Jacqueline Smith v. Harris County Sheriff ( 2020 )


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  •      Case: 19-20194    Document: 00515383203    Page: 1   Date Filed: 04/15/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    April 15, 2020
    No. 19-20194
    Lyle W. Cayce
    Clerk
    JACQUELINE SMITH, Independent Administrator of the Estate of Danarian
    Hawkins, Deceased,
    Plaintiff - Appellant
    v.
    HARRIS COUNTY, TEXAS,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, COSTA, and HO, Circuit Judges.
    KING, Circuit Judge:
    Danarian Hawkins committed suicide while incarcerated in the Harris
    County Jail. Jacqueline Smith, his mother, is now suing Harris County for
    compensatory damages under Title II of the Americans with Disabilities Act
    and Section 504 of the Rehabilitation Act. These laws allow Smith to recover
    damages only if she can prove that Harris County or its employees
    intentionally discriminated against Hawkins. Because Smith cannot prove
    that Hawkins was subjected to intentional discrimination, the district court
    correctly granted summary judgment to Harris County, and we AFFIRM.
    Case: 19-20194    Document: 00515383203     Page: 2   Date Filed: 04/15/2020
    No. 19-20194
    I.
    Between 2009 and his death in 2014, Hawkins spent much of his time
    imprisoned in the Harris County Jail. On several occasions, Hawkins’s suicide
    attempts, suicidal statements, and self-harming behavior caused him to be
    transferred to the jail’s Mental Health Unit (MHU), but his stays never lasted
    longer than two weeks. In the eighteen months before his death, Hawkins
    spent his time outside the MHU housed in administrative separation. Hawkins
    was placed in administrative separation because he was considered a threat to
    the safety of other prisoners.
    Hawkins made several suicide attempts at the Harris County Jail. In
    September 2009, Hawkins attempted to hang himself by tying his shirt into a
    knot. In June 2010, he was found kneeling in a vestibule trying to hang himself
    with his pants tied to a door handle. The following month, he was again
    discovered attempting to tie his pants to the handle of a door; Hawkins
    reported at that time that he was “feeling suicidal and homicidal.” In June
    2011, a guard discovered Hawkins in his cell with a sheet wrapped around his
    neck and the other end of the sheet tied around the rail of the top bunk.
    Hawkins’s next suicide attempt took place in April 2013, when Detention
    Officer Christopher Cano found Hawkins in his cell with one end of a bed sheet
    tied to the smoke detector on the ceiling, and the other end tied tightly around
    his neck. In July 2013, Hawkins overdosed by taking approximately 100 pills,
    which he had stockpiled by hiding the pills under his tongue while “taking” his
    medication at the jail’s medical center.
    On January 17, 2014, Detention Officer Timothy Owens encountered
    Hawkins outside of his cell with one end of a sheet tied around his neck.
    Hawkins was attempting to tie the other end of the sheet to the top rail of the
    cell block’s upper deck. When Owens asked Hawkins what he was doing,
    Hawkins said that he was hearing voices telling him to kill himself. Owens
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    restrained Hawkins and placed him in a suicide smock so he could not hurt
    himself.
    Hawkins was subsequently transferred to the MHU, where he spent the
    next two weeks. During that time, he was prescribed additional medication
    and met regularly with psychiatrist Dr. Enrique Huerta. On January 31, 2014,
    after beginning to observe improvement in Hawkins’s condition, Dr. Huerta
    discharged Hawkins from the MHU. Upon Hawkins’s discharge, jail
    classification staff decided to return Hawkins to administrative separation in
    the same cell block where Hawkins had attempted to kill himself by tying a
    bed sheet to the smoke detector.
    On February 4, 2014, the day before Hawkins committed suicide, he
    spoke to Chelsea Ford, a Texas-licensed practitioner of the healing arts, during
    her twice-weekly rounds. As part of her duties, Ford was responsible for
    checking to see whether any prisoners were suicide risks. Hawkins told Ford
    that he had recently attempted to commit suicide and that the Illuminati “is
    watching me and makes me want to kill myself.” When Ford pressed for more
    information, Hawkins indicated that he was not presently experiencing
    suicidal ideation. Ford told Hawkins to notify her or others if his suicidal
    thoughts increased or if he felt the need to act on them, and Hawkins
    apparently agreed to comply. Based on this interaction, Ford did not believe
    that Hawkins was suicidal.
    At approximately 10:02 P.M. the following day, Detention Officer Cano—
    who rescued Hawkins during his April 2013 suicide attempt—began
    conducting an observation round in Hawkins’s cell block. When he reached
    Hawkins’s cell at 10:10 P.M., he noticed that a towel was covering the cell
    window, which was a violation of jail policy. Cano knocked on the door to get
    Hawkins’s attention; when there was no response, Cano unlocked the pan-hole
    door and peered through. Cano saw Hawkins hanging from the smoke detector
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    on the ceiling, with a sheet tied around his neck. He called for backup and,
    with assistance, was able to remove the sheet from the smoke detector and get
    Hawkins down on his back in the bunk. As other officers and inmates
    attempted to loosen and untie the knot around Hawkins’s neck to free his air
    way, Cano began performing CPR. Nurses soon arrived and carried Hawkins
    on a stretcher to the jail’s clinic. Hawkins was pronounced dead at 10:43 P.M.
    Smith filed suit against Harris County seeking to recover compensatory
    damages on behalf of Hawkins’s estate. According to Smith, Harris County
    violated Section 504 of the Rehabilitation Act and Title II of the Americans
    with Disabilities Act by failing to: (i) replace the sheet on Hawkins’s bed with
    a knot-proof suicide blanket; (ii) modify the smoke detector in Hawkins’s cell
    such that it could not be used as a tie-off point for a noose; (iii) refer Hawkins
    to the MHU following his conversation with Ford; (iv) remove the towel
    covering Hawkins’s window on the night he died; (v) follow the jail policy
    requiring twenty-five-minute observation rounds in the administrative-
    separation section, where Hawkins was housed; and (vi) monitor Hawkins
    every five to ten minutes.
    Harris County moved for summary judgment on all of Smith’s claims.
    Among other things, Harris County argued that Smith “has no evidence of
    intentional discrimination, which is required for compensatory damages.”
    Smith conceded that she needed to prove intentional discrimination to recover
    compensatory damages, but she argued that she had introduced sufficient
    evidence to survive summary judgment. The district court disagreed on the
    latter point and granted Harris County’s motion. This appeal followed.
    II.
    We review the district court’s summary-judgment ruling de novo,
    applying the same standards as the district court. Windham v. Harris County,
    
    875 F.3d 229
    , 234 (5th Cir. 2017). Summary judgment is appropriate if “the
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    movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). For
    this purpose, factual disputes are material if they “might affect the outcome of
    the suit under the governing law,” and they are genuine “if the evidence is such
    that a reasonable jury could return a verdict for the nonmoving party.”
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    When a defendant moves for summary judgment and identifies a
    lack of evidence to support the plaintiff's claim on an issue for
    which the plaintiff would bear the burden of proof at trial, then the
    defendant is entitled to summary judgment unless the plaintiff is
    able to produce “summary judgment evidence sufficient to sustain
    a finding in plaintiff's favor on that issue.”
    James v. State Farm Mut. Auto. Ins. Co., 
    743 F.3d 65
    , 68 (5th Cir. 2014)
    (quoting Kovacic v. Villarreal, 
    628 F.3d 209
    , 212 (5th Cir. 2010)). We may
    affirm a grant of summary judgment on any grounds supported by the record.
    Cadena v. El Paso County, 
    946 F.3d 717
    , 723 (5th Cir. 2020).
    III.
    The nondiscrimination principle that was ultimately enacted as § 504 of
    the Rehabilitation Act was originally proposed in 1972 as an amendment to
    Title VI of the Civil Rights Act of 1964. Alexander v. Choate, 
    469 U.S. 287
    , 295
    n.13 (1985). It should come as no surprise, therefore, that the statutory
    language enacted one year later almost echoes Title VI’s prohibition on racial
    discrimination. Compare 29 U.S.C. § 794(a) (“No otherwise qualified individual
    with a disability in the United States . . . shall, solely by reason of her or his
    disability, be excluded from the participation in, be denied the benefits of, or
    be subjected to discrimination under any program or activity receiving Federal
    financial assistance . . . .”), with 42 U.S.C. § 2000d (“No person in the United
    States shall, on the ground of race, color, or national origin, be excluded from
    participation in, be denied the benefits of, or be subjected to discrimination
    under any program or activity receiving Federal financial assistance.”). It is
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    likewise unsurprising that the Rehabilitation Act incorporates, for Section 504
    violations, the rights and remedies of Title VI. See 29 U.S.C. § 794a(a)(2) (“The
    remedies, procedures, and rights set forth in title VI of the Civil Rights Act of
    1964 . . . shall be available to any person aggrieved by any act or failure to act
    by any recipient of Federal assistance . . . under section 794 of this title.”);
    Estate of Lance v. Lewisville Indep. Sch. Dist., 
    743 F.3d 982
    , 996 (5th Cir.
    2014).
    Building on the Rehabilitation Act’s protections, Congress passed the
    Americans with Disabilities Act in 1990 “to provide a clear and comprehensive
    national mandate for the elimination of discrimination against individuals
    with disabilities.” 42 U.S.C. § 12101(b)(1). In essence, Title II of the ADA
    extends Section 504 of the Rehabilitation Act such that it applies to all public
    entities while simultaneously weakening its causation requirement. Compare
    id. § 12132
    (“[N]o 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.” (emphasis added)), with 29 U.S.C. § 794(a)
    (applying to programs and activities “receiving Federal financial assistance”
    and prohibiting discrimination “solely by reason of” disability). The ADA
    defines   public     entities   to    include   local   governments     and    their
    instrumentalities, 42 U.S.C. § 12131(1)(A)-(B), such as county jails, see
    
    Cadena, 946 F.3d at 723
    . By design, the “remedies, procedures, and rights”
    applicable to Section 504 of the Rehabilitation Act, i.e., the rights, remedies,
    and procedures available under Title VI, are also applicable to Title II of the
    ADA. 42 U.S.C. § 12133; accord 
    Cadena, 946 F.3d at 723
    . The close
    relationship between Section 504 of the Rehabilitation Act and Title II of the
    ADA means that precedents interpreting either law generally apply to both.
    Delano-Pyle v. Victoria County, 
    302 F.3d 567
    , 574 (5th Cir. 2002).
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    Like Title VI, the Rehabilitation Act and Title II of the ADA allow private
    plaintiffs to enforce their prohibitions on discrimination.
    To establish a prima facie case of discrimination under the ADA, a
    plaintiff must demonstrate: (1) that he is a qualified individual
    within the meaning of the ADA; (2) that he is being excluded from
    participation in, or being denied benefits of, services, programs, or
    activities for which the public entity is responsible, or is otherwise
    being discriminated against by the public entity; and (3) that such
    exclusion, denial of benefits, or discrimination is by reason of his
    disability.
    Melton v. Dall. Area Rapid Transit, 
    391 F.3d 669
    , 671-72 (5th Cir. 2004). The
    Supreme Court has held that modern prisons conduct many “services,
    programs, or activities” that confer “benefits” on inmates, such as recreational
    activities, medical services, and vocational programs. Pa. Dep’t of Corr. v.
    Yeskey, 
    524 U.S. 206
    , 210 (1998).
    In   addition   to   prohibiting   discrimination,   the     ADA     and   the
    Rehabilitation Act—unlike Title VI—“impose upon public entities an
    affirmative obligation to make reasonable accommodations for disabled
    individuals.” Bennett-Nelson v. La. Bd. of Regents, 
    431 F.3d 448
    , 454 (5th Cir.
    2005); see Tennessee v. Lane, 
    541 U.S. 509
    , 531 (2004) (observing that “failure
    to accommodate persons with disabilities will often have the same practical
    effect as outright exclusion”). An accommodation is reasonable if “it does not
    impose undue financial or administrative burdens or ‘fundamentally alter the
    nature of the service, program or activity.’” 
    Cadena, 946 F.3d at 724
    (quoting
    28 C.F.R. § 35.130(b)(7)). “To succeed on a failure-to-accommodate claim, a
    plaintiff must prove: (1) he is a qualified individual with a disability; (2) the
    disability and its consequential limitations were known by the covered entity;
    and (3) the entity failed to make reasonable accommodations.” Ball v. LeBlanc,
    
    792 F.3d 584
    , 596 n.9 (5th Cir. 2015). Plaintiffs ordinarily satisfy the
    knowledge element by showing that they identified their disabilities as well as
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    the resulting limitations to a public entity or its employees and requested an
    accommodation in direct and specific terms. 
    Windham, 875 F.3d at 237
    . “When
    a plaintiff fails to request an accommodation in this manner, he can prevail
    only by showing that ‘the disability, resulting limitation, and necessary
    reasonable accommodation’ were ‘open, obvious, and apparent’ to the entity’s
    relevant agents.”
    Id. (quoting Taylor
    v. Principal Fin. Grp., Inc., 
    93 F.3d 155
    ,
    165 (5th Cir. 1996)).
    Even when plaintiffs successfully prove a disability-discrimination or a
    failure-to-accommodate claim, they “may only recover compensatory damages
    upon a showing of intentional discrimination.” 
    Delano-Pyle, 302 F.3d at 574
    ;
    accord Miraglia v. Bd. of Supervisors of La. State Museum, 
    901 F.3d 565
    , 574
    (5th Cir. 2018). Our precedents have not “delineate[d] the precise contours” of
    this showing, but we have relied “on the widely accepted principle that intent
    requires that the defendant at least have actual notice.” 
    Miraglia, 901 F.3d at 575
    . Unlike other circuits, we have not held that deliberate indifference
    suffices. Id.; see also S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 
    729 F.3d 248
    , 262-63 (3d Cir. 2013) (collecting, and agreeing with, cases from five other
    circuits).
    IV.
    The district court did not err when it concluded that Smith could not
    recover compensatory damages on her failure-to-accommodate claims. Smith
    identifies six potential accommodations that, she claims, would have saved
    Hawkins’s life: (i) replacing the sheet on Hawkins’s bed with a knot-proof
    suicide blanket; (ii) modifying the smoke detector in Hawkins’s cell such that
    it could not be used as a tie-off point; (iii) removing the towel covering
    Hawkins’s window; (iv) referring Hawkins to the MHU following his
    conversation with Ford on the day before his death; (v) following jail policy and
    conducting twenty-five-minute observation rounds in the administrative-
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    separation section of the jail; and (vi) monitoring Hawkins in particular every
    five to ten minutes. 1 But Smith has not shown that any Harris County
    employee intentionally discriminated against Hawkins by failing to provide
    these accommodations. 2
    A.
    Harris County did not intentionally discriminate against Hawkins by
    failing to remove the towel covering his window or by failing to conduct
    observation rounds every twenty-five minutes. At approximately 9:53 P.M. on
    the night Hawkins died, Detention Officer Marvin Perkins observed Hawkins
    while on his rounds. At 10:10 P.M., Detention Officer Cano was performing his
    rounds and saw that the window of Hawkins’s cell was covered by a towel, and
    Officer Cano immediately removed that towel. There is no evidence that
    anyone employed by Harris County was aware that Hawkins’s window was
    covered before that point, so Harris County did not intentionally discriminate
    against Hawkins by failing to remove it sooner. See 
    Miraglia, 901 F.3d at 575
    (“[A] defendant must have notice of the violation before intent will be
    imputed.”). Similarly, there is no evidence that Harris County intentionally
    discriminated against Hawkins by failing to conduct twenty-five-minute
    1  Smith does not claim that either Dr. Huerta’s decision to discharge Hawkins from
    the MHU on January 31, 2014 or Hawkins’s lack of a cellmate violated the ADA. And rightly
    so. Smith likely could not have asserted an ADA claim based on Dr. Huerta’s discharge
    decision, because “the ADA does not typically provide a remedy for negligent medical
    treatment.” 
    Cadena, 946 F.3d at 726
    . And while Hawkins might not have been able to commit
    suicide if he had a cellmate, providing him with a cellmate likely would not have been a
    reasonable accommodation, because Hawkins was considered a threat to the safety of other
    prisoners.
    2 For the purposes of this appeal, we assume without deciding that Hawkins’s mental-
    health issues mean that he was a qualified individual with a disability. On a similar note,
    Harris County conceded at oral argument that it could be held vicariously liable for the
    actions of its employees.
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    observation rounds; on the contrary, Officer Perkins observed Hawkins
    seventeen minutes before Officer Cano arrived at Hawkins’s cell. 3
    B.
    Non-medical employees at the Harris County Jail did not intentionally
    discriminate against Hawkins by failing to implement the suicide-prevention
    methods identified by Smith, i.e., providing a knot-proof blanket, modifying the
    smoke detector in Hawkins’s cell, or monitoring Hawkins more frequently. In
    the context of a failure-to-accommodate claim, intentional discrimination
    requires at least actual knowledge that an accommodation is necessary. See
    
    Cadena, 946 F.3d at 724
    (“[T]his court has affirmed a finding of intentional
    discrimination when a county deputy knew that a hearing-impaired suspect
    could not understand him, rendering his chosen method of communication
    ineffective, and the deputy made no attempt to adapt.”). If a defendant
    attempts to accommodate a disability, then intentional discrimination requires
    knowledge “that further accommodation was necessary.”
    Id. at 726.
    4
    Harris County attempted to accommodate Hawkins’s mental-health
    issues by referring him to the MHU for psychiatric treatment on January 17,
    2014. Hawkins was discharged after he showed improvement on a new
    medication regimen. While hindsight tells us that Hawkins’s medical
    3 Smith argues that, for various reasons, a reasonable jury would not have been
    required to credit Perkins’s observation log showing that he observed Hawkins at 9:53 P.M.
    Smith must, however, do more than rebut Harris County’s exculpatory evidence to survive
    summary judgment. See Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 
    274 F.3d 924
    ,
    928 (5th Cir. 2001) (“After a defendant properly moves for summary judgment, the non-
    movant plaintiff must bring forward sufficient evidence to demonstrate that a genuine issue
    of material fact exists on every element of a claim.”). Even if questions regarding the accuracy
    of Perkins’s observation log were sufficient to show that he failed to conduct his final set of
    rounds on the night of February 5, 2014, such a failure would, at most, demonstrate
    negligence or recklessness, not intentional discrimination.
    4 Ordinarily, these indications take place after an attempt to accommodate a disability
    is made, but we do not consider, and therefore do not decide, whether an attempt to
    accommodate a disability could be so inadequate that there would be contemporaneous
    knowledge that further accommodations were necessary.
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    treatment proved inadequate, non-medical employees at the jail had no reason
    to believe, much less actual knowledge, that Hawkins needed additional
    accommodations following his discharge. Cf. Miranda v. County of Lake, 
    900 F.3d 335
    , 343 (7th Cir. 2018) (“When detainees are under the care of medical
    experts, non-medical jail staff may generally trust the professionals to provide
    appropriate medical attention.”). Accordingly, the non-medical staff at the
    Harris County Jail did not intentionally discriminate against Hawkins by
    failing to provide additional accommodations, such as the suicide-prevention
    measures identified by Smith.
    C.
    We also conclude that Chelsea Ford, the nurse who spoke with Hawkins
    the night before he died, did not intentionally discriminate against Hawkins
    by failing to refer him to the MHU or by failing to implement suicide-
    prevention measures. Again, Hawkins received an accommodation for his
    mental-health issues, i.e., two weeks of psychiatric treatment at the MHU, so
    to establish intentional discrimination, Smith must show that there were
    indications that further accommodation was necessary. Smith claims that Ford
    received such an indication when she spoke with Hawkins.
    In her report documenting her conversation with Hawkins, which she
    created before his death, Ford wrote:
    PT [patient] stood when writer approached, PT is known to this
    writer from previous housing in admin separation. PT verbalized
    he was just discharged from [the MHU] after “I tried to hang
    myself at [cell block] 701.” PT has had several past suicide
    attempts, with one nearly fatal overdose that resulted in extensive
    hospital stay. Writer encouraged PT notify myself or deputies
    when SI [suicidal ideation] worsens and he feels the need to act on
    thoughts. PT states “the illuminate is watching me and makes me
    want to kill myself.” PT reports he is presently not experiencing SI
    and agrees to notify writer if symptoms worsen.
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    Ford seems to have understood Hawkins to be describing his past experiences
    and symptoms, not his current mental state, and Ford’s deposition testimony
    confirms that Hawkins told her that he was not presently experiencing suicidal
    ideation. She also testified that, after speaking with Hawkins, she did not
    believe that he was actively suicidal.
    In retrospect, Ford’s assessment may have been wrong, but there is no
    evidence suggesting that her report or her testimony were dishonest. Smith
    argues that Hawkins’s statements to Ford were indicative of a mental-health
    issue such that Ford violated jail policy by failing to refer Hawkins to the MHU.
    Even if Smith were correct and Ford violated jail policy, that would not convert
    a perhaps-negligent mistake into intentional discrimination or deliberate
    indifference. Cf. Anderson v. Dallas County, 286 F. App’x 850, 862 (5th Cir.
    2008) (concluding, in a jail-suicide case, that “no single individual” acted with
    deliberate indifference even though “staff at the Jail collectively may have
    acted negligently, or even grossly negligently, by ignoring Jail procedures”).
    Because Ford, like the other employees at the Harris County Jail, did not
    intentionally discriminate against Hawkins, the district court correctly
    dismissed Smith’s claims for compensatory damages.
    V.
    For the foregoing reasons, we AFFIRM the judgment of the district court.
    12