1 District Judge of the Eastern District of Texas, sitting by

designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 96-40604.

Regina Lynn DOWNEY, Plaintiff/Appellee, Cross/Appellant,

v.

DENTON COUNTY, TEXAS; et al., Defendants,

Denton County, Texas, Defendant/Appellant, Cross/Appellee,

and

Adorphus Bell, Misha Karakashevich, Sergeant, Weldon Lucas,

Sheriff, Kirby Robinson, Sheriff, Defendants/Cross/Appellees.

Aug. 20, 1997.

Appeals from the United States Distr ict Court for the Eastern

District of Texas.

Bef ore POLITZ, Chief Judge, KING, Circuit Judge, and FOLSOM, 1

District Judge.

FOLSOM, District Judge:

While in custody of the Denton County Jail on February 24,

1994 as the result of a criminal conviction, Regina Lynn Downey

(Downey) was sexually assaulted by an employee of the Denton County

Sheriff's Department (Denton County). Downey sued Denton County,

jail officials and employees pursuant to 42 U.S.C. § 1983 and the

Texas Tort Claims Act. Downey alleged i nter alia that Defendants

violated her rights under the Eight and Fourteenth Amendments and

were negligent in failing to prevent her from being assaulted while

in Denton County's custody.

Downey filed a pre-trial motion f or summary judgment on her2

claims under § 1983. The district court denied the motion and

l ater rendered judgment for all Defendants on Downey's § 1983

claims. After a trial to the district court on the remaining

claims, judgment was entered against Denton County for $100,000 and

against B ell for $1,000,000 for Downey's personal injuries. The

district court denied Downey's motion for add itional findings of

fact and conclusions of law and for partial reconsideration and

amendment of judgment or, alter natively, motion for new trial.

Denton County and Downey now appeal. For the following reasons, we

affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

On February 24, 1991, Downey was in the custody of the Denton

County Jail pending a transfer to the prison facility in

Huntsville, Texas. Kim Saddler ("Saddler"), an employee of the

Denton County Sheriff's Department since December, 19 90, was

performing her duties monitoring inmates at the facility and

maintaining order. Adorphus Bell was also on duty for the Denton

County Sheriff's Department but in a different unit. Leaving his

p ost and going to the women's unit, Bell asked Saddler to remove

Downey from her cell to repair a short tear in his uniform pants,

a task inmates would occasionally perform for jail employees.

Saddler explained to Bell that Downey was not a trustee and it was

customary for trustees to repair guards' uniforms. Even though

Saddler thought Bell's request was strange, she did not call her

supervisor and instead woke Downe y to repair Bell's uniform.

Downey told Saddler to ask one of the trustees, but Saddler said3

that the trustees were asleep. Saddler and Bell then escorted

D owney to a room called a "multi-purpose room" that contained

sewing machines inmates used to repair the uniforms of guards.

The multi-purpose room is a separate room in the Denton County

Jail, access to which is controlled by a door which can be closed

and locked. It contains a surveillance camera, with the monitor in

the matron's room, and it is equi pped with a voice-activated

security device. There is a blind spot in the multi-purpose room

which cannot be viewed from the observation window, but can only be

viewed by one outside the room looking at a video monitor at the

matron's station. When the door to the multi-purpose room is

closed, the voice-activated secu rity device is the only way for

someone outside the multi-purpose room to monitor sound inside the

room. On the day in question, the voice-activated security device

had been disconnected and was not functioning.

Saddler remained in the multi-purpose room while Bell changed

from his uniform pants into red inmate shorts in the restroom. She

remained in the room for a fe w minutes, and then locked Bell and

Downey in the room alone. Approximately fifteen minutes later,

Saddler checked on Bell and Downey. At that time, Bell was sitting

across from Downey as she worked on h is uniform at a sewing

machine. Saddler did not check on the two again until 7:30 p.m.,

or one hour and forty-five minutes later. During the time Bell was

alone with Downey, he sexually assaulted Downey. As a result,

Downey had a child. Thereafter, Bell was convicted of official2 Tex. Penal Code Ann. § 39.02 provides in relevant part:

(a) A public servant acting under color of his office or employment commits an offense if he:

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under

color of his office or employment if he acts or purports

to act in an official capacity or takes advantage of such

actual or purported capacity.

(c) "[S]exual harassment" means

... phy sical conduct of a

sexual nature, submission to which is made a term or

condition of a person's e xercise or enjoyment of any

right, privilege, power, or immunity.

3 T EX

. C IV

. P RAC

. & R EM .C ODE A NN . § 101.021.

4 Defendants Denton County, Saddler, Sgt. Misha Karakashevich,

Sheriff Weldon Lucas and Sheriff Kirby Robinson moved for Judgment

on Partial Findings pursuant to Federal Rule of Civil Procedure

52(c). The district court granted the motion as a matter of law as

to all Downey's claims with the exception of the claims under the

Texas Tort Claims Act.

Defendant Dan Fletcher was granted summary judgment prior

to trial.

4 oppression in Denton County, Texas. 2

Downe y filed suit against Denton County as well as Bell,

Saddler, Sergeant Misha Karakashevich, Sheriff Weldon Lucas,

Sheriff Kirby Robinson, and Chief Deputy Dan Fletcher pursuant to

42 U.S.C. § 1983 and the Texas Tort Claims Act ("the Act"). 3 Prior

to a bench trial, she filed a motion for summary judgment on her §

1983 claims contending that Denton County and Bell were judicially

estopped and collaterally estopped from denying § 1983 liability to

Downey. 4 She also urged in her motion that the undisputed facts

entitled her to summary judgment as to the claims against Denton

County and Sheriff Robinson for violation of her Eighth Amendment5

right to be free from cruel and unusual punishment. The district

court denied the motion, but during the trial, granted the motion

of all Defendants but Bell for judgment on partial findings

pursuant to Rule 52(c), leaving only Downey's claims under the

Texas Tort Claims Act. At the conclusion of a bench trial, the

district court entered judgment against Denton County and Bell.

ANALYSIS

1. Denial of Summary Judgment § 1983

Downey's points 1, 2 and 3 concern whether the district court

abused its discretion in denying Downey's motion for summary

judgment on her § 1983 claims against Bell, Denton County and

Sheriff Robinson. Downey contends that Bell and Denton County were

judicially and collaterally estopped from contesting her claim for

cruel and unusual punishment because Bell admitted to and was

charged with official oppression. Additionally, she contends that

she was entitled to summary judgment for her § 1983 claims against

Denton County and Sheriff Robinson on factual grounds.

We do not review the denial of the motion for summary

judgment which is followed by a full trial on the merits. Z imzores

v. Veterans Admin., 778 F.2d 264 (5th Cir.1985). Downey's motion

for summary judgment was made before trial began, and the district

court orally denied the motion at trial. Faced with similar facts

in Wells v. Hico Independent School Dist., 736 F.2d 243 (5th

Cir.1984), we stated that "[o]nce trial began, the summary judgment

motion[s] effectively became moot." Id. at 251, n. 9. The denied

motion for summary judgment does not need to be reviewed, as the5 Reich, 55 F.3d at 1045. With regard to review of legal

conclusions, we will conduct a plenary review under a de novo

standard. Id.

6 reviewing court is free to review the legal and factual issues on

a motion for judgment as a matter of law pursuant to Fed.R.Civ.P.

5 0. Moreover, in this case, Downey does not appeal only the

district court's j udgment on partial findings in favor of all

Defendants but Bell on her § 1983 claim, but also the district

court's denial of her motion for partial reconsideration or for new

trial. Declining to review the denial of summary judgment in this

instance is in keeping with other decisions in this circuit and

others. S ee Black v. J.I. Case Co., Inc., 22 F.3d 568 (5th

Cir.1994); B ottineau Farmers Elevator v. Woodward-Clyde

Consultants, 963 F.2d 1064, 1068- 69 n. 5 (8th Cir.1992); L um v.

City of Honolulu, 963 F.2d 1167, 1170 & n. 1 (9th Cir .),

cert.denied, 506 U.S. 1022, 113 S.Ct. 659, 121 L.Ed.2d 585 (1992);

and Summit Petroleum v. Ingersoll-Rand, 909 F.2d 862, 865 n. 4 (6th

Cir.1990).

2. Judgment on Partial Findings § 1983 claims

Downey's point 4 concerns whether the district court erred in

gr anting Defendants' motion for judgment on partial findings on

Downey's § 1983 claim. The standard of review to be applied to

this issue is set forth in Reich v. Lancaster, 55 F.3d 1034, 1045

(5th Cir.1995). There we stated "we will review the factual

component of the district court's determination—the underlying

factual findings and the in f erences drawn therefrom—for clear

error." 56 5 11 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The

Eighth Amendment imposes a duty on prison officials to provide

humane conditions of confinement and must take reasonable steps to

insure the safety of those confined. Farmer , 511 U.S. at 831-33,

114 S.Ct. at 1976. The duty is violated when the deprivation

alleged must be, objectively, sufficiently serious and the prison

official must have a sufficiently culpable state of mind. F armer

, 511 U.S. at 833-35, 114 S.Ct at 1977. Deliberate indifference to

inmate health or safety is the mens rea necessary to establish

liability in prison condition cases. Id.; Wilson v. Seiter, 501

U.S. 294, 302-303, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991).

7 Downey was a convicted prisoner who was awaiting transfer to

another prison. As a convicted prisoner, her rights stem from the

Eighth Amendment's prohibition on cruel and unus ual punishment.

See, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

L.Ed.2d 251 (1976).Liability of jail officials to her is assessed

under Farmer. The rights of a pretrial detainee flow from the due

process guarantees of the Fourteenth Amendment, and the liability

of prison officials to pre-trial detainees is assessed under Hare

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

7 In granting Defendants' Rule 52 motion, the district court

found there was no evidence in the record to support a finding that

the jail officials acted with deliberate indifference, an element

necessary to establish liability under the Eighth Amendment against

the jail officials. The Supreme Court outlined the elements of

deliberate indifference in Farmer v. Brennan. 6

[A] prison official cannot be found liable under the Eighth

Amendment for denying an inma te humane conditions of

confinement unless the official k nows of and disregards an

excessive risk to inmate health or safety; the official must

both be aware of facts from which the inferences could be

drawn that a substantial risk of serious harm exists, and he

must also draw the inference.

Farmer, 1 14 S.Ct. at 1979, 511 U.S. at 837-38. 7 Drawing a

distinction between the Eighth Amendment's outlawing cruel and

unusual punishments and not outlawing cruel and unusual conditions,

the Court noted tha t "an official's failure to alleviate a

significant risk that he should have perceived but did not, while8

no cause for commendation, cannot under our cases be condemned as

the infliction of punishment." Id.

Downey asserts that the district court's findings that Bell

sexually assaulted her supports a finding of § 1983 liability

against Bell for imposing cruel and unusual punishment. She also

contends that the district court's findings that Saddler left Bell

alone with Downey for close to two h ours, unmonitored and

unsupervised, in a room whose voice-activated security device had

been disconnected support s the imposition of § 1983 liability on

Sheriff Robinson for negligent training and supervision.

We need not review Downey's argument as it applies to Bell as

he did not answer or otherwise a ppear in this suit. He did not

join in the joint motion for judgment on partial findings, nor did

the district court grant the motion as to Bell.

With respect to the district court's finding no evidence in

the record to support deliberate indifference on the part of

Sheriff Robinson, we conclude the trial judge did not clearly err

in his fact findings of no direct evidence that Sheriff Robinson

was aware of a substantial risk o f harm to Downey or that he

disregarded this substantial risk. Although requisite knowledge of

a substantial risk of serious harm can be demonstrated by inference

from ci rcumstantial evidence, a survey of the trial record

convinces us that there is no evidence of such knowledge on the

part of Sheriff Robinson, and the district court's judgment in

favor of defendants was proper.

3. Amendment of the Pre-Trial Order8 Civil Justice Reform Act Plan 26(b).

9 Downey's fifth point involves the trial judge's denying her

motion to ame nd the pre-trial order to re-designate rebuttal

w itnesses as also being witnesses for her case-in-chief. During

discovery, Downey failed to provide initial disclosure as provided

for in the Eastern District of Texas Expense and Delay Reduction

Act. 8 Upon a motion by one of the defendants, the district court

ordered Downey to show cause why she should not be sanctioned for

failing to provide her witness list or supplying any other

discovery. Downey responded by stating that the witnesses in

question were not disclosed earlier because t hey were rebuttal

witnesses. She then listed these witnesses as rebuttal witnesses

in the joint pre-trial order. At trial, Downey moved to amend the

pre-trial order to redesignate the witnesses as witnesses for her

case-in-chief . The trial judge denied the motion, reminding her

counsel of his earlier justification for not having disclosed

witnesses that the witnesses would only be rebuttal witnesses.

Downey contends that the denial of the amendment was a "death

penalty" sanction and preclud ed her a fair trial. We review the

district court's refusal to allow the amendment for an abuse of

discretion. She has not pointed to anything in the record to

support her contention, and under the circumstances as explained by

the district court in support of its denial, there is no abuse of

discretion.

4. Motion for Reconsideration and/or New Trial

Downey's point 6 contends the district court abused its10

discretion in denying her motion for additional findings of fact

and conclusions of law and for partia l reconsideration and

amendment of the judgment, or alternatively, motion for new trial.

She asserts that she is entitled to partial amendment of her

judgment against Bell and Sheriff Robinson for her actual damages

and attorneys' fees for her § 1983 claims. She also contends that

the district court's denial of her motion to amend the pre-trial

order to designate and present during her case-in-chief those

witnesses erroneously listed in the pre-trial o rder as rebuttal

witnesses is manifestly unjust.

Downey ha s failed to persuade us that the district court

abused its discretion in denying these post-trial motions. We have

reviewed her claims regarding the distric t court's findings with

respect to her § 1983 claims and find the trial court not to be in

error. However, we note that the judgment entered by the district

court against Bell does not award Downey attorney's fees for her

claims against Bell under §§ 1983 and 1988. Accordingly, the

judgment, after a hearing on the amount of attorney's fees, should

be amended to reflect the award. The matter is returned to the

district court in order that those attorney fees may properly be

made a part of the judgment.

Additionally, we have found the trial court did not abuse its

discretion in refusing to allow her to amend the pre-trial order.

Likewise, we do not find the trial court abused its discretion in

refusing to reopen the ca se to consider the witnesses as part of

Downey's case-in-chief. "[I]f the failure of the party to submit9 T EX

. C IV

. P RAC

. & R EM .C ODE A NN . § 101.057(2).

11 the evidentiary materials in question is attributable solely to the

negligence or carelessness of that party's attorney, then it would

be an abuse of discretion f or the court to reopen the case and

consider the evidence." Lavespere v. Niagara Mach. & Tool Works,

Inc., 910 F.2d 167, 173 (5th Cir.1990) reh'g denied, 920 F.2d 259

(1990), cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 131

(1993).

5. Texas Tort Claims Act

Denton County as serts the district court erred in imposing

l iability for the negligence of Saddler, its employee, under the

Texas Tort Claims Act because Texas' waiver of sovereign immunity

does not extend to claims "arising out of assault, battery, false

imprisonment, or any other intentional to rt." 9 It contends that

Downey's claim arises out of an intentional tort and is barred by

the Act. Conversely, Downey maintains that the district court found

a proximate cause of her injury was Saddler's negligence, thus

Denton County's liability is based on Saddler's negligence, not

Bell's intentional tort.

We review questions of law de novo. Willis v. Roche

Biomedical La boratories, Inc., 61 F.3d 313, 315 (5th Cir.1995).

Applying the substantive law of Texas, the forum state, to this

pendent state law claim, we find recovery is permitted.

In deciding whether a governmental entity has waived sovereign

immunity under the Act, Texas courts have considered claims

involving the negligence of a government employee in connection10 805 S.W.2d 807 (Tex.App.—Waco 1990 writ denied).

1 1 529 S.W.2d 264 (Tex.Civ.App.—Corpus Christi 1975, writ ref'd

n.r.e.).

12 835 S.W.2d 56 (Tex.1992).

13 Hester, 805 S.W.2d at 812.

12 with an intentional tort in City of Waco v. Hest er, 1 0 Townsend v.

Memorial Medical Center, 11 and Delaney v. Houston. 12 Based on these

cases, Denton County contends that the Texas Tort Claims Act does

not waive sovereign immunity when one employee's negligence allows

another to commit an intentional tort where the intentional tort is

committed by a government employee.

The plaintiff i n Townsend v. Memorial Medical Center was a

sedated patient sexually assaulted by a hospital empl oyee in the

hospital elevator. Although the plaintiff claimed the hospital was

negligent in failing to prevent the assault, the court found the

"gist" of the complaint was an intentional tort and barred

plaintiff's claim under § 101.057(2).

While the court in Townsend found the plaintiff had not stated

a cause of action independent of the intentional tort, the court in

City of Waco v. Hester allowed the plaintiff's claim, finding the

claim "arose out of the antecedent negligence of the city's

employees." 13 In that case, the plaintiff was an inmate who was a

sexually assaulted by another inmate. The plaintiff claimed the

City of Waco was negligent in failing to prevent the attack. The

court did not bar recovery under § 101.057(2), finding the claim

was not one "arising out of" an intentional tort.14 Delaney, 835 S.W.2d at 59.

1 5 28 U .S.C. § 2680(h). Excluded from the waiver of federal

governmental immunity is "[a]ny claim arising out of assault,

battery, false imprisonment," or certain other actions.

13 The Texas Supreme Court discussed Townsend in Delaney v.

University of Houston. There the plaintiff was assaulted by a

third-party, not a University employee. The plaintiff claimed the

University's negligence was a proximate cause of the assault. In

finding that the plaintiff's claim against the University was not

barred by the intentional torts exception to the Act, the court

noted that for a claim to "arise out of" an intentional tort there

must be a certain nexus between the claim and an intentional tort.

"[T]he tortfeasor must be the governmental employee whose conduct

is the subject of the complaint." 14 This suggests that the court

looks to the conduct that is the subject of the complaint, and not

the status of the tortfeasor. If a governmental employee's

negligent conduct is the subject of the complaint, then §

101.057(2) will not bar recovery.

Further evidence that the Texas Supreme Court limits the

"arising out of" language to claims having a nexus to the

intentional tort is the court's reliance in Delaney on Sheridan v.

U.S., 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), a case

brought under the Federal Tort Claims Act. The Federal Tort Claims

Act contains language similar to the pr ovision in question

regarding excluding from the waiver of immunity claims arising out

of intentional torts. 15 In S heridan, plaintiffs claimed government

employees were negligent in failing to take steps to prevent an16 Id.

14

off -duty serviceman from firing rifle shots into their car when

they knew the serviceman was intoxicated and in possession of a

rifle. In permitting recovery under the Federal Tort Claims Act,

the Court held that the plaintiffs' claim was not one "arising out

of" an intentional tort because "it arose instead out of the

government's alleged negligence in allowing the incident to

occur." 16 The Court rejected the argument that "arising out of"

included any claim, regardless of its nature, for injuries caused

by someone's intentional tort. The court in D elaney found the

Court's construction of the "arising out of" language persuasive in

constructing § 101.057(2) in the same manner.

We are of the opinion in the instant case that Downey's claim

agains t Denton County for negligence is not barred by sovereign

immunity beca use her claim did not arise out of the assault, but

rather out of Saddler's negligence. Saddler's conduct was the

subject of the complaint. We affirm the district court's judgment

in this regard.

6. Proximate Cause

In its final two points, Denton County contends that the

district cour t erred in finding that Saddler's negligence was a

proximate cause of Downey's injuries and that Bell's criminal act

was not foreseeable. We review the district court's findings for

clear error. U

rbach v. Uni ted States, 869 F.2d 829, 831 (5th

Cir.1989).

The two elements of proximate cause under Texas law are cause17 Boys Clubs, 907 S.W.2d at 477.

15 in fact and foreseeability. N ixon v. Mr. Property Management, 690

S.W.2d 546, 549 (Tex.1985). The test for cause in fact is whether

the negligent act or omission was a substantial factor in bringing

about the injury without which the harm would not have occurred.

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472

(Tex.1995) citing Prudential Ins. v. Jefferson Associates, 896

S.W.2d 156, 161 (Tex.1995). In the B oys Clubs case, plaintiffs

brought suit against a boys club for damages sustained by boys

sexually molested by a volunte er worker. Proximate cause was

discussed by the Texas Supreme Court in the sexual assault context,

and the court noted that "[c]ause in fact is not shown if the

defendant's negligence did no more than furnish a condition which

made the injury possible." 17 Denton County contends that Saddler's

actions were not the cause in fact of Downey's injuries because

Saddler did no more than furnish a condition which made Downey's

injury possible.

Evidence was presented that Bell left his duty post and went

to the women's unit to have a tear in his uniform pants mended by

a female inmate; that he asked Saddler to remove Downey from her

cell to repair his uniform; that Saddler informed him that it was

customary for trustees to repair guards' uniforms; that Downey was

not a trustee; that Saddler thought it unusual that Bell asked for

Downey; that Saddler left Bell and Downey alone in the

multi-purpose room for almost two hours without monitoring them in

any fashi on; and, that the voice-activated security device had16

been disconnected, a fact that should have been obvious to Saddler.

Saddler did more than furnish a condition making the injury

possible—she also failed to monitor or supervise Downey and Bell,

eithe r by physically entering the multi-purpose room or by

connecting the voice-activated security device. The district

court's findings regarding the cause in fact aspect of proximate

cause are not clearly erroneous.

Downey also contests the district court's finding that Bell's

mistreatment of Downey was foreseeable. As we quoted in Urbach,

Foreseeability requir es that the actor, as a person of

ordinary intelligence, would have anticipated the danger that

his negligent act created for others.... Foreseeability does

not require that a person anticipat e the precise manner in

which injury will occur once a negligent situation that he has

created exists.

Urbach, 869 F.2d at 831 quoting City of Gladewater v. Pi ke, 727

S.W.2d 514, 517 (Texas 1987) a nd Williams v. Steves Industries,

Inc., 699 S.W.2d 570, 575 (Tex.1985).

The district court found in the instant case that Saddler was

negligent in her use of the multi-purpose room by allowing Bell to

remain locked in the room with Downey for approximately one hour

and forty-five minutes without any observation or supervision; a

person of ordinary prudence would not have allowed Bell to remain

alone with Downey for this length of time to repair a small tear in

his pants in a locked, enclosed and unmonitored room; and,

Sad dler's negligence was a proximate cause of Downey's injuries.

Facts in the record suppo rt the district court's findings,

specifically the fact that Saddler removed Downey from her cell at

Bell's request, which Saddler found unusual. Saddler ordered17

Downey to repair Bell's uniform, even though this is a task

ordinarily reserved for trustees. She did not monitor the security

camera in the multi-purpose room while Bell and Downey were alone,

knowing the voice activated security device was disconnected.

Denton County relies on R ESTATEMENT ( SECOND ) OF T ORTS § 448 (1965)

for the proposition that Bell's assault of Downey was a superseding

cause that broke the chain of causation, thus precluding a finding

of foreseeability on the part of Saddler. Section 448 provides:

The acts of a third person in committing an intentional tort

or crime is a superseding cause of harm to another resulting

therefrom, although the actor's negligent conduct created a

situation which afforded an opportunity to the third person to

commit such a tort or crime, unless the actor at the time of

his negligent conduct realized or s hould have realized the

likelihood that such a situation might be created, and that a

third person might avail himself of the opportunity to commit

such a tort or crime.

Based on the evidence discussed above, the district court did not

clearly err in finding that Saddler should have reali zed the

likelihood that a sit uation was created wherein Bell could avail

himself of the opportunity to injure or harm Downey. The record

supports the district court's finding of foreseeability.

CONCLUSION

We find the trial court did not clearly err in granting

Defendants' motion for judgment on partial findings on Downey's §

1983 claim. There was no abuse of discretion in the trial court's

refusal to allow Downey to amend the pre-trial order to redesignate

her witnesses, nor did the trial court abuse its discretion in

denying Downey's motion f or reconsideration and new trial.We do,

however, return to the district court the issue of the amount of18 Downey seeks sanctions against Denton County for bringing a

frivolous appeal pursuant to Fed. R.App. P. 38 on the issue of the

intentional torts exception to the Texas Tort Claims Act. Although

we find that Denton County's argument lacks merit, we do not find

it baseless or insupportable nor designed to delay these

proceedings.

18 attorney's fees to be assessed against Bell on Downey's claims

under § 1983.

We find recovery under the Texas Tort Claims Act is permitted

given that Downey's claim against Denton County was for negligence

and not for the intentional tort committed by Bell. Likewise, the

district court did not clearly err in finding that Sa ddler's

negligence was a proximate cause of Downey's injuries. The

judgment below must be affirmed as amended. 18 AFFIRMED as AMENDED.