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Hicks-Fields v. Harris County, Texas

United States Court of Appeals, Fifth Circuit

June 26, 2017

MARIE A. HICKS-FIELDS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; EVANGELINE E. CAMPBELL, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; JASON HICKS, individually and as representative of the estate of Norman F. Hicks, Sr., Deceased; NORMAN F. HICKS, JR., individually and as representative of the estate of Norman F. Hicks, Sr., Deceased, Plaintiffs - Appellants
v.
HARRIS COUNTY, TEXAS, Defendant-Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, Circuit Judge.

         While being temporarily segregated in an attorney visitation booth, Norman F. Hicks, Sr., punched Harris County Detention Officer Christopher Pool in the face, prompting a responsive punch from Pool. As Hicks fell down, he struck his head on a concrete ledge in the booth. There were two other officers on the scene, one of whom looked through a window in the door and saw Hicks starting to lift himself off the ground. They left Hicks there, who some fifteen minutes later was found without respiration or a pulse. Jail clinic staff were summoned to render aid, and while Hicks recovered a pulse, he slipped into a coma from which he did not recover. His survivors appeal summary judgment regarding any liability of the county for the officers' actions. We affirm.

         I.

         Norman F. Hicks, Sr., was arrested in Oklahoma and extradited to Texas, where he was booked into the Harris County Jail. Jail staff knew Hicks had a history of schizophrenia, and Harris County detention officers requested multiple psychiatric evaluations based on Hicks' behavior. Nine days after his arrival, Hicks was involved in an altercation with another inmate and was placed in an attorney booth as a temporary holding cell, a common practice at the jail. After more than two hours, Harris County Corrections Officers Joseph Jameson, Christopher Taylor, and Christopher Pool noticed that Hicks had urinated and defecated in the booth and transferred him to a different booth.

         On observing Hicks-now in the new booth-raise a plastic chair above his head, Jameson asked Hicks to push out the chair and Hicks' shoes, which Hicks did. He also threw out his shirt, soiled with feces, which struck Pool in the chest and hands. Accounts differ as to what happened next. Jameson says that Pool stepped into the booth to place Hicks' shirt inside. Taylor says that Pool caught the shirt, yelled a profanity, and threw the shirt back into the booth. According to both accounts, 72 year-old Hicks punched Pool in the mouth. The 23 year-old corrections officer responded with a counter-punch to Hicks' face. As Hicks fell backwards into the booth, his head struck a concrete ledge. Jameson then closed the booth door.

         Taylor stated that he looked through the window, saw no blood on Hicks or anywhere in the booth, and saw Hicks pushing himself up and shaking his head. Jail protocol required that inmates receive medical attention following a use-of-force incident, but no assistance was summoned until Sergeant Steven Wichkoski came by to check on Hicks fifteen minutes later. Finding Hicks lying motionless on the floor, he called for prison clinic staff. Exhibiting no respiration nor pulse, Hicks was transferred to Ben Taub hospital where he recovered a pulse and survived in a coma until life support was terminated six days later. An autopsy determined that the manner of death was homicide and the cause of death was "[c]omplications of cardiac arrest due to atherosclerotic and hypertensive cardiovascular disease following blunt head trauma with nasal bone fracture."

         II.

         Plaintiffs, as heirs of Hicks, brought this suit against Harris County, Pool, and other unnamed deputies in the Harris County State District Court. Plaintiffs' original petition appeared to assert claims under the Texas Tort Claims Act, the Texas Wrongful Death Act, and for "negligent implementation of the policy on securing mentally ill criminal offenders." Four months later, Plaintiffs filed a first amended petition, alleging a cause of action for assault against the individual defendants, restating the claims under the Texas Tort Claims Act and the Texas Wrongful Death Act against Harris County, and containing new claims under 42 U.S.C. § 1983 for violations of the Fifth and Fourteenth Amendment rights to due process of law and for "failure to properly supervise and train its Deputies." Defendants timely removed the case to the federal district court, where it was referred to a magistrate judge.

         Fourteen months later, Plaintiffs voluntarily dismissed the unnamed deputies without prejudice and sought leave to file a second amended petition. On March 12, 2014, the court denied the motion for want of good cause.[1] On February 27, 2015, Defendant Harris County moved for dismissal under Rule 12(b)(6), judgment on the pleadings, and summary judgment on the basis of governmental immunity, the lack of an official policy or custom, and a lack of facts demonstrating specific inadequacies in Harris County's policies or customs. On April 10, 2015, Plaintiffs moved to dismiss their claims against Pool with prejudice, which the court granted. In their response to Harris County's motions, Plaintiffs again asked for leave to amend the complaint. On May 19, 2015, the court again denied leave, stating:

Discovery concluded months ago. The dispositive and nondispositive motions deadline has passed. The court denied a motion for leave to amend filed by Plaintiffs in February 2014 because Plaintiffs failed to demonstrate good cause as required by Federal Rule of Civil Procedure 16. Plaintiffs' pending motion does nothing to prompt the court to change its ruling.

         On November 23, 2015, a magistrate judge entered a memorandum and recommendation to the district court recommending a grant of summary judgment for Harris County. On December 30, 2015, the district court, adopting the memorandum and recommendation, granted summary judgment and entered final judgment for Harris County. Plaintiffs timely appealed.

         III.

         We review a district court's grant of summary judgment de novo, applying the same standard as the district court, [2] and a district court's evidentiary rulings for abuse of discretion.[3] Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.[4] On summary judgment, a court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor.[5]

         IV.

         Only claims against Harris County are before us. Harris County, as a municipality, may not be held liable under § 1983 on a basis of vicarious liability.[6] Municipalities may be liable where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers."[7]

         "As is well established, every Monell claim requires 'an underlying constitutional violation.'"[8] The district court found that there are questions of fact as to whether underlying constitutional violations occurred. However, in order to survive summary judgment, Plaintiffs must demonstrate that a question for trial remains as to whether "action pursuant to official municipal policy caused their injury."[9] Put differently, "[t]o establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right."[10]

         "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."[11] Plaintiffs here rely on the third category, attempting to prove official policy through practice. Plaintiffs must therefore demonstrate that there existed "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy."[12] Plaintiffs must also establish "[a]ctual or constructive knowledge of such custom" by the municipality or the official who had policymaking authority.[13] In this circuit:

Actual knowledge may be shown by such means as discussions at council meetings or receipt of written information. Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity.[14]

         Plaintiffs' only evidence of this alleged custom consists of the events surrounding Hicks' death, Pool's employee history, and a report regarding conditions in the jail prepared by the United States Department of Justice. Harris County urges us not to consider the DOJ report, arguing that the district court erred in admitting it into evidence; that while the report falls within the public record exception to the hearsay ban, the report is not relevant and is untrustworthy because it was prepared in anticipation of litigation. Plaintiffs counter that the district court erred in determining that the DOJ report is admissible only to show notice rather than as evidence of an underlying pattern of unconstitutional behavior.[15] Without directly responding to Harris County's evidentiary objections, the district court held that the report was admissible to show that "Harris County [was] on notice of a possible pattern of potentially unconstitutional ...


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