including the fact that “[t]here is no

policy or procedure for how inmates who come into the Jail at

intake are to receive their medication or to be referred to a

physical.” P. App. 303. The system of inmate written requests for

medical treatment was found inadequate, and although correctional

health standards require that these requests be evaluated within 24

hours, Dr. Puisis observed that nurses were staffed to evaluate

them only two days a week. There were, he reported, “multiple

barriers to inmate access” to clinical evaluation by a nurse, id.

at 305, and many more inmates were scheduled for evaluation than

the nurses have time to see. Additionally, only one detention

officer was available at any given time to escort inmates to the

infirmary or medical staff to inmate housing units, as required by

Jail policy. This restricts access of patients to medical

treatment and was a “tremendous drag on the efficiency of staff.”

Id. at 306. Dr. Puisis also found that patients who entered the

Jail and were on medication for chronic illnesses or serious mental

disorders did not have their medication promptly restarted. He

observed that the method of monitoring chronic illness patients at

the Jail “is poor to non-existent.” Id. at 330.

Shepherd also relies on a report by the Department of Justice

(“DOJ”), which conducted onsite inspections of the Jail during a
4

Dallas County objects to this report for essentially the same

reasons it did in Palo II, 2007 WL 2140590, at *7-*9. The court

overrules the objections on the same grounds. See id.

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two-month period in early 2006.4

 DOJ found the results of its

investigation to be consistent with the findings in the HMA Report,

and concluded that the Jail had violated inmates’ constitutional

rights to medical care. It found, inter alia, that Dallas County

had failed to provide adequate nursing and physician care and that

inmates routinely missed doses of necessary medications. It also

discovered, in an analysis of 316 referrals for specialty care,

that the Jail had not scheduled a single appointment for any of

these referrals one month after they were made, a practice that it

considered to be “grossly inconsistent” with generally accepted

standards of care. Id. at 366. The findings in this report, as

well as those of the HMA report, are buttressed by the testimony of

Steven Bowers, M.D. (“Dr. Bowers”), the Medical Director of the

Jail, who considered them both to be generally accurate.

Shepherd has proffered the foregoing reports as summary

judgment evidence. He has also identified five specific

inadequacies at the Jail, relying in part on these reports and on

other evidence. First, he alleges that there is ineffective

communication between detention officers and medical staff. Dr.

Bowers testified that medical staff are not notified when inmates

are moved from one Jail tower to another, and there is no process

to enable communication between the detention staff and the medical
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staff to ensure that the medical providers know where the patients

are located. As a result, the medical providers waste much of

their time trying to research and track down the inmates, leading

to the worsening of some chronic conditions. 

Second, Shepherd maintains that inmate access to medical

treatment is inadequate, citing the fact that just before Shepherd

arrived at the Jail, only 45 or 70% of all prisoner requests for

treatment were being answered timely (depending on the facility in

which they were located).

Third, he alleges inadequate staffing of Jail detention

officers to escort medical staff and inmates to medical

appointments. As evidence, he relies on the HMA findings,

testimony by Dr. Bowers confirming that medical care was hampered

because of inadequate staffing, and testimony to the same effect by

Kristin Brannam (“Brannam”), the person in charge of monitoring

Dallas County’s contract with the University of Texas Medical

Branch at Galveston for medical treatment in the Jail. 

Fourth, Shepherd posits that the Jail suffered from inadequate

staffing of medical professionals. The HMA and DOJ reports devoted

considerable attention to this issue, some of which the court has

recounted above. Dr. Bowers also testifies that he repeatedly

complained to supervisors about the need for more staffing and

resources from the time he began working for the Jail in 1993 to

the present. There is evidence that, at least once, Jail
5

Dallas County objects to Ex. Nos. 6-7, 9-12, 14-15, and 20 of

Shepherd’s evidence appendix. Because the court concludes, without

considering the balance of the challenged evidence, that Shepherd

has met his summary judgment burden, it need not decide any of

Dallas County's objections that are not addressed in this

memorandum opinion and order.

- 17 -

facilities were left unattended by a nurse through an entire

weekend, resulting in the failure to dispense medications for two

days, and that on another, one nurse was left to administer care

for 3,000 inmates. 

Fifth, Shepherd complains of the inadequate system for

dispensing medications. According to the HMA Report, detainees who

are taking medications for chronic illnesses when they enter the

Jail do not have their medication promptly restarted. DOJ found

that the Jail frequently failed to do the following: (1) administer

medications in accordance with prescriptions; (2) maintain inmate

medication administration records concurrently with distribution;

and (3) follow general standards of care to monitor and adjust

inmates’ prescribed medication regimens. There is evidence that

some medical technicians did not deliver medications as required,

and also falsified records. The issues with understaffing,

discussed above, exacerbated all these problems.

3

The court need not recount the remainder of evidence that

Shepherd has introduced in support of his condition of confinement

claim.5

 Based on the foregoing, the court concludes that Shepherd
6

Dallas County advances the mistaken premise that Shepherd

must produce evidence that there was an intent not to provide for

adequate distribution of medications. This is incorrect because,

as the court has explained, if Shepherd adduces evidence of a

condition of confinement that is not reasonably related to a

legitimate government objective, Dallas County’s intent to subject

him to that condition is presumed. See Palo II, 2007 WL 2140590,

at *2-*3.

- 18 -

has adduced sufficient evidence to enable a reasonable jury to find

that he was deprived of adequate medical care due to the conditions

of his confinement. Specifically, a reasonable jury could find

that the medical care provided at the Jail suffered from various

inadequacies, including ineffective communication, inadequate

responses to requests for treatment, inadequate staffing, and

inadequate medication administration. The jury could also

reasonably find, based on the evidence of Shepherd’s own

experiences at the Jail, see supra § I, that he was subjected to

these inadequate medical conditions while he was a pretrial

detainee. Dallas County does not argue that the inadequate medical

conditions of which Shepherd complains were reasonably related to

a legitimate government purpose. Therefore, a reasonable jury

could find under the Bell standard that the conditions to which he

was subjected were not reasonably related to a legitimate

government purpose and therefore “punished” him, in violation of

his Fourteenth Amendment rights. Bell, 441 U.S. 538-39.6 Indeed,

if the summary judgment evidence that this court has reviewed in

Palo II and the present case is corroborated at trial, a reasonable
- 19 -

jury could easily find that at least some aspects of the medical

care provided at the Dallas County Jail is shockingly inadequate,

to the point that it deserves the strongest of rebukes. 

IV

The court now turns to Dallas County’s motion for summary

judgment on Shepherd’s episodic act or omission claim.

A

As noted above, an episodic act or omission claim is distinct

from a condition of confinement claim because it involves a

particular act or omission of one or more officials, whose intent

to cause harm is not presumed. See Hare, 74 F.3d at 645. In

proving this claim, Shepherd must show, first, that a county

employee violated his rights to medical treatment with “subjective

deliberate indifference.” Johnson v. Johnson County, 2006 WL

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

Flores, 124 F.3d at 738). Second, in order to hold Dallas County

liable for this act, Shepherd must prove that the constitutional

violation “resulted from a County policy or custom adopted or

maintained with objective deliberate indifference.” Id. (citing

Flores, 124 F.3d at 738). The court need not reach the second step

because Shepherd has failed to satisfy the first. 

B

Subjective deliberate indifference “cannot be inferred merely

from a negligent or even a grossly negligent response to a
- 20 -

substantial risk of serious harm.” Thompson v. Upshur County,

Tex., 245 F.3d 447, 459 (5th Cir. 2001) (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) (quoting Johnson v.

Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).

In the context of an episodic failure to provide reasonable

medical care to a pretrial detainee, this means that an official

will not be found deliberately indifferent unless three things are

established: “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

[to] occur.” Thompson, 245 F.3d at 458-59. 

Applying these principles to the present case, Shepherd must

identify an official who knew that Shepherd had high blood

pressure, understood the risks of high blood pressure, knew the

appropriate level of treatment, was aware that Shepherd had been

denied that level of treatment, and subjectively intended that this

happen. This he has failed to do. Although Shepherd has
- 21 -

demonstrated that some personnel knew some of this information, and

that others knew other facts, this is insufficient because

knowledge is not to be imputed between coworkers. See id.

(describing subjective inquiry). Of the evidence presented in

response to Dallas County’s summary judgment motion, the only

colorable effort to identify a particular official with deliberate

indifference is found in Shepherd’s description about the day of

his stroke. There, Shepherd emphasizes that Nurse Basham returned

him to his cell despite his third high blood pressure reading in

seven weeks, and despite his insistence that something was “very

wrong.” But given that Nurse Basham was acting under the orders of

Dr. Flangin, who made the medical determination that Shepherd could

be returned to his cell, this evidence is insufficient to show that

Nurse Basham understood the risk of harm to Shepherd and desired

that harm. As to Dr. Flangin, given that there is no indication

that, on other occasions during the course of her treatment of

Shepherd at the Jail, she had personally made incorrect medical

decisions or otherwise had neglected his needs, a single isolated

occurrence such as this is insufficient to enable a reasonable jury

to find that she was deliberately indifferent. 

In short, while the evidence Shepherd presents does create a

fact issue as to whether Jail policies caused him to receive

inadequate care, it does not create an issue as to whether any
7

Shepherd proffers the expert testimony of nurse Sharon Howard

and Lambert King, M.D., who have both concluded that Jail officials

were deliberately indifferent to Shepherd’s needs. For the same

reasons given in the court’s opinion, these legal conclusions lack

evidentiary support and are insufficient to enable a reasonable

jury to find in Shepherd’s favor on this claim.

- 22 -

particular Jail official was deliberately indifferent.7

Accordingly, the motion for summary judgment on Shepherd’s episodic

act or omission claim is granted.

* * *

For the foregoing reasons, Dallas County’s motion for summary

judgment is granted in part (as to Shepherd’s episodic act or

omission claim) and denied in part (as to his condition of

confinement claim).

SO ORDERED.

March 6, 2008.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE