11th Court of Appeals
Eastland, Texas
Memorandum Opinion
Sanchez Madox
Appellant
Vs. No. 11-02-00042-CV -- Appeal from Harris County
Tommy Thomas, Sheriff
Appellee
This appeal arises out of a suit filed by a former inmate of the Harris County Jail against the Sheriff of Harris County. The record reflects that appellant complained of headaches and vision problems soon after being incarcerated in January of 1997. Physicians affiliated with the jail examined appellant for his complaints on several occasions in January and February of 1997. The physicians ultimately diagnosed that appellant suffered from a brain tumor. Appellant underwent emergency brain surgery on February 12, 1997, to have the tumor removed. He lost sight in both eyes as a result of the operation. Appellant remained hospitalized for 21 days after the surgery; after which time, he returned to the jail where he remained incarcerated until October 9, 2000.
Appellant filed suit on February 12, 1999, exactly two years after the date of the brain surgery. Appellant appeals the trial court=s grant of summary judgment in favor of Sheriff Thomas on the grounds of sovereign immunity, limitations, and qualified immunity. A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Once the movant establishes a right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).
Appellant originally claimed that he was denied necessary medical care prior to his brain surgery. His original petition appeared to assert claims of negligence, medical malpractice, and civil rights violations. Subsequent to the filing of Sheriff Thomas=s motion for summary judgment, appellant added additional claims premised on the Americans with Disabilities Act of 1990 (the ADA). 42 U.S.C.A. ' 12101 et seq. (West 1995 & Supp. 2003). The new claims alleged that appellant was not provided with adequate accommodations to facilitate his visual impairment after being discharged from the hospital. Sheriff Thomas did not amend his motion for summary judgment to address appellant=s new claims. Irrespective of this fact, the trial court granted summary judgment in favor of Sheriff Thomas on all claims asserted by plaintiff.
Appellant brings three issues on appeal. Appellant argues in his first issue that the trial court erred in granting summary judgment on the new claims brought under the ADA because Sheriff Thomas=s motion for summary judgment did not address these claims. Sheriff Thomas acknowledges this deficiency in his brief.[1] A defendant is not entitled to a summary judgment on the entire case unless he files a summary judgment that addresses, and then conclusively demonstrates, that the plaintiff is not entitled to recover on any theory of liability alleged. Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex.App. B Houston [1st Dist.] 1995, no writ). Accordingly, the portion of appellant=s first issue pertaining to his ADA claims is sustained.
Appellant additionally argues in his first issue that the trial court erred in granting summary judgment on Sheriff Thomas=s contention that appellant=s state law claims are barred by sovereign immunity. As we recently noted in Eastland County Cooperative Dispatch v. Poyner, 64 S.W.3d 182, 197 (Tex.App. B Eastland 2001, pet=n den=d):
The government, its agencies, and its officials are protected from suit under the doctrine of sovereign immunity. A governmental unit is clothed with sovereign immunity unless that immunity has been waived by the legislature. An employee of a governmental unit is also entitled to a claim of sovereign immunity in claims against him in his official capacity. The doctrine of sovereign immunity implicates jurisdictional considerations.
The legislature has provided for waiver of sovereign immunity in certain instances set forth in the Texas Tort Claims Act.[2] These instances of waiver are limited and are narrowly defined. It is the prerogative of the legislature to waive or not to waive the protection afforded by sovereign immunity. (Citations omitted)
Those instances in which the legislature has provided for waiver of immunity, as relevant here, are set forth in Section 101.021 of the Texas Tort Claims Act, which provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) 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.
Appellant did not allege that he suffered injury or damage from the operation or use of a motor-driven vehicle or from a condition or use of tangible personal or real property. The portion of appellant=s first issue dealing with the defense of sovereign immunity is overruled.
Appellant=s third issue addresses Sheriff Thomas=s third summary judgment ground. Sheriff Thomas asserted in this ground that he was entitled to qualified immunity because he was not personally involved in the alleged misconduct asserted by appellant. Sheriff Thomas asserted the claim of qualified immunity in response to appellant=s claims brought under 42 U.S.C.A. §1983 (West Pamph. 2003).
The doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon the performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law. Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001). When a defendant in a Section 1983 action pleads qualified immunity, the plaintiff has the burden to rebut this defense by establishing that the official’s wrongful conduct violated clearly established law. Thompson v. Upshur County, TX, supra at 456. The shifting of the burden to the plaintiff to rebut a qualified immunity defense applies in the summary judgment context. Perry v. Greanias, 95 S.W.3d 683, 700 (Tex.App. - Houston [1st Dist.] 2002, pet’n den’d). The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the violation of a clearly established federal constitutional or federal statutory right. Thompson v. Upshur County, TX, supra at 457. If the plaintiff does so, the court must then assess whether the defendant’s conduct was objectively reasonable in light of clearly established law. Thompson v. Upshur County, TX, supra at 457.
Detainees have a federal constitutional right not to have their serious medical needs met with deliberate indifference on the part of the confining officials. Thompson v. Upshur County, TX, supra at 457. Deliberate indifference in the context of an episodic failure to provide reasonable medical care to a detainee means that: (1) the official was aware of facts from which an inference of substantial risk of serious harm could be drawn; (2) the official actually drew that inference; and (3) the official=s response indicates the official subjectively intended that harm occur. Thompson v. Upshur County, TX, supra at 458-59. However, deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm. Thompson v. Upshur County, TX, supra at 459.
The summary judgment evidence establishes that Sheriff Thomas was not personally involved in the acts which allegedly deprived appellant of his constitutional rights. Appellant asserted that he Awas denied necessary medical care by the reckless and callous indifference@ of Sheriff Thomas. Appellant did not allege or offer evidence of any policies promulgated by Sheriff Thomas that denied or impeded the prompt provision of medical care to him. To the contrary, the summary judgment evidence establishes that physicians and other health-care providers examined and treated appellant throughout his period of incarceration. Appellant premises his claim for the denial of medical care against Sheriff Thomas on the specific instances in his medical care which he contends were deficient. Supervisory officials are not liable under Section 1983 for the actions of subordinates on any theory of vicarious liability. Thompson v. Upshur County, TX, supra at 459. Appellant=s third issue is overruled. We do not reach appellant=s second issue in light of our holding on the first and third issues.
The trial court=s judgment is reversed in part, and the cause is remanded in part for a new trial on appellant=s ADA claims. The remainder of the trial court=s judgment is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
July 31, 2003
Not designated for publication. See TEX.R.APP.P. 47.2(a).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Sheriff Thomas=s brief states as follows:
By his first issue the Appellant contends that [Sheriff Thomas=s] motion for summary judgment did not address his claim under the Americans with Disabilities Act. Regrettably, the Appellant is correct. The motion for summary judgment was filed prior to the filing of the amended petition containing the ADA claim. The motion was not amended and therefore did not contain a specific ground for disposing of this newly asserted claim.
[2]All references to the Texas Tort Claims Act refer to TEX. CIV. PRAC. & REM. CODE ANN. ' 101.001 et seq. (Vernon 1997 & Supp. 2003).