United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 26, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-10472
GLENN FORGAN, JR., Individually and as Executor and/or
Representative of the Estate of Richard Dunn Allen;
GLENDA FORGAN, Individually as the Mother of the
Deceased; ROBERT ALLEN, Individually as the Father of
the Deceased
Plaintiffs-Appellants,
v.
HOWARD COUNTY TEXAS; ET AL.
Defendants,
HOWARD COUNTY TEXAS; HOWARD COUNTY SHERIFF’S DEPARTMENT
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
BENAVIDES, Circuit Judge:
Richard Allen was arrested and taken to Howard County Jail for
driving while intoxicated and possession of marijuana. During the
booking process, Allen indicated that he was medicated for a number
of mental ailments, including depression, but that he was not
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thinking about killing himself at the time. Based on this and
other information, jailer Adam Dunlap classified Allen as a “risk”
for suicide, meaning that he would be checked every fifteen
minutes. Dunlap issued Allen a pair of trousers and a shirt to
wear, and he was placed in a holding cell. After approximately one
hour, Allen was found hanging from his jail-issued trousers.
Attempts to resuscitate Allen failed, and he died.
Allen’s family (“Appellants”) brought this suit against Howard
County, Howard County Sheriff’s Department, and several individual
defendants under the Texas Tort Claims Act (“TTCA”) and 42 U.S.C.
§ 1983. They argued that Allen should have been classified as a
“high risk” on continuous watch, as opposed to a mere “risk.” By
ignoring Allen’s obvious predisposition for suicide, Appellants
argue, the defendants were deliberately indifferent by failing to
protect Allen from his suicidal tendencies, furnishing him with the
means to commit suicide, and failing to properly train County
employees.
The individual defendants were granted summary judgment on
qualified immunity grounds, and that judgment is not on appeal.
The district court subsequently granted summary judgment in favor
of Howard County and its Sheriff’s Department (collectively “Howard
County”), and Allen’s family appeals that judgment. We AFFIRM the
district court’s judgment.
I. DISCUSSION
A. The Texas Tort Claims Act and the “Use of Property”
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A Texas governmental unit is generally immune from tort
liability unless the legislature has somehow waived immunity.
Texas Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 586–87 (Tex.
2001). The TTCA has a limited immunity-waiver provision, removing
governmental immunity 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.” TEX. CIV. PRAC. & REM. CODE §
101.021(2) (emphasis added).
Thus, in evaluating the TTCA claim, the threshold question is
whether issuing a suicidal inmate trousers qualifies as a condition
or use of property sufficient to waive governmental immunity. The
district court found that “[m]erely providing Decedent with the
trousers does not equate to ‘use’ by [Howard County].” This is a
pure question of statutory interpretation which this Court reviews
de novo. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir.
2002).
Appellants argue that “use” means “to put or bring [personal
property] into action or service,” and the trousers were put into
service by Howard County when they were issued. See Miller, 51
S.W.3d at 588. Howard County counters that the injury must be a
direct result of the County’s use of the property, and merely
allowing another person to use it, even if he harms himself with
it, is insufficient under the TTCA.
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Neither party adequately captures the caselaw. This is not
entirely their fault, as Justice Hecht of the Texas Supreme Court
has observed, repeated attempts to clarify this issue “have done so
little to infuse the Act’s use-of-property standard with meaning
that the task now appears hopeless. The [TTCA] does not define
‘use,’ and nothing in the history of its passage provides a clue as
to the standard’s intended meaning.” Miller, 51 S.W.3d at 590
(Hecht, J., concurring).1 Justice Hecht furthered, in summarizing
the caselaw:
We have held that failing to provide a hospital patient
a bed with rails or a football player a properly
protective uniform or an epileptic swimmer with a life
preserver is a use of property within the statutory
waiver of immunity, but failing to give a patient an
injectionable drug or to install a pump to dissipate gas
fumes is but a non-use of property outside the waiver.
We have held that misreading an electrocardiogram is a
use of property, but misreading medical records is not.
Id. at 590 (Hecht, J., concurring).
The best reading of the Texas Supreme Court cases is that a
waiver occurs if death or injury results from (1) the direct use of
property by a state actor, or (2) a defective condition of state-
issued property, even if actively employed by a third-party at the
time of injury. That is, when there is some intervening non-state
1
These concerns are often followed by requests that the
legislature clarify this portion of the TTCA. See, e.g., Miller,
51 S.W.3d at 590 (Hecht, J., concurring); Robinson v. Cent. Texas
MHMR Ctr., 780 S.W.2d 169, 170 (Tex. 1989); Lowe v. Texas Tech.
Univ., 540 S.W.2d 297, 301 (Tex. 1976) (Greenhill, C.J.,
concurring).
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actor that proximately causes the harm, such as Allen in this case,
there must be a defective condition in the property itself for a
waiver of immunity under the TTCA. This rule generally captures
the caselaw2 and the TTCA’s language regarding either a “condition
or use” of the property.
San Antonio State Hosp. v. Cowan makes it fairly clear that
merely issuing non-defective trousers to Allen is not sufficient to
waive immunity under the TTCA. 128 S.W.3d 244 (Tex. 2004). In
that case, the Texas Supreme Court found that allowing a state
hospital patient to keep his walker and suspenders, which he later
used to hang himself, did not constitute the use of property under
the TTCA. Id. at 246. The court reasoned that, “[i]f all ‘use’
meant were ‘to make available,’ the statutory restriction would
have little force.” Id.; see also Bossley, 51 S.W.2d at 343
(“Requiring only that a condition or use of property be involved
would conflict with the [TTCA’s] basic purpose of waiving immunity
only to a limited degree.”).
Appellants’ attempt to distinguish Cowan on the basis that the
walker and suspenders were owned by the patient, whereas here the
2
There are some scenarios where this rule would not do much
to inform the analysis. For instance, where a suicidal hospital
patient escapes out of an unlocked door and kills himself, whether
the door being unlocked qualifies as a “defective condition” is
difficult to answer, but the Texas Supreme Court found that there
was no waiver of immunity in such a case. Dallas County Mental
Health & Mental Retardation v. Bossley, 51 S.W.2d 339 (Tex. 1998).
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trousers were state owned. This distinction is unavailing for
several reasons. First, Cowan’s analysis places absolutely no
reliance on the fact that the walker and suspenders belonged to the
patient rather than the state. Second, the TTCA’s waiver provision
is entirely indifferent as to whether the property in use is state
or privately owned. See TEX. CIV. PRAC. & REM. CODE § 101.021(2).
Finally, the cases Appellant relies on all involve inherently
defective property, and none of them relied on the state-owned
nature of the property in finding a waiver. See Lowe, 540 S.W.2d
at 300 (involving state-issued football “equipment, uniforms and
pads which were defective”); Mcguire v. Overton Mem’l Hosp., 514
S.W.2d 79 (Tex. Civ. App. 1979) (involving defective hospital bed
plaintiff fell out of because it lacked side railings).
Because it was Allen’s use of the state-issued trousers that
caused his death, and there is no allegation that the trousers were
in a defective condition, we agree with the district court that the
TTCA’s waiver provision does not apply. Howard County is immune
from the TTCA claim.3
B. Appellants’ Deliberate Indifference Claim
The Appellants next complain that the district court
inappropriately granted Howard County’s summary judgment motion on
3
We agree with the district court on this ground, so we do
not address Howard County’s alternative argument that Appellants
could not maintain their TTCA action because the state officials
involved have official immunity.
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their § 1983 deliberate indifference claim. We review a district
court’s summary judgment ruling de novo. N.W. Enters., Inc. v.
City of Houston, 352 F.3d 162, 172 (5th Cir. 2003).
The district court granted its § 1983 summary judgment on a
number of independent grounds. For instance, it found that
Appellants never properly pled their deliberate indifference claim
as a due process violation. It also found that any deliberate
indifference claim is foreclosed by its earlier unappealed summary
judgment in favor of the individual defendants. Appellants now
argue that they did raise this as a due process claim and that the
earlier summary judgment has no preclusive effect as to the
County’s liability.4
Assuming without deciding that Appellants properly raised this
due process claim and that it is not precluded by the earlier
summary judgment order, we still find that they raised no genuine
issue of material fact sufficient to survive summary judgment. To
4
Because a deliberate indifference claim against a County
requires the plaintiff to first “show that the municipal employee
violated his clearly established constitutional rights with
subjective deliberate indifference,” and the summary judgment in
favor of the individual defendants found that none of them acted
with such deliberate indifference, the district court found that
this claim was foreclosed. Appellants take issue with this line of
reasoning and the district court’s application of Flores v. County
of Hardeman, 124 F.3d 736 (5th Cir. 1997). They persuasively argue
that the earlier judgment came when discovery was limited to
qualified immunity questions, before the deliberate indifference
issue could be fully litigated, and therefore should not have
preclusive effect as to the County’s liability. This is an
interesting argument, but we need not decide the issue in this
appeal.
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establish a county’s liability on a § 1983 claim, a plaintiff must
show that the County had some inadequate custom or policy that
acted as the moving force behind a constitutional violation.
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–91
(1978). Appellants never presented anything more than conclusory
statements to attack Howard County’s suicide prevention policies.
They also never showed how any such inadequate policy was the
moving force behind classifying Allen as a suicide “risk” as
opposed to a “high risk.”
It is undisputed that Dunlap, the jailer on duty, received
training in suicide prevention and performed the required
screening. The primary evidence of inadequate training Appellants
point to is the deposition of Dunlap, who stated—contrary to
Appellants’ description of the record—that the jailers were
repeatedly trained, essentially on a daily basis.5 Appellants’
conclusory statements that Dunlap could have been trained better
are insufficient to raise a genuine issue of fact. See Douglass v.
United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).
Proof of a single incident generally will not support a finding of
5
Appellants curiously rely on Dunlap’s statement that, as a
jailer, he “never had any in-house training.” Looking at the cited
portion of the record, Dunlap is asked if he received “in-house
training,” and Dunlap answered, “I would say yes, because we do
that on a daily basis.” Rec. Ex. at 1828. While Appellants
complain that all of his training was on-the-job training, they
never indicate how that constitutes a constitutionally infirm
custom or policy.
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inadequate training as a matter of custom or policy. Snyder v.
Trepagnier, 142 F.3d 791, 798–99 (5th Cir. 1998). Moreover, as the
district court pointed out, Appellants seem to concede that Howard
County had an adequate suicide policy as they repeatedly pointed
out how Dunlap’s deviations from that policy caused Allen’s
suicide.
Appellants have not directed us to any competent evidence that
shows Howard County Jail’s training policies are inadequate or that
they led to Allen’s death. We find that Appellants raised no
genuine issue of fact as to their deliberate indifference claim and
that the district court correctly found that Howard County was
entitled to summary judgment.
II. CONCLUSION
We agree with the district court’s conclusions on both the
TTCA and the § 1983 claims, and AFFIRM its summary judgment.
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