Case: 22-40841 Document: 00517031489 Page: 1 Date Filed: 01/12/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
January 12, 2024
No. 22-40841 Lyle W. Cayce
____________ Clerk
Kelly Stevenson-Cotton; Estate of Ronald Glen
Cotton, Jr.,
Plaintiffs—Appellants,
versus
Galveston County; Henry Trochesset, Galveston County
Sheriff; Dr. Garry Killyon; Dr. Kathy White, also known as
Kathy Jean Jordan; Boon-Chapman Benefit
Administrators, Incorporated; Soluta, Incorporated;
Soluta Health, Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-CV-98
______________________________
Before Stewart, Dennis, and Wilson, Circuit Judges.
Per Curiam:*
This case arises out of Ronald Cotton Jr.’s (“Cotton”) death during
his detention in the Galveston County Jail on March 14, 2019. Appellant
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Kelly Stevenson-Cotton (“Stevenson-Cotton”), as the representative of
Cotton’s estate, filed suit against Galveston County, the Galveston County
Sheriff, and the County Jail’s private medical contractors. The district court
granted summary judgment as to all of Stevenson-Cotton’s federal claims
and remanded the remaining state law claims because it determined that no
reasonable jury could find deliberate indifference on the part of any
defendant. Because we find no error, we AFFIRM.
I.
For over a decade before his death, Cotton struggled with psychiatric
disorders, including bipolar disorder and psychosis. Cotton was diagnosed
with diabetes, hypertension, and hypertriglyceridemia in December 2013. In
the summer of 2016, Cotton was arrested and incarcerated in the Galveston
County Jail. At intake, Cotton informed the jail’s medical unit of his history
of hypoglycemia and that he took nighttime medications to control his
diabetic condition. He was released later that year.
A.
On January 3, 2019, Cotton was arrested again on charges of assault,
criminal mischief, unlicensed possession of a firearm, and burglary following
a mental health episode. The following day, Cotton was booked at the
Galveston County Jail (the “Jail”). At intake, Cotton reported to staff that
he had been diagnosed and treated for psychosis, ADHD, and mental illness,
but he denied having a history of diabetes. During his detention, Cotton
experienced gastrointestinal issues that worsened over the span of two and a
half months. In his first month at the County Jail, Cotton sought and received
medical treatment on several occasions.
On January 13, 2019, Cotton first complained of abdominal pain to a
registered nurse in the Jail’s medical unit. The nurse took an
electrocardiograph exam of Cotton that revealed he had a “Normal Sinus
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Rhythm” and then discharged him, noting his status as “in stable condition”
without need for further medical attention. The nurse also noted that Cotton
“denied [having a] history of heart problems.” Cotton again notified the
Jail’s medical staff that he was experiencing abdominal pain on January 25,
2019. Cotton was examined by a licensed vocational nurse (“LVN”) who
determined that Cotton was in stable condition. The LVN advised Cotton to
take milk of magnesia twice a day to aid his digestive process and drink more
fluids.
Cotton again sought care for constipation concerns on March 6, 2019.
An LVN examined Cotton and advised him to continue his course of milk of
magnesia and notify the clinic if he did not have a bowel movement in the
coming days. On March 12, 2019, Cotton sought and received care twice in
the medical unit. That morning, Cotton reported to an LVN that he had
continued constipation and chest pain in his sternum area. The LVN
reported on Cotton’s chart that Cotton stated that he thought he was having
acid reflux from eating chili the night before. The LVN determined that
Cotton’s condition was stable because his chest pains had subsided during
his visit to the medical unit. Cotton was advised to refrain from meals with
high sodium content and to “sit up for at least one hour after meals.”
Later that evening, Cotton sought medical care again because he had
vomited and had been constipated for ten days without any bowel
movements. A sheriff’s deputy informed the LVN that Cotton’s vomit
contained blood. Cotton informed the LVN that the milk of magnesia did not
help his constipation and the LVN found that his bowels seemed “sluggish.”
The LVN then alerted the physician on duty, Dr. Garry Killyon, of Cotton’s
condition and Dr. Killyon prescribed a fiber supplement and daily laxative
tablet. The following morning, Cotton vomited several times. A deputy
reported his condition to the medical unit at 12:04 p.m. The deputy took
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Cotton to the medical unit, and Cotton informed the nurse that he had not
eaten in days. Cotton had an elevated heartrate and tenderness in his
stomach. The nurse then informed Dr. Killyon of Cotton’s symptoms and
continued complaints of constipation. Dr. Killyon then ordered an abdominal
X-ray for Cotton for the following day, March 14.
B.
In the afternoon of March 13, 2019, Cotton again vomited and Dr.
Killyon directed the deputy to bring the contents of any further vomit to him
for further evaluation. Around 5 p.m., a nurse was called to Cotton’s cell
because he was found dry heaving and had collapsed on the floor. Cotton
complained of extreme pain and requested to be taken to the local University
of Texas Medical Branch hospital (“UTMB”). Cotton also reported dry lips
and that he had not had anything to eat or drink in days. The nurse responded
that Cotton had previously stated that he had some “chili and soups” the day
prior, but Cotton denied saying so. The staff escorted Cotton to the medical
unit for Dr. Killyon to treat him.
Dr. Killyon gave Cotton magnesium citrate, started him on oxygen,
and performed a rectal examination. The exam did not reveal any stool in
Cotton’s rectal vault. Dr. Killyon repeatedly tried to start an IV drip on
Cotton but could not find a vein to start the drip. Dr. Killyon ordered
Cotton’s non-emergent transit1 to UTMB at 5:45 p.m., and fifteen minutes
later, Cotton left for the hospital. Cotton arrived at UTMB at 6:38 p.m., and
Cotton informed the nurses there that he was thirsty and had suffered from
chest pains for about a week. At UTMB, Cotton denied having a history of
diabetes and initially refused care, expressing that he believed he was only
_____________________
1
Non-emergent transfer refers to the use of a deputy squad care to transport a
detainee to the UTMB hospital instead of calling for an emergency services vehicle.
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dehydrated. The UTMB staff convinced Cotton to stay for further testing
because they perceived that he was suffering from something more complex.
At 9:20 p.m., Cotton’s lab results came back, and he was transferred
to UTMB’s intensive care unit for diabetic ketoacidosis. Around midnight,
Cotton’s blood pressure dropped sharply and he started vomiting. The
UTMB staff moved him to the trauma unit where he was intubated, and CPR
was started. The UTMB staff attempted multiple lifesaving measures
including CPR, epinephrine shots, and defibrillations until 12:44 a.m. on
March 14, 2019. Cotton was declared dead at that time. The UTMB staff
concluded that his cause of death was diabetic ketoacidosis.
C.
On March 16, 2021, Stevenson-Cotton filed the instant lawsuit in state
court against Appellees Galveston County (the “County”), Galveston
County Sheriff Henry Trochesset (“Trochesset”) (collectively, the
“County Defendants”), Dr. Killyon, Dr. Teresa Becker (“Becker”), Dr.
Erin Barnhart (“Barnhart”), Boon-Chapman Benefit Administrators, Inc.
(“Boon-Chapman”), Soluta, Inc. (“Soluta”), Soluta Health, Inc. (“Soluta
Health”), Terry Haneline (“Haneline”), and Kathy White a/k/a Kathy Jean
Jordan (“White”) (collectively, the “Medical Defendants”). The
defendants removed the case to federal district court on April 23, 2021.
Stevenson-Cotton alleged that the defendants deprived Cotton of his Fourth,
Eighth, and Fourteenth Amendment rights based on theories of deliberate
indifference to his health emergency and unconstitutional conditions of
confinement. Stevenson-Cotton voluntarily dismissed her claims against
Becker and Barnhart on September 7, 2021.
In August 2022, the County Defendants and Medical Defendants
moved for summary judgment on Stevenson-Cotton’s § 1983 claims. They
argued that Stevenson-Cotton failed to create a fact issue regarding
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deliberate indifference on the part of any individual or institutional
defendant. All parties submitted expert reports that offered competing views
on whether the alleged delay in providing Cotton with qualified medical care
from physicians was a material factor in his ultimate death.
On November 29, 2022, the district court granted both motions for
summary judgment on all Stevenson-Cotton’s federal claims and remanded
the remaining state law claims to state court. The district court construed
Stevenson-Cotton’s pleadings as asserting individual liability against Dr.
Killyon for constitutional deprivations stemming from his “episodic acts or
omissions” and against the other institutional defendants for implementing
policies that created unconstitutional conditions of confinement. The district
court determined that no reasonable jury could find that (1) Dr. Killyon
treated Cotton with deliberate indifference to his medical needs, (2) the
LVNs’ treatment of Cotton constituted deliberate indifference, or (3) the
County Defendants’ and Medical Defendants’ lack of an emergency transfer
policy for detainees violated Cotton’s Fourteenth Amendment rights.
On appeal, Stevenson-Cotton argues that there is sufficient evidence
creating a material fact dispute as to whether any defendant acted with
deliberate indifference to Cotton’s serious medical needs either through acts
or omissions and in setting policies requiring LVNs as opposed to licensed
physicians to screen patient complaints and in utilizing non-emergent
transfers to UTMB. We disagree.
II.
We review a district court’s grant of summary judgment de novo.
Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary
judgment is proper ‘if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.’” Id. (citing FED. R. CIV. P. 56(a)). A dispute regarding a material fact
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is “genuine” if the evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A plaintiff’s subjective beliefs, conclusory allegations,
speculation, or unsubstantiated assertions are insufficient to survive
summary judgment. See Carnaby v. City of Houston, 636 F.3d 183, 187 (5th
Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The
party opposing summary judgment is required to identify specific evidence
in the record and to articulate the precise manner in which that evidence
supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998). “A panel may affirm summary judgment on any ground
supported by the record, even if it is different from that relied on by the
district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012)
(internal quotation marks and citation omitted).
III.
The Eighth Amendment provides substantive protection for
individuals who are convicted prisoners, and due process owed under the
Fourteenth Amendment protects pretrial detainees. See Hare v. City of
Corinth, 74 F.3d 633, 639 (5th Cir. 1996). In the Fifth Circuit, the analysis for
each category of claims is the same because our “Fourteenth Amendment
case law concerning pretrial detainees” is derived from “the Supreme
Court’s Eighth Amendment precedent concerning prisoners.” Garza v. City
of Donna, 922 F.3d 626, 634 (5th Cir. 2019) (cleaned up) (citing Hare, 74 F.3d
at 643–44). Pretrial detainees are afforded a constitutional right under the
Due Process Clause of the Fourteenth Amendment “not to have their serious
medical needs met with deliberate indifference on the part of the confining
officials.” Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001). The
law of this circuit recognizes two types of pretrial detention due process
claims: (1) episodic acts or omissions, and (2) conditions of confinement.
Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).
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Stevenson-Cotton advances both an episodic acts or omissions claim against
Dr. Killyon and a conditions-of-confinement claim against the County
Defendants, Dr. Killyon, and Boon-Chapman. We address each claim in turn.
A.
In a due process claim based on episodic acts or omissions against an
individual defendant, a plaintiff must establish that the official in question
acted with subjective deliberate indifference. See id. To establish subjective
deliberate indifference, the plaintiff must create genuine disputes of material
fact as to two elements at the summary judgment stage. See id.; Baughman v.
Hickman, 935 F.3d 302, 307 (5th Cir. 2019). First, the official must be aware
of facts from which the inference could be drawn that a substantial risk of
harm exists. Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc).
Second, the official “must also draw the inference.” Id. The official conduct
must be “wanton” or “reckless.” Id. Subjective deliberate indifference is an
extremely high bar. Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756
(5th Cir. 2001).
Notably, we have held that “[d]eliberate indifference is a degree of
culpability beyond mere negligence or even gross negligence; it must amount
to an intentional choice, not merely an unintentionally negligent oversight.”
James v. Harris Cnty., 577 F.3d 612, 617–18 (5th Cir. 2009) (internal
quotation marks and citation omitted). With respect to medical care of
pretrial detainees, we have consistently held that unsuccessful treatment or
even medical malpractice does not meet the standard of “a wanton disregard
for any serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th
Cir. 1985). Upon review of the parties’ arguments, the record, and the
governing caselaw, we find that Stevenson-Cotton has failed to meet this high
bar to create a genuine dispute of material fact that Dr. Killyon was
deliberately indifferent to Cotton’s serious medical needs. Id.
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Stevenson-Cotton argues that Dr. Killyon inappropriately delayed a
course of insufficient care although information about Cotton’s serious
medical needs was easily ascertainable. Citing Taylor v. Stevens, 946 F.3d 211,
221 (5th Cir. 2019), she contends that Cotton’s deteriorating physical
condition and his medical intake files from his previous detention in the
Galveston County Jail constituted an obvious risk of serious harm from his
medical condition. She asserts that the district court erred in determining
that no reasonable jury could find that Dr. Killyon deprived Cotton of his
constitutional rights simply because Cotton failed to mention his history of
diabetes on his intake forms and the fifty-three-minute delay in getting
Cotton to UTMB in non-emergency transport did not constitute deliberate
indifference. She further argues that the district court erred by
misinterpreting several assertions in her opposition as concessions that
Cotton did not have an active history of diabetes.
Barring any misunderstanding about Stevenson-Cotton’s opposition
to summary judgment, we conclude that the district court appropriately
determined that she failed to demonstrate a genuine dispute of material fact
on this issue. As stated above, we have held that even gross negligence in
medical treatment is insufficient to constitute deliberate indifference. See
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Cotton was seen
numerous times by LVNs and the consistent availability and willingness of
the Jail’s medical unit to treat him does not “clearly evince a wanton
disregard for any [of his] serious medical needs.” Johnson, 759 F.2d at 1238
(holding no deliberate indifference where prisoner’s medical records show
that he was routinely treated by the medical unit during his detention). Thus,
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we hold that the district court’s summary judgment as to Stevenson-
Cotton’s episodic acts or omissions claim was appropriate.2 Id.
B.
Stevenson-Cotton’s conditions-of-confinement claim fares no better.
A conditions-of-confinement claim is a constitutional challenge made on the
“general conditions, practices, rules, or restrictions of pretrial
confinement.” Hare, 74 F.3d at 644. The central question is whether the
conditions of the detainee’s confinement amount to “punishment.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979). When challenging a condition of
confinement, a plaintiff must show that: (1) some rule, restriction,
identifiable intended condition or practice, or a pervasive pattern of acts or
omissions committed by a jail official exists, (2) that is not reasonably related
to a legitimate governmental objective, and (3) that causes a violation of a
detainee’s constitutional rights. See Duvall v. Dallas Cnty., 631 F.3d 203, 207
(5th Cir. 2011). We have recognized that “the reasonable-relationship test
employed in conditions cases is functionally equivalent to the deliberate
indifference standard employed in episodic” acts or omissions cases. Scott v.
Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc) (internal quotation marks and
citation omitted).
Conditions of detention centers are usually the product of an explicit
policy or restriction, such as disciplinary plans, mail privileges, and the
_____________________
2
Furthermore, the caselaw Stevenson-Cotton cites in support of her arguments on
appeal are factually inapposite here. For example, in Easter v. Powell, 467 F.3d 459, 464 (5th
Cir. 2006), this court held that a prison official acted with deliberate indifference to an
inmate’s medical needs where she refused to treat the inmate even though she knew of his
heart condition and the fact that he was experiencing severe chest pain and did not have his
prescribed heart medication. Id. at 463–65. Here, no individual defendant had knowledge
of Cotton’s history of diabetes.
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number of bunks per cell. See Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th
Cir. 2009). In the absence of an explicit policy, a plaintiff may prove that a
condition reflects an unstated or de facto policy by pointing to evidence of a
pattern of acts or omissions “sufficiently extended or pervasive, or otherwise
typical of extended or pervasive misconduct by [detention] officials, to prove
an intended condition or practice.” Id. (quoting Hare, 74 F.3d at 645).
Proving a de facto policy from a pattern of activity “is a heavy burden, one
that has rarely been met in our caselaw.” Id. Additionally, “isolated examples
of illness, injury, or even death, standing alone, cannot prove that conditions
of confinement are constitutionally inadequate.” Id. at 454.
Stevenson-Cotton asserts that Dr. Killyon and the County
Defendants created unconstitutional conditions of confinement by
(1) maintaining a de facto policy to provide insufficient care to detainees,
(2) adopting a policy to use non-emergent vehicles to transfer detainees to
UTMB, and (3) requiring LVNs instead of licensed physicians to screen
detainees when they request care. We disagree with each assertion. As an
initial matter, this court has rejected the argument that a jail’s policy
mandating LVNs to screen detainees before seeing a higher-level medical
professional creates an unconstitutional condition of confinement. See Estate
of Henson v. Wichita Cnty., 795 F.3d 456, 469 (5th Cir. 2015) (rejecting
argument that a multi-tiered health services system using LVNs to screen
detainees’ medical complaints violated their due process rights). Second,
Stevenson-Cotton has failed create a genuine dispute of material fact on this
record that the Jail has a policy or practice of non-emergent transfers. See id.
at 465–66; Estate of Bonilla v. Orange Cnty., 982 F.3d 298, 309 (5th Cir. 2020)
(“[I]solated examples of illness, injury, or even death, standing alone, cannot
prove that conditions of confinement are constitutionally inadequate.”).
Assuming arguendo that Stevenson-Cotton has created a genuine dispute of
material fact that a non-emergent transfer policy existed, there is not
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sufficient evidence to show a material fact dispute that the policy was
constitutionally deficient. But see Duvall, 631 F.3d at 208 (holding that a de
facto policy exposing detainees to disease known to jail officials was sufficient
to show punishment in violation of the detainee’s constitutional rights). For
these reasons, in addition to the reasons articulated above in our episodic acts
or omissions analysis, we conclude that Stevenson-Cotton’s evidence falls
short of showing that the County Defendants and Medical Defendants
violated Cotton’s constitutional rights. Cf. Scott, 114 F.3d at 54.
IV.
In sum, we hold that the district court appropriately granted summary
judgment in favor of all Defendants on Stevenson-Cotton’s claims because
no rational jury could have found that any of the defendants acted with
deliberate indifference to Cotton’s serious medical needs. Therefore, we
AFFIRM.
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