Case: 21-11134 Document: 00516827274 Page: 1 Date Filed: 07/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 20, 2023
No. 21-11134 Lyle W. Cayce
Clerk
Raul Garcia,
Plaintiff—Appellant,
versus
City of Lubbock, Texas; Lubbock County, Texas; Mark
Ellison; Joshua Conklin; Paul Cartwright;
Christopher Mendez; Natalie Ybarra; M. Monzingo;
Cleadon S. Bigham; Monica Lopez; Kelly Rowe; Dustin
Hood; Laura Maldonado; Christopher Martinez,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CV-53
Before Stewart, Dennis, and Higginson, Circuit Judges.
Per Curiam:*
Raul Garcia appeals the district court’s dismissal of his claims against
numerous police officers and jail staff involved in his arrest and subsequent
booking in Lubbock County (“the County”) jail. He sufficiently alleged an
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-11134 Document: 00516827274 Page: 2 Date Filed: 07/20/2023
No. 21-11134
unconstitutional practice which demonstrates deliberate indifference under
a failure-to-train theory by Sheriff Rowe, so we REVERSE the district
court’s grant of qualified immunity as to him. Regarding the remaining police
officers and jail staff, Garcia’s pleadings either fail to state a claim or they do
not defeat qualified immunity. Therefore, we AFFIRM the district court’s
dismissal of these parties.
Garcia also appeals the district court’s summary judgment in favor of
the County for alleged constitutional and Americans with Disabilities Act
(“ADA”) violations. Because he does not create a genuine dispute of
material fact on these claims, we AFFIRM.
I. Background
A. Garcia’s Arrest
On May 18, 2018, the Lubbock Police Department (“LPD”) received
a call from a United Supermarket reporting that a customer refused to leave.
LPD Officers Mark Ellison and Joshua Conklin were sent to the scene. They
arrived at the supermarket and found the store manager and Garcia standing
outside in the entryway. Officer Ellison talked to the store manager to get his
account of the events that had taken place while Officer Conklin engaged
Garcia.
Officer Conklin first asked Garcia if anyone could come pick him up
or if he drove himself to the supermarket. He was unresponsive. He then
asked Garcia where he lived, to which he stated, “down the street.” Garcia
was in a fatigued state throughout the discussion but was able to tell Officer
Conklin that he knew he was at a United Supermarket, although he was
wrong about the specific location. Officer Ellison asked him how much he
had to drink. He did not respond directly to Officer Ellison’s question,
instead only nodding and shaking his head.
2
Case: 21-11134 Document: 00516827274 Page: 3 Date Filed: 07/20/2023
No. 21-11134
After questioning Garcia for some time and not receiving clear
answers, the officers placed him in handcuffs. Officer Ellison’s body-camera
footage shows that Garcia was wearing two silicone wristbands when he was
handcuffed, but it is unclear whether there were any words on the wristbands
or some other indicator that the bracelets were designed to alert others to a
medical condition that Garcia suffered from. While Garcia was cuffed, the
officers continued to question him and he was able to provide his full name
and date of birth. Before placing him in their vehicle, the officers again asked
if there was anyone that they could call to pick him up. He did not respond.
Because the officers could not call anyone to pick Garcia up, Officer
Ellison transported him to the Lubbock County Detention Center (the
“LCDC”). Officer Ellison testified that, on the way to the detention center,
Garcia fell asleep and had to be woken up. When they arrived, Officer Ellison
called for assistance in removing him from the vehicle because he was
uncooperative. The LCDC Response Team assisted him out of the vehicle
and escorted him to a processing cell. Members of the LCDC staff testified
that he appeared intoxicated, slurred his speech, and was unsteady on his
feet. Sergeant Cartwright decided to temporarily bypass medical screening
because he thought Garcia needed to sober up before he could answer the
screening questions.
B. Garcia’s Processing Following His Arrest
After delivering Garcia to LCDC, Officer Ellison completed the arrest
intake form and indicated that he did not believe that Garcia was at risk due
to a medical condition. The form also indicated that Garcia was offered
medical assistance but declined it. Laura Maldonado booked Garcia into the
jail. After the booking process, he was placed in a processing cell, patted
down, and was uncuffed. Maldonado then catalogued his property, but never
included any medical bracelets in the inventory of his belongings.
3
Case: 21-11134 Document: 00516827274 Page: 4 Date Filed: 07/20/2023
No. 21-11134
Garcia was subsequently placed in his cell under close watch protocol,
with LCDC staff Cleadon S. Bigham and Monica Lopez responsible for
checking on him every fifteen minutes. After almost three hours, they
discovered Garcia lying on his stomach and snoring loudly. Bigham stated
that he and Sergeant Dustin Hood rolled him onto his side and called for
medical assistance. Both medical staff and detention officers attempted to
wake him, but he remained unresponsive. Emergency medical services were
called, and he was transported to University Medical Center (“UMC”).
UMC diagnosed Garcia with diabetic ketoacidosis, a life-threatening
complication of diabetes. Lab tests at UMC confirmed that no alcohol or
narcotics were present in his system. Garcia now alleges that he suffered
complications and permanent effects because the County and its employees
failed to treat his condition. He sued all parties involved in his arrest and jail
booking.
C. District Court Proceedings
Garcia filed his Original Complaint on March 6, 2020. He alleged
numerous civil rights violations under 42 U.S.C. § 1983. On April 2, 2020,
the County, Sheriff Kelly Rowe, Sergeant Hood, and the jail employees
(except Bigham, Mendez, and Lopez) moved to dismiss Garcia’s claims
against them under Rule 12(b)(6). Bigham, Mendez, and Lopez later filed
separate motions to dismiss on the same grounds. Officers Conklin and
Ellison did not move to dismiss the claims against them, instead asserting the
affirmative defense of qualified immunity. The district court granted all of
the motions and dismissed Garcia’s suit with prejudice, but granted him
leave to amend his failure-to-train claims against Rowe and Hood. 1
1
Garcia never amended his failure-to-train claims against Rowe and Hood.
4
Case: 21-11134 Document: 00516827274 Page: 5 Date Filed: 07/20/2023
No. 21-11134
The City of Lubbock (“the City”) and the County both moved for
summary judgment and the district court granted their motions. Regarding
the City, the district court reasoned that Garcia failed to raise a genuine
dispute of material fact that: (1) there was a constitutional violation; (2) the
officers acted with deliberate indifference; and (3) there was an official policy
in place that resulted in a constitutional violation.
As to the County, the district court held that Garcia failed to raise a
genuine dispute of material fact that: (1) there was an official policy that
resulted in a constitutional violation; (2) the detention officers were
deliberately indifferent; (3) the officers were not adequately trained; or (4)
the detention officers were aware of his medical condition prior to calling for
emergency medical assistance. Garcia timely appealed.
On appeal Garcia argues that the district erred in dismissing Rowe,
Hood, Bigham, Mendez, Lopez, and the other individual employees under
Rule 12(b)(6) and on qualified immunity grounds. He also asks that we
reconsider the district court’s summary judgment in favor of the County. 2
II. Standards of Review
A. Motion to Dismiss
We review dismissals under Rule 12(b)(6) de novo, “accepting all
well-pleaded facts as true and viewing those facts in the light most favorable
to the plaintiffs.” Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir.
2018). To survive a motion to dismiss, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
2
Garcia does not appeal the district court’s summary judgment for the City,
instead choosing only to pursue his claim against the County.
5
Case: 21-11134 Document: 00516827274 Page: 6 Date Filed: 07/20/2023
No. 21-11134
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
B. Summary Judgment
“We review grants of summary judgment de novo, applying the same
standard as the district court.” In re La. Crawfish Producers, 852 F.3d 456,
462 (5th Cir. 2017). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Davidson v. Fairchild Controls Corp., 882 F.3d 180, 184
(5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
“All reasonable inferences must be viewed in the light most favorable
to the party opposing summary judgment, and any doubt must be resolved in
favor of the non-moving party.” La. Crawfish Producers, 852 F.3d at 462. We
may affirm “on any ground supported by the record, including one not
reached by the district court.” Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir.
2014) (internal quotations and citation omitted).
III. Discussion
A. Defendants Dismissed Under Rule 12(b)(6) & Qualified Immunity
The district court dismissed numerous defendants at the pleading
stage, reasoning that Garcia either failed to state a claim or did not defeat the
qualified immunity defense as to each defendant. Garcia argues that the
district court’s determinations were erroneous. We disagree.
“The Fourteenth Amendment guarantees pretrial detainees a right
not to have their serious medical needs met with deliberate indifference on
the part of the confining officials.” Dyer v. Houston, 955 F.3d 501, 506 (5th
Cir. 2020). To succeed on a deliberate indifference claim, a plaintiff must
demonstrate that: “(1) the official was ‘aware of facts from which the
6
Case: 21-11134 Document: 00516827274 Page: 7 Date Filed: 07/20/2023
No. 21-11134
inference could be drawn that a substantial risk of serious harm exists,’ and
(2) the official actually drew that inference.” Id. (quoting Domino v. Tex.
Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001)). We have
recognized that “[d]eliberate indifference is an extremely high standard to
meet.” Domino, 239 F.3d at 756.
1. Qualified Immunity
Garcia challenges the district court’s dismissals of Rowe, Hood,
Conklin, Ellison, Bigham, Lopez, Cartwright, Mendez, and Martinez
(collectively “Appellees”) on qualified immunity grounds. 3 Specifically, the
district court granted qualified immunity to: (1) Rowe and Hood for Garcia’s
failure-to-train claim; (2) Conklin and Ellison for his false-arrest and
deliberate-indifference claims; and (3) Bigham, Lopez, Cartwright, Mendez,
and Martinez for his deliberate-indifference claim. In response, Appellees
argue that Garcia has either inadequately briefed the issue of qualified
immunity or failed to establish that they are not entitled to qualified
immunity. We agree.
Qualified immunity shields a public official “from suit when she
makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she confronted.” Taylor
v. Riojas, 141 S. Ct. 52, 53 (2020). “When a defendant invokes qualified
immunity, the burden shifts to the plaintiff to demonstrate the inapplicability
of the defense.” Club Retro LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
To meet this burden, a plaintiff must plead specific allegations
demonstrating: “(1) the violation of a constitutional right that (2) was clearly
established at the time of the alleged misconduct.” Linicomn v. Hill, 902 F.3d
529, 533 (5th Cir. 2018). “A clearly established right is one that is sufficiently
3
Garcia does not appeal the district court’s dismissal of Ybarra and Monzingo.
7
Case: 21-11134 Document: 00516827274 Page: 8 Date Filed: 07/20/2023
No. 21-11134
clear that every reasonable official would have understood that what he is
doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015).
In the failure-to-train context, we have explained that “[t]o
establish § 1983 liability against supervisors, the plaintiff must show that: (1)
the [supervisor] failed to supervise or train the officer; (2) a causal
connection existed between the failure to supervise or train and the violation
of the plaintiff’s rights; and (3) the failure to supervise or train amounted to
deliberate indifference to the plaintiff’s constitutional rights.” Roberts v. City
of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). Where a failure-to-train
claim rests on an alleged pattern that amounts to deliberate indifference by
city officials, a plaintiff must show a pattern “so common and well-settled as
to constitute a custom that fairly represents municipal policy.” Peterson v.
City of Fort Worth, 588 F.3d 838, 852 (5th Cir. 2009) (citation omitted).
i. Sergeant Hood & Sheriff Rowe
The district court initially held that Garcia established a failure-to-
train claim against Hood and Rowe. But it granted them qualified immunity
because he did not provide any instances of adjudicated liability that would
have put Hood or Rowe on notice of constitutionally deficient behavior by
their staff. It relied on another district court case in reaching this conclusion.
See Dotson v. Edmonson, No.16-5371, 2018 WL 501512 (E.D. La. Jan. 22,
2018). Garcia asserts that the district court’s reliance on Dotson was
misplaced and led to an improper extension of qualified immunity. Instead,
he avers that the proper inquiry is simply whether he has established “the
existence of a pattern of tortious conduct by inadequately trained employees
[that] may tend to show . . . the lack of proper training[.]” Bd. of Cty.
Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997).
Hood and Rowe make two arguments in response. First, Hood avers
that Garcia’s brief fails to mention him during its failure-to-train analysis,
8
Case: 21-11134 Document: 00516827274 Page: 9 Date Filed: 07/20/2023
No. 21-11134
thus waiving Garcia’s claims against him. Second, they contend that even if
Garcia has not waived his claims, he failed to adequately brief qualified
immunity. While we agree that Garcia has inadequately briefed this issue as
to Hood, we hold that he has done so sufficiently on Rowe.
Beginning with Hood, Garcia has waived any claims he had against
him because Garcia’s initial brief on appeal fails to mention or include him in
its analysis. Garcia includes Hood’s name in the heading of his
“Supervisory/Liability/Failure to Train” section. But his subsequent
analysis never mentions Hood, Hood’s conduct, or what connects Hood to
Rowe. Thus, Garcia cannot maintain that we should understand him to be
analyzing the two individuals together. Because Garcia failed to argue
Hood’s liability under a failure-to-train theory, he has waived the argument
as to Hood. See Roy v. City of Monroe, 950 F.3d 245, 251 (5th Cir. 2020)
(“Failure adequately to brief an issue on appeal constitutes waiver of that
argument.”).
Garcia’s failure-to-train claim against Rowe remains and warrants
reversal of the district court’s grant of qualified immunity. The district court
misconstrued Dotson and, in doing so, distorted Garcia’s burden to establish
deliberate indifference and defeat qualified immunity. In Estate of Davis ex
rel. McCully v. City of North Richland Hills, we thoroughly explained a
plaintiff’s burden when alleging deliberate indifference in the supervisory-
liability context:
To succeed on his claim of failure to train or
supervise[,] the plaintiff must demonstrate deliberate
indifference, which usually requires a plaintiff to
demonstrate a pattern of violations . . . [that is,] similar
incidents in which the citizens were injured . . . Moreover,
a showing of deliberate indifference requires that the
[p]laintiff[] show that the failure to train reflects a
9
Case: 21-11134 Document: 00516827274 Page: 10 Date Filed: 07/20/2023
No. 21-11134
deliberate or conscious choice to endanger
constitutional rights.
406 F.3d 375, 383 (5th Cir. 2005). We have stated that previously adjudicated
instances of liability are helpful in determining whether a supervisor had
notice of unconstitutional behavior by their staff. But we have never gone as
far as holding that these instances are required for a plaintiff to prevail. See
Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017) (observing that
Davidson provided “no evidence that any of the previous arrests resulted in
subsequent litigation,” but continuing to analyze the validity of his alleged
pattern).
The district court correctly concluded that Garcia established a
pattern of constitutionally deficient medical screening practices, thus
demonstrating deliberate indifference, and defeating qualified immunity.
The only portion of the district court’s reasoning that gives us pause is its
determination that these deaths satisfy the similarity requirement. See
Davidson, 848 F.3d at 396 (“A pattern requires similarity, specificity, and
sufficiently numerous prior incidents.”). While his complaint does not
expressly state that the ten deaths occurred in the pretrial detainee process—
where his alleged violation happened—we still must construe these deaths in
favor of his allegation that they establish “the existence of a pattern of
tortious conduct by inadequately trained employees [that] may tend to
show . . . the lack of proper training[.]” Brown, 520 U.S. at 407; Littell, 894
F.3d at 622 (requiring that we view the “facts in the light most favorable to
the plaintiffs”).
Because Garcia inadequately briefed Hood’s liability under a failure-
to-train theory, he has waived that claim as to him. But because he sufficiently
pleaded a pattern that demonstrates deliberate indifference on behalf of
Rowe, we reverse the district court’s grant of qualified immunity.
10
Case: 21-11134 Document: 00516827274 Page: 11 Date Filed: 07/20/2023
No. 21-11134
ii. Conklin & Ellison 4
Garcia asserts, for the first time in his reply brief, that Conklin and
Ellison are not entitled to qualified immunity because they believed that he
was drunk, and the law clearly establishes that officers may not simply put an
intoxicated person with an obvious need for medical attention in a cell to
detox. It is likely that this argument is waived because it was not made in his
initial brief on appeal. See Wright v. Excel Paralubes, 807 F.3d 730, 736 (5th
Cir. 2015) (“[T]his court will not consider issues raised for the first time in a
reply brief.”).
However, assuming arguendo that Garcia has not waived this
argument, he has still failed to meet his burden. To prevail on his deliberate-
indifference claim, he must show that Conklin and Ellison “kn[e]w of and
disregard[ed] an excessive risk” to his safety. 5 See Garza v. City of Donna,
922 F.3d 626, 636 (5th Cir. 2019) (holding that establishing civil liability
requires a plaintiff to first show “that the municipal employee violated the
pretrial detainee’s clearly established constitutional rights with subjective
deliberate indifference”). For Garcia to make a successful claim, he must
plead facts supporting that the officers knew he was intoxicated and
disregarded an excessive risk to his safety.
4
Garcia sued Conklin and Ellison for false arrest at the district court, which granted
them qualified immunity. He does not pursue this claim on appeal, so he has waived it. See
Roy, 950 F.3d at 251.
5
Much has been made about the subjective prong of the deliberate indifference
analysis in this court. See, e.g., Garza, 922 F.3d at 636 (collecting cases on the subjective
requirement). In Garza, we clarified that the subjective inquiry in a deliberate indifference
analysis focuses on the knowledge that a defendant has, not the defendant’s intent to cause
harm. Thus, we only analyze: (1) what Officers Conklin and Ellison knew when they
arrested Garcia and (2) whether they consciously disregarded an excessive risk despite this
knowledge.
11
Case: 21-11134 Document: 00516827274 Page: 12 Date Filed: 07/20/2023
No. 21-11134
Here, the record does not support that Conklin or Ellison ever knew
that Garcia was intoxicated. For example, the officers asked Garcia how
much he had to drink, but he never provided a clear answer. Moreover, as
Garcia concedes in his reply brief, the officers could not smell alcohol on him.
Thus, they could not have known, without more, that he was drunk or
otherwise intoxicated during his arrest. Because the officers were never
certain of what ailed Garcia, they could not have “violated [his] clearly
established rights with subjective deliberate indifference.” Garza, 922 F.3d
at 636. Therefore, the district court correctly determined that Garcia failed
to meet the required burden and that the officers were entitled to qualified
immunity.
iii. Bigham, Lopez, Cartwright, Mendez, and Martinez
Garcia asserts that Bigham, Lopez, Cartwright, Mendez, and
Martinez (collectively “the jailors”) violated clearly established law from our
decisions in Dyer and Thompson v. Upshur County by failing to get him medical
attention during the booking process. See 955 F.3d at 506; 245 F.3d 447, 464
(5th Cir. 2001). The district court dismissed the jailors from the suit on two
grounds. It first held that Garcia only alleged that the jailors were negligent,
which is insufficient to establish deliberate indifference. 6 It then explained
that even if it was satisfied with Garcia’s pleadings on deliberate indifference,
it would still grant the jailors qualified immunity. Consequently, it dismissed
the jailors from this suit. We agree.
Here, Garcia does not establish that the jailors’ failure to get him
medical assistance amounted to deliberate indifference instead of negligence.
6
See Thompson, 245 F.3d at 459 (explaining that “deliberate indifference cannot be
inferred merely from a negligent or even a grossly negligent response to a substantial risk
of serious harm”).
12
Case: 21-11134 Document: 00516827274 Page: 13 Date Filed: 07/20/2023
No. 21-11134
He likewise fails to prove that the jailors are not entitled to qualified
immunity. He maintains that the jailors’ failure to: (1) notice his medical
bracelets; (2) check his cell every fifteen minutes; and (3) recognize he was
suffering through a diabetic episode amounts to deliberate indifference.
However, he provides no legal authority or facts in the record that support
overturning the district court’s determination that the jailors’ conduct was
simply negligent. At best, he alleges gross negligence by the jailors. But that
is not enough to carry his burden. See Thompson, 245 F.3d at 459.
Garcia also reargues that Dyer and Thompson provide a basis for
denying the jailors qualified immunity. But we can only find support in those
cases by viewing them at a high level of generality—a task that the Supreme
Court has expressly instructed we avoid. See City of Tahlequah v. Bond, 142
S. Ct. 9, 11 (2021) (instructing appellate courts “not to define clearly
established law at too high a level of generality”). Viewing these cases
narrowly, we hold that the jailors are entitled to qualified immunity.
In Dyer, we held that the paramedics were only negligent when they
arrived at a scene, observed a victim’s “serious head injury” and “LSD-
induced behavior,” yet still did not provide additional medical care—“such
as sending [the victim] to the hospital, accompanying him to jail, providing
further assessment or monitoring, or sedating him.” See 955 F.3d at 506–07
(internal quotations omitted). And in Thompson we denied summary
judgment on qualified immunity grounds because a question of fact existed
as to whether the defendant, Sergeant Whorton, acted with deliberate
indifference to a pretrial detainee’s self-sabotaging behavior and intoxicated
status. See Thompson, 245 F.3d at 463–64 (noting that “1) Thompson’s blood
alcohol level was over 0.3% when he was arrested; 2) Thompson was
hallucinating and, at times, speaking incoherently; 3) Thompson was injuring
himself in his cell; and 4) Thompson was experiencing [delirium tremens]”).
13
Case: 21-11134 Document: 00516827274 Page: 14 Date Filed: 07/20/2023
No. 21-11134
On this record, the jailors did not observe and ignore any serious
external injuries to Garcia, like in Dyer. Nor did they fail to obtain medical
assistance for him after they were certain that it was necessary, like in
Thompson. Accordingly, even if we held that the jailors’ negligence was
comparable to deliberate indifference, neither Dyer nor Thompson provide an
adequate basis for denying the jailors qualified immunity because those cases
do not establish that the jailors acted objectively unreasonable or violated
clearly established law. Therefore, we affirm the district court’s dismissal of
the jailors.
2. Failure to State a Claim
i. Maldonado
The district court dismissed Maldonado from Garcia’s suit because
he failed to state a claim for deliberate indifference against her. He challenges
that determination, arguing that Maldonado violated his Fourteenth
Amendment rights by ignoring his obvious need for medical attention
throughout the booking process. We are unpersuaded.
Garcia anchors his deliberate-indifference claim against Maldonado
on her alleged failure to account for his medical bracelets as she began his
booking process at the jail. He avers that she “ignored the medical alert
bracelets, ignored the obvious signs of serious medical need, and bypassed
medical screening.” To him, all of Maldonado’s decisions amounted to an
intentional decision to avoid “obtain[ing] medical assistance” when he
clearly needed it. Maldonado disputes that she ever saw medical bracelets
when doing his initial processing into the jail. However, given that we are at
the Rule 12(b)(6) stage, we accept his allegation as true in our analysis. See
Littell, 894 F.3d at 622.
Here, Garcia fails to establish that Maldonado was deliberately
indifferent to his medical needs. As the district court aptly explained:
14
Case: 21-11134 Document: 00516827274 Page: 15 Date Filed: 07/20/2023
No. 21-11134
There are few cases—none of which Garcia cites—
involving the application of deliberate-indifference
claims to facts involving the removal of medical alert
bracelets, and none of the cases permits the [district
court] to indulge Garcia’s ‘unwarranted factual
inference’ that the alleged presence and removal of
Garcia’s medical bracelets indicates that Maldonado
actually drew the inference that the failure to promptly
seek medical treatment for Garcia presented a
substantial risk of serious harm to him.
One of those few cases grappling with a plaintiff’s medical bracelets and the
deliberate indifference standard is Partridge v. Two Unknown Police Officers of
the City of Houston, 791 F.2d 1182, 1184 (5th Cir. 1986). In that case, we held
that a plaintiff sufficiently alleged facts demonstrating that officers were
deliberately indifferent to his deceased son’s mental-health condition by
disregarding his medical bracelets and placing him alone in a cell where he
eventually hanged himself. Id. The plaintiff told the officers of his son’s
mental-health problems and the medical bracelets served to supplement that
knowledge. See id. We held that the officers’ decision to place his son in
solitary confinement despite the two medical bracelets indicating “heart and
mental” struggles and explanation of those same struggles by the plaintiff
amounted to deliberate indifference to the son’s psychological needs. Id.
Partridge provides little support to Garcia’s position. To begin with,
he does not allege that he ever informed Maldonado of his medical condition.
Nor has he pleaded facts that suggest she should have known from the
existence of his bracelets that he was suffering from a diabetic episode during
the booking process. Furthermore, even if we hold that she was on notice of
a potential medical need from Garcia’s bracelets, he has still failed to
demonstrate that the mere existence of the bracelets created an issue of fact
as to a substantial risk of serious harm that she ignored when processing him.
See Dyer, 955 F.3d at 506. Therefore, he has failed to state a deliberate-
15
Case: 21-11134 Document: 00516827274 Page: 16 Date Filed: 07/20/2023
No. 21-11134
indifference claim against Maldonado and the district court properly
dismissed her.
B. The County’s Summary Judgment
Garcia contests the district court’s grant of summary judgment on his
conditions-of-confinement and ADA claims against the County. 7 We address
each in turn.
1. Conditions of Confinement
Garcia avers that Rowe’s testimony details a de facto policy of leaving
intoxicated detainees in detox cells. He contends that the County’s failure to
medically screen him, provide him with medical treatment, and properly
monitor his condition once celled, amounts to a violation of his Fourteenth
and Eighth Amendment rights. The district court rejected his assertions,
granting summary judgment to the County because he failed to prove the
existence of a de facto policy. We agree.
Constitutional claims by pretrial detainees can take two forms: (1)
conditions of confinement or (2) episodic acts or omissions. 8 See Garza, 922
F.3d at 632. “A condition of confinement case is a constitutional attack on
7
Garcia advanced two more arguments in addition to conditions of confinement
and violation of the ADA at the district court: An episodic-acts-or-omissions claim and a
failure-to-train claim. He has expressly abandoned his episodic-acts-or-omissions claim.
Also, he failed to brief his failure-to-train claim on appeal, so he has waived that argument.
See Roy, 950 F.3d at 251.
8
Appellees argue that this case is better characterized as an episodic-acts-or-
omissions claim, contending that Garcia incorrectly directs our focus to conditions of
confinement. We take no stance on which theory best characterizes Garcia’s claims
because he advanced both theories before the district court. His decision to only appeal one
of those theories is entirely at his discretion. See Estate of Henson v. Wichita Cty., 795 F.3d
456, 464 (5th Cir. 2015) (“[T]here is no rule barring a plaintiff from pleading both
alternative theories, and a court may properly evaluate each separately.”).
16
Case: 21-11134 Document: 00516827274 Page: 17 Date Filed: 07/20/2023
No. 21-11134
general conditions, practices, rules, or restrictions of pretrial confinement.”
Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (internal quotations and citation
omitted). To prevail on this claim, a plaintiff must “prove (1) a rule or
restriction or . . . the existence of an identifiable intended condition or
practice . . . [or] that the jail official’s acts or omissions were sufficiently
extended or pervasive; (2) which was not reasonably related to a legitimate
governmental objective; and (3) which caused the violation of [the
detainee’s] constitutional rights.” Duvall v. Dallas Cty., 631 F.3d 203, 207
(5th Cir. 2011) (first alteration in original) (internal quotations and citations
omitted).
We have explained that “[a] formal, written policy is not required to
establish a condition or practice.” Montano v. Orange Cty., 842 F.3d 865, 875
(5th Cir. 2016). More specifically, we have recognized that sometimes “a
condition may reflect an unstated or de facto policy, as evidenced by a pattern
of acts or omissions sufficiently extended or pervasive, or otherwise typical
of extended or pervasive misconduct by [jail] officials, to prove an intended
condition or practice.” Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir.
2009) (internal quotations and citation omitted) (alteration in original)
(emphasis omitted). Put differently, if the policymakers are aware that
officials routinely ignore the governing written policy, that may be evidence
of an alternative policy’s existence. “Proving a pattern is a heavy burden, one
that has rarely been met in our caselaw.” Shepherd, 591 F.3d at 452.
Garcia does not argue that the County had a written policy that
created the conditions he purports to sue for in this appeal. Rather, he limits
his argument to the existence of a de facto policy that permits booking and
processing employees to avoid medically screening intoxicated people. He
contends that Rowe’s testimony details this alleged de facto policy and
proves that skipping medical screenings for intoxicated people was the usual
practice for all pretrial detainees in the booking process. He relies on Montano
17
Case: 21-11134 Document: 00516827274 Page: 18 Date Filed: 07/20/2023
No. 21-11134
in support of his position. See 842 F.3d at 875. This argument is without
merit.
Here, Garcia fails to create a genuine dispute of a material fact
regarding the existence of an unconstitutional de facto policy in the County’s
booking process. First, his reliance on Montano is misplaced. In that case, we
held that Orange County had an unconstitutional de facto policy of leaving
pretrial detainees in cells to detox “for as long as it t[ook]” the detainee to
sober up. Montano, 842 F.3d at 875. That Orange County left detainees in
detox cells was not the primary issue—in fact, there was a written policy
permitting to place intoxicated detainees in these cells. Rather, the issue was
whether the jail staffs’ practices adhered to the written policy—we
concluded that it did not. We reached this determination after analyzing
extensive testimony from the jailors, who testified to leaving detainees in
detox cells for days at a time, despite the existence of a written policy
prohibiting doing so. Id. at 875–76 (observing that “[t]he county’s de facto
policy is even at odds with its own written policy . . . [which] provides [that]
corrections staff should attempt to use a guideline of four to eight hours for
detoxification” (internal quotations omitted)).
Garcia asserts that the County’s de facto policy of leaving detainees in
cells until they detox is, by itself, a violation sufficient for holding in his favor.
But his understanding fundamentally misconstrues what we considered and
held in Montano. There, Orange County’s written policy permitted holding
pretrial detainees in detox cells for “four-to-eight hours.” Id. at 875. We
never declared that policy unconstitutional. Instead, we recognized that
Orange County’s employees adhered to a different policy—one where
officers left detainees in detox cells for days at a time. We explained that this
unconstitutional practice supplanted the written policy. Applied here,
Montano cannot be Garcia’s only basis for a constitutional violation because,
18
Case: 21-11134 Document: 00516827274 Page: 19 Date Filed: 07/20/2023
No. 21-11134
despite his assertions to the contrary, that case does not prohibit the County
from using detox cells for short durations. See id.
Even if we accept that Garcia is correct about the County’s practice
of using cells to hold detainees until they detox, he has not pleaded that he
was detained for a constitutionally deficient amount of time. See id. at 875.
Ultimately, our decision in Montano does not bar the use of detox cells
entirely, but merely acknowledges that a stopping point for detaining
intoxicated persons exists. Garcia spent three hours in the County’s detox
cell—an amount of time we did not hold unacceptable in Montano. See id.
Garcia’s reliance on Rowe’s testimony is similarly unpersuasive.
True, Rowe commented on whether other intoxicated detainees were held in
a cell to sober up before processing, and even admitted that its occurrence
was not “abnormal.” But that hardly meets the heavy burden of proof that
Garcia carries here. Ultimately, all Rowe admitted is that “there have been
some instances” where pretrial detainees have been taken directly to a
holding cell, and that “under some circumstances” it was necessary to place
them in jail cells prior to booking and processing. A vague string of one-off
occurrences is not indicative of the County’s practice for all pretrial
detainees.
Garcia also failed to acknowledge that Rowe testified that he did not
receive medical treatment, at his own request. The County provided a Jail
Incident Report which stated that Officer Cartwright asked “Garcia if he
wanted to speak to Medical Staff and he stated, [n]o.” He cannot maintain
that he was the victim of an unconstitutional practice when there is an
independent, constitutional basis for his not receiving medical attention
before he was discovered in critical condition in his cell. Because Garcia failed
to prove that there is a genuine dispute of a material fact regarding the
19
Case: 21-11134 Document: 00516827274 Page: 20 Date Filed: 07/20/2023
No. 21-11134
constitutionality of the County’s pretrial detention policies and practices, we
affirm the district court’s grant of summary judgment.
2. ADA Violations
Garcia makes two ADA claims: (1) that the County failed to
accommodate his disability and (2) that it discriminated against him because
of his disability. Regarding his latter argument, he asserts that his condition
was the cause of the County’s decision to not provide him a medical
evaluation or screening. The district court rejected his contentions, granting
summary judgment to the County because he failed to provide evidence that
the County ever knew of his medical condition. We see no error in its
decision.
Title II of the ADA provides 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.” See 42
U.S.C. § 12132. To make a prima facie case under the ADA, a plaintiff must
demonstrate: (1) “that he is a qualified individual within the meaning of the
ADA”; (2) “that he is being excluded from participation in, or being denied
benefits of, services, programs, or activities for which the public entity is
responsible, or is otherwise being discriminated against by the public entity”;
and (3) “that such exclusion, denial of benefits, or discrimination is by reason
of his disability.” Windham v. Harris Cty., 875 F.3d 229, 235 (5th Cir. 2017)
(internal quotations and citation omitted).
A failure-to-accommodate claim requires a plaintiff to prove that: “(1)
he is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered entity; and (3) the
entity failed to make reasonable accommodations.” Ball v. LeBlanc, 792 F.3d
584, 596 n.9 (5th Cir. 2015) (internal citation omitted). “To satisfy the
20
Case: 21-11134 Document: 00516827274 Page: 21 Date Filed: 07/20/2023
No. 21-11134
knowledge requirement, the entity must understand the limitations a plaintiff
experience[s] as a result of his disability.” Valentine v. Collier, 993 F.3d 270,
290 (5th Cir. 2021) (emphasis in original). Additionally, we have explained
that the “burden falls on the plaintiff to identify the disability, the limitations,
and to request an accommodation in direct and specific terms.” Id. (citation
omitted). Where a plaintiff fails to meet his burden, he may only prevail by
showing that his “disability, resulting limitations, and necessary reasonable
accommodation were open, obvious, and apparent to the entity’s relevant
agents.” Id. (citing Windham, 875 F.3d at 237) (internal quotations omitted).
Garcia dedicates much of his brief to the first element—that diabetes
qualifies as a disability under the ADA. The County does not refute that
element and instead argues that its employees never knew that he suffered
from diabetes. It avers that because it never knew of his disability, it could not
have discriminated against him on the basis that he was disabled or provided
accommodations. In response, Garcia asserts that his disability was open,
obvious, and apparent because of his inability to walk or communicate. He
maintains that because his limitations were known, his need for
accommodations was readily apparent. We disagree.
Here, Garcia fails to provide sufficient evidence to avoid summary
judgment on his ADA claims. His Title II and failure-to-accommodate claims
share a common element: the County’s knowledge of his disability. Garcia
points to no evidence suggesting that the County knew of his disability, used
it to discriminate against him, or failed to accommodate him. Instead, he
makes conclusory statements about the County’s alleged knowledge of his
diabetic condition. But each statement is easily dispelled after considering the
record. For example, he relies on the existence of his medical bracelets, but
fails to prove that the bracelets alerted anyone to his diabetic condition, or
even that they would have suggested a medical condition at all. Moreover,
the record establishes the officers’ confusion about whether he was drunk or
21
Case: 21-11134 Document: 00516827274 Page: 22 Date Filed: 07/20/2023
No. 21-11134
suffering from a medical condition. 9 Absent proof that someone from the
County had knowledge of his disability, he cannot establish that they
discriminated against him because of it or failed to accommodate him.
Likewise, Garcia’s contention that his condition at arrest and
throughout the booking process made his disability open, obvious, and
apparent is unpersuasive. We have explained that the open-and-obvious
exception is “narrow.” Windham, 875 F.3d at 239. Garcia cites no authority
to support application of this exception, but a brief survey of our precedent
confirms its inapplicability. Consider our decision in Delano-Pyle v. Victoria
Cty., 302 F.3d 567, 575–76 (5th Cir. 2002). There, we upheld a jury’s finding
of disability discrimination when two officers arrested a deaf person, Pyle. Id.
Notably, we did not apply the open-and-obvious exception simply because he
was deaf. We, instead, applied the exception because the officers testified to
communicating his rights and other commands orally while being aware of
his hearing impediment. Id. In fact, one of the officers stated that he “knew
[Pyle] had a hearing problem,” yet continued only communicating with him
through oral instructions. Id. Simply put, the officers’ attempts to
communicate critical rights to someone they understood to be deaf plainly
violated the ADA.
Unlike in Delano-Pyle, the record shows that none of the officers ever
believed or understood Garcia’s symptoms to stem from diabetes or any
other ADA-approved disability. Furthermore, his outwardly visible
mannerisms did not suggest that he suffered from the type of disability that
9
Garcia cannot deny the officers’ confusion because he relies on it at various times
throughout his briefing on appeal. For example, his deliberate-indifference claims against
numerous officers and the jailors hinge on the fact that these defendants made a deliberate
choice to put someone either suffering from a medical condition or intoxicated in a cell to
detox for a lengthy period.
22
Case: 21-11134 Document: 00516827274 Page: 23 Date Filed: 07/20/2023
No. 21-11134
would put an officer on notice to accommodate him. See Windham, 875 F.3d
at 238 (providing that “blindness, deafness [with a hearing aid], or being
wheelchair-bound” are “well-understood” examples of open-and-obvious
disabilities). Because he fails to identify evidence that the County knew of his
diabetic status and because his disability was not open and obvious, we affirm
the district court’s summary judgment.
IV. Conclusion
For the foregoing reasons, we REVERSE the district court’s
dismissal of Rowe and AFFIRM its judgment dismissing the remaining
Appellees and granting summary judgment to the County.
23