Appeal from the United States District Court for the Northern District of Texas.
For ESTATE OF WILBERT LEE HENSON, deceased, BARBARA KAY HENSON REED, Individually, on behalf of Estate of Wilbert Lee Henson, Iwiller G. Henson Hendrix, Wilma Lynn Henson, Shelisha Richardson, Plaintiffs - Appellants: Rickey Gene Bunch, Law Office of Rickey G. Bunch, Wichita Falls, TX.
For Wichita County, Texas, Defendant - Appellee: Robert Scott Davis, Esq., Flowers Davis, P.L.L.C., Tyler, TX.
For Doctor Daniel Bolin, Defendant - Appellee: David Michael Walsh IV, Chamblee & Ryan, P.C., Dallas, TX; Vernon L. Krueger, Krueger, Bell & Bailey, L.L.P., Dallas, TX.
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
This 42 U.S.C. § 1983 case arises out of the death of Wilbert Lee Henson while in pretrial detention in a jail in Wichita County, Texas. This is the third appeal in this case. In the prior appeals, this court held that Defendants Nurse Kaye Krajca and Sheriff Thomas J. Callahan were entitled to qualified immunity. See Estate of Henson v. Krajca, 440 F.Appx. 341 (5th Cir. 2011); Estate of Henson v. Callahan, 440 F.Appx. 352 (5th Cir. 2011). Subsequently, relying heavily on this court's decisions, the district court granted summary judgment in favor of the remaining two Defendants, Wichita County and Dr. Daniel Bolin. Plaintiffs timely appealed that decision, which we now AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
On November 23, 2004, Henson was arrested for an outstanding warrant of bond forfeiture for driving with a suspended license and was taken to the Wichita County jail. Upon arrival, he informed the detention officer that he had pneumonia and emphysema and had been in the ER a few days earlier. The detention officer called the nurse on duty, Nurse George, and informed her that Henson was having trouble breathing. When Nurse George saw Henson, he was " yelling and screaming" that he was short of breath. Nurse George gave Henson an albuterol inhaler and Keflex (an antibiotic), filled out an " Inmate Request for Medical Attention" (a " pink card" ), and put him on the list to see Dr. Bolin, the physician in charge of the jail, the next morning. Overnight, however, Henson was transferred from the downtown facility to the jail annex, so he was not seen by Dr. Bolin during sick call on November 24. While Dr. Bolin usually held sick call at the annex the next day, he did not hold one on November 25 because it was Thanksgiving.
While at the annex, Henson's health declined. Henson, joined by other inmates in his cell block who recognized that he was sick, asked the officers to provide him medical care. On November 26, after Henson informed one of the detention officers that he had been using his inhaler every 10 minutes with no relief, the officer contacted Nurse Krajca. Nurse Krajca saw Henson and filled out a pink card, which noted that Henson was complaining of COPD (chronic obstructive pulmonary disorder) and pneumonia. Nurse Krajca gave him albuterol, put him on the list to see Dr. Bolin at the next sick call, and left instructions to the officers that Henson " may have one [breathing] treatment every 4 hrs if needed."
The last medical professional to see Henson was Nurse Coleman, who visited the general population tank on November 27 and spoke with Henson through the bars. Nurse Coleman gave him a seven-day supply of an antibiotic, an albuterol inhaler, and cough drops. Later that night, shortly after being taken for a breathing treatment, Henson pressed the intercom button to alert the control room that he was still having problems breathing. The shift supervisor called Nurse George, who instructed him to put Henson in solitary confinement, or " medical solitary," and check on him every fifteen minutes. The shift supervisor called Nurse Krajca for a second opinion, who told him to put Henson in medical solitary, take his vital signs, and check on him every thirty minutes. One of the detention officers took Henson's vital signs and reported them to Nurse Krajca: Blood Pressure 208/107, Pulse 92.
Early in the morning of November 29, so a day later, Henson pushed an emergency button located in his cell. The detention officers found him in his cell gasping for air, saying " I'm not going to make it." The officers put him in a wheelchair and took him to the multipurpose room, where they tried to give him a breathing treatment and calm him down. After a few minutes of struggling, Henson's eyes rolled back in his head and he passed out. The officers tried to perform CPR on Henson and called an ambulance. Henson was taken to the hospital where he was pronounced dead at approximately 6:17 a.m. on November 29.
Henson's four daughters filed the present lawsuit against numerous Defendants, including Wichita County, Sheriff Callahan, Dr. Bolin, and Nurse Krajca. Relevant to this appeal, Plaintiffs contend that they are entitled to damages pursuant to § 1983 because Defendants, acting under the color of state law, violated Henson's Fourteenth Amendment rights by denying him medical care. Each of these Defendants filed a motion for summary judgment. The district court denied summary judgment to the County and denied summary judgment to the individual Defendants, concluding that they were not entitled to qualified immunity. Nurse Krajca and Sheriff Callahan appealed, and this court reversed. See Krajca, 440 F.Appx. at 347; Callahan, 440 F.Appx. at 358. This court concluded that Nurse Krajca was entitled to qualified immunity because there was no evidence that she was deliberately indifferent to Henson's medical condition and medical needs. Krajca, 440 F.Appx. at 346. Relatedly, the court held that because there was " no predicate constitutional violation upon which to base Sherriff Callahan's supervisory liability," he was also entitled to qualified immunity. Callahan, 440 F.Appx. at 358.
Although this court did not explicitly address Dr. Bolin's or Wichita County's potential liability, both Defendants asked the district court to reconsider its previous orders denying their motions for summary judgment, in light of this court's decisions. The parties consented to proceed before a magistrate judge who, relying heavily on Krajca and Callahan, granted the motions to reconsider ...