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 District Court for the Eastern
District of Texas.
Before 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 inter 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 for summary judgment on her
1
District Judge of the Eastern District of Texas, sitting by
designation.
1
claims under § 1983. The district court denied the motion and
later 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 Bell for $1,000,000 for Downey's personal injuries. The
district court denied Downey's motion for additional findings of
fact and conclusions of law and for partial reconsideration and
amendment of judgment or, alternatively, 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, 1990, 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
post 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 Downey to repair Bell's uniform.
Downey told Saddler to ask one of the trustees, but Saddler said
2
that the trustees were asleep. Saddler and Bell then escorted
Downey 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 equipped 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 security 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 few 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 his 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 official
3
oppression in Denton County, Texas.2
Downey 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 Amendment
2
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 ... physical conduct of a
sexual nature, submission to which is made a term or
condition of a person's exercise or enjoyment of any
right, privilege, power, or immunity.
3
TEX. CIV. PRAC. & REM.CODE ANN. § 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
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. Zimzores
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 the
5
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.
50. Moreover, in this case, Downey does not appeal only the
district court's judgment 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. See Black v. J.I. Case Co., Inc., 22 F.3d 568 (5th
Cir.1994); Bottineau Farmers Elevator v. Woodward-Clyde
Consultants, 963 F.2d 1064, 1068-69 n. 5 (8th Cir.1992); Lum 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
granting 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 inferences drawn therefrom—for clear
error."5
5
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
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 inmate humane conditions of
confinement unless the official knows 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, 114 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 that "an official's failure to alleviate a
significant risk that he should have perceived but did not, while
6
511 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. Farmer,
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 unusual 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
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 hours, unmonitored and
unsupervised, in a room whose voice-activated security device had
been disconnected supports 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 appear 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 of 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 circumstantial 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 Order
8
Downey's fifth point involves the trial judge's denying her
motion to amend the pre-trial order to re-designate rebuttal
witnesses 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 they 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 precluded 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 its
8
Civil Justice Reform Act Plan 26(b).
9
discretion in denying her motion for additional findings of fact
and conclusions of law and for partial 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 order as rebuttal
witnesses is manifestly unjust.
Downey has failed to persuade us that the district court
abused its discretion in denying these post-trial motions. We have
reviewed her claims regarding the district 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 case to consider the witnesses as part of
Downey's case-in-chief. "[I]f the failure of the party to submit
10
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 for 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 asserts the district court erred in imposing
liability 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 tort."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 Laboratories, 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 connection
9
TEX. CIV. PRAC. & REM.CODE ANN. § 101.057(2).
11
with an intentional tort in City of Waco v. Hester,10 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 in Townsend v. Memorial Medical Center was a
sedated patient sexually assaulted by a hospital employee 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.
10
805 S.W.2d 807 (Tex.App.—Waco 1990 writ denied).
11
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
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 provision in question
regarding excluding from the waiver of immunity claims arising out
of intentional torts.15 In Sheridan, plaintiffs claimed government
employees were negligent in failing to take steps to prevent an
14
Delaney, 835 S.W.2d at 59.
15
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
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 Delaney 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
against Denton County for negligence is not barred by sovereign
immunity because 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 court 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. Urbach v. United States, 869 F.2d 829, 831 (5th
Cir.1989).
The two elements of proximate cause under Texas law are cause
16
Id.
14
in fact and foreseeability. Nixon 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 Boys Clubs case, plaintiffs
brought suit against a boys club for damages sustained by boys
sexually molested by a volunteer 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 fashion; and, that the voice-activated security device had
17
Boys Clubs, 907 S.W.2d at 477.
15
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,
either 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 requires 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 anticipate 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. Pike, 727
S.W.2d 514, 517 (Texas 1987) and 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,
Saddler's negligence was a proximate cause of Downey's injuries.
Facts in the record support the district court's findings,
specifically the fact that Saddler removed Downey from her cell at
Bell's request, which Saddler found unusual. Saddler ordered
16
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 RESTATEMENT (SECOND) OF TORTS § 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 should 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 realized the
likelihood that a situation 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 for reconsideration and new trial.We do,
however, return to the district court the issue of the amount of
17
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 Saddler's
negligence was a proximate cause of Downey's injuries. The
judgment below must be affirmed as amended.18 AFFIRMED as AMENDED.
18
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