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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 United States District Court for the Southern District of Texas
4:15-CV-2226
BRIEF OF APPELLANT Jacqueline Smith
Amy C. Eikel Texas Bar No. 00787421 [email protected] Thomas M. Gutting State Bar No. 24067640 [email protected] Zachary C. Burnett Texas Bar No. 24105560 [email protected] KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Tel: (713) 751-3200 Fax: (713) 751-3290
Peter Steffensen Texas Bar No. 24106464 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741 Tel: (512) 474-5073 ext. 101 Fax: (512) 474-0726 [email protected]
Ranjana Natarajan Texas Bar No. 24071013 UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC 727 E. Dean Keeton St. Austin, TX 78705 Tel: (512) 232-7222 Fax: (512) 232-0800 [email protected]
Attorneys for Jacqueline Smith, Individually and as Independent Administrator of the Estate of Danarian Hawkins, Deceased
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CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed 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 in order that the
judges of this court may evaluate possible disqualification or recusal.
Appellees: Counsel for Appellees:
Harris County, Texas
Laura Hedge of County Attorney’s Office Houston, TX Keith Toler of County Attorney’s Office Houston, TX Fred Keys of Fred Keys Consulting, L.L.C. Sonoita, AZ
Appellants: Counsel for Appellants:
Jacqueline Smith Estate of Danarian Hawkins
Amy Eikel of King & Spalding, L.L.P. Houston, TX Zachary C. Burnett of King & Spalding, L.L.P. Austin, TX Thomas Gutting of King & Spalding, L.L.P. Houston, TX Peter Steffensen of Texas Civil Rights Project Austin, TX Ranjana Natarajan of University of Texas School of Law Austin, TX
S/Amy Couvillon Eikel
Attorney of record for Appellant Jacqueline Smith
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STATEMENT REGARDING ORAL ARGUMENT
Plaintiff respectfully requests oral argument because she believes it will assist
in the Court in its determination of the important issues in this case.
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ......................................................... i STATEMENT REGARDING ORAL ARGUMENT .............................................. ii TABLE OF CONTENTS ......................................................................................... iii TABLE OF AUTHORITIES .................................................................................. vii JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 2
1. The district court erred in granting summary judgment on Plaintiff Jacqueline Smith’s Americans with Disabilities Act and Rehabilitation Act claims based on Harris County’s intentional refusal to accommodate the known disabilities and limitations of her son Danarian Hawkins, resulting in his suicide in the Harris County Jail. . 2
a. Contrary to Federal Rule of Civil Procedure 56 and well-established case law, the district court resolved disputed facts in favor of the movant Harris County in concluding that Harris County’s refusals to reasonably accommodate Danarian were “medical decisions” not actionable under the ADA and RA. ........ 2
b. Contrary to Rule 56 and well-established case law, the district court disregarded Plaintiff’s evidence that raised genuine issues of material fact on whether jail officers violated jail policies and failed to adequately monitor Danarian on the night of his death. .. 2
c. The district court erred in granting summary judgment on intentional discrimination by misapplying applicable law and disregarding Plaintiff’s evidence that showed Harris County’s documented knowledge of Danarian’s history of severe mental illness and multiple attempts to hang himself, Harris County’s knowledge of what accommodations Danarian needed to be safely housed, and Harris County’s deliberate refusal to provide those accommodations. ..................... 2
2. The district court erred as a matter of law in concluding, contrary to the controlling statute and regulations, that the Rehabilitation Act does not apply unless Harris County’s federal funding is directed specifically at Harris County Jail programs or activities that affected Danarian. .......................................................................... 2
STATEMENT OF THE CASE .................................................................................. 3
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I. Procedural History ........................................................................................... 3
II. Statement of Facts ............................................................................................ 3
A. After attempting suicide eight times in the Harris County Jail—once by overdose and seven times by hanging—Danarian died by hanging himself on February 5, 2014. .................................................. 3
B. Plaintiff identified six reasonable accommodations that were obvious to Harris County and were necessary for Danarian to be safe in jail, but none of them were provided. ................................... 5
C. Harris County had ample documented knowledge of Danarian’s long history of severe mental illness and multiple attempts to commit suicide by hanging. .................................................................. 6
D. Being housed alone exacerbated Danarian’s suicidal symptoms, and he was often sent to the jail’s Mental Health Unit (MHU) for acute psychiatric care. ........................................................................... 6
E. After MHU discharge, jail classification, not medical staff, chooses the inmate’s subsequent housing placement. .......................... 7
F. Despite knowing of Danarian’s 2013 attempted suicide with a sheet tied to a smoke detector and another attempted hanging with his sheet in January 2014, Harris County did not modify his smoke detector or replace his sheet with a suicide blanket. ............................. 8
G. Danarian made a suicidal statement the day before his death, but in violation of jail policy, no mental health referral was made and unit housing officers were not informed. ............................................ 11
H. Danarian’s ninth attempt at suicide in the Harris County Jail succeeded after he was allowed to leave his cell window covered with a towel in violation of jail policy. ............................................... 12
I. The parties disagree about how long detention officers allowed the towel to stay up covering Danarian’s cell window, but even under Defendant’s view of the evidence, the towel could have covered the window for seventeen minutes, violating jail policy. ...... 13
J. A consultant hired by Harris County criticized suicide prevention efforts in the Harris County Jail. ......................................................... 16
SUMMARY OF THE ARGUMENT ...................................................................... 17
STANDARD OF REVIEW ..................................................................................... 19
ARGUMENT ........................................................................................................... 20
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I. The district court misapplied the summary judgment standard and case law in granting summary judgment on Plaintiff’s ADA and RA claims. ..... 20
A. Plaintiff produced evidence raising genuine issues of material fact on whether Harris County violated the ADA and RA by intentionally failing to accommodate Danarian’s known disabilities and limitations, causing his death. ............................................................. 22
1. Danarian was a qualified individual with a disability. ................ 23
2. Harris County failed to accommodate Danarian’s known disabilities and limitations. .......................................................... 25
B. In concluding that Plaintiff’s failure-to-accommodate claims were essentially challenges to a “medical decision,” the district court erred by relying on inapplicable and factually distinguishable case law. .... 29
C. The district court disregarded Plaintiff’s evidence that Harris County’s failures to accommodate Danarian were not caused by a medical decision. ......................................................................... 33
1. The district court disregarded Plaintiff’s evidence that medical staff had no authority to determine an inmate’s housing placement and conditions after discharge from the MHU. ......... 33
2. The district court disregarded Plaintiff’s evidence that Harris County does provide suicide prevention clothing and bedding to inmates housed outside the MHU. ...................... 35
3. The district court erred in disregarding Plaintiff’s evidence that modifying cell smoke detectors would have been a reasonable accommodation and was not an undue hardship. ...... 37
4. The district court disregarded Plaintiff’s evidence that Chelsea Ford violated jail policy applicable to both medical and non-medical staff by failing to report Danarian’s suicidal statement the night before his death. ........................................... 41
5. The district court disregarded Plaintiff’s evidence that Harris County does provide more frequent monitoring to suicidal inmates housed outside the MHU. ................................. 44
D. The district court disregarded Plaintiff’s evidence that detention officers allowed the towel to stay up covering Danarian’s cell window for at least seventeen minutes, violating jail policy. ............. 45
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E. The district court disregarded Plaintiff’s evidence that raised a fact issue on whether Officer Perkins’ last observation round occurred as reported the night Danarian died. .................................... 47
F. Summary judgment on intentional discrimination was error because Harris County knew about Danarian’s disabilities and limitations but deliberately refused to provide the accommodations it knew Danarian needed to be safely housed. .................................... 51
II. The district court erred in concluding, contrary to the controlling statute and governing regulations, that the Rehabilitation Act does not apply because Harris County’s federal funding is not directed specifically at programs or activities in the Harris County Jail that affected Danarian. ...... 54
CONCLUSION ........................................................................................................ 57
CERTIFICATE OF SERVICE ................................................................................ 59
CERTIFICATE OF COMPLIANCE ....................................................................... 60
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TABLE OF AUTHORITIES
Page(s) Cases
A.H. v. St. Louis Cty., Mo., 891 F.3d 721 (8th Cir. 2018) ......................................................... 33
Arbogast v. Kan., Dept. of Labor, 789 F.3d 1174 (10th Cir. 2015) ..................................................... 59
Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448 (5th Cir. 2005) ......................................................... 22
Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495 (5th Cir. 2001) ......................................................... 40
Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) ........................................................... 31
Castle v. Eurofresh, Inc., 731 F.3d 901 (9th Cir. 2013) ......................................................... 43
Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996) ........................................................... 32
Comeaux v. Sutton, 496 F. App’x 368 (5th Cir. 2012) .................................................. 19
Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567 (5th Cir. 2002) ......................... 1, 7, 23, 25, 43, 53-55
Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009) ............................................. 20, 50, 51
Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134 (10th Cir. 2005) ..................................................... 31
Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009) ......................................................... 59
Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) ......................................................... 59
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Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL 2861456 (S.D. Tex. July 5, 2017) ................................................................. 53
Gay v. Hammersley, No. 08-59-DRH, 2009 WL 596114 (S.D. Ill. Mar. 6, 2009) .................................................................. 32
Grove City College v. Bell, 465 U.S. 555 (1984) ....................................................................... 57
Hacker v. Cain, 759 F. App’x 212 (5th Cir. 2018) .................................................. 22
Harkless v. Brazoria Cty., Tex., No. 3:14-CV-329, 2016 WL 1702595 (S.D. Tex. Apr. 28, 2016) .............................................................. 39
Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193 (3d Cir. 2008) .................................................... 57, 59
Hinojosa v. Livingston, 994 F. Supp. 2d 840 (S.D. Tex. 2014) ........................................... 26
Hott v. Hennepin Cty., 260 F.3d 901 (8th Cir. 2001) ......................................................... 32
Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997) ....................................................... 39
Kemp v. Holder, 610 F.3d 231 (5th Cir. 2010) ......................................................... 23
Lightbourn v. Cty. of El Paso, Tex., 118 F.3d 421 (5th Cir. 1997) ......................................................... 58
Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F. 2d 77 (5th Cir. 1987) .......................................................... 20
McCollum v. Livingston, No. 4:14-CV-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) ............................................... 27-29, 54-55
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McCoy v. Tex. Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055 (S.D. Tex. Aug. 9, 2006).......................................................... 26, 27
Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565 (5th Cir. 2018) ................................................... 53, 54
Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019) ......................................................... 19
Neely v. PSEG Tex. Ltd P’ship, 735 F.3d 242 (5th Cir. 2013) ......................................................... 24
Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012) ...................................... 31, 58, 59
Orr v. Copeland, 844 F.3d 484 (5th Cir. 2016) ......................................................... 19
Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 (1998) ....................................................................... 22
Peel & Co., Inc. v. Rug Market, 238 F.3d 391 (5th Cir. 2001) ............................................. 19, 34, 37
Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180 (5th Cir. 2015) ............................................ 54, 55
Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164 (2d Cir. 2003) .......................................................... 25
Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410 (5th Cir. 2003) ......................................................... 19
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289 (11th Cir. 2005) ............................................... 30, 31
Shelton v. Ark Dept. of Human Servs., 677 F. 3d. 837 (8th Cir. 2012) ....................................................... 33
Steele v. Thaler, No. CIV.A. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011) ........................................................ 30, 31
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Taylor v. City of Shreveport, 798 F.3d 276 (5th Cir. 2015) ......................................................... 59
Tolan v. Cotton, 572 U.S. 650 (2014) ................................................................. 20, 34
U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ....................................................................... 39
U.S. v. Ga., 546 U.S. 151 (2006) ....................................................................... 22
Val Velzor v. City of Burleson, 43 F. Supp. 3d 746 (N.D. Tex. 2014) ............................................ 39
Walls v. Texas Dep’t of Criminal Justice, 270 F. App’x 358 (5th Cir. 2008) ............................................ 30, 31
Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039 (N.D. Cal. 2012) ......................................... 43
Windham v. Harris Cty., Tex., 875 F.3d 229 (5th Cir. 2017) ................................................... 23, 26
Winzer v. Kaufman Cty., 916 F.3d 464 (5th Cir. 2019) ......................................................... 52
Wright v. Tex. Dept. of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994 (N.D. Tex. Dec. 16, 2013) ..................... 1, 10, 25, 28-29, 33, 39, 54
Yeskey v. Com. Of Pa. Dept. of Corrs., 118 F. 3d 168 (3d Cir. 1997) ......................................................... 57
Statutes
29 U.S.C. § 705 ................................................................................... 24
29 U.S.C. § 794 ............................................................ 18, 22-23, 56-57
42 U.S.C. § 12102 ............................................................................... 24
42 U.S.C. § 12131 ............................................................................... 24
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42 U.S.C. § 12132 ............................................................................... 22
42 U.S.C. § 12134 ............................................................................... 57
42 U.S.C. § 12206 ............................................................................... 57
Civil Rights Restoration Act of 1987, Pub. L. No. 100–259, 102 Stat. 28 (1988) ..................................... 57
Other Authorities
28 C.F.R. § 35.130 .................................................................. 11, 23, 43
28 C.F.R. § 42.540 .............................................................................. 58
29 C.F.R. § 1630.2 .............................................................................. 25
Fed. R. Civ. P. 56 ................................................................................ 19
Fed. R. Civ. P. 30(b)(6) ....................................................................... 14
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JURISDICTIONAL STATEMENT
The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§
1331 and 1343 because Plaintiff’s claims were brought under 42 U.S.C. § 12101 et
seq., and 29 U.S.C. § 794. (ROA.27, 121). This Court has jurisdiction pursuant to
28 U.S.C. § 1291 because the district court entered a final summary judgment
disposing of all claims on February 25, 2019 and Plaintiff timely appealed on March
27, 2019. (ROA.6925, 6950, 6961).
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STATEMENT OF THE ISSUES
1. The district court erred in granting summary judgment on Plaintiff Jacqueline Smith’s Americans with Disabilities Act and Rehabilitation Act claims based on Harris County’s intentional refusal to accommodate the known disabilities and limitations of her son Danarian Hawkins, resulting in his suicide in the Harris County Jail.
a. Contrary to Federal Rule of Civil Procedure 56 and well-established case law, the district court resolved disputed facts in favor of the movant Harris County in concluding that Harris County’s refusals to reasonably accommodate Danarian were “medical decisions” not actionable under the ADA and RA.
b. Contrary to Rule 56 and well-established case law, the district court disregarded Plaintiff’s evidence that raised genuine issues of material fact on whether jail officers violated jail policies and failed to adequately monitor Danarian on the night of his death.
c. The district court erred in granting summary judgment on intentional discrimination by misapplying applicable law and disregarding Plaintiff’s evidence that showed Harris County’s documented knowledge of Danarian’s history of severe mental illness and multiple attempts to hang himself, Harris County’s knowledge of what accommodations Danarian needed to be safely housed, and Harris County’s deliberate refusal to provide those accommodations.
2. The district court erred as a matter of law in concluding, contrary to the controlling statute and regulations, that the Rehabilitation Act does not apply unless Harris County’s federal funding is directed specifically at Harris County Jail programs or activities that affected Danarian.
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STATEMENT OF THE CASE
I. PROCEDURAL HISTORY
On July 30, 2015, Plaintiff-Appellant Jacqueline Smith brought this lawsuit
individually and on behalf of the estate of her son Danarian Hawkins against
Defendant-Appellee Harris County, alleging violations of her son’s rights under
Title II of the Americans with Disabilities Act (ADA) and Section 504 of the
Rehabilitation Act (RA). ROA.5, 27, 121.
The district court granted summary judgment in favor of Harris County,
ROA.3792, 5863, 6356, 6925, and on February 25, 2019 entered a Final Judgment
disposing of all claims. ROA.6950. Plaintiff timely appealed on March 27, 2019.
ROA.6961.
II. STATEMENT OF FACTS
A. After attempting suicide eight times in the Harris County Jail—once by overdose and seven times by hanging—Danarian died by hanging himself on February 5, 2014.
On February 5, 2014, Danarian Hawkins committed suicide in isolation cell
2R in the 2J2 cellblock in the Harris County Jail by threading his bed sheet through
the smoke detector in his cell and hanging himself. ROA.3834, 4966, 8544–8545,
8843, 8987–8988, 9179–9180. Although the window of Danarian’s cell, 2R, was
visible to the officer stationed in the pod control center, ROA.3900–3901, 4962,
5710, 8994–8996, Danarian was able to hang himself without detection because jail
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officers allowed Danarian to keep his cell window covered in violation of jail policy,
ROA.8908–8910, for at least the amount of time necessary for Danarian to tear and
knot his bed sheet, tie it around his neck, climb on his table, secure the sheet to the
smoke detector, and hang himself, plus the five to six minutes it took him to die from
asphyxiation. ROA.3834, 5711, 7246–7253, 8026, 8544–8546.
As Harris County knew, Danarian had attempted suicide at least eight times
during seven different periods of incarceration in the Harris County Jail between
2009 and 2014, see ROA.4792—once by overdose and seven times by hanging—
before the successful suicide attempt on February 5, 2014 that ended his life.
ROA.3840, 8542–8543, 8551–8553, 8581, 8604, 8606, 8610, 8612, 8629, 9007. Jail
staff documented 25 different incidents in which Danarian made suicidal statements,
engaged in self-harm, or attempted suicide. ROA.5703, 6016–6020, 8542–8644,
8850–8882. These incidents, including Danarian’s numerous statements to detention
officers and other jail staff that he heard voices in his head telling him to kill himself,
resulted in Danarian being referred numerous times to the jail’s Mental Health Unit
(MHU) and receiving diagnoses and treatment for a number of serious mental
illnesses from the Mental Health and Mental Retardation Authority of Harris County
(MHMRA), which provided mental health care to inmates under a contract with
Harris County. ROA.5692, 5695–5696, 5747, 5750–5774; see generally
ROA.8542–8647, 8845–8882, 8998–9051.
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B. Plaintiff identified six reasonable accommodations that were obvious to Harris County and were necessary for Danarian to be safe in jail, but none of them were provided.
Plaintiff identified six reasonable, necessary and feasible accommodations
that were obvious to Harris County, any one of which would have prevented
Danarian’s death, and which Harris County chose not to provide. ROA.5705–5722,
6942:
• Replacing Danarian’s bed sheet with a knot-proof suicide blanket.
ROA.5705–5707.
• Modifying the smoke detector in his cell to prevent him from using it
as a tie-off point, as he had done before. ROA.5707–5709.
• Following policy by removing the towel covering his window that
allowed him to hang himself undetected. ROA.5709–5712.
• Following policy by referring him to the MHU after his suicidal
statement on February 4, 2014, the day before his death. ROA.5712–
5717.
• Following policy by faithfully conducting the 25-minute observation
rounds required in Administrative Separation. ROA.5717–5720.
• Monitoring him every five to ten minutes due to his history of multiple
suicide attempts and statements. ROA.5720–5722.
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Any one of these reasonable accommodations would have saved Danarian’s
life, particularly the first four listed above.
C. Harris County had ample documented knowledge of Danarian’s long history of severe mental illness and multiple attempts to commit suicide by hanging.
Danarian’s death at age 27 was a tragic end to his years-long struggle with
mental illness, including schizophrenia, schizoaffective disorder, bipolar disorder,
and major depressive disorder. ROA.5695–5696, 9031, 9034–9037, 9040–9046,
9049–9051, 9054–9115, 9118. During childhood he exhibited compulsive behaviors
and was easily agitated. ROA.5982–5983. As he got older, Danarian heard voices
telling him to hurt himself, ROA.5977–5978, and was often confused and
disoriented. ROA.5988, 5989. Plaintiff’s expert psychiatrist, Dr. Shane Konrad,
explained that Danarian’s symptoms were manifestations of depression and
psychosis, which caused behavioral problems, auditory hallucinations and delusions,
suicidal ideation, and self-injurious conduct. ROA.9160–9161, 9163, 9170.
D. Being housed alone exacerbated Danarian’s suicidal symptoms, and he was often sent to the jail’s Mental Health Unit (MHU) for acute psychiatric care.
Most of Danarian’s time in jail was spent in administrative separation (also
called “Ad Sep”) where he was held in an isolation cell alone for twenty-three hours
a day. ROA.5873, 5962, 8845–8848, 8988–8991. Danarian’s mental health and
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suicidal behaviors worsened when he was incarcerated. ROA.5970, 5978–5979,
5989–5990.
During the last period of incarceration before his death, Danarian was sent
numerous times to the MHU’s acute term “crisis unit” after trying to harm himself,
making suicidal statements or attempting suicide. ROA.4083–4084, 8845–8848,
8850–8882. MHU medical staff, including psychiatrist Dr. Enrique Huerta,
diagnosed and treated Danarian for a number of serious mental illnesses. ROA.5692,
5695–5696; see generally 8998–9051. Because acute MHU treatment is intended to
be short term, ROA.4083, Danarian’s stays in the MHU never lasted more than two
weeks. ROA.8846–8848.
E. After MHU discharge, jail classification, not medical staff, chooses the inmate’s subsequent housing placement.
Once the MHU’s medical staff determined that a patient should be released
from acute psychiatric care in the MHU, the patient was transferred from the MHU’s
control and placed in the custody of the jail’s classification unit. ROA.5723, 5930–
5931, 5953–5954. Dr. Huerta testified that MHU staff members have no say in where
their former patients are placed when returned to the jail. ROA.5853–5856. Rather,
jail classification is solely responsible for all inmate housing assignments, including
where to place inmates after they are discharged from the MHU, an administratively
distinct area of the jail. ROA.5930–5934.
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It is undisputed that classification staff were aware when making Danarian’s
placement decisions that Danarian had a well-documented history of suicide
attempts and self-harm when held in isolation. Jail classification staff had access to
Danarian’s incident reports, records of prior conduct, staff observations, mental
health referrals, pages of “caution text” indicating dozens of referrals to the MHU,
various attempted suicides and self-harming incidents, and documentation of
Danarian’s mental health issues. ROA.5702–5703, 5924–5931, 5933–5936, 8886–
8894.
Nonetheless, each time Danarian was discharged from the MHU during the
eighteen months preceding his death, including on January 31, 2014, jail
classification staff intentionally returned Danarian to the same level of isolation and
the same conditions that they knew had previously exacerbated his suicidal
symptoms. ROA.8843, 8845–8848; see also ROA.6047. In his administrative
separation cell, Danarian was isolated from all human contact nearly every day,
twenty-three hours a day, for a year and a half. ROA.5873, 8843, 8845–8848.
F. Despite knowing of Danarian’s 2013 attempted suicide with a sheet tied to a smoke detector and another attempted hanging with his sheet in January 2014, Harris County did not modify his smoke detector or replace his sheet with a suicide blanket.
Danarian’s April 2013 suicide attempt ten months prior to his death was
identical in method to his final and successful attempt—he threaded his bed sheet
through the smoke detector in his isolation cell and tied his bed sheet around his
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neck. Compare ROA.3834, 8544–8545 with ROA.3840, 8551–8553; see
ROA.4966.
In the 2013 incident, Officer Christopher Cano found Danarian with the sheet
wrapped tightly around his neck and the other end tied to the smoke detector, leaning
forward with his eyes closed. ROA.3840, 8551, 8553. Cano was also the officer who
found Danarian after his successful suicide attempt on February 5, 2014, “hanging
in exactly the same way.” ROA.3834, 5801–5802, 8544.
In addition, on January 17, 2014, only three weeks before his death, Danarian
was found with a sheet tied around his neck, attempting to tie the other end to the
upper deck of his cell block. ROA.8542–8543. Officers “asked him what was he
trying to do, and he stated that he was hearing voices telling him that he needed to
kill himself.” ROA.8542–8543. Danarian was given a suicide smock to prevent
further self-harm and was sent to the MHU for two weeks. ROA.8542–8543, 9178–
9179. Yet upon his release from the MHU on January 31, 2014, jail classification
assigned him to the same type of separation cell, with the same type of smoke
detector and the same type of bed sheet as those he had used in his prior suicide
attempts. Compare ROA.3834, 8544–8545 with ROA.3840, 8542–8543, 8551–
8553, 8566, 8617; see ROA.8845–8848, 8881–8882, 9178–9179. Harris County
could have modified the smoke detector in Danarian’s cell so that it could not be
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used as a tie-off point (or otherwise housed him in a cell without tie-off points), but
Harris County chose not to do so.1
Detention officers could have replaced Danarian’s bed sheet with a suicide or
safety blanket,2 which is made of a firm, heavy fabric that provides warmth but
cannot be tied around the inmate’s neck or tied into a ligature. ROA.5850, 5863.
Suicide blankets and smocks were available for suicidal inmates and had in fact been
given to Danarian four times previously occasions by non-medical jail staff after he
made suicidal statements or gestures. ROA.8542–8543, 8558, 8610, 8617. But this
was not done in the days before Danarian’s death.
Jail policy provides that any staff member, medical or non-medical, can
initiate a suicide watch; deputies can choose without MHMRA involvement to
monitor an inmate every fifteen minutes, which is required for inmates considered
suicidal. ROA.8905. Harris County could have chosen to provide increased
monitoring of Danarian but, again, chose not to do so.3
1 See ROA.5707–5709, 5948, 6010–6012, 6016, 6025, 6056–6057, 6083, 9163–9164, 9186, 9195; see also Wright v. Tex. Dept. of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994, at *4 (N.D. Tex. Dec. 16, 2013) (“a safe cell without tie-off points” is a reasonable accommodation that a prison should have provided to a disabled inmate with a “well-known history of suicide attempts”). 2 ROA.5692, 5705–5707, 5850, 5863–5864, 5866, 6010, 6016, 6076, 8901, 8905, 9163–9164, 9195. 3 ROA.5717–5722, 5846, 5872, 5946–5947, 6012–6016, 6058–6059, 6065, 6076, 8905, 9163, 9191–9193.
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G. Danarian made a suicidal statement the day before his death, but in violation of jail policy, no mental health referral was made and unit housing officers were not informed.
Four days after Danarian’s January 31 release from the MHU—the day before
his death—Danarian was visited by Chelsea Ford, a MHMRA licensed practitioner
of the healing arts (LPHA), during Ford’s twice-weekly administrative separation
rounds. ROA.5712, 5807:14–20, 5812:23–5813:4, 5814:10–19, 5815:17–5816:8,
8683.
Danarian told Ford that he had just been discharged from the MHU after trying
to hang himself, and told her that “the [I]lluminat[i] is watching me and makes me
want to kill myself.” ROA.4155:3–22, 8683. Jail policy, which Ford was required to
follow,4 mandated an immediate mental health referral when an inmate exhibits
behavior “indicative of a mental health issue”—including suicidal statements.
ROA.8904–8905, 5747. Ford did not follow this policy, which binds all jail staff,
including MHMRA staff. ROA.4156:25–4157:16, 4162:8–4163:11, 8904–8905.
Instead, Ford merely “made her notes” of the incident “and moved on.” ROA.3809.
No mental health referral was made as mandated by jail policy, and no attempt was
4 By contract, MHMRA providers such as Ford must follow all Harris County administrative policies and rules. ROA.5754. The ADA and RA hold Harris County vicariously responsible for the acts of its agents whether they are employees or independent contractors. See 28 C.F.R. § 35.130(b)(1)(i) (2019); Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574–75 (5th Cir. 2002).
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made to inform the unit officers. Danarian was left in his cell to endure the voices in
his head alone. ROA.4155–4163, 5823–5824, 9163–9165, 9187.
H. Danarian’s ninth attempt at suicide in the Harris County Jail succeeded after he was allowed to leave his cell window covered with a towel in violation of jail policy.
The day after Ford failed to report Danarian’s suicidal statement, Danarian
succumbed to the voices telling him to take his life. ROA.3834, 8544–8545.
Sometime towards the end of the 9 p.m. hour on February 5, 2014, Danarian covered
his window with a towel and hanged himself by fashioning a noose with his bed
sheet and threading it through the smoke detector in his isolation cell—the same
method he had attempted just ten months before. ROA.3834, 3840, 5474, 5691,
5785, 5801–5802, 8544–8545, 8551. By the time guards discovered Danarian
hanging in his cell at 10:10 p.m., ten minutes after the evening’s shift change, it was
too late. Danarian was pronounced dead at 10:43 p.m. ROA.9048. An email in the
record indicates that Danarian “was hanging for about 20 [minutes]” ROA.7890. By
the time Danarian was discovered, his body was already “cold to the touch,” and
fifteen minutes later, rigor mortis had already begun. ROA.9019–9020. Danarian left
behind a devastated family who will always remember Danarian as a “loving,
playful, artistic, happy man.” ROA.5970–5971, 5979–5980, 5991.
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I. The parties disagree about how long detention officers allowed the towel to stay up covering Danarian’s cell window, but even under Defendant’s view of the evidence, the towel could have covered the window for seventeen minutes, violating jail policy.
The district court concluded at ROA.6931 that “detention officer Marvin
Perkins completed the last observation round on his shift5 in [Danarian] Hawkins’s
unit at 9:53 p.m.” (citing ROA.3867, 8840). Perkins testified that the towel was not
covering Danarian’s window during the last round, but even crediting Perkins’
testimony, the towel could have been put up as soon as the round was completed at
9:53 p.m. ROA.5892–5897. It is undisputed that the towel was covering the window
when Danarian was found hanging at 10:10 p.m. ROA.3798, 3834, 5474, 5785,
8544–8545. No officer had told Danarian to take the towel down in the minutes
before he was discovered hanging. ROA.5785–5786, 5892–5893, 5896–5897, 5919.
Taking the evidence in the light most favorable to Plaintiff as required on
summary judgment, the towel was hanging in Danarian’s window, at a minimum,
from 9:53 p.m. to 10:10 p.m.—a seventeen-minute period—which was long enough
for Danarian to tear his bed sheet, tie it into “at least two to three knots”6 to fashion
a noose, tie it around his neck, climb on his table, and secure the bed sheet to the
5 As discussed in Section II(B) below, Plaintiff introduced evidence that she contends raises a genuine issue of material fact as to whether this last observation round occurred as reported. 6 ROA.8546; see also ROA.7246–7253, 8026 (photos of knotted sheet).
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smoke detector, plus the five to six minutes it took him to die from asphyxiation.
ROA.3834, 5711, 5963, 6058, 8544–8545, 9196.
By allowing the towel to cover Danarian’s window for seventeen minutes,
Harris County violated jail policy, which strictly forbids administrative separation
inmates from covering their windows for any amount of time, in order to prevent
self-harm. The policy further requires the pod officer to alert the rounds officer
immediately if he sees a window covered. ROA.5709–5712, 5874, 5916, 8910 (“At
no time shall hanging towels be allowed to interfere with or hinder the view of
staff.”).
Major John Martin testified as Harris County’s Rule 30(b)(6) witness that
officers are responsible for continually monitoring inmates from the pod for
behaviors indicative of a suicide attempt. ROA.5875. Jail policy requires officers to
“be continually vigilant monitoring all housing areas,” inspect cellblocks for blocked
windows, and immediately rectify any violations. ROA.8908–8910, 8915. At all
times, at least one officer must be in the pod control center, which is designed to
allow continuous, nearly unobstructed view of the inmates. ROA.3900–3901, 8915.
Photos in the record show that the window of Danarian’s cell, 2R, was clearly visible
from the pod control center. ROA.4962, 8994–8996. Officer Cano testified that the
pod officer could see all the cells in 2J2. ROA.3900–3901. Perkins testified that the
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pod officer’s job was to observe the inmates, and that the pod officer would be able
to tell if any window in the pod was covered. ROA.5888, 5893.
Plaintiff’s correctional expert, James Upchurch, opined that the pod officer
should have seen immediately that Danarian’s window was covered and should have
ordered the towel removed. ROA.5946. Lindsay Hayes, a suicide-prevention
consultant hired by Harris County, stressed that a suicidal inmate cannot be safely
housed if he is allowed to cover his window; recommended that cell windows “allow
for unobstructed view of the entire cell interior at all times” and windows “never be
covered,” even for reasons of privacy or discipline. ROA.6081 (emphasis in
original).
Richard Bartholomew,7 who was detained in the 2J2 administrative separation
cellblock on the night Danarian died, testified that he and the other detainees would
sometimes cover up their cell windows with paper, and “[t]he guards would let us,
for a while.” ROA.5963. Bartholomew recalled that “once I had paper covering my
window for an hour before a guard told me to take it down.” ROA.5963. Officer
Clayton Aguirre, who was in the pod starting at 10 p.m. the night Danarian died,
acknowledged that inmates were known to cover their windows, which hindered
guards in keeping visual account of inmates. ROA.5785–5786.
7 Although the district court excluded the declarations of inmates Matthew Sowders and Everette Williams from evidence, ROA.6931–6932 n.29, the court did not exclude Bartholomew’s testimony.
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J. A consultant hired by Harris County criticized suicide prevention efforts in the Harris County Jail.
In 2014, four months after Danarian’s death, Lindsay Hayes, a consultant
engaged by Harris County to assess its suicide-prevention policies, issued a report
criticizing many of the Harris County Jail’s suicide prevention practices.
ROA.6034–6084. Hayes reviewed the circumstances surrounding nine individuals,
including Danarian, who committed suicide while in the custody of the Harris
County Sherriff’s Office, toured the Harris County Jail, interviewed officials, and
reviewed policies, procedures, protocols, and training materials. ROA.6037–6038.
Hayes’ report confirms the reasonableness and effectiveness of the accommodations
that could have saved Danarian’s life. ROA.6042, 6056–6057, 6059, 6065–6066,
6075–6076, 6083. Hayes’ recommendations are consistent with and provide further
support for the opinions of Plaintiff’s correctional expert Upchurch and Plaintiff’s
psychiatric expert, Dr. S. Shane Konrad. ROA.6008, 6011–6012, 6021–6023, 9160,
9177, 9185–9187.
Hayes observed that “any individual with a history of one or more suicide
attempts is at a much greater risk for suicide than those who have never made an
attempt” and that the suicide risk is much higher when an inmate is housed alone.
ROA.6046–6047. Hayes concluded that the Harris County Jail’s single cell housing
locations (including 2J where Danarian died), were not suicide-resistant “because
they contained various protrusions that could act as an anchoring device from which
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an inmate could attach a ligature in a suicide attempt by hanging.” ROA.6055–6056;
see also ROA.4966, 8987–8988 (photos of the smoke detector Danarian used to hang
himself). Hayes noted potentially dangerous devices such as “smoke detector cages”
and recommended that to “every extent possible, [suicidal] inmates should be housed
in suicide-resistant, protrusion-free cells.” ROA.6055–6056. Hayes further noted
that “common anchoring devices” in recent inmate suicides “included smoke
detector cages and sprinkler heads.” ROA.6056 n.15.
Hayes recommended that Harris County provide “close observation” every
ten to fifteen minutes for an inmate who “expresses suicidal ideation and/or has a
recent prior history of self-destructive behavior.” ROA.6049, 6059, 6065, 6076.
Hayes also recommended uninterrupted “constant observation” for inmates
considered a high suicide risk. ROA.6058–6060, 6076. These recommendations
support the opinions of Plaintiff’s correctional expert Upchurch. ROA.6021–6023.
SUMMARY OF THE ARGUMENT
Harris County had ample documented knowledge from its own jail records
that Danarian Hawkins had serious, debilitating mental illnesses that limited his
ability to care for himself because the voices in his head impelled him repeatedly to
attempt suicide while in jail. Harris County knew that Danarian needed reasonable
accommodations to meaningfully enjoy the benefits of safe confinement that Harris
County Jail must provide to every inmate. Although these disabilities and limitations
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were open, obvious, and apparent, Harris County failed to reasonably accommodate
Danarian, resulting in his death. Specifically, Harris County denied Danarian the
benefit of safe housing by failing to replace his bed sheet with a suicide blanket or
modify his cell’s smoke detector when placing him in the same type of cell in which
he previously had attempted to hang himself using those same tools. Harris County
denied Danarian the benefit of adequate monitoring by not ordering him to remove
the towel covering his cell window, not referring him to the jail’s mental health unit
or informing housing personnel after Danarian made a suicidal statement, and not
conducting observation rounds in accordance with its own policies, let alone with
the frequency Danarian required due to his multiple documented suicide attempts.
Plaintiff’s evidence raised issues of material fact on all key aspects of this
case. The district court erred by misinterpreting applicable law and improperly
resolving multiple disputed fact issues in favor of the summary judgment movant,
Harris County. These errors require reversal of the summary judgment and remand
of the case for trial before a jury.
Plaintiff also appeals the district court’s erroneous conclusion that the
Rehabilitation Act does not apply to this case, because nothing in the statute or its
governing regulations required Plaintiff to produce evidence that the programs and
activities to which Harris County denied Danarian access directly received federal
funding.
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STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate
if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).
“An issue of material fact is genuine if a reasonable jury could return a verdict for
the nonmovant.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019).
“When making this determination, a court should review the record as a whole
but ‘must disregard all evidence favorable to the moving party that the jury is not
required to believe.’” Id. (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,
874 (5th Cir. 2000)). The court 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.” Peel & Co., Inc. v. Rug Market, 238 F.3d 391,
394 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000); accord Comeaux v. Sutton, 496 F. App’x 368, 369 (5th Cir. 2012);
Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412–13 (5th
Cir. 2003).
Because witnesses on both sides of a case typically have their own
perceptions, recollections, and even potential biases, “genuine disputes are generally
resolved by juries in our adversarial system.” Tolan v. Cotton, 572 U.S. 650, 660
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(2014) (noting “the fundamental principle that at the summary judgment stage,
reasonable inferences should be drawn in favor of the nonmoving party”).
When a party opposing summary judgment presents evidence that could lead
a reasonable person to doubt the credibility of testimony favorable to the movant,
summary judgment should not be granted. See Lodge Hall Music, Inc. v. Waco
Wrangler Club, Inc., 831 F. 2d 77, 81 (5th Cir. 1987). Summary judgment is not
appropriate when questions about the credibility of key witnesses loom large and the
evidence could permit the trier-of-fact to treat their testimony with “skeptical
scrutiny.” Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 2009) (citing Thomas v.
Great Atl. and Pac. Tea Co., 233 F.3d 326, 331 (5th Cir. 2000)).
ARGUMENT
I. THE DISTRICT COURT MISAPPLIED THE SUMMARY JUDGMENT STANDARD AND CASE LAW IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S ADA AND RA CLAIMS.
Plaintiff’s evidence demonstrated that Harris County knew about Danarian’s
serious mental illness and multiple suicide attempts but violated the ADA and RA
by refusing him known accommodations that he needed to be safe.
Plaintiff identified six reasonable, necessary and feasible accommodations
that were obvious to Harris County, any one of which would have prevented
Danarian’s death, and which Harris County chose not to provide. ROA.5705–5722,
6942.
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• Replacing Danarian’s bed sheet with a knot-proof suicide blanket.
ROA.5705–5707.
• Modifying the smoke detector in his cell to prevent him from using it
as a tie-off point, as he had done before. ROA.5707–5709.
• Following policy by removing the towel covering his window that
allowed him to hang himself undetected. ROA.5709–5712.
• Following policy by referring him to the MHU after his suicidal
statement on February 4, 2014, the day before his death. ROA.5712–
5717.
• Following policy by faithfully conducting the 25-minute observation
rounds required in administrative separation. ROA.5717–5720.
• Monitoring him every five to ten minutes due to his history of multiple
suicide attempts and statements. ROA.5720–5722.
The district court concluded that Plaintiff’s failure-to-accommodate claims
with regard to four of the items above (“suicide blankets, suicide-resistant cells, and
more frequent monitoring” as well as the failure to report Danarian’s suicidal
statement the day before he died) were “medical decisions that are not actionable
under the ADA and RA.” ROA.6942–6945. In so concluding, the district court erred
in two ways.
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First, the district court relied on inapplicable and factually distinguishable
case law to incorrectly conclude that Plaintiff’s ADA and RA claims are based on a
nonactionable medical decision.
Second, the district court repeatedly misapplied the summary judgment
standard by disregarding Plaintiff’s evidence and resolving disputed facts in favor
of the movant Harris County.
A. Plaintiff produced evidence raising genuine issues of material fact on whether Harris County violated the ADA and RA by intentionally failing to accommodate Danarian’s known disabilities and limitations, causing his death.
“The Rehabilitation Act (RA) and Title II of the ADA prohibit state and local
governments, including prisons, from discriminating on the basis of disability.”
Hacker v. Cain, 759 F. App’x 212, 215 (5th Cir. 2018). Title II of the ADA provides
that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132 (2012). Jails and prisons are “public entities” for this purpose.
Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); U.S. v. Ga., 546 U.S. 151,
157 (2006).
The rights and remedies under the ADA and Section 504 of the RA are
“almost entirely duplicative”; accordingly, ADA and RA claims are evaluated under
the same legal standards. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,
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454 (5th Cir. 2005); Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).8 The ADA
and RA hold a public entity vicariously responsible for its agents’ acts whether they
are employees or independent contractors. See 28 C.F.R. § 35.130(b)(1)(i) (2019).
“[N]either a policymaker, nor an official policy must be identified.” Delano-Pyle,
302 F.3d at 575.
1. Danarian was a qualified individual with a disability.
As the district court correctly noted at ROA.6939–6940, one form of disability
discrimination is the failure to accommodate the plaintiff’s known disabilities and
limitations. See Windham v. Harris Cty., Tex., 875 F.3d 229, 235 (5th Cir. 2017)
(citing Bennett-Nelson, 431 F.3d at 454 & n.11). “A plain reading of the ADA
evidences that Congress intended to impose an affirmative duty on public entities to
create policies or procedures to prevent discrimination based on disability.” Delano-
Pyle, 302 F.3d at 575 (citing 42 U.S.C. § 12182(b)(2)(A)(ii)–(iii) (1985)).
An ADA or RA plaintiff alleging failure to accommodate must prove: (1) the
plaintiff is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the public entity; and (3) the public entity
8 The RA applies to “any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (2012). Plaintiff’s evidence showed that the Harris County Sheriff’s Office receives millions of dollars in federal funding. ROA.3827–3828 & n.219, 5049–5058, 5728–5729. Plaintiff appeals the district court’s erroneous conclusion at ROA.6938 that the RA applies only if Harris County’s federal funding was directed specifically at Harris County Jail programs or activities that affected Danarian. See Section II, infra.
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failed to make reasonable accommodations for the plaintiff’s known limitations.
Neely v. PSEG Tex. Ltd P’ship, 735 F.3d 242, 247 (5th Cir. 2013).
The district court in this case assumed without deciding that Danarian was a
qualified individual with a disability within the meaning of the ADA and RA.
ROA.6942 at n.55. Plaintiff’s evidence established that Danarian was “qualified”
under 42 U.S.C. § 12131(2) (2012)—he met the essential eligibility requirements
for safe confinement in the Harris County jail, including safe housing and adequate
monitoring, because he was an inmate and all inmates were so qualified.9
Plaintiff’s evidence also established that Danarian was disabled. See
ROA.5694–5700. A disability under the ADA and RA is “a physical or mental
impairment that substantially limits one or more major life activities.” 42 U.S.C. §
12102(1) (2012); see also 29 U.S.C. § 705(9) (2012). The ADA’s implementing
regulations list Danarian’s mental impairments (including schizophrenia, bipolar
disorder, and major depressive disorder) as among conditions that will “virtually
always be found to impose a substantial limitation on a major life activity.” See 29
C.F.R. § 1630.2(j)(3)(ii)–(iii) (2019).
“Caring for oneself” is a major life activity. 29 C.F.R. § 1630.2(i)(1)(i); see
also ROA.9162. “A mental illness that impels one to suicide can be viewed as a
9 ROA.5695 (citing ROA.5781, 5791, 5793, 5844–5845, 5870, 5878, 5883, 5908, 5955–5957).
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paradigmatic instance of inability to care for oneself” and is therefore “a protected
disability under the [RA].” Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164,
168 (2d Cir. 2003); see also Wright, 2013 WL 6578994, at *3–5 (denying motion to
dismiss ADA and RA claims for failure to accommodate suicidal inmate, finding
that plaintiff had adequately alleged that decedent “was a qualified individual with
a disability”). Dr. Konrad opined that Danarian’s “severe and chronic mental
illnesses interfered with and substantially compromised his ability to care for
himself.” ROA.9162.
2. Harris County failed to accommodate Danarian’s known disabilities and limitations.
“The ADA expressly provides that a disabled person is discriminated against
when an entity fails to ‘take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence of auxiliary aids and
services.’” Delano-Pyle, 302 F.3d at 575 (quoting 42 U.S.C. § 12182(b)(2)(A)(iii)
(1985)). “In the prison context . . . failure to make reasonable accommodations to
the needs of a disabled prisoner may have the effect of discriminating against that
prisoner because the lack of an accommodation may cause the disabled prisoner to
suffer more pain and punishment than non-disabled prisoners.” Hinojosa v.
Livingston, 994 F. Supp. 2d 840, 843 (S.D. Tex. 2014) (quoting McCoy v. Texas
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Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055, at *7 (S.D. Tex. Aug.
9, 2006)).
Plaintiff’s evidence established Danarian needed reasonable accommodations
to receive the safe housing and suicide prevention services provided to all Harris
County Jail inmates. ROA.5695 (citing ROA.5781, 5791, 5793, 5844–5845, 5870,
5878, 5883, 5908, 5955–5957).
When a plaintiff’s disability, resulting limitation, and necessary reasonable
accommodation are “open, obvious, and apparent” to the public entity, the plaintiff
is not required to make an explicit request for the accommodation. Windham, 875
F.3d at 237. Accordingly, when jail officers know of an inmate’s disability and
limitations, but fail to provide known, needed accommodations, the jail has
discriminated against the inmate in violation of the ADA and RA. See McCoy, 2006
WL 2331055, at *7–8. In McCoy, the court denied summary judgment for the
defendant Texas Department of Criminal Justice because TDCJ was on notice of the
plaintiff inmate’s disability; his need for accommodation was obvious; and TDCJ’s
failure to provide accommodations resulted in the plaintiff’s fatal asthma attack. Id.
Plaintiffs have evidence that TDCJ and its officers knew that the conditions of administrative segregation might pose risks to asthmatic inmates . . . . Viewing this evidence in the light most favorable to the Plaintiffs, a jury could find that TDCJ had sufficient knowledge of Burrell’s disability, and the dangers posed by housing him in the administrative segregation unit, that it was required to take steps to accommodate him regardless of whether Burrell expressly requested a specific accommodation.
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Id. at *8 (citations omitted).
Another court similarly denied summary judgment when a prison’s failure to
accommodate an inmate’s disability and limitations resulted in his death. McCollum
v. Livingston, No. 4:14-CV-3253, 2017 WL 608665, at *38 (S.D. Tex. Feb. 3, 2017)
(denying summary judgment because plaintiffs raised fact issues on whether failure
to reasonably accommodate the inmate’s disability violated ADA and RA by
denying him the benefit of safe confinement in a state jail facility).
The McCollum plaintiffs presented evidence that defendants TDCJ and
UTMB “jointly failed to give unit-level providers the power to assign disabled
inmates to climate-controlled housing, did not train heat-sensitive inmates about the
hazards posed by extreme heat, and assigned McCollum to a top bunk despite his
morbid obesity.” Id. at *38. “A reasonable jury could find that these kinds of
accommodations were reasonable and that the failure to utilize any of them led to
the denial of safe confinement for McCollum at Hutchins Unit.” Id.
The facts of Wright are also similar; a mentally ill and suicidal inmate, Rodney
Wright, hanged himself in his isolation cell, and his mother sued both TDCJ and
Texas Tech University Health Sciences Center (TTUHSC) who provided medical
care at the prison unit where Wright died. The court denied TTUHSC’s motion to
dismiss the plaintiff’s ADA and RA claims, concluding that TTUHSC violated the
ADA and RA by failing to instruct TDCJ to provide Wright the reasonable
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accommodation of “placing him in a cell appropriate for someone with his well-
known history of suicide attempts,” specifically, “a safe cell without tie-off points.”
Id. at *4. TTUHSC stated in its motion that it does not make housing assignments,
but the court when determining the motion to dismiss was required to accept as true
the Plaintiff’s pleaded allegation that TTUHSC had the authority to instruct TDCJ
to provide accommodations to prevent Wright’s suicide. Id. The court in Wright also
found that the plaintiffs had adequately alleged that the discrimination was
intentional because Wright’s disability, limitations, and needed accommodations
were open and obvious. Id.
In this case, as in Wright, Defendant Harris County had ample documented
knowledge of Danarian’s mental illnesses, numerous suicidal acts, and suicide
attempts.10 Nonetheless, Harris County’s jail classification staff intentionally chose
to house Danarian unsafely with the same type of bed sheet and smoke detector he
previously had used to attempt suicide, and jail officers allowed him to cover his
window and failed to monitor him adequately, causing his death. ROA.3801–3802,
5691–5693. Like in McCollum and Wright, the accommodations identified by
Plaintiff were reasonable and well-known to Harris County and a reasonable jury
10 ROA.5929–5931, 5933–5936, 6010, 6016–6020, 9007, 9162–9163, 9191, 9195; see generally ROA.8542–8644, 8850–8882.
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could find that the county’s failure to utilize any of them was intentional and denied
Danarian the benefit of safe confinement in violation of the ADA and RA. See
McCollum, 2017 WL 608665, at *38.
B. In concluding that Plaintiff’s failure-to-accommodate claims were essentially challenges to a “medical decision,” the district court erred by relying on inapplicable and factually distinguishable case law.
The district court noted case law holding that the “ADA does not provide a
remedy for medical malpractice” and concluded that “claims like Plaintiff’s are
regarded as challenges to medical decisions that are not actionable under the ADA
and RA.” ROA.6943. This was error because the cases relied upon by the district
court are legally and factually distinguishable.
The court cites Walls v. Texas Dep’t of Criminal Justice, 270 F. App’x 358
(5th Cir. 2008), in which this Court held that the ADA “does not set out a standard
of care for medical treatment.” Walls, 270 F. App’x at 359; ROA.6940, 6945.
However, Walls is factually distinguishable; the ADA claim in Walls was that TDCJ
refused to “surgically install a protective metal plate to cover a hole in [the
plaintiff’s] skull”—indisputably a complaint about the quality of the plaintiff’s
medical care. Id. at 358. Similarly, the district court at ROA.6941 cited Steele v.
Thaler, No. CIV.A. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011), which
involved denial of “adequate dental care,” a medical treatment decision not
actionable under the ADA or RA. Id. at *11.
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The cases relied upon in Steele, also cited by the district court at ROA.6940–
6941, similarly involved attempts to directly challenge medical treatment decisions
and are factually distinguishable:
• Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (RA
and ADA were “never intended to apply to decisions involving the termination
of life support or medical treatment”);
• Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (prison
did not violate ADA and RA by inadequately treating plaintiff’s diabetes or
denying him surgery for his broken hip);
• Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996). (plaintiff “complaining
about incompetent treatment of his paraplegia” failed to state claim under ADA).
The district court also cites Nottingham v. Richardson, 499 F. App’x 368 (5th
Cir. 2012), ROA.6940, in which this Court noted that the plaintiff’s “general
complaint was that he received ‘inadequate’ medical care” and that “his lack of
medical care was a violation of the ADA.” Id. at 375–77.
In contrast to Walls, Steele, Schiavo, Fitzgerald, Bryant, and Nottingham,
Harris County’s decisions challenged in this case were not medical decisions. The
district court noted that Plaintiff “filed this suit alleging that Defendant violated [the
ADA and RA] by placing [Danarian] Hawkins in unsafe housing and failing to
monitor him.” ROA.6935. As detailed in Section I(C)(1) below, Plaintiff produced
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evidence raising genuine issues of material fact that Harris County’s decisions about
where and how to house and monitor Danarian were made by non-medical
personnel, namely, jail classification staff and unit detention officers.
The district court also cited five cases that involved the failure to prevent a
suicide. ROA.6941–6945. Three of the cases—Hott, Gay, and Estate of Cole—did
not involve ADA or RA disability discrimination claims for failure to accommodate.
Instead, they involved Section 1983 claims and decided whether deliberate
indifference to an inmate’s risk of suicide falls under the heading of deliberate
indifference to medical needs for purposes of the Eighth Amendment. See Hott v.
Hennepin Cty., 260 F.3d 901, 903–06 (8th Cir. 2001) (finding no deliberate
indifference for jail nurse’s failure to identify suicide risk because decedent “denied
having suicidal inclinations” and there was no evidence that jail employees had
actual knowledge that decedent posed a serious risk of harm to himself); Gay v.
Hammersley, No. 08-59-DRH, 2009 WL 596114, at *7 (S.D. Ill. Mar. 6, 2009)
(finding that social worker’s exercise of medical judgment in removing decedent
from suicide watch did not constitute deliberate indifference to serious medical
needs); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 263 (7th Cir. 1996)
(holding that psychiatrist’s medical treatment of suicidal pretrial detainee in
psychiatric ward did not amount to deliberate indifference).
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Two of the cases the district court cites at ROA.6941–6944 involved ADA
and RA claims based on failure to prevent a suicide, but both are factually
distinguishable because, in contrast to this case, the evidence in those cases showed
that a medical decision-maker in each was the proximate cause of the decedents’
deaths. See Shelton v. Ark. Dept. of Human Servs., 677 F. 3d. 837, 839 n.2, 843 (8th
Cir. 2012) (evidence showed that doctor was the sole decision-maker in removing
decedent from suicide watch and there was no allegation that the decision was
influenced by anything other than a physician’s judgment”); A.H. v. St. Louis Cty.,
Mo., 891 F.3d 721, 728–30 (8th Cir. 2018) (affirming summary judgment on ADA
and RA claims because evidence showed that inmate’s housing conditions were
based on a clinical psychologist’s medical judgment). By contrast, Plaintiff’s
evidence showed that detention officers, not medical staff, made the critical
decisions that led to Danarian’s death, including failing to remove the towel, provide
a suicide blanket, or modify the smoke detector. See Section I(C), infra.
The Northern District of Texas has correctly distinguished between ADA/RA
claims that implicate medical decisions and those that do not. See Wright, 2013 WL
6578994, at *4–5 (denying motion to dismiss ADA/RA claim for unsafe housing of
suicidal inmate (placing him in a cell with tie-off points), but granting the motion to
dismiss other ADA/RA claims based on failure to ensure that the decedent took his
medications, because those allegations involved medical decisions).
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C. The district court disregarded Plaintiff’s evidence that Harris County’s failures to accommodate Danarian were not caused by a medical decision.
The district court also erred by failing to apply the correct summary judgment
standard in concluding that the “substance of [Plaintiff’s] argument is really to
challenge a medical decision.” ROA.6942; see ROA.6943–6945. The district court
drew numerous factual inferences in favor of Harris County and thus “neglected to
adhere to the fundamental principle that at the summary judgment stage, reasonable
inferences should be drawn in favor of the nonmoving party.” Tolan, 572 U.S. at
660.
Evidence supporting the moving party must be disregarded on summary
judgment unless it is “uncontradicted and unimpeached.” Peel, 238 F.3d at 394
(emphasis added). Accordingly, wherever Harris County’s evidence is contradicted
or impeached, that evidence must be disregarded at the summary judgment stage.
The district court repeatedly and improperly credited Defendant’s evidence that
Plaintiff’s evidence had contradicted and impeached.
1. The district court disregarded Plaintiff’s evidence that medical staff had no authority to determine an inmate’s housing placement and conditions after discharge from the MHU.
The court disregarded Plaintiff’s contrary evidence in concluding that “Dr.
Huerta’s medical decision to discharge Danarian from the MHU with no
restrictions” was the sole reason Harris County did not provide accommodations that
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would have prevented Danarian’s suicide, including a suicide blanket, a cell without
tie-off points, and more frequent monitoring. ROA.6943. Plaintiff’s evidence
showed that MHMRA staff members (including Dr. Huerta), upon discharging an
inmate from the MHU, did not have the authority to dictate the subsequent housing
assignments and conditions for the inmate. ROA.5853–5857, 5928, 5930–5936; see
also ROA.5703, 5705, 5723. Major Greg Summerlin admitted that jail classification
alone determined housing assignments for all inmates, including inmates who have
been discharged from the MHU. ROA.5930–5931, 5933–5936; see also ROA.5703
n.18, 5723.
Dr. Huerta testified that he was told by Harris County that he did not have the
authority to determine where an inmate being discharged from MHU would be
placed. ROA.5853–5857. Dr. Huerta also lacked any authority to dictate how often
an inmate would be monitored or the configuration of an inmate’s cell, such as the
presence of a certain type of smoke detector. Indeed, on January 31, 2014, when the
MHU discharged Danarian, it was jail classification officers—not Dr. Huerta—who
chose to place Danarian in an administrative separation cell without any restrictions.
ROA.5705 (citing ROA.8848 (housing history); ROA.8881 (transfer sheet)).
Dr. Konrad opined that the “Harris County Jail failed to properly assess,
document, and respond to Mr. Hawkins’ elevated risk of suicide by assigning him
and allowing him to remain in a single-person twenty-three hour lock-down jail cell
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with an exposed smoke detector on the ceiling that was a known ligature tie-off
point, while he had access to clothing and bedsheets that could be used to tie a
noose.” ROA.9163–9164. Like Harris County consultant Hayes, Dr. Konrad opined
that “inmates who the facility assigns to restrictive housing for security reasons,
including administrative segregation,” should, “to every extent possible . . . be
housed in suicide-resistant, protrusion-free cells.’” ROA.9186. Harris County’s
consultant also cautioned that suicides by hanging can and do occur with inmates
who are not under formal suicide watch, and that “common anchoring devices in the
suicides included smoke detector cages and sprinkler heads.” ROA.6056.
By making the improper inference that Dr. Huerta’s decision to discharge
Danarian from the MHU was the only reason Danarian was not provided with
accommodations that could have prevented his suicide, the district court failed to
view the facts and make inferences in the manner most favorable to Plaintiff, the
non-movant, as required by well-settled law. The summary judgment should be
reversed.
2. The district court disregarded Plaintiff’s evidence that Harris County does provide suicide prevention clothing and bedding to inmates housed outside the MHU.
The district court erroneously assumed that “suicide prevention components”
such as a suicide blanket “are not provided to the general jail population” but instead
“are available in the MHU.” ROA.6943. Contrary to Plaintiff’s evidence and in
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violation of the summary judgment standard, the district court made a factual
inference that suicide blankets are never available to inmates housed in general
population, including administrative separation. ROA.6943. As a result, the district
court concluded that Dr. Huerta’s “medical decision” precluded jail staff from giving
Danarian a suicide blanket in the administrative separation unit on the date of his
death. ROA.6942–6946.
Plaintiff showed that jail policy did permit (and in fact required) suicide
blankets and suicide smocks to be given to suicidal inmates outside the MHU; in
fact these items were given to Danarian on four previous occasions between 2009
and 2014 by non-medical jail staff when he made suicidal statements or gestures.
ROA.8542–8543, 8558, 8610, 8617, 8623. Policy required a “suicide smock” to be
issued “when a person is experiencing a mental health crisis.” ROA.8905.
Because Plaintiff offered contradictory evidence in opposition to Defendant’s
summary judgment evidence, the district court was required to disregard
Defendant’s evidence. See Peel, 238 F.3d at 394. In crediting Defendant’s, rather
than Plaintiff’s, version of the facts, the district court acted in opposition to well-
settled law, and therefore committed reversible error.
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3. The district court erred in disregarding Plaintiff’s evidence that modifying cell smoke detectors would have been a reasonable accommodation and was not an undue hardship.
The smoke detector in Danarian’s administrative separation cell had a
protruding head with holes which Danarian had previously threaded a bed sheet to
hang himself. ROA.4966, 8987–8988; see also ROA.3840, 8551–8553. Harris
County therefore knew that Danarian was likely to use a bed and smoke detector to
hang himself, as he had attempted in April 2013. Dr. Konrad identified “clear
knowledge by HCJ staff of a potentially dangerous tie-off point (smoke detector) in
Administrative Separation cells” and opined that “Harris County knew or should
have known that [Danarian] was genuinely at high risk of suicide.” ROA.9191–
9193.
The smoke detector in Danarian’s cell should have been modified, as a
reasonable accommodation, so that he could not use it again as a tie-off point. See
ROA.5707. Upchurch testified that “it would have been open, obvious, and apparent
to any reasonable corrections professional that he should not have been housed in a
cell with a sheet and that kind of covered smoke detector . . . .” ROA.6016. Dr.
Konrad testified that “even a layperson . . . might say, wait a minute . . . you want
us to house him in the exact same cell with a bed sheet where we almost had him
kill himself a few months ago? That seems unsafe to me.” ROA.5864. When there
has been a “documented suicide attempt by hanging from a smoke detector,” Dr.
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Konrad testified, jail staff should evaluate ways to modify the smoke detector “to
reduce or remove the safety risk.” ROA.9195.
Modifying the smoke detector to provide Danarian a safer cell was a
reasonable accommodation that should have been provided. See Wright, 2013 WL
6578994, at *4. A plaintiff “need only show that an ‘accommodation’ seems
reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 402 (2002). Accordingly, once the plaintiff has “suggest[ed]
the existence of a plausible accommodation, the costs of which, facially, do not
clearly exceed its benefits . . . he has made out a prima facie showing that a
reasonable accommodation is available.” Val Velzor v. City of Burleson, 43 F. Supp.
3d 746, 752 (N.D. Tex. 2014) (citations omitted); accord Harkless v. Brazoria Cty.,
Tex., No. 3:14-CV-329, 2016 WL 1702595, at *4 (S.D. Tex. Apr. 28, 2016). The
burden of proof then shifts to the defendant to show “that the accommodation
generally would not be reasonable” or it may “move[] on to the affirmative defense”
of “undue hardship.” Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052,
1058 (5th Cir. 1997) (citing Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683–84 (5th
Cir. 1996)). “[Under the ADA] the term ‘undue hardship’ means an action requiring
significant difficulty or expense.” Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495,
502 n.20 (5th Cir. 2001). The inquiry into undue hardship “turns the focus” from the
facial reasonableness of an accommodation to the plaintiff’s “specific
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circumstances,” i.e., “the hardships imposed . . . in the context of the particular
[defendant’s] operations.” Riel, 99 F.3d at 683–84.
Plaintiff’s evidence showed that modifying the smoke detectors would have
been a reasonable accommodation and not an undue hardship.11 Plaintiff’s
correctional expert Upchurch testified that he had seen “conically shaped sprinkler
heads” and detectors covered with “fine mesh” that could not be used for a hanging.
ROA.5948, 6012.
Harris County’s consultant Hayes concluded that Ad Sep cells “were not
suicide resistant” because the unmodified smoke detector cages “could act as an
anchoring device” in a suicide by hanging. ROA.6056–6057; see also ROA.4966,
8987–8988 (photos of smoke detector). Hayes recommended that smoke detectors
be flush with the ceiling or covered with “security screening mesh” not “large
enough to thread a noose.” ROA.6083.
The district court incorrectly adopted Defendant’s unsupported argument
(ROA.3807–3808, 3817, 3820) that “suicide-resistant cells” are not provided outside
the MHU and that Defendant’s refusal to modify the smoke detector was somehow
a “medical decision” not actionable under the ADA. ROA.6942–6943. However,
Harris County did not prove, or even present any evidence, that modifying a smoke
11 ROA.5707, 5948, 6010–6012, 6016, 6025, 6056–6057, 6083, 9163–9164, 9186, 9195.
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detector would have been a medical decision requiring the participation of MHMRA
staff or would have been an undue hardship. ROA.3817–3821, 6366–6367. Rather,
it made a no-evidence challenge on that point. ROA.3818–3819.
Plaintiff’s evidence also showed that detention officers could remove a
suicidal inmate temporarily from an administrative separation cell into an alternative
location if concerned that the inmate would injure himself. On two occasions in 2009
and 2010, when Danarian was deemed suicidal but could not be immediately
transferred to the MHU, he was placed temporarily in a visitation cell. See
ROA.8626, 8647. This shows Harris County’s knowledge that administrative
separation cells were not suicide resistant and were an unsafe place to keep an inmate
who was actively suicidal. The court therefore erred in assuming suicide-resistant
cells were simply not available to inmates housed in administrative separation.
ROA.6943.
Plaintiff proposed a reasonable accommodation—modifying the smoke
detectors so that they could not be used as tie-off points—that would have made
Danarian’s Ad Sep cell more suicide-resistant. The burden should then have shifted
to Harris County to explain and produce evidence as to why that accommodation
would be an undue hardship, which it failed to do. ROA.3817–3821, 6366–6367.
The district court erred in granting summary judgment on this issue in disregard of
Plaintiff’s evidence.
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4. The district court disregarded Plaintiff’s evidence that Chelsea Ford violated jail policy applicable to both medical and non-medical staff by failing to report Danarian’s suicidal statement the night before his death.
The district court erred in concluding that Chelsea Ford’s failure to report
Danarian’s suicidal statement was “a medical decision” not actionable under the
ADA, and further erred in disregarding Plaintiff’s evidence raising a genuine issue
of material fact as to whether Ford’s failure violated jail policy. ROA.5712–5717,
6945.
When Ford came to Danarian’s cell during routine rounds, Danarian told Ford
that he had just been discharged from the MHU, where he had been admitted for
trying to hang himself, and said “the [I]lluminat[i] is watching me and makes me
want to kill myself.” ROA.4155:3–22, 8683; see also ROA.5807:14–20, 5812:23–
5813:4, 5814:10–19, 5815:17–5816:8.
Ford was required by MHMRA’s contract with Harris County to follow all
jail rules and policies. ROA.5754. One such policy made it mandatory to initiate an
immediate mental health referral when an inmate exhibits behavior “indicative of a
mental health issue”—including suicidal statements. ROA.8904–8905, 5747, 5875.
That referral would result in timely response by a mental health provider, like Dr.
Huerta. It is undisputed that Ford did not make the required referral, violating a
policy that binds all jail staff members. ROA.4155–4163, 8904–8905.
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Harris County argued that as a MHMRA employee, Ford was an independent
contractor. ROA.3810. But the ADA does not allow Harris County to contract away
its liability to a private entity. See 28 C.F.R. § 35.130(b)(1) (2019) (“A public entity,
in providing any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements . . . [d]eny a qualified individual with a disability
the opportunity to participate in or benefit from the aid, benefit, or service.”)
(emphasis added); Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1045–
46 (N.D. Cal. 2012); Castle v. Eurofresh, Inc., 731 F.3d 901, 909–10 (9th Cir. 2013).
Harris County is liable for Ford’s violation of policy because the ADA holds public
entities vicariously responsible for the acts of their agents. Delano-Pyle, 302 F.3d at
574–75.12
Plaintiff’s psychiatric expert Dr. Konrad concluded that Ford’s violation of
policy constituted a failure by Harris County “to properly assess, document, and
respond to Mr. Hawkins’s elevated risk of suicide.” ROA.9163. “Although Mr.
Hawkins did not explicitly say, ‘I am going to kill myself,’ his statement is sufficient
that, when taken together with his suicidal history and numerous risk factors, a
12 Plaintiff argued and produced evidence raising a genuine issue of material fact on whether Ford was even making “medical decisions” in her routine observation rounds, where her role was limited to observing inmates and determining whether a mental health referral was required. ROA.5716–5717. Regardless, Ford violated a jail policy requiring any staff member to make a mental health referral after witnessing behavior indicating a mental health issue.
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reasonable person would conclude he was acutely in danger for self-harm and
needed to be immediately referred to a psychiatrist,” Dr. Konrad stated. ROA.9163.
Like Harris County consultant Hayes, Dr. Konrad opined that suicidal statements
should be reported immediately “regardless of staff’s perception of the genuineness
of the behavior.” ROA.9187. Had Ford made the immediate referral required by
policy or even alerted unit detention officers about Danarian’s statement, Dr. Konrad
opined, “the risk of his suicide would have been significantly reduced.” ROA.9164.
The district court found it significant that Ford “did not follow up with jail
staff or refer Hawkins to the MHU because she did not consider him to be actively
suicidal.” ROA.6945. However, the policy uses mandatory language and does not
require active suicidality; it mandates that a referral form “shall” be completed and
forwarded if any “behavior indicative of a mental health issue” is observed.
ROA.8904–8905, 5747, 5875.
Ford heard Danarian state that he was hearing voices that were telling him to
commit suicide. Plaintiff produced evidence raising a genuine issue of material fact
as to whether Ford violated a jail policy that mandated a response to Danarian’s
suicidal statement, a mental health referral that could have saved his life. The district
court erred in disregarding this evidence.
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5. The district court disregarded Plaintiff’s evidence that Harris County does provide more frequent monitoring to suicidal inmates housed outside the MHU.
Plaintiff’s experts opined that an inmate with Danarian’s history—indeed, a
“red-zoned patient” according to Dr. Konrad—should have been observed in 5- to
10-minute intervals to account for the time it takes to die by hanging, including the
time it would take to fashion a bed sheet into a noose. ROA.5865, 5946–5947, 6012–
6013, 9162, 9164, 9195–9196; see also ROA.6058–6059, 6065, 6076.
The district court incorrectly adopted Defendant’s unsupported argument
(ROA.3807–3808, 3821) that Defendant failed to monitor Danarian more frequently
in the days before his death because he had been discharged from the MHU and that
increased monitoring as a precaution against suicide was wholly unavailable to
inmates elsewhere. ROA.6943.
The court’s disregard of Plaintiff’s evidence was error. Jail policy permits any
staff member, medical or non-medical, to initiate a suicide watch and allows deputies
to monitor an inmate every fifteen minutes without MHMRA involvement (for
inmates considered suicidal, the policy requires monitoring every fifteen minutes
or more often as the situation or circumstances mandate). ROA.8905; cf. ROA.8901
(revised policy issued 5 months after Danarian’s death); see also ROA.5846, 5872,
5946–5947, 6012–6016, 6058–6059, 6065, 6076, 9163, 9191–9193.
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Margo Frasier, Defendant’s corrections expert regarding mental-health
services, testified that housing staff had discretion to check more frequently on an
inmate housed in administrative separation. ROA.5846. Major John Martin testified
that “[e]verybody’s responsible for suicide prevention,” ROA.5878, and that
“anybody can say . . . I think I need to keep an eye on this inmate because of concerns
about potential suicide.” ROA.5872; see also ROA.6056–6059.
Disregarding Plaintiff’s evidence in violation of the summary judgment
standard, the district court made a factual assumption that more frequent monitoring
of potentially suicidal inmates is only available in the MHU, and incorrectly
concluded that Harris County failed to monitor Danarian more frequently solely due
to Dr. Huerta’s non-actionable “medical decision.” ROA.6943. The district court
therefore committed reversible error.
D. The district court disregarded Plaintiff’s evidence that detention officers allowed the towel to stay up covering Danarian’s cell window for at least seventeen minutes, violating jail policy.
Even without challenging Officer Perkins’ testimony that his last round was
completed at 9:53 p.m., Plaintiff’s evidence raises a genuine issue of material fact
that detention officers allowed a towel to remain covering Danarian’s window from
9:53 p.m. to 10:10 p.m.—a 17-minute period—long enough for Danarian to tear his
bed sheet, tie “at least two to three knots” into the sheet to fashion it into a noose, tie
it around his neck, climb on his table, and secure the bed sheet to the smoke detector,
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plus the five to six minutes it took him to die from asphyxiation. ROA.3798, 3834,
5474, 5711, 5785, 5892–5897, 5963, 7246–7253, 8026, 8544–8546, 9196.
Allowing the towel to cover Danarian’s window for seventeen minutes
violated jail policy that prohibits administrative separation inmates from covering
their windows for any amount of time. ROA.5709–5712, 5874–5875, 5916, 8908–
8910, 8915. Officers were required to observe inmates to ensure their safety, and
window obstructions would hamper their ability to do so. ROA.5785–5786, 5872,
5875.
The district court therefore erred in concluding that Plaintiff had “offered no
admissible summary judgment evidence” to support her failure-to-accommodate
claim for failure to remove the towel. ROA.6945–6946.
Officer Cano saw Danarian’s window completely covered by a towel at 10:10
p.m., when he found him hanging. ROA.3798, 5474, 5785, 8544–8545. Neither
Officer Cano nor Aguirre, who began their 2J pod shift at 10:00 p.m., had told him
to take down the towel in the ten minutes prior. ROA.5785–5786, 5892–5893, 5896–
5897, 5919.
Danarian’s cell window was clearly visible from the pod control center.
ROA.3900–3901, 4962, 5710, 5946, 8994–8996, 9196. Cano testified that the pod
officer (who sat in the pod control center) could see all the cells in 2J1 and 2J2.
ROA.3900–3901. Perkins testified that the pod officer would be able to tell if any
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window in the pod was covered. ROA.5888, 5893. And having just started their
shifts, Cano’s and Aguirre’s sight and other senses should have been at their
sharpest.
Bartholomew testified that the J-pod guards would sometimes let inmates
cover their windows for up to an hour. ROA.5963. Officer Aguirre, who was in the
pod by 10 p.m. the night Danarian died, acknowledged that inmates were known to
cover their windows, which hindered guards in keeping visual account of inmates.
ROA.5785–5786.
Plaintiff’s evidence on this issue raised a genuine issue of material fact that
officers failed to observe Danarian as required by policy, resulting in his death. The
district court erred in disregarding this evidence.
E. The district court disregarded Plaintiff’s evidence that raised a fact issue on whether Officer Perkins’ last observation round occurred as reported the night Danarian died.
The district court’s conclusion that no admissible evidence raised a fact issue
on performance of observation rounds (ROA.6945–6946) was error because Plaintiff
introduced evidence that raises a genuine issue of material fact as to whether the last
observation round occurred as reported between 9:52 p.m. and 9:53 p.m. that night,
and Plaintiff produced evidence that would allow a reasonable jury to disbelieve
Officer Perkins’ testimony.
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First, a jury could disbelieve Perkins because he testified to a profound lack
of memory about the events surrounding Danarian’s death. ROA.5718 at n.39.
Perkins did not remember anything about Danarian or Danarian’s suicide and had
no independent recollection of working with detention officer Arbey Reyes on
February 5, 2014. ROA.5885–5888, 5890–5894; see also ROA.5884, 5902–5903.
When asked if he recalled conducting rounds the evening Danarian died, Perkins
responded: “[D]o I remember conducting rounds? I don’t even remember that day.”
ROA.5892. From jail records, Perkins testified that he conducted the last round of
his shift that night at 9:52 p.m. ROA.3866–3867, 5894–5896, 6888–6889. Despite
his lack of memory, Perkins testified that Danarian’s cell window “wasn’t covered
when I did my last round,” ROA.5896, because if he had seen a towel he would have
taken it down or ordered it taken down. ROA.5892–5893, 5896–5897.
Second, Perkins was disciplined for failing to complete observation rounds,
which impeached Perkins’ testimony and would allow a reasonable jury to
disbelieve him. See Deville, 567 F.3d at 165–66 (reversing summary judgment
because plaintiffs provided discipline records that would have allowed the jury to
disbelieve a police officer’s testimony).
Harris County disciplined Perkins with a one-day unpaid suspension and 30-
day probation in 2016 for failing to conduct observation rounds in a 2015 incident
unrelated to Danarian in which the lack of rounds allowed an administrative
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separation inmate to attempt to hang himself. ROA.9121–9123. Although Perkins
claimed he was not at fault because three officers had agreed to split rounds and
Perkins merely forgot to sign the round sheet,13 Harris County concluded that
Perkins “failed to conduct the last round of night watch.” ROA.9123.
This disciplinary history impeached Perkins’ testimony and would have
allowed a jury to disbelieve him. See Deville, 567 F.3d at 165. “Summary judgment
is not appropriate when questions about the credibility of key witnesses loom large
and the evidence could permit the trier-of-fact to treat their testimony with skeptical
scrutiny.” Id. at 165–66 (internal citations, brackets, ellipses and quotation marks
omitted).
Third, Plaintiff’s evidence cast doubt on the accuracy of the observation log
for cell block 2J2 the night of Danarian’s death. The log showed Perkins’ rounds
occurring exactly twenty-five minutes apart and taking exactly one minute each.
ROA.3855–3856, 8840–8841. In fact, Plaintiff’s correctional expert Upchurch
reviewed sixteen months of 2J2 observation logs showing the same pattern, and
opined that records showing no variation in rounds over more than a year are
“generally seen by corrections managers to be an indication of inaccuracy in
13 ROA.9121; see ROA.5898–5901.
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reporting and documenting” and raised doubt as to whether “rounds were being
accurately documented, if conducted at all.” ROA.5718–5719, 6013, 6025.
The logs showing unnaturally regular observation rounds also were
contradicted by Bartholomew’s testimony that rounds occurred only about every
other hour and were “not always the same frequency.” ROA.5962–5964. Further, if
accurate, the non-varied round logs show a violation of jail policy, which requires
monitoring in administrative separation “at irregular intervals not to exceed every
twenty-five minutes.” ROA.8915 (emphasis added).
Perkins’s testimony and the observation logs are further called into question
by an email indicating that Danarian “was hanging for about 20 [minutes]” and
records showing that when discovered his body was already “cold to the touch.”
ROA.7890, 9019–9020. If Perkins had done his round between 9:52 p.m. and 9:53
p.m., as he testified, twenty minutes could not have elapsed between Perkins’
observation of Danarian and the 10:10 p.m. discovery of Danarian’s body. This
evidence raises a genuine issue of material fact that should be resolved by a jury.
The district court’s repeated failure to construe all facts and inferences in the
light most favorable to Plaintiff requires reversal of the summary judgment. See
Winzer v. Kaufman Cty., 916 F.3d 464, 474 (5th Cir. 2019) (reversing summary
judgment granted in favor of defendant police officer; holding that “the central error
is the district court’s failure to credit [the plaintiff/nonmovant]’s testimony, instead
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adopting the [defendant/movant] officers’ characterization of the events preceding
the shooting. This alone is reversible error.”).
F. Summary judgment on intentional discrimination was error because Harris County knew about Danarian’s disabilities and limitations but deliberately refused to provide the accommodations it knew Danarian needed to be safely housed.
“A plaintiff asserting a private cause of action for violations of the ADA or
the RA may only recover compensatory damages upon a showing of intentional
discrimination.” Delano-Pyle, 302 F.3d at 574. This Court repeatedly has declined
to define “intent” for purposes of the ADA and RA. See, e.g., Miraglia v. Bd. of
Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir. 2018). However, this
Court’s decisions make clear that a genuine issue of material fact on intentional
discrimination is created by evidence that a defendant knew about the plaintiff’s
disability and resulting limitations and decided not to provide needed
accommodations.
The district court, in granting summary judgment on intentional
discrimination, cited Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL
2861456, at *7 (S.D. Tex. July 5, 2017), in which the court noted that the plaintiffs
did not “plead any facts from which the Court can reasonably infer ill will or animus”
toward the decedent). ROA.6947–6948. However, in Delano-Pyle, the Court
affirmed a jury award of compensatory damages in a failure to accommodate case
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without any showing of malice or willfulness. Delano-Pyle, 302 F.3d at 571, 575–
76.
In Delano-Pyle, this Court affirmed damages based on a defendant’s
knowledge of the plaintiff’s disability and a decision not to accommodate him. Id.
at 575–76. Similarly, in Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x
180, 184–85 (5th Cir. 2015), the Court affirmed damages when a defendant “ignored
clear indications” of the plaintiff’s impairment and “failed to provide an effective
form of communication.” Id. The Miraglia opinion reversed a damage award when
there was no evidence of defendant’s requisite knowledge but noted with approval
the Delano-Pyle and Perez holdings that a finding of intentional discrimination is
supported by evidence that defendant had knowledge of the disability and limitations
yet failed to accommodate. Miraglia, 901 F.3d at 575–76.
Several district courts in the Fifth Circuit have concluded that when jail
officers know of an inmate’s disability and limitations and know what
accommodations are needed, but fail to provide the accommodations, the jail has
intentionally discriminated against the inmate in violation of the ADA and RA. The
court in McCollum denied summary judgment on intentional discrimination because
the prison was on notice of the plaintiff inmate’s disability; his need for
accommodation was obvious; and TDCJ’s failure to provide accommodations
resulted in the plaintiff’s fatal asthma attack. McCollum, 2017 WL 608665, at *40.
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In Wright, the court denied a motion to dismiss on intentional discrimination
in a case involving the failure to provide accommodations to a suicidal inmate such
as a cell without tie-off points, because the inmate’s disability, limitations, and
needed accommodations were open and obvious. Wright, 2013 WL 6578994, at *4.
Like in Perez and Delano-Pyle, Plaintiff’s evidence establishes that Harris
County’s agents “ignored clear indications” that Danarian had a limiting disability.
Harris County knew that Danarian was unable to care for himself because his mental
illnesses manifested as voices in his head which impelled him to repeatedly attempt
suicide. Further, Harris County’s agents knew that Danarian needed
accommodations to benefit from the safe housing and adequate monitoring that
Harris County Jail must provide to every inmate, namely, a suicide blanket,
modification of his smoke detector, and removal of the towel covering his window.
Like in McCollum, a reasonable jury could find that Plaintiff’s proposed
accommodations were reasonable and well-known to Harris County, that the failure
to utilize any of them led to the denial of safe confinement for Danarian, and that
such failure constituted intentional discrimination. See McCollum, 2017 WL
608665, at *38–40; see also ROA.9163.
“Given that Mr. Hawkins had a nearly fatal overdose in July 2013, followed
by three more serious suicide attempts in October, November, and January, there is
no question Mr. Hawkins was at chronic elevated risk for suicide,” Dr. Konrad
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stated. ROA.9191. Dr. Konrad opined that Danarian’s “acute risk factors for suicide”
were known to Harris County. ROA.9192–9193. Upchurch expressed similar
opinions. ROA.6010. Danarian’s hanging attempts gave Harris County knowledge
on how to protect him through accommodations, but Harris County refused to
provide them.
The district court erred in granting summary judgment on the issue of
intentional discrimination for Plaintiff’s ADA and RA claims. This Court should
reverse and remand for trial before a jury.
II. THE DISTRICT COURT ERRED IN CONCLUDING, CONTRARY TO THE CONTROLLING STATUTE AND GOVERNING REGULATIONS, THAT THE REHABILITATION ACT DOES NOT APPLY BECAUSE HARRIS COUNTY’S FEDERAL FUNDING IS NOT DIRECTED SPECIFICALLY AT PROGRAMS OR ACTIVITIES IN THE HARRIS COUNTY JAIL THAT AFFECTED DANARIAN.
The Rehabilitation Act of 1973 permits a “qualified individual with a
disability” to recover damages against an entity that subjects him to disability
discrimination “under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a) (2012). Congress has defined “program or activity”
to include “all of the operations of . . . a department, agency, . . . or other
instrumentality of . . . a local government,” id. § 794(b)(1)(A), “any part of which
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is extended Federal financial assistance.” Id. § 794(b) (both emphases added).14 The
district court misconstrued the RA to require proof that federal funding be directed
to the specific programs or activities applicable to Danarian, notwithstanding the
statute’s and related regulations’ language that dictates the opposite result.
ROA.6937–6938.
The regulations promulgated to enforce Section 50415 similarly define
“[p]rogram or activity” to mean “all of the operations of any entity described in
paragraphs (h)(1) through (4) of this section, any part of which is extended Federal
financial assistance.” 28 C.F.R. § 42.540(h) (emphasis added). The entities
referenced include “[a] department, agency, . . . or other instrumentality of a . . .
local government; or [t]he entity of such . . . local government that distributes such
14 Importantly, in 1988, Congress enacted the Civil Rights Restoration Act of 1987 “to restore the broad scope of coverage and to clarify the application of . . . section 504 of the Rehabilitation Act of 1973,” Pub. L. No. 100–259, 102 Stat. 28 (1988), “[i]n response to Grove City and its progeny,” which “narrowed RA coverage and greatly reduced the likelihood of any potential immunity waiver.” Haybarger v. Lawrence Cty. Adult Prob. And Parole, 551 F.3d 193, 199–200 (3d Cir. 2008) (citing Grove City College v. Bell, 465 U.S. 555 (1984); Consol. Rail Corp. v. Darrone, 465. S. 624 (1984)). The Civil Rights Restoration Act thus amended 29 U.S.C. § 794 to apply to programs and activities offered by entities who receive, to any extent, “Federal financial assistance.” See Pub. L. No. 100–259, § 4, 102 Stat. 28, 29–30. 15 Regulations to enforce the RA “were expressly authorized by Congress, 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a), 12206, and . . . should be accorded ‘controlling weight unless [they are] ‘arbitrary, capricious, or manifestly contrary to the statute.’” Yeskey v. Com. Of Pa. Dept. of Correcs., 118 F. 3d 168, 170–71 (3d Cir. 1997), aff’d sub nom., Pa. Dept. of Correcs. v. Yeskey, 524 U.S. 206 (1998) (quoting Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418 (1995)).
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assistance and each such department or agency . . . to which the assistance is
extended.” Id. § 42.540(h)(1).
Plaintiff’s evidence showed “millions in federal funding” to the Harris County
Sheriff’s Office during Danarian’s confinement, which was sufficient to carry her
evidentiary burden. ROA.5729 (citing ROA.3828 & n.219; ROA.5049–5058).
Accordingly, the RA’s plain language and governing regulations alone require
reversal of the district court’s grant of summary judgment on Plaintiff’s RA claims.
Further, the two Fifth Circuit cases cited by district court are distinguishable
because they both turned on plaintiffs’ failure to offer any federal-funding evidence,
and so neither case supports the district court’s interpretation. In Lightbourn v. Cty.
of El Paso, Tex., 118 F.3d 421 (5th Cir. 1997), this Court affirmed dismissal of
plaintiffs’ RA claim because plaintiffs neither “argued that the [defendant] receives
federal financial assistance” nor “presented any evidence on this point.” Id. at 427.
Similarly, in Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012), the
plaintiff “offered no evidence that the [defendant] jail received federal funds,” and
this Court held the RA inapplicable to his claims. Id. at 376 (emphasis added).
Here, Plaintiff has offered ample evidence that Harris County’s mental-health
and housing programs directly benefitted from federal financial assistance.
ROA.5729 (citing ROA.3828 & n.219; ROA.5049–5058); cf. Taylor v. City of
Shreveport, 798 F.3d 276, 283 (5th Cir. 2015) (finding plaintiffs adequately pleaded
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their RA claim by alleging the defendant-city received federal funds for the police
department); Frame v. City of Arlington, 657 F.3d 215, 227 (5th Cir. 2011) (en banc)
(noting operations of public entity include the whole process of planning and
performing those operations).
The district court’s error is further confirmed by well-reasoned case law from
other circuits on this issue. See, e.g., Haybarger v. Lawrence Cty. Adult Prob. &
Parole, 551 F.3d 193, 200 (3d Cir. 2008) (citing Koslow v. Commonwealth of Penn.,
302 F.3d 161, 168 (3d Cir. 2002)); Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938,
942 (9th Cir. 2009); cf. Arbogast v. Kan., Dept. of Labor, 789 F.3d 1174, 1187 (10th
Cir. 2015).
The district court’s misinterpretation of the RA and its governing regulations
is an error of law that requires reversal.
CONCLUSION
For the reasons stated above, Plaintiff prays that the judgment of the district
court be reversed, and the case remanded for trial.
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s/ Amy C. Eikel_________ Peter Steffensen Texas Bar No. 24106464 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741 Tel: (512) 474-5073 ext. 101 Fax: (512) 474-0726 [email protected]
Ranjana Natarajan Texas Bar No. 24071013 UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC 727 E. Dean Keeton St. Austin, TX 78705 Tel: (512) 232-7222 Fax: (512) 232-0800 [email protected]
Amy C. Eikel Texas Bar No. 00787421 [email protected] Thomas M. Gutting State Bar No. 24067640 [email protected] Zachary C. Burnett Texas Bar No. 24105560 [email protected] KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Tel: (713) 751-3200 Fax: (713) 751-3290
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CERTIFICATE OF SERVICE
I hereby certify that, on July 23, 2019, I served the foregoing brief upon the
following counsel of record by filing a copy of the document with the Clerk through
the Court’s electronic docketing system:
Keith Toler Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE
1019 Congress, 15th Floor Houston, TX 77002 Telephone: (713) 274-5265 Fax: (713) 755-8924
s/ Amy C. Eikel_________ Amy C. Eikel
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CERTIFICATE OF COMPLIANCE
The foregoing brief is in 14-point Times New Roman proportional font with
footnotes in 13-point Times New Roman proportional font and contains 12,945
words, and thus complies with the type-volume limitation of Rules 32(a)(7)(B) and
29(d).
s/ Amy C. Eikel_________ Amy C. Eikel
July 23, 2019
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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
July 17, 2019
Ms. Amy Couvillon Eikel King & Spalding, L.L.P. 1100 Louisiana Suite 4000 Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Ms. Eikel, 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). Please make this the last page. Record citations were not found. Every assertion in briefs regarding matters 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. See FED. R. APP. P. 28(a)(8)(A) and 5TH CIR. R. 28.2.2. See Form 1 "http://www.ca5.uscourts.gov/docs/default-source/forms/fifth-circuit-court-of-appeals-form-1.pdf?sfvrsn=4". Any citation that has multiple pages should include the whole page number. For example: ROA.5717-22 should be ROA.5717-5722. 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: 00515038026 Page: 1 Date Filed: 07/16/2019
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: Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen Mr. Keith Adams Toler
Case: 19-20194 Document: 00515038026 Page: 2 Date Filed: 07/16/2019
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
July 25, 2019
Ms. Amy Couvillon Eikel King & Spalding, L.L.P. 1100 Louisiana Suite 4000 Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Ms. Eikel, 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. Exception: As of July 2, 2018, Anders briefs only require 2 paper copies. 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: _________________________ Monica R. Washington, Deputy Clerk 504-310-7705 cc: Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen Mr. Keith Adams Toler
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