Harris County and Harris County Sheriff's Department v. Linda Lu ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Harris County and Harris County Sheriff=s Department

Appellants

Vs.                   No. 11-00-00084-CV B Appeal from Harris County

Linda Lu

Appellee

Plaintiff, Linda Lu, sued Harris County and Harris County Sheriff=s Department,^[1] urging that defendants violated plaintiff=s constitutional rights under 42 U.S.C.A. ' 1983 (West Supp. 2001).  Plaintiff asserted that Mark Fleck, a Harris County Deputy Sheriff, sexually assaulted her while she was a patient in a hospital and was being guarded by Deputy Fleck.  The jury returned a verdict of $300,000 in favor of plaintiff. Defendants appeal.  We reverse and remand.

Defendants contend that the trial court erred in overruling their objections to the court=s charge.  We agree.  The court in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978), stated:

[W]e conclude that a municipality cannot be held liable solely because it employs a tortfeasorBor, in other words, a municipality cannot be held liable under '1983 on a respondeat superior theory.  (Emphasis in original)

This court observed in Walsweer v. Harris County, 796 S.W.2d 269, 272 (Tex.App. - Eastland 1990, writ den=d), cert. den=d, 502 U.S. 866 (1991):

Monell requires a plaintiff to show that his or her injuries resulted from a governmental Apolicy or custom.@  436 U.S. at 694, 98 S. Ct. at 2037.  Monell defines Apolicy@ as Aa policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body=s officers.@  436 U.S. at 690, 98 S. Ct. at 2036.  Monell defines Acustom@ as a Apersistent and widespread@ practice even though it has not been officially adopted.  436 U.S. at 691, 98 S. Ct. at 2036.

See also Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997).

The trial court=s charge contained the following instructions:

A person commits an offense of Sexual Assault if he intentionally or knowingly causes the penetration of a female sexual organ by any means without that person=s consent or causes the sexual organ of another person without that person=s consent to contact or penetrate the mouth, anus, or sexual organ of another person.

Linda Lu has a right under the Eighth Amendment to be free from cruel and unusual punishment which includes the right to be reasonably protected from the constant threat of violence and sexual assault by Deputy Sheriffs of Harris County, Texas.

Harris County will have violated this right if you find by a preponderance of the evidence that Marcus Fleck sexually assaulted Linda Lu and such assault was characterized by the Aunnecessary and wanton infliction of pain not by mere negligence or inadventure.@  AWantoness@ means Adeliberate indifference@ or Arecklessness.@  ADeliberate indifference@ or Arecklessness@ is reflected by a complete indifference to risk or a conscious disregard that manifests extreme indifference to the value of human life.

Following the instruction, the jury was asked in AQuestion 1," the only question submitted regarding liability: ADo you find from a preponderance of the evidence that Harris County violated the civil rights of Linda Lu?@  The jury answered, AYes.@

The record shows the following objections to the court=s charge and the court=s ruling:

[DEFENDANTS= COUNSEL]: Your Honor, we object to the instruction that you=ve given that Harris County will have violated this right, referring to the Eighth Amendment, if you find by preponderance of the evidence that Marcus Fleck sexually assaulted Linda Lu and that such assault was characterized by unnecessary and wanton infliction of pain, not by mere negligence or misadventure.

We object to that because, Your Honor, that=s just not the standard for section 1983, action against a municipality. A section 1983 claim against a municipality cannot be based on a theory of vicarious liability or the doctrine of respondeat superior, which is exactly what that charge provides.  Marcus Fleck was an employee, nothing more.  His acts did not fairly represent the policy-making of Harris County.

In Monal (sic) versus Department of Social Services this was a central point in that case because it was found that in order to establish liability against a municipality there must be a direct causal link and that respondeat superior did not provide a sufficient link in order to make a municipality liable for the acts of employees of a governmental entity.

A municipality can only be found liable if it has a policy or a custom, either failure to train, failure to hire, failure to supervise, something in the policy of that county which encourages or permits its officers, such as Mark Fleck, to engage in the use of excessive force so as to amount to a section 1983 claim for a violation of the Eighth Amendment to the Constitution.

There must be a direct causal link between the policy, custom, deficient training, inadequate supervision or whatever is alleged, and that must relate specifically to the alleged constitutional violation.

Your Honor, we would also object because the instruction indicates the deliberate indifference is tied solely to Marcus Fleck.  This is incorrect.  The deliberate indifference must be tied to Harris County, which falls in line with the reasoning of Monal (sic), a United States Supreme Court case, which has not been expanded or superseded.

We would ask for a ruling on that objection.

THE COURT: Okay. Defendant=s objection will be overruled.

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[DEFENDANTS= COUNSEL]: We would also object to question number 1 specifically because, once again, this instruction does not tie the violation of Marcus Fleck=s alleged sexual assault to some custom, policy or other matter for which Harris County would have direct causal responsibility for the civil rights violation allegedly occurring to Linda Lu under the Eighth Amendment of the Constitution.

THE COURT: The objection will be overruled.

The instructions submitted to the jury made no reference to any county policy or custom. The liability of the county was based solely on a finding that Deputy Fleck committed a sexual assault against the plaintiff.  The defendants= objections to the charge clearly and distinctly pointed out to the trial court the objectionable matter.  TEX.R.CIV.P. 274; State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex.1992); Religious of the Sacred Heart of Texas v. City of Houston, 836 S.W.2d 606 (Tex.1992); Hernandez v. Montgomery Ward & Co., 652 S.W.2d 923 (Tex.1983).  We hold that the error probably caused the rendition of an improper judgment.  TEX.R.APP.P. 44.1(a)(1).  For that reason, the case must be reversed, and the cause remanded for a new trial.

We do not reach defendants= contentions that the case should be reversed and rendered.  Those arguments were not preserved for appellate review. Defendants filed a motion for ADirected Verdict@ on October 26, 1999, one day after the jury returned its verdict.  The jury had been discharged, and this was clearly an untimely filed motion for directed verdict.  We refuse to treat the motion for directed verdict as a motion for judgment notwithstanding the verdict.  Even if we treated the motion as being a merely mislabeled motion for judgment notwithstanding the verdict, the record fails to show that the motion was ever presented to the trial court.  On November 18, 1999, the trial court entered judgment for plaintiff on the verdict rendered by the jury.  On December 17, 1999, Harris County filed its motion for judgment notwithstanding the verdict.  However, the record fails to show that the motion was ever presented to the trial court.  The record fails to reflect either an explicit or implicit ruling by the trial court on the motion.  See McDONALD & CARLSON, TEXAS CIVIL PRACTICE ' 26.12  (2d ed. 2001).  We note that defendants urged in their motion for new trial that there was no evidence to support the jury=s answer to Question No. 1.  It is unnecessary for us to consider this issue because the only relief requested was a new trial.  Thedford v. Missouri Pacific Railroad Company, 929 S.W.2d 39 (Tex.App. - Corpus Christi 1996, writ den=d).  Thus, it is unnecessary to a final disposition of this appeal. TEX.R.APP.P. 47.1.

We agree with Harris County that the trial court erred in rendering judgment against the AHarris County Sheriff=s Department, jointly and severally.@  Question No. 1 related only to AHarris County.@  The jury did not return a verdict against AHarris County Sheriff=s Department.@  The judgment entered against Harris County Sheriff=s Department did not conform to the jury=s verdict.  TEX.R.CIV.P. 301.

The judgment of the trial court is reversed, and the cause is remanded to the trial court for a new trial.

AUSTIN McCLOUD

SENIOR JUSTICE

May 16, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.^[2]

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^[1]The final judgment states that former party Johnny Klevehagen, Harris County Sheriff, had been previously dismissed from the cause; and the record shows that the plaintiff=s claim against former party Mark Fleck was severed from the cause and assigned a new cause number.

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.