No. 19-20194
_____________________________________________________________
In the United States Court of Appeals for the Fifth Circuit _____________________________________________________________
JACQUELINE SMITH, Independent Administrator of the
Estate of Danarian Hawkins, Deceased,
Plaintiff - Appellant,
v.
HARRIS COUNTY, TEXAS,
Defendant - Appellee.
_______________
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
Cause of Action No. 4:15-cv-2226
_____________________________________________________________
PRINCIPAL BRIEF OF APPELLEE HARRIS COUNTY, TEXAS
_____________________________________________________________
KEITH A. TOLER
Assistant County Attorney
Attorney in Charge
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5265
Of Counsel:
VINCE RYAN
Harris County Attorney
LAURA BECKMAN HEDGE
Assistant County Attorney
Counsel for Defendant-Appellee
Filed: August 15, 2019 Harris County, Texas
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ii
CERTIFICATE OF INTERESTED PERSONS
No. 19-20194
_______________
JACQUELINE SMITH, Independent Administrator of the
Estate of Danarian Hawkins, Deceased,
Plaintiff - Appellant,
v.
HARRIS COUNTY, TEXAS,
Defendant - Appellee.
The undersigned counsel of record certifies that the following persons
and entities, as described in the fourth sentence of Fifth Circuit Rule 28.2.1,
have an interest in the outcome of this case. These representations are made
so the judges of this Court can evaluate possible disqualification or recusal.
Plaintiff-Appellant Counsel
Jacqueline Smith Amy Eikel
Zachary C. Burnett
Thomas Gutting
KING & SPALDING LLP
Peter Steffensen
TEXAS CIVIL RIGHTS PROJECT
Ranjana Natarajan
UNIVERSITY OF TEXAS SCHOOL OF
LAW
Defendant-Appellee Counsel
Harris County, Texas Keith Toler
Laura Hedge
Vince Ryan, County Attorney
HARRIS COUNTY ATTORNEY’S OFFICE
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/s/ Keith A. Toler
KEITH A. TOLER
Assistant County Attorney
Attorney of Record for Appellee
Harris County, Texas
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STATEMENT REGARDING ORAL ARGUMENT
Appellee, Harris County, Texas, believes the facts and legal arguments
in this case are adequately presented in the briefs and record and the decisional
process would not be significantly aided by oral argument. However, Harris
County welcomes the opportunity to present oral argument if the Court would
find it helpful.
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TABLE OF CONTENTS
Certificate of Interested Persons ..................................................................... ii
Statement Regarding Oral Argument ............................................................ iv
Table of Contents .............................................................................................v
Table of Authorities ...................................................................................... vii
Statement of the Issues Presented for Review .................................................1
Statement of the Case ......................................................................................1
Summary of the Argument ........................................................................... 10
Standard of Review ....................................................................................... 11
Argument and Authorities ............................................................................ 13
I. The district court properly granted summary judgment on
Smith’s ADA claims ............................................................................. 13
A. The district court assumed without deciding Hawkins was a
qualified individual with a disability ............................................. 13
B. Hawkins made no request for accommodations and his
disability and resulting limitations, if any, were not open,
obvious, or apparent ...................................................................... 16
II. Smith challenges an inactionable medical treatment decision ............. 21
A. Smith agrees with the district court that medical treatment
decisions are not actionable ........................................................... 21
B. The district court considered Smith’s admissible evidence .......... 23
1. Whether medical staff has authority to determine
housing outside of MHU is a red herring .............................. 23
2. It is immaterial whether suicide clothing and bedding is
available outside MHU because no one knew Hawkins
needed them ........................................................................... 25
3. Smith has no admissible evidence regarding
modifications to smoke detectors .......................................... 26
4. Chelsea Ford is a medical professional who evaluated
Hawkins and determined he was not suicidal, which is a
medical treatment decision .................................................... 28
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5. Hawkins was not more frequently monitored because no
one knew he needed it ........................................................... 31
C. Smith speculates and relies on inadmissible evidence to
support her towel-related arguments ............................................. 33
D. Smith has no evidence Officer Perkins did not complete his
last round ....................................................................................... 35
E. Smith has no evidence of intentional discrimination .................... 37
III. Fifth Circuit precedent requires federal funding for the specific
program, service, or activity Smith challenges, and she lacks
evidence ................................................................................................. 40
Conclusion .................................................................................................... 42
Certificate of Compliance ............................................................................. 44
Certificate of Service .................................................................................... 43
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TABLE OF AUTHORITIES
Page(s)
Cases
A.H. v. St. Louis Cnty., Mo.,
891 F.3d 721 (8th Cir. 2018) ............................................................... 22, 23
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................ 11, 12
Bennett-Nelson v. La. Bd. of Regents,
431 F.3d 448 (5th Cir. 2005) ..................................................................... 17
Brown v. Sibley,
650 F.2d 760 (5th Cir. 1981) ............................................................... 40, 41
Bryant v. Madigan,
84 F.3d 246 (7th Cir. 1996) ....................................................................... 21
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .................................................................................. 12
Cooper v. Hung,
485 Fed. App’x 680 (5th Cir. 2012) .......................................................... 30
Crose v. Humana Ins. Co.,
823 F.3d 344 (5th Cir. 2016) ....................................................................... 8
Delano-Pyle v. Victoria Cnty., Tex.,
302 F.3d 567 (5th Cir. 2002) ............................................................... 38, 39
Dupre v. Charter Behavioral Health Sys. of Lafayette Inc.,
242 F.3d 610 (5th Cir. 2001) ..................................................................... 14
E.E.O.C. v. Chevron Phillips Chem. Co., LP,
570 F.3d 606 (5th Cir. 2009) ..................................................................... 14
Estate of Cole v. Fromm,
94 F.3d 254 (7th Cir. 1996) ....................................................................... 21
Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P.,
894 F.3d 665 (5th Cir. 2018) ............................................................... 25, 37
Fitzgerald v. Corr. Corp. of Am.,
403 F.3d 1134 (10th Cir. 2005) ................................................................. 21
Case: 19-20194 Document: 00515078879 Page: 7 Date Filed: 08/15/2019
viii
Garza v. City of Donna,
No. 7:16-CV-00558, 2017 WL 2861456 (S.D. Tex. July 5, 2017) .......... 13
Gay v. Hammersley,
No. 08-59-DRH, 2009 WL 596114 (S.D. Ill. Mar. 6, 2009) .................... 21
Gonzales v. Bexar Cnty., Tex.,
No. SA-13-CA-539, 2014 WL 12513177 (W.D. Tex. Mar. 20, 2014) .... 17
Hott v. Hennepin Cnty., Minn.,
260 F.3d 901 (8th Cir. 2001) ............................................................... 21, 23
In re Katrina Canal Breaches Litig.,
495 F.3d 191 (5th Cir. 2007) ..................................................................... 11
Liebe v. Norton,
157 F.3d 574 (8th Cir. 1998) ..................................................................... 22
Lightbourn v. Cnty. of El Paso, Tex.,
118 F.3d 421 (5th Cir. 1997) ............................................................... 40, 41
Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir. 1994) ..................................................................... 12
Malacara v. Garber,
353 F.3d 393 (5th Cir. 2003) ..................................................................... 12
Martin v. The Brown Schs. Edu. Corp.,
No. 3:02-CV-0144G, 2003 WL 21077454 (N.D. Tex. Aug. 6, 2003) ...... 13
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ............................................................................ 11, 12
McCollum v. Livingston,
No. 4:14-CV-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) .............. 20
McCoy v. Tex. Dep’t of Criminal Justice,
No. C-05-370, 2006 WL 2331055 (S.D. Tex. Aug. 9, 2006) ................... 19
Miraglia v. Bd. of Supervisors of La. State Museum,
901 F.3d 565 (5th Cir. 2018) ..................................................................... 39
Nottingham v. Richardson,
499 Fed. App’x 368 (5th Cir. 2012) .................................................... 21, 22
Peel & Co., Inc. v. Rug Mkt,
238 F.3d 391 (5th Cir. 2001) ............................................................... 12, 13
Salcido v. Harris Cnty., Tex.,
No. H-15-2155, 2018 WL 4690276 (S.D. Tex. Sept. 28, 2018) ............... 41
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ix
Saudi v. S.T Marine Atl.,
159 F. Supp. 2d 512 (S.D. Tex. 2011) ...................................................... 16
Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1289 (11th Cir. 2005) ................................................................. 21
Shelton v. Ark. Dep’t of Human Servs.,
677 F.3d 837 (8th Cir. 2012) ..................................................................... 22
Steele v. Rowles,
No. 1:06-CV-485, 2009 WL 2905903 (E.D. Tex. Sept. 3, 2009) ............. 13
Steele v. Thaler,
No. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011) .................. 21
Taylor v. Principal Fin. Grp.,
93 F.3d 155 (5th Cir. 1996) ....................................................................... 17
Vela v. Travis Cnty., Tex.,
No. A-10-CA-247-LY, 2011 WL 251224 (W.D. Tex. Jan. 25, 2011) ..... 21
Wade v. Montgomery Cnty., Tex.,
No. 4:17-CV-1040, 2017 WL 7058237 (S.D. Tex. Dec. 6, 2017) ...... 13, 16
Walls v. Tex. Dep’t of Criminal Justice,
270 Fed. App’x 358 (5th Cir. 2008) .......................................................... 21
Wright v. Tex. Dep’t of Criminal Justice,
No. 7:13-cv-0116-O, 2013 WL 6578994
(N.D. Tex. Dec. 16, 2013) ............................................................ 20, 21, 23
Zaragoza v. Dallas Cnty.,
No. 3:07-CV-1704-K, 2009 WL 2030436 ................................................ 38
Statutes
29 U.S.C. § 794 ............................................................................................... 7
42 U.S.C. § 12102 ......................................................................................... 14
42 U.S.C. § 12132 ........................................................................................... 7
42 U.S.C. § 1983 ........................................................................................... 21
Rules
Fed. R. Civ. P. 56 .......................................................................................... 11
Fed. R. Evid. 407 .......................................................................................... 25
Fed. R. Evid. 801 .......................................................................................... 25
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Regulations
37 Tex. Admin. Code § 271.1 ......................................................................... 7
37 Tex. Admin. Code § 275.1 ................................................................. 31, 32
37 Tex. Admin. Code. §§ 263.31, 263.51..................................................... 27
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PRINCIPAL BRIEF OF APPELLEE HARRIS COUNTY, TEXAS
To the Honorable Judges of the Fifth Circuit Court of Appeals:
Defendant-Appellee Harris County, Texas, files its principal appellate
brief in response to Plaintiff-Appellant Jacqueline Smith’s opening brief, and
respectfully requests the Court affirm the district court’s final order granting
summary judgment in Harris County’s favor on all of Smith’s claims, and
respectfully shows the following:
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
Issue 1: Whether Smith’s reliance on inadmissible evidence and
speculation met her burden to provide specific facts showing a genuine
dispute of material fact on her ADA and RA claims.
Issue 2: Whether Hawkins’s suicidality was open, obvious, and
apparent, or a qualified disability.
Issue 3: Whether the medical treatment decisions about which Smith
complains state an ADA or RA claim.
Issue 4: Whether a RA plaintiff must show a public entity receives
federal funding for the specific program, activity, or service at issue.
STATEMENT OF THE CASE
Harris County is dissatisfied with Smith’s representation of facts in her
principal brief, and thus it corrects the record.
I. Statement of Facts
During the 10:00 p.m. shift change on February 5, 2014, Hawkins
briefly put a towel over the inside window of his cell door to restrict officers’
view inside, fashioned his bedsheet into a noose, slotted the sheet through the
smoke detector on the ceiling, put his head in the noose, and let his body slump
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down onto his bed.1 Only 17 minutes elapsed between the time Hawkins was
last observed by the ending second-shift officer at 9:53 p.m. and he was found
hanging by the oncoming third-shift officer at 10:10 p.m.2 These observations
were done in accordance with Harris County’s 25-minute observation policy.3
Hawkins was housed in 2J2, a maximum-security cellblock known as
administrative separation that houses violent and assaultive inmates like
Hawkins in single cells.4 At 10:10 p.m., while conducting the first round of
his shift, Detention Officer Christopher Cano appeared at Hawkins’s cell door
and first noticed a towel hanging over the window, which is prohibited by
Harris County jail policy and practice.5 Cano first banged on the door to get
Hawkins’s attention. When he received no answer, Cano unlocked the pan-
hole in the door, peered through, and saw Hawkins hanging.6
Officer Cano immediately motioned for the attention of his partner in
the pod control center (“PCC”), a secure observation unit located in the center
of 2J2 and its sister pod, 2J1.7 The PCC officer immediately opened
Hawkins’s cell door and Cano rushed in and attempted to pick Hawkins up by
his armpits to loosen the noose and allow Hawkins to breathe.8 Hawkins was
1 E.g., ROA.3798, 3834.
2 ROA.3798, 3834, 3855, 3866:23–3867:18.
3 ROA.3798, 8267.
4 ROA.3799, 3874, 3834, 3877, 4174:13–4175:1, 8263.
5 ROA.3799, 3890:8–19, 3834, 3914:9–3915:15, 3931, 3932, 3952–3953.
6 ROA.3799, 3834.
7 ROA.3799, 3834, 3836, 3907:18–3908:13, 3964:2–19.
8 ROA.3799, 3834, 3836, 3908:14–24, 3965:9–13.
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too heavy, so Cano ran out of the cell, requested his partner immediately open
a nearby inmate’s cell door, and ordered the inmate to assist him in getting
Hawkins down.9 Cano and the inmate ran back into Hawkins’s cell and, while
Cano lifted Hawkins’s body weight, the inmate yanked the bed sheet loose
from the smoke detector.10 From the time Cano found Hawkins hanging until
he pulled him down was only seconds.11
Officer Cano put Hawkins on the bed in his cell, checked to make sure
the noose was not tight around his neck, and immediately began applying
cardiopulmonary resuscitation (“CPR”).12 Meanwhile, as soon as the PCC
officer learned there was an emergency in Hawkins’s cell, he sent out a
building page requesting emergency assistance.13 Sergeant Steve Wilson,
Cano’s supervisor on that shift, arrived shortly after the building page and
placed his hand between the noose and Hawkins’s neck to confirm there was
sufficient room to breathe.14 As more officers responded to the location,
Sergeant Wilson directed them to line up and be ready to relieve Officer
Cano’s CPR and told one of the responding officers to retrieve a cut-down
tool to preserve the noose knots for evidence.15
9 ROA.3799, 3834, 3836, 3908:25–3909:7.
10 ROA.3799, 3834, 3836, 3909:7–14.
11 ROA.3909:15–17.
12 ROA.3800, 3834, 3836, 3909:18–3910:14, 3911:6–13, 3979:14–18.
13 ROA.3800, 3834, 3836, 3966:12–21, 3978:1–11.
14 ROA.3800, 3836, 3980:8–3981:15.
15 ROA.3800, 3836, 3837, 3982:13–19, 3967:19–21, 3988:4–19.
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Medical personnel arrived quickly and before officers could relieve
Officer Cano’s CPR efforts.16 Medical staff took Hawkins to the medical
clinic on the first floor of the jail and called EMS, which arrived and
pronounced him dead.17
Smith, Hawkins’s mother, testified she was not aware Hawkins had any
mental illness until he was released from a 6-year prison sentence in the Texas
Department of Criminal Justice (“TDCJ”).18 Upon his discharge from TDCJ,
Hawkins was 21 or 22 years old and he lived with his mother.19 Although she
knew he was seeing a caseworker, she did not know what type of treatment or
medication he was receiving, if any.20
Smith was not aware Hawkins had ever attempted suicide until after he
was released from TDCJ.21 After his release, Hawkins attempted suicide by
taking numerous pills, and he was rushed to the emergency room and
hospitalized for a couple of weeks.22
Hawkins’s most recent incarceration in the Harris County jail was from
July 2012 to February 2014 for aggravated robbery.23 During this time,
16 ROA.3800, 3834, 3836. See also ROA.3837.
17 ROA.3800, 3836, 3985:8–3987:23, 3991.
18 ROA.3801, 4002:3–9, 4002:17–27:2.
19 ROA.3801, 4002:3–9, 4003:25–4004:5, 4005:16–22, 4035:4–9, 4036:25–22:7.
20 ROA.3801, 4009:24–4010:9.
21 ROA.3801, 4006:3–17, 4008:8–10.
22 ROA.3801, 4006:6–11, 4007:13–4008:4.
23 ROA.3801, 157, 4042.
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Hawkins attempted suicide three times.24 On April 13, 2013, an officer
conducting observation rounds found Hawkins with a sheet tied around his
neck and the other end around a smoke detector. Coincidentally, Officer Cano
was working in Hawkins’s cellblock at that time and discovered Hawkins’s
suicide attempt.25 Cano saved Hawkins by rushing in, lifting him up, and
removing the pressure of the sheet around his neck.26 On July 28, 2013,
Hawkins hid (or “lipped”) his prescribed medication, eventually amassing 100
pills he took all at once.27 He was admitted to LBJ Hospital in Houston, Texas,
for a month.28 On January 17, 2014, officers observed Hawkins standing on
the second floor in the main area of his cellblock with a sheet tied around his
neck and attempting to tie the other end to a rail.29
After each suicide attempt or the recognition of odd behavior, officers
documented the incident in an in-house report and completed a psychiatric
referral to MHMRA so Hawkins could be assessed by a mental health
professional, often a psychiatrist.30
24 See generally ROA.3801, 3834–3854.
25 ROA.3801, 3840.
26 ROA.3801–3802, 3840.
27 ROA.3802, 3843, 8415, 8416, 4015:6–4016:20.
28 ROA.3802, 8415, 8416.
29 ROA.3802, 3850, 4044.
30 See generally ROA.3802, 3834–3854, 4044–4053. Mental Health and Mental
Retardation Authority of Harris County (“MHMRA”) is the predecessor to The Harris
Center, a separate legal entity with which the Harris County Sheriff’s Office contracts to
provide mental health care to inmates in the Harris County jail. ROA.3802 n.41, 4054–
4078.
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While incarcerated between 2012 and 2014, Hawkins received
extensive mental health treatment. His mental health records for this period
total more than 2,200 pages.31 Hawkins was treated when he requested or
needed it.32 He was often diagnosed with “malingering,” or exaggerating his
symptoms to derive a benefit.33 Other times, particularly after suicide
attempts, Hawkins was admitted to the acute unit of the jail’s Mental Health
Unit (“MHU”).34
On January 18, 2014—about two weeks before he completed his
suicide—Hawkins was admitted to the acute unit of MHU after he tied his bed
sheet around his neck and to the top rail of the main floor of his cellblock.35
He was placed on suicide precautions and treated with medication and
therapy.36 From January 18–31, 2014, Hawkins’s mental health improved.37
After jail psychiatrist Dr. Enrique Huerta evaluated Hawkins on January 31,
Dr. Huerta discharged Hawkins from MHU to the jail’s “general
population.”38 Importantly, Dr. Huerta discharged all suicide precautions and
31 ROA.3802. See also generally, e.g., ROA.8444–8527 (excerpt of relevant records
at BATES numbers HC-1314 to HC-3541).
32 ROA.3802, 3838, 3842, 3844–3847, 3849, 4045, 4047–4052.
33 ROA.3802, 8445–8446, 8448, 8450–8451, 8458–8459, 8464, 8467, 8469–8471,
4098:14–23. See also infra notes 72–77 & accompanying text.
34 ROA.3802, 4123, 4137, 4139. See also ROA.4083:15–16, 4084:2–6, 4164:15–25.
35 ROA.3803, 4144, 3850, 4044.
36 ROA.3803, 8349, 8352.
37 ROA.3803, 8333–8351.
38 ROA.3803, 8301–8303, 4143. General population refers to all non-special-
management housing in the jail, such as administrative separation but not MHU.
ROA.4178:1–12.
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placed no restrictions on Hawkins upon his discharge from MHU, including
his clothing and bedding.39
When an inmate is released from MHU, the discharging doctor can
request—but not order—the inmate be transferred to a particular housing
location.40 Numerous times, psychiatrists releasing Hawkins from MHU
requested he be housed in administrative separation.41 Jail classification is
responsible for reviewing the inmate’s jail record and assigning appropriate
housing based on state standards.42 Jail classification cannot access inmates’
medical or mental health records due to HIPAA.43 Also, jail records indicate
Hawkins requested to be housed in a single-person cell, which is consistent
with Smith’s and his grandmother’s testimony that Hawkins was a loner who
preferred solitude.44
II. Procedural History
Smith filed this lawsuit on July 30, 2015, under Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the
Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794.45 Smith originally filed
in her individual capacity and as representative of the estate of her son,
Danarian Hawkins, though the Court later dismissed Smith’s claims in her
39 ROA.3803, 8301–8303, 4143, 4096:8–4097:11, 4099:2–7, 4101:4–8.
40 ROA.3803, 4088:12–23, 4171:3–24.
41 ROA.3803, 4116, 4118, 4124, 4130, 4141.
42 ROA.3803, 4172:19–4173:22, 4180:16–23. See also 37 Tex. Admin. Code § 271.1.
43 ROA.3803, 4182:12–18. See also infra notes 43 & 90 & accompanying text.
44 ROA.3803–3804, 8322, 8323, 8325, 8326, 4014:9–14, 4017:23–4018:6, 4034:8–
10.
45 See generally ROA.27–37.
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individual capacity with prejudice.46 After nearly three years of discovery, the
district court granted summary judgment to Harris County and entered final
judgment on February 25, 2019.47 Smith appealed five separate orders on
March 27, 2019, although on appeal she only argues against the district court’s
summary judgment order.48
III. Response to Smith’s Statement of Facts
Much of Smith’s brief is inaccurate, unsupported, and based on
inadmissible sham affidavits and affidavits of witnesses Smith never disclosed
to Harris County. While these inaccuracies are addressed in argument, a few
are also identified below.
A. Smith misstated her individual capacity claims
Smith incorrectly states she has claims in her individual capacity.49
However, the district court dismissed all of her claims in her individual
capacity with prejudice and Smith does not challenge that order on appeal.50
B. Much of Smith’s facts are argumentative and unsupported
Smith also makes unsupported statements. For example, she argues at
page 18 that accommodations would have saved Hawkins’s life, but cites
nothing to support her speculation. She also argues at page 20 that Hawkins’s
46 ROA.267–276.
47 ROA.6925–6949, 6950–6951.
48 ROA.6961–6963. See also generally Appellant’s Brief at 1, 15. (Note: Citations to
pages numbers in Appellant’s brief refer to CM/ECF pagination at the top).
49 Appellant’s Brief at 1, 15.
50 ROA.267–276. See also Crose v. Humana Ins. Co., 823 F.3d 344, 351 n.5 (5th Cir.
2016) (failure to brief issue in opening brief abandons issue on appeal).
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housing in administrative separation exacerbated his suicidal symptoms, but
the evidence she cites does not support this argument. Also, Smith’s statement
that Hawkins “was isolated from all human contact” at page 20 is
unsupported. Although he was housed in a single-person cell, he talked to
other inmates and jail and medical staff at least twice hourly during rounds—
and more frequently than he would have in general population.51 And he was
a loner.
Finally, Smith incorrectly argues at page 20 that it is undisputed
classification staff was aware of a “well-documented history of suicide
attempts and self-harm when held in isolation.” Not only is this fact disputed,
Smith has no evidence to support it. Jail classification does not have access to
inmates’ medical or mental health records.52
C. Smith relies on inadmissible, prejudicial evidence
Smith relies on inadmissible evidence, including (1) her own sham
declaration (at ROA.5982–5991) that contradicted her deposition testimony,
(2) sham affidavits from her two experts (at ROA.5997–6028 & ROA.9155–
9201) that contradicted their deposition testimony and added new opinions,
(3) declarations from a felon-witness (at ROA.5962–5964) who was not
disclosed to Harris County until after Harris County moved for summary
judgment and who lacks personal knowledge of the events on the day Hawkins
died and the officers on that shift, and (4) a consultant’s report (at ROA.6036–
6084) created after Hawkins committed suicide and never mentioned him.
51 See infra section II.B.5.
52 ROA.4182:12–18.
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Harris County moved to strike this inadmissible evidence.53 The district court
did not consider it in its ruling, and this Court should likewise decline to
consider Smith’s inadmissible evidence.54
SUMMARY OF THE ARGUMENT
None of Smith’s claimed disabilities or resulting limitations were open,
obvious, or apparent to anyone, and no one requested any accommodation.
Less than a week before his death, Hawkins was released from the jail’s
mental health unit by a psychiatrist because he was no longer suicidal.
Importantly, the psychiatrist released him without any restrictions, including
on his bedsheet, smoke detector, and monitoring.
The day before he committed suicide, Hawkins told Chelsea Ford, a
mental health professional, that he heard voices telling him to kill himself.
Ford followed up and evaluated Hawkins, who reported he was not suicidal
and would tell staff if he became suicidal. Using her professional medical
judgment, she determined he was not suicidal and did not report the incident
or take further action. There is no evidence anyone else heard or saw anything
indicating Hawkins was suicidal. Thus, it was not open, obvious, or apparent
Hawkins needed suicide-prevention clothing or bedding, a cell without a
smoke detector, additional monitoring, or any other accommodation. Smith
only challenges the medical treatment decisions of Dr. Huerta and Ford, which
is not actionable under the ADA or RA.
53 ROA.6229–6271.
54 ROA.6925 n.1 (“[N]one of the evidence implicated by the remaining motions and
objections is material to the Court’s analysis even if all of Plaintiff’s motions and
objections were granted and all of Defendant’s other objections were denied. They are
therefore DENIED as moot except for Defendant’s objection sustained in Footnote 29.”).
See also ROA.6931–6932 n.29.
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Smith’s psychiatry expert criticized the psychiatrist’s and Ford’s
medical treatment decisions, though he testified they did not act with
deliberate indifference—a lower standard than the intentional conduct
required to meet her burden. Thus, the district court properly granted summary
judgment on Smith’s ADA and RA claims.
STANDARD OF REVIEW
I. Rule 56
The Court reviews de novo a district court’s order granting summary
judgment, viewing the evidence in the light most favorable to the nonmovant
and drawing all reasonable inferences in favor of the nonmovant.55 Under
Federal Rule of Civil Procedure 56, a court shall grant summary judgment if
the movant shows there is no genuine dispute of material fact and the movant
is entitled to judgment as a matter of law.56
“The mere existence of some alleged factual disputes between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”57
An issue or dispute is “genuine” if the evidence is sufficient for a reasonable
jury to return a verdict for the nonmoving party.58 A fact is “material” if its
55 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007)
(citations omitted), cert. denied, 552 U.S. 1182 (2008).
56 Fed. R. Civ. P. 56(a). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
(“Matsushita”), 475 U.S. 574, 587 (1986).
57 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original
and added).
58 Id. at 248.
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resolution in favor of one party might affect the outcome of the suit under
governing law.59
The movant need not prove an absence of a genuine dispute of material
fact.60 But if the movant does show such an absence, the nonmovant must
provide “specific facts showing the existence of a genuine issue for trial.”61
The non-movant must identify evidence in the record to show the existence of
a genuine dispute of material fact as to each element of the cause of action.62
The nonmovant “must do more than simply show that there is some
metaphysical doubt as to the material facts . . . [T]he [nonmovant] must come
forward with ‘specific facts showing that there is a genuine issue for trial.’”63
Conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence will not satisfy the nonmovant’s burden.64
II. Response to Smith’s Standard of Review
Smith misstates case law that “Evidence supporting the moving party
must be disregarded on summary judgment unless it is ‘uncontradicted and
unimpeached.’”65 However, the complete quote adds important context,
namely that the court should only disregard evidence the jury is not required
to believe:
59 Id.
60 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
61 Matsushita, 475 U.S. at 587.
62 Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citation omitted).
63 Matsushita, 475 U.S. at 586–87 (citations omitted).
64 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
65 Appellant’s Brief at 31, 45 (citing Peel & Co., Inc. v. Rug Mkt, 238 F.3d 391, 394
(5th Cir. 2001) (citations omitted)).
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In reviewing all the evidence, the court must disregard all
evidence favorable to the nonmoving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as to the evidence
supporting the moving party that is uncontradicted and
unimpeached.”66
Smith does not argue the jury would not be required to believe Harris
County’s evidence.
ARGUMENT AND AUTHORITIES
I. The district court properly granted summary judgment on Smith’s
ADA claims
A. The district court assumed without deciding Hawkins was a
qualified individual with a disability
The district court assumed without deciding Smith met the first element
of her ADA and RA claims.67 But allegations of suicidal risk alone are
insufficient to show an impairment is disabling.68 Smith ignores this Fifth
Circuit case law and relies on nonbinding, Second Circuit case law. Because
66 Rug Mkt., 238 F.3d at 394 (citations omitted) (emphasis added).
67 ROA.6942 n.55.
68 E.g., Wade v. Montgomery Cnty., Tex., No. 4:17-CV-1040, 2017 WL 7058237, at
*6 (S.D. Tex. Dec. 6, 2017) (citing Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL
2861456, at *8 (S.D. Tex. July 5, 2017) (stating “a person’s ‘risk of suicide’ is not a life
activity” sufficient to maintain an ADA claim); Martin v. The Brown Schs. Educ. Corp.,
No. 3:02-CV-0144G, 2003 WL 21077454, at *5 (N.D. Tex. Aug. 6, 2003) (noting plaintiff
“fail[ed] to even show how being ‘suicidal’ translates into a perceived impairment and to
designate any major life activity in which she is substantially limited by the unidentified
impairment”); Steele v. Rowles, No. 1:06-CV-485, 2009 WL 2905903, at *10 (E.D. Tex.
Sept. 3, 2009) (holding a plaintiff who expressed suicidal intent did not show he was
disabled)).
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Smith’s complaints are based solely on Hawkins’s suicidal risk, she has no
evidence any impairment was disabling.69
While true some medical records and testimony indicate Hawkins may
have been diagnosed with mental illness, there is no evidence Hawkins’s
mental illness, if any, substantially limited any major life activity. In jail, he
communicated with jail and MHMRA staff, concentrated on writing letters to
his family, created artful drawings, composed rap lyrics, and understood he
could manipulate the jail system by feigning “hearing voices” to move out of
the jail. 70 Outside of the jail, he worked and committed crimes.71
Hawkins was also repeatedly diagnosed with “malingering,” or
exaggerating symptoms to derive a benefit.72 Doctors underlined and
capitalized the word “malingering” to emphasize the diagnosis.73 In a letter to
his grandmother, Hawkins admitted he malingered: “I didn’t wanna go back
to state jail, so I told my lawyer I was hearing voices and I was feelin suicidal
so she helped me get to this hospital.”74
69 42 U.S.C. § 12102(1); E.E.O.C. v. Chevron Phillips Chem. Co., LP (“Chevron
Phillips”), 570 F.3d 606, 614 (5th Cir. 2009) (citation omitted) (explaining plaintiff must
show impairment substantially limits major life activity; defining “substantially limits”);
Dupre v. Charter Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 615 (5th Cir.
2001) (citations omitted) (explaining plaintiff must show substantially limited one or more
major life activities even for “record of impairment”). See also ROA.3811–3814.
70 ROA.3813, 3838, 3842, 3844–3847, 3849, 8272–8274, 8276, 8278, 8281–8285,
8287–8289, 8292, 8300. See also ROA.4774–4791, 4782 (feigning hearing voices).
71 ROA.3813, 4000:14–4001:4, 4792–4796.
72 ROA.3813, 3814, 8353–8355, 8413, 8414, 4208:7–19.
73 ROA.3813, 8273–8274, 8276, 8278–8279, 8286–8287, 8292, 8295, 8297–8299.
74 ROA.3813, 4782 (emphasis added). See also ROA.3813–3814, 4208:7–19.
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Smith’s psychiatry expert, Dr. Shane Konrad, agreed Hawkins’s letter
was consistent with malingering.75 Harris County’s psychiatry expert, Dr.
William Penn, opined Hawkins exhibited malingering behavior and “mental
illness” that was difficult to diagnose because of Hawkins’s heavy drug and
alcohol use.76 Dr. Penn further testified none of the jail psychiatrists or
psychologists were convinced Hawkins actually met criteria for a serious
mental illness and he did not find any evidence that Hawkins was definitively
diagnosed with schizophrenia.77
Two of Hawkins’s competency-to-stand-trial evaluations concluded:
(1) he was competent to stand trial and (2) he was not psychotic and did not
have a psychotic disorder, such as schizophrenia, schizoaffective disorder, or
bipolar.78 These evaluations found Hawkins had a substance-induced
psychotic disorder in remission and antisocial personality disorder.79
Although the second competency evaluation added a major depression
diagnosis, Dr. Penn opined it was due to incarceration.80 There is no evidence
Hawkins’s mental health diagnoses affected any major life activity.
On appeal, Smith relies on her expert’s 47-page sham declaration (at
ROA.9155–9201). Harris County objected to the exact sentence Smith cites
in her appellate brief at page 37 because it was a new opinion expressed solely
75 ROA.3814, 4209:20–4211:5 (emphasis added).
76 ROA.3814, 4798:24–4799:13.
77 ROA.3814, 4801:7–4802:9.
78 ROA.3814, 4803:15–4805:14, 4808–4822 (see highlighted portions).
79 ROA.4811, 4813, 4821, 4803:15–4805:14.
80 ROA.4821, 4804:17–4805:14.
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for purposes of defeating summary judgment.81 Expert declarations are
inadmissible if they offer opinions that contradict prior testimony or offer
entirely new opinions not contained in the expert’s report.82 The district court
did not consider this sham affidavit,83 and neither should this Court.
Smith’s allegations are conclusory and unsupported by the evidence.84
In essence, she alleges Hawkins suffered from a mental health impairment
that caused him to have a higher risk of suicide. Because suicidal risk is not a
disabling impairment under the ADA, Smith’s evidence did not establish
Hawkins was a qualified individual with a disability.
B. Hawkins made no request for accommodations and his
disability and resulting limitations, if any, were not open,
obvious, or apparent
On appeal, Smith focuses only on the open, obvious, and apparent
nature of Hawkins’s disabilities, if any.85 However, the issue is whether the
limitations—i.e., suicidality—were open, obvious, and apparent. Because no
one knew Hawkins was suicidal when he committed suicide—and because he
81 ROA.6245.
82 ROA.6243 n.49 & accompanying text (citing Saudi v. S.T Marine Atl., 159 F. Supp.
2d 512, 521 (S.D. Tex. 2011)).
83 ROA.6925 n.1. See also ROA.6243–6246, 6252–6255.
84 See Wade, 2017 WL 7058237, at *7 (noting Wade has not alleged facts reasonably
implying impairments for bipolar disorder, major depression, borderline personality
disorder substantially limited a major life activity).
85 Smith does not dispute there was no request for accommodation, other than to be
housed in a single cell, ROA.3816, 4025:16–17, 4026:3–11, 4027:25–4028:6, 4040:4–6,
8272, 8276, 8322, 8323, 8325, 8326, which is consistent with his mother and
grandmother’s testimony he was a loner.
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did not request an accommodation—the limitations of his disability, if any,
were not open, obvious, or apparent.
Public entities must make reasonable accommodations for disabled
individuals who take advantage of the entity’s services or programs.86
“Because [the ADA and RA] require intentional discrimination, they do not
‘require public entities to ‘guess’ an individual’s need for an
accommodation.’”87 Rather, an individual must request an accommodation
unless the “disability, resulting limitations, and necessary reasonable
accommodations are not open, obvious, and apparent.”88
Assuming, without admitting, Harris County knew Hawkins had
bipolar disorder and schizophrenia, it was not open, obvious or apparent that
Harris County should have known the resulting limitations and necessary
accommodations that existed when Hawkins committed suicide on February
5, 2014. This is true particularly in light of Dr. Huerta’s professional medical
judgment to discharge Hawkins without any restrictions to general population
on January 31, 2014.89
It was not open, obvious, or apparent to Dr. Huerta that Hawkins should
be housed without a bedsheet. He could have issued a restriction on Hawkins’s
86 E.g., Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).
87 Gonzales v. Bexar Cnty., Tex., No. SA-13-CA-539, 2014 WL 12513177, at *5
(W.D. Tex. Mar. 20, 2014) (citations omitted). See also Taylor v. Principal Fin. Grp., 93
F.3d 155, 165 (5th Cir. 1996).
88 Gonzales, 2014 WL 12513177, at *5 (citations omitted).
89 Jail staff, including those in Classification that decide where to house Hawkins, do
not have access to Hawkins medical or mental health records due to HIPAA. ROA.3817,
4181:15–22, 4182:12–18. Neither Officer Cano nor Officer Aguirre knew Hawkins had
any diagnosed mental illness or that Hawkins took medication for mental illness. ROA.
3902:11–20, 3962:22–3963:4.
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bedding, but he did not. It was not open, obvious or apparent to Dr. Huerta
that Hawkins should be housed in a cell without a smoke detector (the only
option would have been the rubber room, a room for imminently suicidal
inmates). It was also not open, obvious, or apparent to Ford the day before
Hawkins’s suicide that he posed a serious suicidal risk. Ford spoke with him,
noted his statements about hearing voices telling him to kill himself, asked
follow-up questions to evaluate him, determined he was not suicidal, and
moved on—and did not report it, including to jail staff.90
If licensed, trained medical professionals observed no suicide warning
signs in the days before Hawkins’s suicide, how could non-medical jailers be
expected to detect a suicide risk? Harris County detention officers are licensed
and certified by the State of Texas and trained on suicide prevention.91 Indeed,
Officer Cano, who found Hawkins after his suicide, had previously saved
Hawkins from committing suicide in a similar way. Yet even he, who spoke
to and built a rapport with Hawkins, detected no risk of suicide in the days
prior to February 5, 2014. Prior suicide history does not establish someone is
suicidal later as Smith admitted at her deposition.92
Smith only cites single-page excerpts from Harris County employees’
depositions that have nothing to do with accommodations for Hawkins or even
90 See infra section II.B.4. Even if these mental health professionals got it wrong—
which the evidence, other than Hawkins’s completed suicide, does not support—that is
simple negligence, a medical malpractice claim that does not rise to an ADA violation. See
infra section II.E.
91 ROA.3817–3818, 4245–4766 (new-jailer training re suicide detection and
prevention, recognizing and dealing with mentally ill inmates), 4828–4829, 4834–4837
(Cano’s suicide prevention, mental health, and crisis intervention training records).
92 ROA.3818, 4866, 4021:17–22, 4022:10–18.
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mention Hawkins at all.93 Thus, Smith’s evidence did not establish Hawkins’s
need for accommodations was open, obvious, or apparent.
This case is distinguishable from the case law upon which Smith relies.
In McCoy v. Texas Department of Criminal Justice, the plaintiffs sued on
behalf of Micah Burrell, who died of an asthma attack in prison.94 The
evidence showed TDCJ knew of Burrell’s asthmatic condition, but more
importantly the resulting limitations of his asthma were open, obvious, and
apparent: (1) inmates reported administrative segregation was excessively hot
and poorly ventilated and thus might pose a risk to asthmatic inmates; (2)
Burrell told TDCJ officers he was having trouble breathing; and (3) Burrell
complained of suffering an asthma attack and was observed wheezing in the
month before his death.95 Here, by contrast, it was not open, obvious, or
apparent Hawkins was suicidal when he committed suicide. A psychiatrist
released Hawkins from MHU after psychiatric evaluations determined he was
no longer suicidal. And the day before his death, he reported to Ford, a mental
health professional, about voices telling him to kill himself, but also reported
93 Appellant’s Brief at 38 (citing ROA.5695 (Smith’s summary judgment briefing);
ROA. 5781 (Officer Aguirre explaining he worked at the jail); ROA.5791, 5793 (Officer
Cano explaining his job duties generally and regarding suicide prevention); ROA.5844–
5845 (Harris County’s corrections expert explaining Plaintiff’s counsel’s use of phrase
“safe environment can be a lot of things”); ROA.5870, 5878 (Harris County’s 30(b)(6)
representative explaining jail is responsible for care, custody, and control of inmates and
“everbody’s responsible for suicide prevention”); ROA.5883 (Officer Perkins explaining
his job duties); ROA.5908 (Officer Reyes explaining his employment history and job
duties); ROA.5955–5957 (Sergeant Wilson explaining mission statement, suicide
prevention).
94 McCoy v. Tex. Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055, at *1
(S.D. Tex. Aug. 9, 2006).
95 Id. at *8.
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he was not suicidal.96 Other than these medical treatment decisions (which are
not actionable as discussed below), the limitations of Hawkins’s disability, if
any, were not open, obvious, and apparent.
Similarly, in McCollum v. Livingston, the court tersely ruled on the
defendant’s argument that McCollum did not request an accommodation:
“McCollum’s failure to ask [the defendant] for a lower bunk restriction is not
determinative of their duty to provide him one.”97 The court determined
McCollum’s morbid obesity and the resulting limitation of climbing up onto
a top bunk was open, obvious, and apparent.98 But mental illness and
suicidality are not analogous to morbid obesity and inability to climb onto a
top bunk. Hawkins was offered substantial and continual mental health
treatment in the Harris County jail as shown by his more than 2,200 pages of
medical records.99
Finally, Wright v. Texas Department of Criminal Justice is inapposite
because it was an order denying a Rule 12(b) motion to dismiss, not a Rule 56
summary-judgment motion.100 The Wright plaintiffs were not required to
support their claims with evidence at the motion to dismiss stage.101 Smith, on
the other hand, was required to—but could not—support her claims with
96 See infra section II.B.4.
97 McCollum v. Livingston, No. 4:14-CV-3253, 2017 WL 608665, at *36 (S.D. Tex.
Feb. 3, 2017) (Ellison, J.).
98 Id. at *33, 36.
99 See supra note 31 & accompanying text.
100 Wright v. Tex. Dep’t of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994,
at *1 (N.D. Tex. Dec. 16, 2013).
101 E.g., id. at *2.
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evidence to defeat summary judgment. And the Wright court noted, “[T]o the
extent that Wright may have been required to request an accommodation but
did not, this is a matter for summary judgment, not a matter to be decided at
the pleading stage.”102 Smith had no evidence Hawkins requested an
accommodation or that his disability and resulting limitations were open,
obvious, and apparent.
II. Smith challenges medical treatment decisions
A. Smith agrees medical treatment decisions are not actionable
The ADA provides no remedy for claims based on medical treatment
decisions.103 Smith agrees, citing numerous cases in support.104 Smith argues
these cases are distinguishable, but the district court only cited them to support
the general rule that medical treatment decisions, while perhaps actionable
under 42 U.S.C. § 1983, are not actionable under the ADA or RA.105
Smith glosses over the on-point case relied upon by the district court.
In A.H. v. St. Louis County, Missouri, the Eighth Circuit held claims that a
suicidal inmate was not given “protection from safety hazards” and “adequate 102 Id. at *5.
103 Steele v. Thaler, No. H-09-4076, 2011 WL 739524, at *11 (S.D. Tex. Feb. 22,
2011) (Werlein, J.) (citing Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th
Cir. 2005); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005); Bryant
v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (Posner, J.) (ADA does not create a remedy
for medical malpractice)). See also, e.g., Vela v. Travis Cnty., Tex., No. A-10-CA-247-LY,
2011 WL 251224, at *5 (W.D. Tex. Jan. 25, 2011).
104 Appellant’s Brief at 41–44.
105 ROA.6940–6946 (citing Walls v. Tex. Dep’t of Criminal Justice, 270 Fed. App’x
358, 359 (5th Cir. 2008) (per curiam); Steele, 2011 WL 739524, at *11; Schiavo, 403 F.3d
at 1294; Fitzgerald, 403 F.3d at 1144; Bryant, 84 F.3d at 249; Nottingham v. Richardson,
499 Fed. App’x 368, 377 (5th Cir. 2012); Hott v. Hennepin Cnty., Minn., 260 F.3d 901,
905 (8th Cir. 2001); Gay v. Hammersley, No. 08-59-DRH, 2009 WL 596114, at *6 (S.D.
Ill. Mar. 6, 2009); Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)).
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monitoring” were, “in essence, claims of inadequate medical treatment
indistinguishable from the claims we held could not be brought under the
ADA or RA in Shelton.”106 In A.H., an inmate committed suicide by hanging
himself with a bed sheet in his cell.107 The inmate was discharged by a clinical
psychologist on precautionary status due to his prior suicide attempts and
returned to general population on January 28.108 On February 5, the inmate
was found hanging in his cell by his cellmate 50 minutes after the last round.109
The inmate was discharged from the mental health provider for a couple days
longer than Hawkins and both were found hanging. Like A.H., Smith
challenges the failure to prevent Hawkins’s suicide. Because these claims are
for inadequate medical treatment, they are not actionable under the ADA or
RA.110
“Once one is classified as a suicide risk, the right to be protected from
that risk would seem to fall under the ambit of the right to have medical needs
addressed.”111 The failure to provide “adequate monitoring” and “safe
housing” are rooted in a medical treatment decision that is not actionable
under the ADA or RA. “We have generally treated allegations that officials
106 A.H. v. St. Louis Cnty., Mo., 891 F.3d 721, 730 (8th Cir. 2018) (emphasis added).
107 Id. at 724.
108 Id. at 725.
109 Id. Coincidentally, both inmates committed suicide on February 5th.
110 Id. at 730.
111 Shelton v. Ark. Dep’t of Human Servs., 677 F.3d 837, 843 (8th Cir. 2012) (quoting
Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)). The decedent in Shelton hung herself
three days after a doctor took her off suicide watch. Shelton, 157 F.3d at 839.
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failed to prevent jail suicides as claims for failure to provide adequate medical
treatment.”112
Smith’s continued reliance on Wright is misplaced. The order was on a
motion to dismiss, not a motion for summary judgment, and it did not mention
medical treatment decisions but only that Wright’s claim for failure to ensure
he took his psychotropic medications failed to state a prima facie ADA
claim.113 And unlike Smith’s summary-judgment burden, Wright did not need
to produce evidence supporting his claims.114 Because all of Smith’s claims
challenge medical treatment decisions, the district court properly granted
summary judgment.
B. The district court considered Smith’s admissible evidence
1. Whether medical staff has authority to determine housing
outside of MHU is a red herring
Smith’s argument is a red herring because the issue is not whether
Hawkins should have been housed elsewhere outside MHU, but whether he
should be housed in MHU or outside it—a decision squarely on jail
psychiatrists. Only a psychiatrist has the ability to discharge an inmate from
MHU to general population.115 Smith’s proposed accommodations were
available in MHU, where suicidal inmates are housed.116 In MHU, inmates
112 A.H., 891 F.3d at 729–30 (quoting Hott, 260 F.3d at 905).
113 Wright, 2013 WL 6578994, at *5.
114 See id. at *2.
115 ROA.3809, 3811, 4229, 4107:6–18, 4108:14–19.
116 E.g., ROA.8905.
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“are within sight or sound of a mental health care staff member at all times.”117
Actively suicidal inmates are not housed outside of MHU, except temporarily
until they can be evaluated and transferred to MHU.118 Indeed, Smith is silent
on precisely where Hawkins should have been housed. There was no
indication Hawkins was suicidal and needed to be housed in MHU.
Dr. Huerta released Hawkins from MHU after days of observation,
evaluation, and treatment showed he was no longer suicidal.119 Dr. Huerta
released Hawkins without any restrictions, including on his clothing, bed
sheets, or frequency of monitoring.120 Dr. Huerta knew that by releasing
Hawkins he could go anywhere in the jail, which is part of the decisionmaking
process.121 Smith’s psychiatry expert criticized Dr. Huerta’s medical
treatment decision to discharge Hawkins from MHU back to general
population without restrictions where he would not be under constant
observation.122
Smith improperly relies on her expert’s 47-page sham declaration (at
ROA.9155–9201) that added new opinions and contradicted prior testimony,
117 ROA.3810–3811, 4239 (emphasis added).
118 E.g., ROA.8905.
119 ROA.3807–3808, 4094:13–4097:11, 4100:24–4101:8, 4107:6–18.
120 E.g., ROA.3821, 4096:24–4097:11, 4099:2–7, 4106:20–23, 8301–8303, 4143.
121 ROA.4088:12–21, 4097:7–11, 4099:2–7.
122 ROA.3806–3807, 4205:10–4206:4 (emphasis added), 4203:7–4204:6, 4204:22–
4205:4. Smith also thought Hawkins should have been left in MHU under constant
observation. 4030:5–15 (emphasis added), 4029:5–19.
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to which Harris County objected and moved to strike.123 Harris County also
objected to and moved to strike the consultant’s report, which was created
after Hawkins’s suicide and therefore did not provide notice of anything.124
The consultant’s report does not mention or relate to Hawkins or his suicide,
is hearsay, and is a subsequent remedial measure.125 However, it is worth
noting the consultant’s report found, “[T]he suicide rate in the HCSO was 15.6
deaths per 100,000 inmates – a rate that is substantially below that of county
jails of varying size throughout the United States.”126
2. It is immaterial whether suicide clothing and bedding is
available outside MHU because no one knew Hawkins needed
them
In her summary judgment briefing, Smith did not argue that suicide-
resistant clothing and bedding was available outside MHU and made no
arguments regarding suicide smocks.127 Thus, Smith has waived this argument
for failure to raise it before the district court.128
123 See supra note 82 & accompanying text. See also ROA.6245 n.56, 6253 ¶ 3
(generally and specifically objecting to ROA.9163–9164), ROA.6245–6246, 6254 ¶ 10
(generally and specifically objecting to ROA.9186).
124 ROA.6247.
125 ROA.6247–6248. See also Fed. R. Evid. 407, 801(c).
126 ROA.6038 (emphasis in original).
127 ROA.5705–5707. See also generally ROA.5683–5731.
128 E.g., Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 670 n.18 (5th
Cir. 2018) (citations omitted).
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Nevertheless, Dr. Huerta released Hawkins without any restrictions,
including a bedsheet, because he was no longer suicidal.129 Smith’s psychiatry
expert testified that taking away an inmate’s bedding would be a restriction
and that it was a “very bad clinical decision” for Dr. Huerta to release Hawkins
from MHU without restrictions.130 And her jail expert agreed inmates should
be housed in the least restrictive means necessary, and necessities like
clothing and bedding should not be restricted unless necessary for a short
period of time.131
Smith cites a policy about inmates in crisis being provided a suicide
smock, but the provision is in the “Housing” section of the policy, right under
the statement, “Suicidal inmates shall be housed in cellblocks under the
direction of mental health professionals,” and does not say suicide smocks are
available in non-MHU housing units.132 Thus, there is no evidence of any
indication Hawkins was suicidal or needed suicide-resistant clothing or
bedding after Dr. Huerta released him from MHU. The district court did not
disregard Smith’s evidence. She had none.
3. Smith has no admissible evidence regarding modifications to
smoke detectors
Smith’s complaint about the smoke detectors is, ironically, a “smoke
screen.” Smith has no evidence of any reasonable accommodation or
modification to the smoke detectors. Every cell in the Harris County jail has
129 See supra note 39 & accompanying text. See also ROA.3807–3808, 4100:24–
4101:8 (emphasis added).
130 ROA.3808, 4202:1–4, 4206:24–4207:7, 4190:17–4191:9 (emphasis added).
131 ROA.3820, 4983:15–23, 4981:11–22. See also ROA.4186:3–4189:5.
132 ROA.8905.
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the same smoke detectors at issue, including the cells in MHU.133 The smoke
detectors are cone-shaped, metal devices attached to the ceiling of all jail cells.
Small slots allow smoke to penetrate and be detected by the unit.134 A smoke
detector is a necessary life component in any human-occupied building,
especially jails—which is why Texas law mandates all jail cells contain a
smoke detector.135 Harris County’s suicide prevention committee met shortly
after Hawkins’s suicide and researched whether alternatives existed to the
smoke detectors, but concluded there were no reasonable alternatives.136
Smith has no evidence of any reasonable accommodation or
modification that could be made to the jail’s smoke detectors.137 Smith cites
an inadmissible consultant’s report created after Hawkins’s death and that
does not mention him, which Harris County moved to strike.138 Moreover,
Smith’s jail expert had never been to the Harris County jail, had never
inspected the smoke detectors in the jail, did not know the same smoke
detectors are in every cell, and had no idea whether there is a “suicide-
resistant” modification that works with the smoke detectors or would be
approved by the State.139 Smith’s jail expert testified if Hawkins could not
have been housed in a cell without a smoke detector—and he could not
133 ROA.3819, 3891:6–3892:3, 4969:2–7.
134 ROA.3818–3819, 4964–4966.
135 ROA.3819. See also 37 Tex. Admin. Code. §§ 263.31, 263.51.
136 ROA.3819, 3892:11–3893:4.
137 Certainly, if Plaintiff’s expert cannot identify a reasonable accommodation or
modification in 2018, it was not “open, obvious or apparent” in 2014.
138 ROA.6247–6249. See also infra note 197 & accompanying text.
139 ROA.3819, 4968:3–7, 4969:2–7, 4977:19–4978:6, 4979:1–4980:13.
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identify an appropriate cell outside of MHU—then he should never have been
moved out of MHU.140
Smith continues to improperly rely on her experts’ 47- and 32-page
sham declarations (at ROA.9155–9201 and ROA.5997–6028), to which
Harris County objected, instead of their admissible deposition testimony.141
The cited portions are new opinions and are thus inadmissible.142
Smith’s argument that Hawkins could have been temporarily moved to
another cell is immaterial. There was no indication at that time Hawkins
needed to be moved to another cell, even to Ford who determined Hawkins
was not presently suicidal.143 Dr. Huerta released Hawkins from MHU
without restrictions, and these are medical treatment decisions. Had anyone
reasonably known Hawkins was suicidal, he would have been referred to a
psychiatrist and moved to MHU as officers did numerous times before.
4. Chelsea Ford is a medical professional who evaluated Hawkins
and determined he was not suicidal, which is a medical
treatment decision
Smith misrepresents the interaction between Hawkins and Chelsea Ford
the day before Hawkins died. Ford is a Licensed Professional Counselor,
trained by MHMRA, and familiar with bipolar disorder, schizophrenia,
140 ROA.3819, 4969:14–24. See also ROA.4970:16–4972:4.
141 ROA.6243–6247, 6252–6255, 6262–6268.
142 ROA.6243–6247, 6252–6255, 6262–6268. See also supra note 82.
143 See infra section II.B.4.
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schizoaffective disorder, psychosis, and other mental health diagnoses.144 Her
duties included “counseling and case management.”145
The day before Hawkins died, Ford was conducting routine, bi-weekly
mental health rounds of inmates in Hawkins’s cellblock.146 Importantly, after
Hawkins told Ford “the illuminate is watching me and makes me want to kill
myself,” Ford followed up, evaluated Hawkins, and determined he was not
presently suicidal based on Hawkins’s own report to Ford:
Writer encouraged [patient] [to] notify myself or deputies when
[suicidal ideation] worsens and he feels the need to act on
thoughts. [Patient] states “the illuminate is watching me and
makes me want to kill myself.” [Patient] reports he is presently
not experiencing [suicidal ideation] and agrees to notify writer if
symptoms worsen.147
Ford had a protocol for detection of suicide risk, which included
notifying security staff, encouraging security staff to follow their suicide
protocol, reporting the incident, and referring to a mental health doctor.148
Ford did none of this because she determined Hawkins was not suicidal.149
Ford testified that “he reported he wasn’t presently experiencing suicidal
ideation.”150
144 ROA.3808, 4146:10–12, 4146:25–4147:2, 4150:8–24.
145 ROA.5716.
146 ROA.3821–3822, 8281–8285, 8300.
147 ROA.8300 (emphasis added). See also ROA.4160:5–4161:3.
148 ROA.4151:21–4152:4, 4153:4–22.
149 ROA. 3809, 4151:21–4152:4, 4153:4–22, 4156:25–4157:24, 4158:6–10, 4159:1–
4161:3, 4162:8–4163:11, 4165:19–22, 4166:9–10.
150 ROA.4160:5–4161:3.
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Ford did not violate jail policy requiring officers to immediately refer
inmates exhibiting behavior indicative of a mental health issue because her
entire job was to observe and evaluate inmates with mental health issues.
Although Harris County trains its detention officers on suicide prevention and
some levels of suicide-risk detection,151 it has chosen to contract with
MHMRA to provide mental health services in the Harris County jail.152 Jail
officials are entitled to rely on the judgment of medical professionals, like
Ford.153
Smith continues to rely heavily on her psychiatry expert’s sham
declaration (at ROA.9155–9201) rather than admissible deposition testimony.
Nevertheless, even his new opinions about what a “reasonable person would
conclude” after Ford’s evaluation of Hawkins and how she should have made
an immediate referral challenge Ford’s medical treatment decision. At
deposition, Dr. Konrad criticized Ford for not making “further interventions”
or responding differently.154
Dr. Konrad opined Ford’s “best decision” would have been to notify a
psychiatrist, but “at a minimum” she should have discussed Hawkins’s
statements with a supervisor.155 Her decision not to do so is a medical
treatment decision. Moreover, Dr. Konrad admitted Ford did not act with
151 ROA.3810, 4420–4472, 4730–4744, 4753–4766.
152 ROA.3810, 4054–4078, 4065.
153 E.g., Cooper v. Hung, 485 Fed. App’x 680, 684 (5th Cir. 2012) (per curiam). See
also ROA.3809 n.89 (citing other cases).
154 ROA.3808–3809, 4192:14–24, 4193:10–4194:9.
155 ROA.3809, 4196:15–4197:3.
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deliberate indifference to Hawkins when she evaluated him on February 4th,
thus Smith has no evidence Ford acted with intent as required.156
Ford exercised her professional medical judgment, based on an
evaluation of Hawkins, that he was not presently suicidal. Her decision is a
medical treatment decision not actionable under the ADA or RA.
5. Hawkins was not more frequently monitored because no one
knew he needed it
Smith confuses this issue, which is not whether more frequent
monitoring was available outside MHU, but whether the need was open,
obvious, and apparent. Smith testified Hawkins should have been constantly
monitored, though she now argues he should only have been monitored every
5–10 minutes.157 The only area of the jail that comes close to constant, 24-
hour, eye-to-eye observation (or 5–10 minute observation) is in the acute care
unit in MHU.158 A psychiatrist discharged Hawkins from MHU without any
restrictions.159 Thus, the psychiatrist concluded that treatment in MHU—with
more frequent monitoring—was no longer necessary for Hawkins.160 By
releasing him to general population, the psychiatrist determined that he no
longer presented a risk of suicide requiring constant observation and, in fact,
only needed to be monitored every 60 minutes.161
156 ROA.3829, 4198:9–21. See also infra section II.E.
157 Compare ROA.3807 n.79 & ROA.4030:5–15 with Appellant’s Brief at 55.
158 ROA.3821, 4237, 4239, 4244.
159 ROA.3821, 8301–8303, 4143.
160 See supra note 39.
161 ROA.3821, 8266 (citing 37 Tex. Admin. Code § 275.1).
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Jail classification staff determined Hawkins should be housed in
administrative separation, where he would be observed at least every 25
minutes instead of every 60 minutes in general population.162 Harris County’s
policies and practices exceeded state requirements of monitoring maximum-
security inmates every 30 minutes.163 It is undisputed Hawkins was found
hanging during a routine observation round only 17 minutes after the prior
observation round.164 And Hawkins received periodic bi-weekly visits by a
MHMRA professional.165 Smith has no evidence an additional 7 minutes
makes the accommodation unreasonable or that anyone knew Hawkins
needed more frequent monitoring.
If Hawkins indicated he was suicidal on February 4–5, 2014, then he
would have been placed on suicide watch and monitored at least every 15
minutes even outside MHU until he could be evaluated by a psychiatrist and
transferred to MHU.166 The record is devoid of any evidence that jail staff was
aware Hawkins exhibited any behavior or statements that would indicate he
was suicidal following his January 31, 2014 discharge from MHU.167 There is
no evidence Hawkins was denied monitoring because of his disability.
162 ROA.3821, 8267, 3889:7–24.
163 ROA.3822, 8267. See also 37 Tex. Admin. Code § 275.1.
164 ROA.3822, 3855, 3834, 3866:23–3867:18.
165 ROA.3821–3822, 8281–8285, 8300.
166 ROA.3832, 8244.
167 ROA.3822, 3903:8–3904:6, 3905:13–3906:14, 3916:16–20, 3917:9–13, 3864:17–
3865:5, 4151:21–4152:4, 4153:4–16.
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C. Smith speculates and relies on inadmissible evidence to
support her towel-related arguments
Officers did not allow Hawkins to cover his cell window with a towel.
Smith assumes without support that an officer saw the towel in the 17 minutes
between the round on which Hawkins was found hanging and the prior round
on the prior shift.
Hawkins covered his cell door window and violated jail rules.168 There
is no evidence any officer allowed the towel to stay up or that it was up for
the full 17 minutes. Officer Perkins, the last officer to round on Hawkins
before shift change, testified that if he had seen a towel covering Hawkins’s
window, he would have taken it down or made Hawkins take it down
immediately.169 When Officer Cano rounded 17 minutes later, he noticed the
towel, banged on the door, and immediately checked on Hawkins when he
received no answer.170 Smith wholly ignores this testimony.
Smith has no evidence it took Hawkins “five to six minutes” to die from
asphyxiation except an inadmissible consultant’s report that does not mention
Hawkins or cite any support.171 Smith also improperly relies on an
inadmissible felon-witness declaration (at ROA.5962–5964). Harris County
objected to and moved to strike this declaration, primarily because Smith hid
the witness’s identity and relevant knowledge from Harris County until she
filed her summary judgment response.172 The declaration says nothing about
168 ROA.3931, 3953, 3954.
169 ROA.6368, 5892:17–25.
170 ROA.6368, 5800:11–25.
171 See generally ROA.6035–6084 and particularly ROA.6058. See also ROA.6247–
6249.
172 ROA.6235–6238.
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Hawkins hanging a towel on his window or whether these officers allowed
any inmates to put a towel up on the day Hawkins committed suicide.173 The
Court should not consider this inadmissible evidence.
Smith incorrectly states what officers can see from the PCC. Smith’s
own evidence shows each cell has a green metal front door and a small glass
window, allowing only a very small part of the back white wall to be viewed
from the distance and angle of the PCC.174 The PCC does not have
“continuous, nearly unobstructed view of the inmates” in their cell, and Smith
has no evidence this is the PCC officer’s purpose.
Photo 1: View of 2R (2d floor, middle of photo) from PCC.175
Hawkins hung the towel on the inside of his cell door window—he was
not waving it around or otherwise calling attention to it. It is difficult for
173 See ROA.5962–5964.
174 ROA.6367, 8994–8996.
175 ROA.8995. See also ROA.6932 n.31 (district court’s description of cellblock).
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officers to notice at first glance a white towel calmly hanging in a small
window against white background cell walls. Because such little time passed
between the rounds and over shift change—7 minutes on the prior shift and
10 minutes on the next shift—it was reasonable not to notice the towel.
D. Smith has no evidence Officer Perkins did not complete his
last round
Smith speculates and defames Officer Perkins, yet raises no fact issue
on whether he completed his 9:53 p.m. round.176 Perkins worked the shift prior
to Hawkins’s suicide and conducted the final round of his shift only 7 minutes
before the 10:00 shift change and only 17 minutes before Hawkins was found
hanging.177
Perkins’s memory is not lacking. Of course he did not recall from
memory at his deposition whether he conducted one of twice-hourly rounds
on a particular eight-hour shift four years prior.178 However, he was entitled
to rely on official records he signed showing he completed the round.179
Indeed, when questioned about his reports, Smith’s counsel objected that the
“[d]ocument speaks for itself.”180 Similarly, he could testify he did not allow
Hawkins to keep his towel up from habit—he always told inmates to take
176 See ROA.6932 n.29.
177 See supra note 2.
178 ROA.3863. Hawkins did not die on his shift, so it was not particularly memorable.
179 ROA.3866:23–3867:18 (relying on document).
180 ROA.3867:4–14.
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down a window covering when he observed it.181 Smith’s unsupported
conjecture does not raise a fact issue on Perkins’s testimony.
Officer Perkins’s disciplinary action, which occurred more than a year
and a half after Hawkins died, is irrelevant to Hawkins’s death. Perkins
testified that, during that incident, his partner conducted the round but
accidentally wrote the wrong time on his round sheet, and all officers working
on that shift were disciplined, even though he was not at fault.182 This is the
exact opposite of what Smith uses it to try to show—that Perkins did not
complete a round but recorded one. Smith’s wild accusations are not
competent evidence, and she ignores important testimony in her arguments to
the Court.
Finally, Smith has no evidence the observation logs were inaccurate.
Smith argues 16 months of observation logs “showed the pattern,” which led
her expert to speculate in his sham declaration that this is an indication of
inaccuracy and “raised doubt” whether rounds were conducted accurately.
Smith fails to tell the Court, however, that her expert conceded his suspicion
about the rounds was based on speculation and he could not confirm it.183
Smith raises a new argument on appeal regarding an email indicating
Hawkins “was hanging for about 20 [minutes].”184 Smith has waived this
181 See ROA.5892:21–25.
182 ROA.6371, 5901:2–19.
183 ROA.6383:11–20. See also ROA.6931.
184 See generally ROA.5683–5731 (not mentioning email).
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argument for failure to raise it before the district court.185 In any event, it
should go without saying that 17 minutes equals about 20 minutes.186
Smith continues to rely on an inadmissible declaration from a late-
produced felon-witness (at ROA.5962–5964) that says nothing about rounds
by Officer Perkins and nothing about rounds on the day Hawkins died.187 This
evidence is inadmissible and does not support Smith’s arguments. In addition,
Smith makes unsupported arguments about Hawkins being cold to the touch,
implying he was hanging for more than 20 minutes, though she has no
evidence of how long it takes a body to become cold to the touch or whether
Hawkins was cold because of his death or some other environmental factor,
like a cold jail in February. Thus, these arguments do not raise a fact issue and
the Court should not consider them.
E. Smith has no evidence of intentional discrimination
Smith admits she must show evidence of intentional discrimination to
recover compensatory damages.188 The district court determined “[Harris
County] is additionally entitled to summary judgment on [Smith’s] ADA and
RA claims for compensatory damages because [Smith] has produced no
evidence of intentional discrimination by [Harris County].”189
185 Firefighters’ Ret. Sys., 894 F.3d at 670 n.18 (citations omitted).
186 The email is from Ali Frankovich, a MHMRA supervisor, who was not present
when Hawkins was found. See ROA.1938. Smith fails to tell the Court a third-party doctor
notified Frankovich that Hawkins was reportedly hanging for about 20 minutes, that she
does not know the source of the doctor’s information, and she reviewed no documents
confirming the length of time Hawkins was hanging. ROA.1933–1934, 1939–1941.
187 ROA.5962–5964.
188 Smith abandoned her claims for declaratory and injunctive relief. ROA.5691 n.1.
189 ROA.6946.
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Smith incorrectly argues her burden is met by simply showing
knowledge of a disability and its limitations and not providing
accommodations. But this ignores Fifth Circuit case law and makes the
intentionality requirement meaningless. “[I]n order to receive compensatory
damages [under the ADA or RA], a plaintiff must show intentional
discrimination.”190 The standard for intentional discrimination is higher than
for deliberate indifference.191
Contrary to Smith’s reading of the case law, Delano-Pyle v. Victoria
County, Texas, determined “[t]he facts addressed at trial support the jury’s
finding of intentional discrimination.”192 The Court reasoned that a videotape
of Pyle’s roadside sobriety test showed Pyle, who was hearing impaired, could
not understand what the officer was saying no matter how many times the
officer repeated himself or how loudly he spoke.193 The officer became visibly
annoyed, continued instructing Pyle verbally, and admitted at deposition, “I
knew he had a hearing problem” and denied he communicated effectively.194
There were also issues communicating Miranda warnings.195
Finally, and importantly, the Delano-Pyle defendants appealed a Rule
50(b) motion, but did not renew it at the conclusion of evidence, and thus this
190 Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574, 575 (5th Cir. 2002) (citation
omitted).
191 Zaragoza v. Dallas Cnty., No. 3:07-CV-1704-K, 2009 WL 2030436, at *11 (citing
Delano-Pyle, 302 F.3d at 575). Even under a deliberate indifference standard, which is not
the correct standard, Plaintiff has no evidence anyone acted with deliberate indifference.
192 Delano-Pyle, 302 F.3d at 575.
193 Id. at 575–76.
194 Id. at 575.
195 Id. at 576.
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Court only reviewed the defendants’ challenge to the sufficiency of the
evidence for plain error and only required this Court “to merely ascertain if
the plaintiff has submitted ‘any evidence in support of his claim.’”196 Delano-
Pyle does not support Smith’s arguments.
Also contrary to Smith’s arguments, Miraglia v. Board of Supervisors
did not “note[] with approval” that intent is proved by evidence of knowledge
and failure to discriminate, but rather stated actual notice of a violation is
required:
We need not delineate the precise contours in this case. Instead,
we can rely on the widely accepted principle that intent requires
that the defendant at least have actual notice of a violation. We
previously seem to have required that a plaintiff prove . . .
something more than “deliberate indifference” to show intent.
Other circuits use the deliberate indifference standard. But what
is common between our courts and other courts is that a
defendant must have notice of the violation before intent will be
imputed.197
Because the plaintiff did not show the defendants had notice, this Court
reversed and rendered judgment for the defendants.198 Smith likewise fails to
show notice of a violation.
Smith’s reliance on district court cases does not overcome this Court’s
precedent. Moreover, she continues to rely on her expert’s sham declaration
(at ROA.9155–9201), which is inadmissible for reasons discussed ad
nauseum above, namely that he offered new and contradictory opinions not
196 Id. at 573 (citations omitted).
197 Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 575 (5th Cir.
2018) (citations omitted) (collecting cases).
198 Id. at 576.
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contained in his report or deposition testimony.199 The Court should not
consider this inadmissible evidence.
Smith has no evidence there was any indication Hawkins was suicidal,
that there was an intent to deny him any accommodations, or that he was
discriminated against by reason of his disability, if any. Smith’s own
psychiatry expert conceded Ford did not act with deliberate indifference to
Hawkins when she evaluated him on February 4th.200 Thus, Smith has no
evidence of intentional conduct and summary judgment was proper.
III. Fifth Circuit precedent requires federal funding for the specific
program, service, or activity Smith challenges, and she lacks
evidence
The district court properly granted summary judgment on Smith’s RA
claims for the same reasons discussed above,201 and because it is undisputed
she has no evidence the Harris County jail receives federal funding for the
specific program, service, or activity at issue. Smith improperly relies on non-
Fifth Circuit case law for her arguments.
In the Fifth Circuit, however, what matters is whether the specific
program or activity at issue receives or directly benefits from federal
funding.202 “After analyzing the relevant statutory language and legislative
history and our case law under analogous statutes, we find persuasive reasons
for concluding that the receipt of federal financial assistance by a
multiprogram entity, for specific application to certain programs or activities, 199 See, e.g., supra at note 82.
200 ROA.3829, 4198:9–21.
201 ROA.6938 n.52. See also ROA.3827–3829.
202 Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997) (citing
Brown v. Sibley, 650 F.2d 760, 767–71 (5th Cir. 1981)).
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does not, without more, bring all of those multiple programs or activities
within the reach of section 504.”203 As this Court further explained:
[I]t is not sufficient, for purposes of bringing a discrimination
claim under section 504, simply to show that some aspect of the
relevant overall entity or enterprise receives or has received some
form of input from the federal fisc. A private plaintiff in a section
504 case must show that the program or activity with which he
or she was involved, or from which he or she was excluded, itself
received or was directly benefited by federal financial
assistance.”204
Smith cites no evidence showing the specific program, service, or
activity she challenges received any federal funding. Thus, summary
judgment is proper.
203 Sibley, 650 F.2d at 767.
204 Id., at 769 (citations omitted, emphasis added). See also Salcido v. Harris Cnty.,
Tex., No. H-15-2155, 2018 WL 4690276, at * 53 (S.D. Tex. Sept. 28, 2018) (Mem. Op.)
(Lake, J.) (citing Lightbourn, 118 F.3d at 427).
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CONCLUSION
Smith relies on speculation and conjecture rather than competent
evidence, and the district court properly granted summary judgment.
For these reasons, Appellee, Harris County, Texas, respectfully
requests the Court to affirm the district court’s final order granting summary
judgment to Harris County on all of Smith’s claims against it and for such
other and further relief to which it is justly entitled.
Date: August 15, 2019
Respectfully submitted,
/s/ Keith A. Toler
KEITH A. TOLER
Assistant County Attorney
Texas Bar No. 24088541
Attorney in Charge
Of Counsel:
VINCE RYAN
Harris County Attorney
LAURA BECKMAN HEDGE
Assistant County Attorney
HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress Avenue, 15th Floor
Houston, Texas 77002
(713) 274-5265
Counsel for Defendant-Appellee
Harris County, Texas
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43
CERTIFICATE OF SERVICE
I certify that on August 29, 2019, I filed a true and correct copy of the
foregoing proposed sufficient brief via the Court’s electronic filing system,
which will automatically serve a copy on all parties’ registered counsel.
Amy Eikel
Zachary C. Burnett
Thomas Gutting
KING & SPALDING LLP
1100 Louisiana Street, Suite 4000
Houston, Texas 77002
Peter Steffensen
TEXAS CIVIL RIGHTS PROJECT
1405 Montopolis Drive
Austin, Texas 78741
Ranjana Natarajan
UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC
727 E. Dean Keeton St.
Austin, Texas 78705
Counsel for Plaintiff-Appellant, Jacqueline Smith
/s/ Keith A. Toler
KEITH A. TOLER
Assistant County Attorney
Case: 19-20194 Document: 00515078879 Page: 53 Date Filed: 08/15/2019
44
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limit of Fifth Circuit Rule
32.2 and Federal Rule of Appellate Procedure 32(a)(7)(B) because,
excluding the parts of the document exempted by Federal Rule of
Appellate Procedure 32(f), this brief contains 12,757 words.
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of
Federal Rule of Appellate Procedure 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using Microsoft
Word for Windows 2016, version 16.0.4849.1000, in Times New
Roman 14-point typeface, except for footnotes, which are in Times
New Roman 12-point typeface. Case names are italicized or underlined.
/s/ Keith A. Toler
KEITH A. TOLER
Assistant County Attorney
Case: 19-20194 Document: 00515078879 Page: 54 Date Filed: 08/15/2019
United States Court of Appeals FIFTH CIRCUIT
OFFICE OF THE CLERK LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
August 19, 2019
Mr. Keith Adams Toler County Attorney's Office for the County of Harris 1019 Congress 15th Floor Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Mr. Toler, We have determined that your brief is deficient (for the reasons cited below) and must be corrected within 14 days. The Certificate of Compliance is out of order. See 5TH CIR. R. 28.3(m). This should be the last page after the certificate of service. Record References: Although your brief contains citations to the record, they are not in proper form. Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court. The use of "id" is not permitted when citing to the record on appeal. (See 5TH CIR. R. 28.2.2) Please remove any colons and semi-colons within the record citations and only use commas. These prevent the links from working. Note: Once you have prepared your sufficient brief, you must electronically file your 'Proposed Sufficient Brief' by selecting from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further corrections are necessary. The certificate of service/proof of service on your proposed sufficient brief MUST be dated on the actual date that service is being made. Also, if your brief is sealed, this event automatically seals/restricts any attached
Case: 19-20194 Document: 00515081409 Page: 1 Date Filed: 08/15/2019
documents, therefore you may still use this event to submit a sufficient brief. Sincerely, LYLE W. CAYCE, Clerk
By: _________________________ Casey A. Sullivan, Deputy Clerk 504-310-7642 cc: Ms. Amy Couvillon Eikel Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen
Case: 19-20194 Document: 00515081409 Page: 2 Date Filed: 08/15/2019
United States Court of Appeals FIFTH CIRCUIT
OFFICE OF THE CLERK LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
August 30, 2019
Mr. Keith Adams Toler County Attorney's Office for the County of Harris 1019 Congress 15th Floor Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Mr. Toler, You must submit the 7 paper copies of your brief required by 5th Cir. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5th Cir. R. 42.3. If your brief was insufficient and required corrections, the paper copies of your brief must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief directly from your original file without any header. Sincerely, LYLE W. CAYCE, Clerk
By: _________________________ Casey A. Sullivan, Deputy Clerk 504-310-7642 cc: Ms. Amy Couvillon Eikel Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan
Case: 19-20194 Document: 00515099418 Page: 1 Date Filed: 08/15/2019
Mr. Peter Steffensen
Case: 19-20194 Document: 00515099418 Page: 2 Date Filed: 08/15/2019
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