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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARBARA J. STEPHENS, §

AS ADMINISTRATRIX OF THE §

ESTATE OF JAMES LEROY §

RUFFINS, A.K.A., JAMES LEROY §

JOHNSON, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1009-K

§

DALLAS COUNTY, TEXAS, ET AL., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendants’ Motion for Summary Judgment, filed June 5,

2006. The court has reviewed and considered the motion, response, reply, summary

judgment evidence, pleadings on file in this case, and the applicable law. Because

Plaintiff has failed to raise a genuine issue of material fact with respect to any of her

claims against Defendants, Defendants’ Motion for Summary Judgment is granted.

I. Factual and Procedural Background

The following relevant undisputed facts are presented in the summary

judgment record:

James Leroy Ruffins, a.k.a James Leroy Johnson (“Johnson”) was booked into

the Dallas County Jail at approximately 3:30 p.m. on October 25, 2004. During

Johnson’s confinement in the jail, the University of Texas Medical Branch at

 

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Galveston (“UTMB”) provided medical care and treatment to inmates on the

county’s behalf, pursuant to a contract between UTMB and Dallas County. 

At the time of booking, Johnson stated that he had a medical problem, and he

was seen by Nurse Bill Burnett (“Burnett”) during the central intake process.

Johnson stated at that time that he had tuberculosis for a year in 1974, that he was a

non-insulin dependent diabetic, and that he had congestive heart failure but did not

know what medication he took for this condition. He also said that he had been

diagnosed with hepatitis C, cirrhosis, high blood pressure, and also had a history of

drug abuse.

Johnson reported that his diabetes was being treated with Glyburide, an oral

diabetic medication, and that he was also taking a medication for high blood pressure,

but he did not know what medication he took for this condition. He did not inform

Burnett that he was taking any additional medications. As was provided by the

standing orders of Dr. Steven Bowers, the jail’s Medical Director, Burnett ordered

that Johnson’s vital signs and blood glucose be checked for three days.

Early the next morning, on October 26, 2004, a nurse assigned to the jail’s

infirmary reviewed Johnson’s medical chart and made arrangements for his vital signs

to be checked each shift for the next three days and for his blood sugar to be tested

twice a day for 3 days. The nurse also put Johnson’s chart in for review by a doctor. 

Later that same day, Johnson’s sister Barbara Stephens (“Stephens”) went to

the jail to deliver Johnson’s medications. Stephens met with Officer Crump at the

 

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jail. Officer Crump told Stephens that inmates at the jail were not permitted to have

their own medications brought to them. Although Officer Crump told Stephens that

jail inmates could not bring their own medications with them, his statement was

incorrect. Stephens has presented summary judgment proof showing that the jail’s

policy actually permits inmates to continue on their current medications for 14 days

following book-in.

Johnson’s medical records show that no medications were provided to him on

October 26, 27, 28, and 29. While Johnson was detained in the jail, Stephens called

each day for reassurance that he was receiving his medications. Although she does

not identify who she spoke with, she states that she was told Johnson was getting the

needed medications. 

On October 29, Johnson was seen by Nurse James Daughtery (“Daughtery”)

regarding his congestive heart failure, diabetes, and hypertension. Daughtery noted

in Johnson’s medical records that Johnson was set up for blood sugar and blood

pressure checks, and that Stephens had been contacted for a list of Johnson’s

medications. Daughtery included this list of medications in Johnson’s medical

records. Also on October 29, Stephens signed an authorization allowing the release

of Johnson’s medical records to the jail, including a complete record of his

medications. Daughtery then set Johnson up to see a doctor for evaluation and to

prescribe medications.

 

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Dr. Roy Reid (“Reid”) saw Johnson on October 30 and ordered his

medications and a metabolic profile. Reid further noted on Johnson’s medical record

that Johnson was started on his medications that day. On November 2, a complete

metabolic panel was performed on a specimen of blood drawn from Johnson and he

had a chest x-ray. The results of the blood test and x-ray were reported the next day,

November 3, and Dr. Kathryn Flangin (“Flangin”) also reviewed Johnson’s medical

chart that day.

On November 7, Johnson was seen in the jail infirmary by Nurse Candice

Stewart (“Stewart”), who noted that Johnson was complaining about not getting all of

his medications and was asking to see the doctor. Stewart further noted that Johnson

had a list of medications he was taking before entering the jail, and that Johnson’s

medical records showed that he “is already on these med. as per his medication

sheet.” Stewart’s note ends with a request that “MD please review and evaluate

him.”

The next day, Bowers asked Flangin to see Johnson. Flangin did so, and noted

that Johnson had been off his medications for a few days, but was “now back on

meds.” She further stated that Johnson needed closer monitoring, and recommended

that he be transferred back to the infirmary. Johnson was then transferred back to

the infirmary that same day, November 8. Johnson was also seen in the infirmary

that day by Nurse Deborah Watson (“Watson”). Watson noted Johnson’s diagnoses

of congestive heart failure, diabetes and cirrhosis of the liver, and additionally noted

 

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that Johnson’s scrotum was swollen, his abdomen was hard and swollen, and that he

was short of breath. She reported these symptoms to Nurse Linda Moody

(“Moody”), who ordered that two of his medications be increased. The initial

increased dose of those two medications was given to Johnson that day, and also on

November 9. Johnson also had an EKG on November 8, and additional lab work was

ordered for the morning of November 9. Stephens visited Johnson on November 8,

and also noticed that he appeared swollen.

In her clinic notes dated November 9, at 7:51 a.m., Moody noted that she had

been advised the night before that Johnson was suffering from “worsening edema”

and that increased medications had been ordered. Moody saw Johnson about three

hours later on that same day, and concluded that Johnson had liver failure and

probable liver cancer. Johnson told her he had been seen at Parkland Hospital’s

outpatient clinic. Her plan of treatment was to get Johnson’s medical records from

Parkland, stop Glyburide if his blood sugar was high and treat his diabetes with

insulin instead, give him pain medications, and keep him off his feet with feet

elevated. She also made changes to his medications, and ordered that he be sent to

the Parkland clinic for his congestive heart failure, and to continue having his vital

signs checked while he was in the jail. Later that afternoon, Johnson refused to have

his vital signs taken or his blood sugar checked.

On the night of November 9, Nurse Katriena Blackman (“Blackman”) received

reports that Johnson was foaming at the mouth. Noting that he had been asleep all

 

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day, Blackman tried to wake Johnson and get him out of bed, but Johnson was unable

to get out of bed on his own. He was therefore brought out of his tank for

observation. Nurse Anita Estes (“Estes”) assessed Johnson at 10:00 p.m. that night,

and found him somewhat incoherent. Estes notified Ramona Leach, P.A. (“Leach”)

of her observations, and Leach ordered that Johnson be transported to Parkland

Hospital. Johnson was transported to Parkland via ambulance at 10:30 p.m. on

November 9.

Johnson was admitted to Parkland due to “altered mental status.” Parkland

staff also noted “hepatitis C cirrhosis, history of hepatitis C, hypertension, [and]

congestive heart failure.” Johnson’s record from Parkland also states that his medical

history included “hepatitis C cirrhosis, hepatocellular carcinoma diagnosed in June

2004, hepatitis B, Type II diabetes mellitus, hypertension, [and] congestive heart

failure.” He died at Parkland on November 13, 2004.

On the day of Johnson’s death, the medical examiner did an external

examination of his body and determined that Johnson died of natural causes. She

further stated that his death was caused by cirrhosis, hepatocellular carcinoma

associated with hepatitis Band C infection, hypertension, heart disease and diabetes. 

Stephens does not dispute the above facts, which are largely found in

Johnson’s medical records, as well as Stephens’ own affidavit. In addition to the

above facts, Stephens has submitted into the record historical information regarding

the delivery of medical services to Dallas County Jail inmates, staffing issues faced by

 

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the jail, the contract between Dallas County and UTMB, and various inspections and

investigations conducted regarding conditions in the jail. However, she does not

explain how this evidence actually supports her claims, or how these facts specifically

affected Johnson during his stay in the jail, beyond conclusory statements that these

policies and practices caused Johnson’s death. As to the facts that specifically pertain

to Johnson, Stephens’ primary argument is that Defendants violated Johnson’s civil

rights because he did not receive his medications during part of his jail stay.

Stephens filed suit against Dallas County and Lupe Valdez (“Valdez”) in her

official capacity as Sheriff of Dallas County (collectively, “Defendants”) on May 17,

2005. In her Original Complaint (“Complaint”) Stephens pleads federal claims under

42 U.S.C. §§ 1983 and 1988 along with various state law claims. Defendants Dallas

County and Valdez now move for summary judgment on all of Stephens’ claims.

II. Summary Judgment Standard

Summary judgment is appropriate when the pleadings, affidavits and other

summary judgment evidence show that no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden

of identifying those portions of the record it believes demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 322-25. Once a movant makes a

properly supported motion, the burden shifts to the nonmovant to show that

 

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summary judgment should not be granted; the nonmovant may not rest upon

allegations in the pleadings, but must support the response to the motion with

summary judgment evidence showing the existence of a genuine fact issue for trial. Id.

at 321-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57 (1986). All evidence

and reasonable inferences must be viewed in the light most favorable to the

nonmovant. United States v. Diebold, Inc., 369 U.S. 654 (1962).

III. Defendant’s Motion for Summary Judgment

In support of their request for summary judgment, Defendants argue that the

factual record in this case does not raise a genuine issue of material fact regarding

Stephens’ claims that Johnson was denied medical care in violation of his federal

constitutional rights, and that she also cannot avoid summary judgment on her state

law claims, because the county has not waived its sovereign immunity to liability on

those claims. 

A. Stephens’ Capacity to Sue on Behalf of Johnson’s Estate

On summary judgment, Defendants argue that there is no evidence in

the record that Stephens has the legal capacity to bring claims on behalf of her

brother’s estate. In response, Stephens has produced her affidavit, which states that

she is administratrix of Johnson’s estate. The court finds that this proof is sufficient

to raise a genuine issue of material fact regarding Stephens’ capacity to bring suit, and

accordingly, does not grant summary judgment on these grounds.

 

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B. Claims Against Valdez

Defendants state that Stephens’ claims brought against Valdez in her official

capacity are redundant because she has also sued the county. The court agrees. 

Official capacity suits are merely another way of pleading an action against the

entity that employs the individual or agent sued. Kentucky v. Graham, 473 U.S. 159,

165-66 (1985); Smith v. Johnson, 2005 WL 578470, *4 (N.D. Tex. 2005). In all

respects but name, an official capacity suit is to be treated as a suit against the entity.

Turner v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478, 484 (5 Cir. th

2000). The official capacity claims and the claims against the governmental entity

essentially merge. Id. at 485. Consequently, in cases where the relevant

governmental unit has also been sued, official capacity claims against individual

officers or employees of that entity are merely a Areformulation@ of the plaintiff=s

claims against the entity, and the official capacity claims are redundant. Clark v. La

Marque I.S.D., 184 F. Supp. 606, 612 (S.D. Tex. 2002); see also Byrum v. City of

Mesquite, Texas, 2004 WL 733137, *1 n.1 (where city was sued, identifying individual

officers as parties in their official capacities was Aredundant@ and Asurplusage@). 

Because Stephens has sued Dallas County, her official capacity claims against

Valdez are redundant. Therefore, as to these claims Defendants= Motion for

Summary Judgment is granted. Stephens’ official capacity claims against Valdez are

dismissed with prejudice.

 

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C. Federal Claim for Denial of Medical Care

The denial of medical care to a pretrial detainee such as Johnson involves an

allegation of a deprivation of due process under the Fourteenth Amendment. Fields v.

City of South Houston, 922 F.2d 1183, 1191 (5 Cir. 1991); Pfannstiel v. City of th

Marion, 918 F.2d 1178, 1186 (5 Cir. 1990). Stephens alleges that the County is th

liable under 42 U.S.C. § 1983 for failing to provide Johnson with his medications

during part of the period of time he spent detained in the jail. 

1. Conditions of Confinement or Acts or Omissions?

The parties differ as to whether Stephens’ section 1983 claim should be

considered a “conditions of confinement” case or one involving specific acts or

omissions allegedly causing harm to Johnson. When a detainee complains of the

number of bunks in a cell, or mail or television privileges, that is best characterized as

a complaint regarding general conditions of confinement. Edwards v. Johnson, 209

F.3d 772, 778 (5 Cir. 2000); Scott v. Moore, 114 F.3d 51, 53 (5 Cir. 1997). In a th th

“conditions of confinement” case, a constitutional violation arises only if the

complained-of condition is not reasonably related to a legitimate, non-punitive

governmental objective. Scott, 114 F.3d at 53.

However, where the complaint is concerning a particular act or omission of one

or more officials, it should be categorized as an “episodic act or omission” case.

Edwards, 209 F.3d at 778; Scott, 114 F.3d at 53. In an episodic act or omission case,

an actor usually is interposed between the detainee and the municipality, such that

 

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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. Scott, 114 F.3d at 53. In this type of

case, a plaintiff must prove an underlying constitutional violation by showing that

that individual actor or actors acted with subjective deliberate indifference. Edwards,

209 F.3d at 778; Scott, 114 F.3d at 54. Once a detainee has established an

underlying constitutional violation, to hold the municipal entity liable it must show

that the employee’s act or omission resulted from a municipal policy or custom

adopted or maintained with objective deliberate indifference to the detainee’s

constitutional rights. Scott, 114 F.3d at 54, citing Farmer v. Brennan, 511 U.S. 825,

841 (1994).

Here, the court views this case as one involving episodic acts or omissions.

Stephens has complained of a particular set of acts or omissions – that Johnson did

not receive his required prescription medications for several days while detained in

the jail. She now seeks to hold Dallas County liable for those acts or omissions of its

employees by attempting to show that those acts or omissions flowed from an official

policy or custom of the County. Therefore, the court will examine Stephens’ section

1983 claim under the well-established “deliberate indifference” standard.

2. Elements of Municipal Liability Under 42 U.S.C. § 1983

Under 42 U.S.C. § 1983, a governmental entity such as Dallas County can

only be held liable if there is either an unconstitutional action by official

 

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policymakers or a policy or custom that caused the deprivation of a constitutional

right. Monell v. Dept. of Soc. Svcs., 436 U.S. 658, 694 (1978); Johnson v. Deep East

Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5 Cir. 2004).

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Municipal liability on a claim brought under section 1983 requires proof of three

elements: 1) a policymaker; 2) an official policy; and 3) a violation of constitutional

rights whose “moving force” is the policy or custom. Monell, 436 U.S. at 694;

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5 Cir. 2001). The court will review th

the summary judgment evidence as to each of these elements.

a. Policymaker

Stephens has alleged that the applicable policymakers were either Valdez or

her predecessor Jim Bowles (“Bowles”). Dallas County has not disputed on summary

judgment whether Valdez or Bowles was the official policymaker regarding medical

care at the jail. Therefore, this undisputed evidence is viewed in the light most

favorable to Stephens, the non-movant. Diebold, Inc., 369 U.S. at 655. The court

therefore assumes for purposes of summary judgment that Stephens has raised a

genuine issue of material fact regarding the existence of a policymaker.

b. Official Policy or Custom

Municipal policy for purposes of section 1983 liability may be found in a

policy statement, ordinance, regulation, or decision that is officially adopted and

promulgated by the municipality’s lawmaking officers or by an official to whom the

lawmakers have delegated policy-making authority. Johnson, 379 F.3d at 309, citing

 

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Johnson v. Moore, 958 F.2d 92, 94 (5 Cir. 1992). Alternatively, municipal policy th

under section 1983 can be a persistent, widespread practice of municipal officials or

employees, which, although not authorized by officially adopted and promulgated

policy, is so common and well settled as to constitute a custom that fairly represents

municipal policy. Id. Actual or constructive knowledge of such custom must be

attributable to the governing body of the municipality or to an official to whom that

body had delegated policy-making authority. Id. 

Stephens does not assert that Dallas County has an official policy that

prevented Johnson from receiving his medications while he was detained in the jail.

Rather, Stephens has generally alleged that there is a widespread failure to provide

sufficient medical care to detainees, and that this failure is so common that it is

actually a custom that represents county policy. 

More specifically, she argues that other official customs of the jail were a)

allowing intake security officers to perform initial medical and mental health

screening of inmates; b) inadequate policy regarding medication administration and

continuity of medical care received by inmates while incarcerated; c) continued and

systematic policy of not meeting required staffing numbers in the jail; and d) having a

policy, practice and/or procedure of not providing any training on the identification,

and care for inmates with pre-existing medical conditions requiring continuous

medical attention and needs. (Plaintiff’s Response to Defendants’ Motion for

Summary Judgment, pp. 11-12; Plaintiff’s Brief in Support of Her Response to

 

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Defendants’ Motion for Summary Judgment, p. 17). Stephens has pointed to specific

record evidence regarding the staffing issues, but all of the other policies she has

alleged are treated in a conclusory fashion in her response and brief.

As the non-movant, Stephens must go beyond the pleadings and designate

specific facts in the record showing that there is a genuine issue for trial. Adams v.

Travelers Indemnity Co. of Connecticut, 465 F.3d 156, 164 (5 Cir. 2006), citing Celotex, th

477 U.S. at 323. The court is not obligated to comb the record in search of evidence

that will permit her to survive summary judgment. Adams, 465 F.3d at 164; Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5 Cir. 1998). While Stephens has th

identified evidence related to concerns about staffing levels, her section 1983 claim is

based upon the jail’s failure to provide medications to Johnson during his time in the

jail, not the level of staffing present in the jail. Thus, the court finds that Stephens

has failed to raise a genuine issue of material fact regarding whether Dallas County

had an official policy or custom that jail inmates were not to be given needed

medications, an essential element of Dallas County’s liability under 42 U.S.C. §

1983. 

c. Underlying Constitutional Violation/Moving Force

Finally, the court must evaluate the third element of municipal liability --

whether Johnson suffered a violation of his constitutional right to medical care, and

whether an official policy or practice of Dallas County was a “moving force” behind

that violation. Piotrowski, 237 F.3d at 578.

 

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Inadequate medical care by a jail doctor can result in a constitutional violation

under section 1983 when that conduct amounts to deliberate indifference to the

detainee’s serious medical needs, constituting the unnecessary and wanton infliction

of pain. Harris v. Hegmann, 198 F.3d 153, 159 (5 Cir. 1999), citing Stewart v. th

Murphy, 174 F.3d 530, 533 (5 Cir. 1999). Under the deliberate indifference th

standard, a prison official is not liable for the denial of medical care unless the official

knows of and disregards an excessive risk to inmate health or safety. Harris, 198 F.3d

at 159.

For an official to act with deliberate indifference, the official must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference. Id. Such indifference on

the part of a government employee can be evidenced by intentionally denying or

delaying access to medical care or by intentionally interfering with the treatment

prescribed. Id., citing Estelle v. Gamble, 429 U.S. 97, 104-05. Liability requires more

than ordinary lack of due care, and a showing of simple or even heightened negligence

will not suffice to establish deliberate indifference. Farmer, 511 U.S. at 835; Wilson v.

Seiter, 501 U.S. 294, 305 (1991); Johnson, 379 F.3d at 309. To be deliberately

indifferent, an official must have the subjective intent to cause harm. Mace v. City of

Palestine, 333 F.3d 621, 626 (5 Cir. 2003).

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Here, Stephens has produced no evidence on summary judgment suggesting

that any of the numerous medical staff members at the Dallas County jail who cared

 

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for Johnson had the requisite subjective intent to harm him. Defendants have

submitted Johnson’s medical records on summary judgment, which show that he

received almost daily medical care and monitoring throughout his time in the jail.

Although it is undisputed that Johnson did not receive his medications for

approximately four days, the undisputed summary judgment proof also shows that

Johnson did not know most of the medications he was supposed to be taking, but jail

medical staff took steps immediately upon his intake to determine what the needed

medications were and to obtain those medications for him. When the jail received

Stephens’ written release to obtain Johnson’s medication records on October 30, all

of Johnson’s medications were given to him that same day. The record further shows

that jail staff adjusted Johnson’s medications as his symptoms progressed, and

prescribed additional medications for him. Stephens has not provided any summary

judgment evidence that raises a material factual dispute concerning any of this

evidence submitted by Defendants. 

Viewing the factual record as a whole, the court does not find that the failure

to give Johnson his medications over a four-day period even rises to the level of

negligence. However, even if this omission did constitute negligence or medical

malpractice, such a failure to practice due care does not support a finding of liability

under section 1983. See Farmer, 511 U.S. at 835 (liability requires more than

ordinary lack of due care); Johnson, 379 F.3d at 309 (a showing of simple or even

heightened negligence will not suffice to establish municipality’s liability under 42

 

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U.S.C. § 1983); Harris, 198 F.3d at 159 (malpractice and negligent treatment do not

rise to the level of a constitutional tort). 

Finally, Officer Crump’s misstatement of the rules regarding inmate

medications, even when taken as true, also will not support a finding of liability

against Dallas County. Stephens’ summary judgment evidence shows that the jail’s

official policy was to allow new inmates their current medications for at least 14 days

following book-in. Further, Stephens has produced no summary judgment evidence

showing that Crump had subjective knowledge of Johnson’s actual medical condition,

and drew an inference from such knowledge that there was a substantial risk of

serious harm to Johnson if he did not receive his prescription medications. Moreover,

even if there were a basis for individual liability against Crump, Dallas County cannot

be held liable for his actions on a theory of respondeat superior. Monell, 436 U.S. at

690; Johnson, 379 F.3d at 308-09. Based upon the summary judgment record and the

applicable law, the court finds that Stephens has failed to raise a genuine issue of

material fact regarding her claim that Johnson was unconstitutionally deprived of his

right to medical care. 

Stephens further attempts to support her section 1983 claim by arguing that

the county failed to train its jail employees to care for persons with a serious illness,

which she says “prevented non-medical jail official [sic] from obtaining the necessary

medical health care for [Johnson].” This allegation is entirely conclusory, as Stephens

has not identified specific facts or described any instances found in the summary

 

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judgment record showing that non-medical jail personnel should have obtained

medical care for Johnson but were not sufficiently trained to be aware of the need.

See Adams, 465 F.3d at 164 (non-moving party must identify specific facts in the

record to support her claims). Rather, the summary judgment record shows that

Johnson received consistent and almost daily (and sometimes more than daily)

medical care throughout his stay in the jail. The record further shows that Johnson’s

interactions regarding his medical issues were with the jail’s medical, rather than nonmedical staff. Stephens has not disputed any of these facts. 

Because Stephens has not set forth sufficient evidence on summary judgment

to raise a material issue of fact regarding either the existence of a custom or policy or

an underlying constitutional deprivation, the court necessarily concludes that she also

has not sufficiently carried her summary judgment burden of setting forth proof of a

causal link between the alleged policy and the constitutional harm, e.g., that the

policy is the “moving force” behind the violation. Thus, the court finds overall that

Stephens has failed to raise a genuine issue of material fact regarding two of the three

requisite elements of municipal liability, an official policy or custom, and a

constitutional violation whose “moving force” is the policy or custom. Dallas County

is entitled to judgment as a matter of law on Stephens’ section 1983 claim.

D. State Law Claim

Stephens’ remaining claim against Dallas County is for intentional infliction of

emotional distress under Texas law. Defendant Dallas County argues that it cannot

 

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be liable to Stephens on this claim because it has not waived sovereign immunity

under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code § 101.021(2).

Although a county does not enjoy immunity with respect to federal claims,

under state law a county is a governmental unit protected by the doctrine of sovereign

immunity. Travis County v. Pelzel & Associates, Inc., 77 S.W.3d 246, 248 (Tex. 2002);

Tex. Civ. Prac. & Rem. Code § 101.001(3)(B). Absent legislative consent or a waiver

of immunity, a county and its officials are protected from suit. Texas Dept. of Parks

and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims

Act provides for such a waiver in limited circumstances. Tex. Civ. Prac. & Rem. Code

§ 101.025; University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175,

177 (Tex. 1994). The statute permits governmental liability for personal injury or

death “caused by a condition or use of tangible personal or real property.” Id.

Stephens has not alleged that Johnson’s death was caused by the condition or

use of tangible personal or real property by the county, and has presented no

competent summary judgment proof raising a material fact issue whether this claim

falls within the scope of the statute’s waiver of sovereign immunity. Accordingly,

Dallas County is entitled to summary judgment on this claim.

 

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IV. Defendants’ Objections to Exhibits Contained in Appendix to

Plaintiff’s Response to Defendants’ Motion for Summary

Judgment

Defendants have lodged evidentiary objections to much of Stephens’ summary

judgment evidence. However, the court finds that it reaches the same conclusions as

to Defendants’ Motion for Summary Judgment whether or not it considers the

disputed evidence. Thus, Defendants’ Objections to Exhibits Contained in Appendix

to Plaintiff’s Response to Defendants’ Motion for Summary Judgment are denied as

moot.

V. Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment is

granted, and Stephens’ claims are hereby dismissed with prejudice. Judgment will

be entered by separate document.

SO ORDERED.

Signed January 4 , 2007.

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____________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

 

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