UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KENNETH ANDERSON and REGINA

BROWN, Individually and As

Representatives of the Estate of

KENDRICK DESHUN BAINES,

Deceased,

Plaintiffs,

VS.

DALLAS COUNTY, TEXAS,

Defendant.

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)

)

) CIVIL ACTION NO.

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) 3:05-CV-1248-G

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) ECF

)

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)

)

)

MEMORANDUM OPINION AND ORDER

Before the court are the motion of the defendant, Dallas County, Texas (“the

defendant” or “Dallas County”), for summary judgment and the defendant’s

objections to the plaintiffs’ summary judgment evidence. For the reasons set forth

below, the defendant’s objections are sustained in part and overruled in part and its

motion for summary judgment is granted. 

 

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I. BACKGROUND

The plaintiffs in this action, Kenneth Anderson (“Anderson”) and Regina

Brown (“Brown”) (collectively, “the plaintiffs”), are the parents of Kendrick DeShun

Baines (“Baines”). They filed this action on behalf of themselves and the estate of

Baines, their deceased son. 

Baines committed suicide on July 24, 2003, while incarcerated in the Dallas

County Jail. See Plaintiffs’ Original Complaint (“Complaint”) at 7. The day before

his death, a detention service officer (“DSO”) heard Baines threaten to kill himself

unless he was allowed to see his mother. See Defendant Dallas County’s Motion for

Summary Judgment (“Defendant’s Motion”) at 4. In response to this threat, Baines

was taken to the nurse’s station where he was examined by Nurse Hill. Id. Baines

was placed on suicide watch from the time he saw Nurse Hill until approximately

6:00 p.m. that evening. Id. At that time, Baines was transferred to the west tower of

the Lew Sterrett Justice Center. Id. When Baines was transferred, his paperwork did

not include a medical authorization for suicide precautions. Id. at 5. 

Around 11:00 a.m. the following morning, DSO Terry realized that Baines did

not have a mattress or bedroll. Id. at 7. This indicated to Terry that Baines might be

suicidal. Id. Accordingly, Terry notified DSO Strange, who checked Baines’s

buffcard. Id. Baines’s threat to commit suicide was recorded on his buffcard. Id.

Thus, the DSOs on duty knew that Baines had threatened to commit suicide

 

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1 This court’s local rules contain requirements for the filing of a motion

for summary judgment, a response thereto, and briefs in support of and in opposition

to the motion. See Local Rules 56.3, 56.4 and 56.5. The plaintiffs in this action have

filed a fifty page “response” to the motion for summary judgment and a nineteen

page brief in support of that response. See Plaintiffs’ Response; Brief in Support of

Plaintiffs’ Response to Dallas County’s Motion for Summary Judgment. In so doing,

the plaintiffs have apparently misinterpreted -- whether by design or not is unclear --

Local Rule 56.4, which allows a party to set out the legal and factual grounds for an

opposition to a summary judgment motion in the party’s response. However, the rule

also admonishes, “A response to a motion for summary judgment must not contain

argument and authorities.” Local Rule 56.4(c) (emphasis added). The plaintiffs, who

cite extensively to their appendix throughout their response in support of their factual

arguments, apparently ignored the rule’s prohibition regarding citation of authorities

or assumed the prohibition was limited to citation of legal authorities. However,

Local Rule 56.5(c) makes it clear that factual authorities, like legal authorities, should

be cited in a party’s brief rather than its response. See Local Rule 56.5(c) (“A party

whose motion or response is accompanied by an appendix must include in its brief

citations to each page of the appendix that supports each assertion that the party

makes concerning the summary judgment evidence.”) (emphasis added). Although

tempted to strike the plaintiffs’ response in its entirety for their blatant failure to

comply with these local rules, the court -- in an effort to efficiently manage its docket

-- has decided to overlook the violation and consider the response. 

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approximately three hours before his death. See Plaintiffs’ Response to Defendant

Dallas County’s Motion for Summary Judgment (“Plaintiffs’ Response”)1

 at 25-26. 

Upon learning that Baines was suicidal, DSO Strange asked Catherine Judd (“Judd”),

a physician’s assistant, to see Baines. Id. at 27. 

At about 1:10 p.m., Judd went to the third floor control center, and DSO

Strange asked if she was ready to see Baines. See Defendant’s Motion at 7. She

responded that she had a list of other inmates who she and the other physician’s

assistant, Cotten, wanted to see first. Id.; Plaintiffs’ Response at 28. Terry checked

on Baines multiple times while Judd was seeing other prisoners. Plaintiffs’ Response

 

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at 27. After Judd finished visiting other prisoners, at about 2:00 p.m., she returned to

the control room where the DSOs were eating pizza. Id. Around the same time,

DSO Chatman from the third watch was coming on duty. Defendant’s Motion at 8. 

At 2:10 p.m., Officer Chatman escorted Judd to see Baines. Id. Upon arriving

at Baines’s cell, Judd observed blood and said she could not tell if Baines was

breathing. Id. Baines was lying face down in his cell, with his jail issued jumper tied

around his neck. Id. 

Officer Chatman radioed for medical assistance. Id. Dr. Neller and medical

nurses responded to the call and went to Baines’s cell. Id. An ambulance was also

called, and Baines was taken to Parkland Hospital. Id. At 3:11 p.m., Baines was

pronounced dead. Id. The next day, on July 25, 2003, the Dallas County medical

examiner performed an autopsy on Baines. Id. He determined the cause of death to

be self-inflicted ligature strangulation. Id. 

The plaintiffs seek damages from Dallas County on three grounds:

(1) improper denial of medical treatment in violation of 42 U.S.C. § 1983 and the

United States Constitution; (2) violation of 42 U.S.C. § 12132, the Americans with

Disabilities Act (“ADA”), and 29 U.S.C. § 794, the Rehabilitation Act (“RA”); and

(3) violation of the Texas Tort Claims Act (“TTCA”), TEXAS CIVIL PRACTICE &

REMEDIES CODE § 101.021. See Complaint at 8-12. The defendant has moved for

summary judgment on each of these claims and also on the ground that the plaintiffs

 

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lack standing to bring this action on behalf of their son’s estate. See generally,

Defendant Dallas County’s Brief in Support of Motion for Summary Judgment

(“Defendant’s Brief”).

II. ANALYSIS

A. Legal Standard for Summary Judgment

Summary judgment is proper when the pleadings and evidence before the court

show that no genuine issue exists as to any material fact and that the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Celotex

Corporation v. Catrett, 477 U.S. 317 (1986). The disposition of a case through

summary judgment “reinforces the purpose of the Rules, to achieve the just, speedy,

and inexpensive determination of actions, and, when appropriate, affords a merciful

end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn

Company, 780 F.2d 1190, 1197 (5th Cir. 1986). While all of the evidence must be

viewed in a light most favorable to the nonmovants, Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)(citing Adickes v. S.H. Kress & Company, 398 U.S. 144, 158-

59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy

the nonmovants’ summary judgment burden. Calbillo v. Cavender Oldsmobile, Inc., 288

F.3d 721, 725 (5th Cir. 2002) (citing Little v. Liquid Air Corporation, 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc)). A genuine issue of material fact exists “if the

 

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evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248.

The movant makes the necessary showing by informing the court of the basis

of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues. Celotex, 477 U.S. at 323. The pleadings, depositions,

admissions, and affidavits, if any, must demonstrate that no genuine issue of material

fact exists. FED. R. CIV. P. 56(c). 

If the movant makes the required showing, the nonmovants must then direct

the court’s attention to evidence in the record sufficient to establish that there is a

genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this

burden, the “opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v.

Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must

show that the evidence is sufficient to support a resolution of the factual issue in their

favor. Anderson, 477 U.S. at 249. When conflicting evidence is presented, the court

is not permitted to make credibility determinations regarding the evidence. See

Lindsey v. Prive Corporation, 987 F.2d 324, 327 (5th Cir. 1993). The nonmovants

cannot survive a motion for summary judgment, however, by merely resting on the

allegations in their pleadings. Isquith for and on behalf of Isquith v. Middle South Utilities,

 

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Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988).; see also Celotex,

477 U.S. at 324.

B. Summary Judgment Evidence

1. Evidentiary Standard on Motion for Summary Judgment

A party seeking summary judgment may rely on any form of evidence listed in

Rule 56(c). See Celotex, 477 U.S. at 324. While the form of the summary judgment

evidence need not be admissible, the content of the evidence must meet evidentiary

requirements. See Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997) (finding

that the hearsay statements in an affidavit were “incompetent summary judgment

evidence”). Thus, for example, while an affidavit has limited admissibility at trial, it

is sufficient evidence to support or defeat a motion for summary judgment even

though inadmissible statements in the affidavit, such as hearsay statements, may not

be considered by the court. See id. 

2. Objections to the Plaintiffs’ Summary Judgment Evidence

Together with its fifty-page “response” to Dallas County’s motion for summary

judgment, the plaintiffs filed an appendix consisting of almost 3,200 pages. See

Appendix to Plaintiff’s Response to Defendant’s Motion for Summary Judgment

(“Plaintiff’s Appendix”). Dallas County has objected to many of the documents

contained in the appendix, and the plaintiffs have not responded to the defendant’s

objections. 

 

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a. Judicial Notice of Documents from Other Litigation

The defendant objects to the plaintiff’s request that the court take judicial

notice of documents produced from a different lawsuit. See Defendant’s Objections

to Documents Contained in Appendix to Plaintiffs’ Response to Defendant’s Motion

for Summary Judgment (“Defendant’s Objections”) at 1-2 (objecting to Plaintiffs’

Appendix at 0001-1228; 1281-2042; 2114-2162; 2243-2294). The Fifth Circuit

addressed the propriety of taking judicial notice in Taylor v. Charter Medical

Corporation, 162 F.3d 827, 829 (5th Cir. 1998), finding that Federal Rule of Evidence

201 allowed a court to take judicial notice of an “adjudicative fact” if the fact is not

subject to reasonable dispute in that it is (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot be questioned. Additionally, the Fifth

Circuit has determined that a court may take judicial notice of a “document filed in

another court . . . to establish the fact of such litigation and related filings,” but

“cannot take notice of the factual findings of another court.” Id. The court reasoned

that such findings do not constitute facts “not subject to reasonable dispute” within

the meaning of Rule 201 and that the doctrine of collateral estoppel would be

superfluous if it were permissible for a court to take judicial notice of a fact merely

because it was found to be true in some other action. Id. at 830 (citing United States

v. Jones, 29 F.3d 1549, 1553-54 (11th Cir. 1994); Liberty Mutual Investments Company

 

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v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992); Holloway v. A.L.

Lockhart, 813 F.2d 874, 878-79 (8th Cir. 1987)). While Taylor held out the

possibility that, in some rare circumstances, courts within the Fifth Circuit might be

able to take notice of the factual findings of another court if they satisfied the

indisputability requirement of Rule 201(b), the court explained that Rule 201

generally would not permit a court to take judicial notice of findings of fact from

other proceedings because those facts are usually disputed and almost always

disputable. Id. at 830. 

The plaintiffs ask the court to take judicial notice of more than 2,000 pages of

documents -- consisting primarily of deposition transcripts, affidavits and medical

records for individuals not involved in this litigation -- generated in other litigation. 

Clearly, the myriad of “facts” contained in these documents are neither generally

known nor reasonably indisputable. Indeed, information contained in deposition

testimony and affidavits is at least as disputable as a court’s factual findings. Thus,

the defendant correctly argues that the facts of which the plaintiffs ask this court to

take judicial notice do not fall within the meaning of Rule 201. Accordingly, the facts

are not appropriate for proof by judicial notice, and this court will not take such

notice of the voluminous materials requested by the plaintiffs. 

 

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2 The defendant makes several additional objections to the report, arguing

that it contains hearsay, hearsay within hearsay, conclusory statements, speculation

and improper opinion testimony. Defendant’s Objections at 4-5. However, the

defendant does not point to any specific statements within the lengthy report that are

objectionable. See id. Accordingly, these objections do not comply with Federal Rule

(continued...)

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b. The Health Management Associates Report

The defendant objects to use of the Health Management Associates Report

(“the report”), Plaintiffs’ Appendix at 1229-1280, on several grounds. First, the

defendant argues that the report is irrelevant. See Defendant’s Objections at 3-4. 

Specifically, the defendant argues the report contains no specific facts relating to the

suicide of Baines because it states only that Baines died as one of three suicides that

year, a rate probably below that of the Texas Department of Corrections. Id.

Additionally, the defendant argues that the report is irrelevant for two reasons: 1) the

investigation conducted in the report did not begin until almost a year and a half

after Baines’s death; and 2) the plaintiffs have not shown that the conditions during

the intervening months between Baines’s death and the report remained unchanged. 

Id. at 4. See e.g., United States v. Gordon, 634 F.2d 639, 644 (1st Cir. 1980) (holding

that the trial court did not err when it precluded testimony relating to events that

occurred two years after the matter at issues because it was irrelevant). Although the

court questions the relevance of the report to the plaintiffs’ case, the report will be

considered to the extent the court finds its contents relevant to determining the facts

of the present case.2

 

 

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2

(...continued)

of Evidence 103(a)(1), which requires an objecting party to make specific objections

detailing the specific evidence the party wishes to have stricken. See Tucker v. SAS

Institute, Inc., 462 F. Supp. 2d 715, 722 (N.D. Tex. 2006). 

3 As with the report discussed supra, the defendant makes several

additional objections to the letter. Dallas County argues the letter contains hearsay,

(continued...)

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c. U.S. Department of Justice Letter

The defendant next objects to a U.S. Department of Justice letter from Wan J.

Kim, Assistant Attorney General, to Margaret Keliher, Presiding Officer of the Dallas

County Commissioners Court. See Plaintiffs’ Appendix at 3054-3100. The

defendant objects that the letter is not relevant to the case because it was written

nearly three years after Baines’s death and the inspections mentioned within the

letter occurred two and a half years after his death. Moreover, the defendant argues

that the letter lacks relevance because only three of its forty-seven pages mention

suicide preventions. 

The court agrees with the defendant that the letter has little, if any, relevance. 

The letter does not address conditions in the Dallas County Jail when Baines was

there; rather, the document cites Baines’s death as an imprecise example of a suicide

occurring in the jail. Although the court finds that the letter is, at best, tangentially

relevant to this case, the court will allow the letter to the extent it is relevant to the

issues presented herein. Therefore, the defendant’s objections to the letter are

overruled.3

 

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3

(...continued)

hearsay within hearsay, conclusory statements, speculation and improper opinion

testimony. Defendant’s Objections at 6-7. However, the defendant does not point to

any specific statements within the lengthy letter that are objectionable. See id.

Accordingly, these objections do not comply with Federal Rule of Evidence 103(a)(1),

which requires an objecting party to make specific objections detailing the specific

evidence the party wishes to have stricken. See Tucker, 462 F. Supp. 2d at 722.

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d. The Affidavits of Experts Hayes and Thomas

The defendant also objects to the affidavits of Lindsay M. Hayes and David L.

Thomas, M.D., J.D., two of the plaintiffs’ experts. See Plaintiff’s Appendix at 3153-

3193. The defendant argues that the affidavits should not be considered because the

opinions offered by the experts are not proper. See Defendant’s Objections at 7.

Expert witnesses may perform two roles: (1) they may explain evidence to a

fact finder, and (2) they may act as the source of evidence for a fact finder. Salas v.

Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (citing In re Air Crash Disaster at New

Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)). The standard in deciding whether an

expert’s opinion should be admitted is stated in Rule 702 -- whether the testimony

will “assist the trier of fact to understand the evidence or to determine a fact in issue.” 

FED. R. EVID. 702; Salas, 980 F.2d at 305 (citing 3 Jack B. Weinstein and Margaret

A. Berger, Weinstein's Evidence ¶ 702[01] (1992)). “Stated more directly, the trial

judge ought to insist that a proffered expert bring to the jury more than the lawyers

can offer in argument.” Air Crash at New Orleans, 795 F.2d at 1233. 

 

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4 Generally, the affidavits contain only the experts’ conclusions

concerning counsel’s factual and legal arguments. See, e.g., Plaintiff’s Appendix at

3178-79 (averring that Dallas County had “clear knowledge” that there existed a

“systematic lack of care” for prisoners). 

5 The defendant repeats the same sort of vague objections regarding

hearsay, conclusory statements and improper foundation for opinion testimony that

it made regarding the report and the letter discussed supra. See Defendant’s

Objections at 9-10. As with the other documents, the defendant does not point to

any specific statements within the affidavits that are objectionable. Id. Accordingly,

these objections do not comply with Federal Rule of Evidence 103(a)(1), which

requires an objecting party to make specific objections detailing the specific evidence

the party wishes to have stricken. See Tucker, 462 F. Supp. 2d at 722.

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The affidavits at issue here offer little more than counsel could argue based on

the known facts.4

 Both affidavits are riddled with conclusory statements and

conjecture. Additionally, statements in the affidavits are often provided without

reference to underlying facts. Even so, because these statements are not being

presented to a jury, the court will not strike the affidavits. Rather, the court will

consider the affidavits to the extent they comply with Rule 702.5 

e. Newspaper Articles

Lastly, the defendant objects to the newspaper articles included in the

Plaintiff’s Appendix. See Plaintiff’s Appendix at 2043-2113. Newspaper articles are

“classic, inadmissible hearsay” and are unusable to defeat summary judgment. Roberts

v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005). This general rule applies

when the articles are offered to prove the truth of statements reported therein. Hicks

v. Charles Pfizer & Company Inc. 466 F. Supp. 2d 799 (E.D. Tex. 2005). Newspaper

 

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articles “are not sworn or certified, and the authors are not subject to crossexamination, rendering such articles incompetent summary judgment evidence.” Id.

at 805. 

Unless some exception to the general prohibition against hearsay set forth in

the Federal Rules of Evidence applies, statements made in newspaper articles cannot

be used as evidence to defeat a motion for summary judgment. The plaintiffs have

included what appears to be a business records affidavit together with the newspaper

articles in an apparent attempt to demonstrate admissibility. See Plaintiffs’ Appendix

at 2043. The affidavit states that the articles -- which the author refers to as “written

records” -- were “kept in the regular course of business . . . for an employee and/or

representative with personal knowledge of the information in the records.” Id.

(emphasis in original). However, newspaper articles are not records “kept in the

course of a regularly conducted business activity” within the meaning of Rule 803(6). 

One of the primary reasons newspaper articles are considered unreliable in the first

place is that the reporter is conveying information collected from other sources. 

Because their job function is to report news provided by others, reporters rarely have

personal knowledge of the facts underlying their stories. The court will not assume,

based on the blanket statement in a form affidavit sworn by someone other than the

authors of the articles presented, that the reporters actually had personal knowledge

of each and every fact reported in the articles. Moreover, news reporters often make

 

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inferences and hypothesize in their articles; the inclusion of such speculation also

makes the articles improper for evidentiary consideration. 

The plaintiffs’ presumptive contention that the articles are admissible under

Federal Rule of Evidence 803(6) is meritless, and the court cannot identify another

hearsay exception that would apply to the articles. In Dallas County v. Commercial

Union Assurance Company, 286 F.2d 388 (5th Cir. 1961), the Fifth Circuit found that

a newspaper article was admissible even though it did not qualify under any hearsay

exception. In that case, the Fifth Circuit applied the residual hearsay exception now

codified in Rule 807 and concluded that the article was admissible because it

contained appropriate guarantees of trustworthiness. Id. at 397-98. However, in the

case sub judice, the plaintiffs have not argued, and the court does not find, that such

circumstantial guarantees of trustworthiness are present. See FED. R. EVID. 807. 

Therefore, the newspaper articles are not competent summary judgment evidence,

and they will not be considered by the court. 

C. The Plaintiffs’ Standing

The defendant alleges that the plaintiffs have failed to show that they have the

capacity to sue on behalf of the estate of their deceased son. See Defendant’s Brief at

3. The plaintiffs counter that they may sue on behalf of their son’s estate in

accordance with Shepherd v. Ledford, 962 S.W.2d 28, 33-34 (Tex. 1998). Brief in

 

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6 The affidavits of Anderson and Brown contained in the plaintiffs’

appendix do not state whether Baines had a will. If Baines died intestate, the

plaintiffs are his lawful heirs in accordance with § 38(a)(2) of the Texas Probate Code

because Baines did not have a spouse or children. See Plaintiffs’ Appendix at 3101,

3103. If Baines did have a will, the statements of the plaintiffs in their affidavits are

adequate to show that they are his rightful heirs. See id. 

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Support of Plaintiffs’ Response to Dallas County’s Motion for Summary Judgment

(“Plaintiffs’ Brief”) at 17.

In Shepherd, the Texas Supreme Court found that the widow of a decedent had

standing to bring suit on behalf of his estate. Id. at 34. The court held that the

intestate husband’s estate immediately vested in his widow at the time of his death in

accordance with the Texas Probate Code and that the widow had properly shown that

no administration of the estate was necessary. Id. at 33-34. Accordingly, as the sole

heir of her deceased husband, Mrs. Ledford had standing to sue on behalf of her

husband’s estate. Id. at 34. 

In the case before this court, Baines’s estate immediately vested in the

plaintiffs in accordance with Texas law because they were his sole heirs.6

 See

Plaintiffs’ Appendix at 3101, 3103. Likewise, the plaintiffs stated in their sworn

affidavits that no formal administration of Baines’s estate was required and none is

pending. Id. Therefore, in accordance with the principles outlined by the Texas

Supreme Court in Shepherd, the court concludes that the plaintiffs have standing to

sue on behalf of Baines’s estate. 

 

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D. The Plaintiffs’ Claims

1. Denial of Medical Treatment

The plaintiffs’ first cause of action arises under 42 U.S.C. § 1983 and the

Eighth Amendment to the United States Constitution. Section 1983 provides a

remedy for plaintiffs who have suffered a violation of their constitutional rights. In

this case, the plaintiffs may recover under Section 1983 if they prove that an

individual acting under color of law deprived Baines of his Eighth Amendment right

not to be denied reasonable medical care. See 42 U.S.C. § 1983. In other words,

Section 1983 provides the mechanism by which the plaintiffs can recover if they

prove that their son’s constitutional rights were violated. See Harrington v. Harris,

118 F.3d 359, 365 (5th Cir.), cert. denied, 522 U.S. 1016 (1997). 

The Eighth Amendment prohibits the government from responding with

deliberate indifference to the serious medical needs of prisoners. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994). For an individual to act with deliberate

indifference, he must act with subjective recklessness. Id. at 839-40. Thus, before

liability may attach, a state actor must actually be aware of a serious medical risk

faced by a prisoner and choose to consciously disregard that risk by denying the

prisoner access to proper medical treatment. Lawson v. Dallas County, 286 F.3d 257,

262 (5th Cir. 2002). Subjective awareness of the medical need is required because

the Eighth Amendment protects only against wanton infliction of pain; negligent acts

 

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or omissions are insufficient to create liability under Section 1983. Estelle v. Gamble,

429 U.S. 97, 105 (1976) (“an inadvertent failure to provide adequate medical care

cannot be said to constitute an ‘unnecessary and wanton infliction of pain’”). 

The denial of a prisoner’s constitutional right to receive medical treatment can

be challenged under two rubrics: (1) “jail condition” cases involve a challenge to

“general conditions, practices, rules, or restrictions” incident to incarceration; and

(2) “episodic acts or omissions” cases involve the acts or omissions of individual state

actors and a determination of whether those acts or omissions constitute a violation

of a constitutional duty. See Hare v. City of Corinth, Mississippi, 74 F.3d 633, 644-45

(5th Cir. 1996) (en banc). The plaintiffs contend that Dallas County violated their

son’s rights under either analysis. However, a review of the relevant case law reveals

that the two rubrics are mutually exclusive because a different sort of intent is

required to establish liability under the two inquiries. See id. at 645 (“the

relationship between an official’s episodic acts or omissions and a legitimate

governmental objective begs the underlying question whether that official had the

requisite mental state to establish his liability as a perpetrator of that particular act or

omission, not as a dispenser of intended conditions or restrictions”). 

A violation may be found under the conditions of confinement theory only if

jail and county officials knew the jail’s conditions created a constitutional violation or

if they intended to force Baines to endure such conditions. See Ortega v. Rowe, 796

 

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F.2d 765, 768 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987). By contrast, the

episodic acts inquiry involves an analysis of the conduct of individuals, and liability

attaches if a state actor knowingly disregarded a serious risk of medical harm. See

Hare, 74 F.3d at 645. 

a. Conditions of Confinement

The plaintiffs posit that several conditions present at the jail at the time of

their son’s death led to their son being denied access to needed psychiatric treatment. 

The jail conditions the plaintiffs challenge are “inadequate funding, inadequate

staffing, inadequate monitoring of jail operations and acceptance by Dallas County

that it would continue to house inmates while routinely providing inadequate medical

care.” Plaintiffs’ Brief at 6-7. To succeed on their conditions of confinement claim,

the plaintiffs must show not only that these conditions existed, but also that they

were implemented or maintained by county officials with the intent of punishing

prisoners. See Ortega, 796 F.2d at 768. The plaintiffs have not provided summary

judgment evidence meeting this standard. 

The plaintiffs aver that unconstitutional conditions existed in the jail for a

number of years before and after their son’s death and that county officials received

reports discussing these violations. See Plaintiffs’ Response at 10-15. However, the

plaintiffs provide no evidence that the county maintained those conditions for the

purpose of punishing prisoners. Although a “long duration of a cruel prison condition

 

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may make it easier to establish knowledge and hence some form of intent,” the

plaintiffs are still required to show punitive intent. Wilson v. Seiter, 501 U.S. 294,

300-01 (1991) (emphasis in original). 

Here, the plaintiffs have shown the opposite; they have presented evidence

showing that Dallas County had policies in place making the provision of psychiatric

treatment to suicidal inmates a high priority. See Plaintiffs’ Appendix at 2681-82

(explaining that the jail had procedures for handling inmates who expressed suicidal

intent and that the medical staff would put a prisoner on suicide precautions quickly

after learning he had expressed a suicidal intent). Indeed, the plaintiffs acknowledge

“that there was no greater priority in the routine operation of the jail then [sic] to

provide for the prompt treatment of a suicidal inmate who had not been yet placed

on suicide prevention orders.” Plaintiffs’ Response at 26. The fact that such policies

and procedures existed indicates that Dallas County lacked the punitive intent

required to establish a violation of Baines’s constitutional rights under the conditions

of confinement rubric. See Ortega, 796 F.2d at 768. 

In Ortega, the Fifth Circuit found that jail officials were unreasonable and

negligent in their failure to regularly inspect jails. Id. Even so, the officials were not

liable under Section 1983 because state actors attempted to take care of prisoners’

needs by providing blankets and cleaning up cells. Id. Accordingly, the court found

that “the record shows no evidence of officials’ desire to punish the detainees.” Id.

 

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The same reasoning applies to the present case. Even if the defendant were grossly

negligent in its decisions regarding the allocation of funds for the jail or in its alleged

failure to monitor jail operations more closely, that negligence does not translate into

punitive intent. Therefore, the plaintiff has not established a Section 1983 claim

under the conditions of confinement analysis, and the defendant’s motion for

summary judgment on this claim is granted.

b. Episodic Acts or Omissions

The plaintiffs also contend that Dallas County is liable under the episodic acts

or omissions rubric. To survive summary judgment under this standard, the plaintiffs

must provide evidence that one or more jail employees (1) were consciously aware of

a serious risk of medical harm and (2) chose to disregard that risk by denying Baines

access to medical treatment. See Hare, 74 F.3d at 648. Taking the facts of the case

in the light most favorable to the plaintiffs, the court may assume that every relevant

state actor knew that Baines was suicidal at least three hours before his death. See

Plaintiffs’ Response at 25-26, 27. However, that does not necessarily mean that each

of these actors knew Baines faced a serious risk of medical harm. If Baines had been

placed on suicide precautions, then the plaintiffs admit that he would not have faced

a serious risk of injury. See Plaintiffs’ Response at 26 (“If a suicide order had been in

place, the clothing and item [sic] would would’ve [sic] been removed, Kendrick

[Baines] would have been clothed in a paper drape that would be extremely unlikely

 

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to be used as a deadly ligature.”). Therefore, only state actors who knew Baines was

suicidal and knew that he was not placed on suicide precautions were aware that

Baines faced a serious risk of harm. 

The plaintiffs contend that the DSOs and physician’s assistants all knew that

Baines was not on suicide precautions prior to his death. Id. at 26, 28. The

defendant disputes this contention, arguing that only the DSOs knew that Baines had

not been placed on suicide precautions and that the physician’s assistants, Judd and

Cotten, did not have that knowledge. See Defendant Dallas County’s Brief in

Support of Motion for Summary Judgment (“Defendant’s Brief”) at 7. The plaintiffs

respond that Cotten admitted in his affidavit that he knew Baines was not on suicide

precautions and that Judd should have been similarly aware. See Plaintiffs’ Response

at 28. However, Cotten’s affidavit says nothing of the sort. See Appendix to

Defendant’s Motion for Summary Judgment (Defendant’s Appendix”) at 168. 

Instead, Cotten states that Baines’s chart included a transfer order stating that Baines

“expressed suicidal intent” instead of the “standard ‘suicidal precautions’” form. Id. 

The plaintiffs have presented no evidence that the standard form must be filled

out before a prisoner is placed on suicide precautions, and the context of Cotten’s

statement indicates he believed the transfer order was a substitute for the standard

form in Baines’s case. See id. In his affidavit, Cotten states, “This form was however

not the standard ‘suicidal precautions’ form, but did explicitly state that the patient

 

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expressed suicidal intent.” Id. Cotten’s use of the phrase “but did explicitly state”

indicates the transfer order contained similar information to that which is included in

the standard suicide precautions form. Examining this statement in the context

provided by the plaintiffs’ other evidence -- “that there was no greater priority in the

routine operation of the jail then [sic] to provide for the prompt treatment of a

suicidal inmate who had not been yet placed on suicide prevention orders,” 

Plaintiffs’ Response at 26 -- the court cannot, as the plaintiffs suggest, read the

statement to indicate that Cotten knew Baines had not been placed on suicide

precautions. 

Because the plaintiffs have provided no summary judgment evidence showing

that Judd or Cotten knew that Baines had not been placed on suicide precautions, the

court cannot find that Judd and Cotten realized Baines faced a serious risk of harm. 

Therefore, Judd and Cotten could not have violated Baines’s constitutional rights

under the episodic acts or omissions inquiry. 

Even if it is assumed that Judd and Cotten, like the DSOs, knew that Baines

had not been placed on suicide precautions, none of the relevant state actors treated

Baines’s need for medical attention with deliberate indifference. The plaintiffs cite

evidence that DSO Strange asked Judd to see Baines on two occasions before Baines

committed suicide. Plaintiffs’ Response at 27. Similarly, they provide evidence that

DSO Terry checked on Baines at five-minute intervals during at least part of his shift. 

 

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Id. It is, therefore, clear that the DSOs were attending to Baines and attempting to

obtain medical care for him. 

Similarly, the physician’s assistants, Judd and Cotten, were not deliberately

indifferent to the risk Baines faced. Judd testified in her deposition that if she had

known Baines was suicidal but was not on suicide precautions she would have tried to

assess him as soon as possible. See Defendant’s Appendix at 259. In addition, the

evidence shows that Judd and Cotten tried to obtain an officer escort to see Baines

and two other suicidal inmates on three occasions earlier in the day that Baines

committed suicide. See Defendant’s Appendix at 167. Unfortunately, no officer was

available, and Judd and Cotten decided not to visit the prisoners without an escort. 

Id. While this decision to not visit Baines without an officer escort may have been

negligent or even grossly negligent, it does not rise to the level of deliberate

indifference because there is no evidence that Judd and Cotten intended to cause

Baines harm by not visiting him. See Hare, 74 F.3d at 649 (“‘Deliberate indifference,

i.e., the subjective intent to cause harm, cannot be inferred from a prison guard’s

failure to act reasonably. If it could, the standard applied would be more akin to

negligence than deliberate indifference.’”).

Although the circumstances of this case are tragic and some, if not all, of the

state actors appear to have been negligent in failing to obtain medical care for Baines

more quickly, their conduct does not implicate the protections of the Eighth

 

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Amendment under the episodic acts or omissions rubric. While better

communication and cooperation might have prevented Baines from committing

suicide, the subjective intent required for deliberate indifference cannot be inferred

from the absence of communication and cooperation. See Ortega, 796 F.2d at 768-69

(“The facts of this case, however, show no more than a sloppy system of cooperation

between federal and local authorities. Blindly assuming away one’s responsibilities

without first discovering others’ expectations can be seen as unreasonable--nothing

more.”). Accordingly, the defendant’s motion for summary judgment on the

plaintiffs’ Section 1983 claim under the episodic acts and omissions rubric is also

granted. 

2. The ADA and RA Claims

The plaintiffs next cause of action is based upon the ADA and the RA. The

ADA states that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C.A. § 12132. Similarly, the RA is designed to prevent an

individual with a disability from being excluded from or denied the benefits of

programs and activities that receive federal funding solely because of the individual’s

disability. See 29 U.S.C. § 794. 

 

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The plaintiffs base their claim under these two statutes on allegations that

Dallas County denied Baines medical treatment due to a mental disability by

(1) “providing medical services to detainees in a manner that discriminates against

mentally disabled detainees,” and (2) “denying mentally ill detainees services that are

provided to detainees who are not mentally ill that would have kept them from

harm.” Plaintiff’s Complaint at 11. The defendant contends that “there is no

evidence that Baines was excluded from participating in some benefit at the Jail and

that such exclusion was due to discrimination on account of a disability.” 

Defendant’s Brief at 16. Though the plaintiffs filed almost seventy pages of argument

and briefing in response to the defendant’s motion for summary judgment, they failed

to respond to the request for summary judgment regarding their cause of action under

the ADA and the RA. 

The court is unable to identify any benefit or service that was denied to Baines

on the basis of his disability, nor does it see evidence to support the allegations

contained in the plaintiffs’ complaint regarding those claims. The plaintiffs have

offered no evidence that Dallas County denied any medical service to mentally ill

prisoners in general, or to Baines specifically, while providing treatment to those

prisoners who were not mentally ill. Thus, the defendant’s motion for summary

judgment with respect to the plaintiffs’ cause of action under the ADA and the RA is

granted. 

 

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3. The Texas Tort Claims Act Claim

The plaintiffs’ final claim is that “Dallas County, by and through its

employees, was negligent in the use of jail clothing and the jail cell itself.” Plaintiffs’

Complaint at 12. The TTCA, in relevant part, provides governmental liability for

“personal injury and death so caused by a condition or use of tangible personal or real

property if the governmental unit would, were it a private person, be liable to the

claimant according to Texas law.” TEXAS CIVIL PRACTICE & REMEDIES CODE

§ 101.021. To avoid summary judgment on this claim, the plaintiffs must show that

the TTCA’s waiver of sovereign immunity applies to this case. 

The Texas Supreme Court has held that liability for the use of real or personal

property can attach to a governmental entity only “when the governmental unit is

itself the user.” San Antonio State Hospital v. Cowan, 128 S.W.3d 244, 245-46 (Tex.

2004). Therefore, Dallas County’s sovereign immunity may only be waived by its

own use of jail clothing and the jail cell, not by Baines’s use of those items. See id.

“A governmental unit does not ‘use’ personal property by merely allowing someone

else to use it.” Cowan, 128 S.W.3d at 246. The same can be said for real property. 

Because Dallas County did not “use” jail clothing or the jail cell as that term

has been defined by the Texas Supreme Court, the TTCA’s waiver of sovereign

immunity does not apply. The defendant’s motion for summary judgment on the

plaintiffs’ TTCA claim is therefore granted. 

 

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III. CONCLUSION

For the reasons stated above, the defendant’s objections to the plaintiffs’

summary judgment evidence are SUSTAINED in part and OVERRULED in part,

and its motion for summary judgment is GRANTED. Judgment will be entered that

the plaintiffs take nothing from Dallas County on their claims in this case. 

SO ORDERED.

April 18, 2007.

 

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