*1 LOZANO, al., Randy Rene et
Plaintiffs-Appellants, SMITH, al.,
William French et
Defendants, Faught, al.,
Elton et
Defendants-Appellees.
No. 81-1538. Appeals,
United States Court of
Fifth Circuit.
Nov. *2 the course of injury suffered a fatal sev-
being restrained and subdued Department of the eral officers Sheriff’s January Appellants night his first of Lozano wife. are the children (1) appeal are primary questions The setting erred in whether the district court aside, evidentiary sup- for lack of sufficient failed finding that the Sheriff port, jury per- facilities and the supervise as to department protect of his so sonnel (2) rights; Lozano’s constitutional Ten- findings jury whether used excessive force ney Jailer Perkins subduing Lozano on restraining that, so, death, doing night of his but faith, good are in conflict. they acted in there is insufficient We hold finding that the support facilities failed to wrongfully However, we further hold personnel. jury findings respecting that the referenced Lopez, Medina, Ramirez, Torres & Velas- the liabilities of and Perkins are quez, Torres, Isaias D. Armando Lopez, Jose conflict, therefore re- irreconcilable and we Medina, A. Davis, Rebecca J. Houston, Tex., for a new trial verse and the case remand for plaintiffs-appellants. in that liability (and damages) to their Davis, Perry Jr., James Nelson, E. Odes- af- respects, In all other we regard only. sa, Tex., for defendants-appellees. judgment. the district court’s firm
I. FACTS GARZA, Before and GAR- REAVLEY WOOD, Judges. Circuit conflicting or un- Though the evidence details, following many clear in of its GARWOOD, Judge: Circuit de- principal account summarizes the events This is an appeal from the judgment of trial. veloped at On the district dismissing court an action 10, 1978, o’clock, deputies at about ten two brought under 42 U.S.C. ap- Department, § County Ector Sheriff’s pellees, principally Faught, Elton the for- Kloss, were dis- Leroy Murphy Gene mer Sheriff of County, Texas, Ector Randy traffic patched to the scene of minor Tenney, Sheriffs, one of Faught’s Deputy Odessa, Texas, accident in the where City and Jackie jailers one of the at the which had Dodge pickup found a been Ector County jail. Appellees were sued wire fence. driven into a street-side barbed both individually respective standing by pickup, Lozano and he official capacities for the alleged violation deputies identified himself to the as its rights civil of Larry Ortega driver. Lozano was asked twice (“Lozano”), 27-year-old emotionally license, dis- deputies to show his driver’s turbed pretrial detainee being held in the deputies each time he refused. The then Odessa, Ector County jail, in Texas. Loza- under arrest.1 placed Lozano presumably 1. Lozano was arrested under Tex. that: 6701d, 23, providing Rev.Civ.Stat.Ann. art. § so, deputies conducting pat-
As the Lozano did and threw it across desk Lozano, Johns, Dep- lunged down search of struck at Johns. Lozano uty Murphy deputies place, on the cheek. The another took this time with struggle attempted then to handcuff and at Deputies Johns and Davis. Blows were ex- At point, struggle point sides, ensued. one changed by both and Lozano kicked during struggle, Deputy Kloss hit Loza- deputies. at the were unable *3 flashlight, with a a “very causing hard” Lozano, to subdue or control and Davis deep depu- cut on Lozano’s forehead. The Eaton, Captain called for assistance. Bob ties were able to force Lozano to eventually Harrison, Mike Sergeant Deputy Patrol handcuff him with the ground, to Davis’s call and Murphy responded help of nearby resident. helped placed subdue who was then security padded in a cell.2 handcuffed,
After Lozano was Kloss radi- help oed for and Deputies Dee Johns and Davis, Later, Lozano, and Johns were Davis Darry responded to his call. Because taken the emergency hospi- room of the Johns and Davis’s car patrol equipped tal, bruises, treated for cuts and and re- screen, with protective it was decided scrapes leased. Lozano had cuts and on his they would take county jail. Lozano to the areas, head and facial and bruises on his Deputies Murphy Kloss followed them. abdomen and He was legs. x-rayed and given medication. After released During jail, the ride to the Murphy and the hospital, Lozano was returned to pulled Kloss’s car beside the patrol other jail placed again in a cell.3 padded car at a stop and Lozano was by asked both Murphy and Johns if he wanted to go to a Deputies Murphy, arresting Kloss and hospital wound, for treatment of his head officers, jointly complaint filed a charging Lozano said he did upon not. aggravated Lozano with assault on a peace arrival courthouse, at the Ector County officer and with resisting arrest. Com- where the county jail is located on the plaints charging aggravated Lozano with floor, second Lozano asked Johns to take assault a peace by officer were also filed him to the hospital, and Johns told Deputies Johns and Davis on the inci- based would be taken there after he was addition, jail. Murphy, dent at assented, booked. Lozano entered Johns, Davis each complaint filed a the courthouse. charging Lozano with criminal mischief
The deputies upstairs took Lozano to the based on the destruction of some Mur- booking office. During booking proc- phy’s clothing by during and Johns’s ess, Johns asked Lozano to remove struggles his belt. his with them.4 person Code, willfully “No 4. 22.02 shall Under section of the Texas Penal fail or refuse to comply with peace lawful order or direction of an assault on a officer the course of any police officer duty, invested law with bodily injury” au- his which “causes direct, thority control, regulate officer, traffic.” aggravated degree is assault and a third felony if the in- offender knew or had been 2. The record shows operated person formed that assaulted was an offi- jailers several who acting took turns in uniform, If cer. the officer was in as these jailer. jailer A would work under a “shift were, presumed “the actor is to have captain.” The record also shows that when peace known” he was a officer. there was a jail, deputy disturbance at Resisting an arrest made offense section sheriffs would be jailer. called in to assist 38.03, felony only deadly weapon but is a if a charged used. Since Lozano was not with us- 3. Jailer Gabriel Perez at testified trial arrest, ing deadly weapon resisting his jail’s that Lozano remained in one of the three resisting charged arrest offense padded days, cells for two and was then moved was a class A misdemeanor. The evidence Later, put into a twelve-man cell. Lozano was charges shows the criminal mischief were mis- days back into a cell for two more after 28.03(b)(3). demeanors. Section he acted disturbed and took a shower with his clothing regular on. He was then returned ato appears cell where he to have remained until January 22. dismissal, arrest, participated group he had ther- Shortly after Lozano’s the Sher- Pecos, at MHMR in Texas. apy contacted the Permian Ba- Department iff’s Health Community sin Center for Mental & worker, Salinas, Another MHMR Arnold the next (“MHMR”), day, January located in visited Lozano Mental Retardation jail by was also seen at the 1978. Lozano Odessa, and asked them to send a counselor Dr. Z.K. Mitis. psychiatrist, Charles Sali- 12, 1978, with Lozano. January to talk On nas, .Hurst, Rothstein, and Natalie Elva Hurst of MHMR visited with Lozano MHMR, Coordinator at Emergency Services jail. report at Her of this visit was also visited Lozano on admitted into evidence and states that Lo- Meanwhile, seeking MHMR had been physical zano “was in terrible condition. arrangements make to have Lozano admit- His face was black and blue and so swollen Big state mental hospital ted to the his eyes kept lifting shut. He Texas, psychiatric treatment. Spring, eyelids fingers so he could look at testified, Rothstein “I contacted the District *4 trial, me.” At Hurst testified that when charges office ... to see if could Attorney’s occurred, this visit dropped Larry face looked like be .. . ... so that could be the state because the hospital admitted to hamburger.” “raw to her re- According Mental Health does not allow commit- Code for sev- port, hospitalized Lozano had been hospital ment to a state if there are Austin, Texas, August eral weeks charges pending against poten- kind of 1977, for a nervous breakdown.5 After his patient.”6 tial Rothstein further testified shortly expressly dealing authority 5. This occurred after Lozano was in- ed with this to no point. volved in an altercation with two officers Department 5547-31, Austin Police at pro- a service station Article Tex.Rev.9iv.Stat.Ann., Austin, where Lozano had involved become vides: dispute in a with the station owner and was Application Temporary Hospi- “A sworn placed under arrest. Both officers testified at proposed patient may talization of a be filed weighed approximately trial that who county Application court The with .... pounds, size, extremely strong for his may by any person be made adult ... and rely and that had to on the assistance of proposed patient shall state ... the station owner and his attendant to subdue offense, charged with a criminal that he superiors him. The officers turned into their a mentally transferring ill .... An a Order complaint charging simple Lozano with assault against charges criminal defendant whom all mischief, and criminal but were unsure if appropriate have dismissed to the court been charges filed, formally (or filed if were temporary pur- hearing on commitment for a dismissed) since Lozano was committed to the 46.02, Section 7 of Article suant to Code hospital psychiatric state at Austin for treat- Procedure, that all Criminal shall state ment. charges have been dismissed and the such Application for Tem- Order shall serve as the 5115, Tex.Rev.Civ.Stat.Ann., provides 6. Article porary Hospitalization proposed pa- part: added.) (Emphasis tient.” person suspected insanity, “No or who offense, Having charged been with a criminal insane, legally adjudged has been shall be proceedings would have to commit Lozano jail, except housed or held in a such governed by been article 46.02 of the Code of person who demonstrates homicidal tenden- Procedure, concerning proceedings in Criminal cies, and who must be com- restrained from charges pending criminal are court where mitting per- acts of violence other competency to determine the accused’s sons, may jail period be held in a for a trial, subsequent proceedings stand follow- (7) days. time not to exceed a total of seven ing regard. various in that Furthermore, determinations temporary holding for such Although by parties, article not cited person suspected insanity, each or who Tex.Rev.Civ.Stat.Ann., 5547-27, provides for legally adjudged insane, has been there shall emergency mentally an admission of a dis- provided special be enclosure room or >» facility hospital person turbed into a suitable authority peace below, light on the of a health or officer of the other statutes cited hours, twenty-four period appear un- prohibits (with not to exceed would that article 5115 exception noted) insanity for further less there is court authorization civil commit- person jail, requiring detention. It is unclear whether a ments to a rather than the re- may subject charged lease or transfer with a criminal offense of those held there on charges the basis of criminal 5547-27. There is also no evidence but who are coin- to article have, however, cidentally Department insane. We aware of this been cit- that the Sheriffs court, get Assistant District in- Attorney legal process an court formed her that office could make no The added that committed.”8 charges determination about filed possibil- MHMR and his office discussed the until he was against Lozano indicted.7 ity withdrawing complaints charging Sheriff, Faught, The Elton testified that assault.9 Al- aggravated Lozano with policy it was the of his office to seek trans- the misdemeanor were dis- though charges problems fer of inmates with mental death, felony missed before Lozano’s suicidal tendencies a mental health facili- Lozano,10 charges pending against remained ty. He further testified that MHMR made jail.11 and he therefore remained in his office aware that Lozano should be in a Early morning January of Sunday, hospital, mental and that it was his under- 22, 1978, began creating distur- standing conferred “[MHMR] bance the inmates of the southwest among office, attorney’s the district at- county block, cell where he had been confined for torney’s process office and were in the getting going him committed —Of several through days. jailer duty, Harold department article or that the was advised of it his valid driver’s license. The affidavit Texas by anyone the MHMR workers or else. The further shows the criminal mischief suggests hospital Johns, charges record Murphy, that the state filed and Davis Big Spring had a rule that forbade the admis- were dismissed them on persons charged sion of with a criminal of- respect no action was taken with fense. Johns, felony complaints Murphy, filed charging aggravated and Davis Lozano with 7. Lozano had not been indicted at the time of *5 peace assaults on officers. testimony strongly his death. Rothstein’s indi- Attorney’s cates that she felt that the District 11. Lozano’s mother common-law wife having charges office was an obstacle to were, meantime, trying post to bond for against Lozano dismissed. As to the Sheriff They his release. contacted a bondswoman deputies, and his she testified that Pecos, Texas, Martin, named Donna who told “very good” relationship MHMR had a them that a bond for Lozano’s release would always coop- them and had received the utmost $200. cost Lozano’s mother testified that she eration from them in connection with mental bond, pay though could not to afford for the patients. asked, On then “... [T]he money Lozano’s wife testified that she had the problem you was when went to the District pay Martin, however, for it. later informed Attorney’s you office and talked to the Assist- Stringer, them that she had learned from John Attorney, you get ant District were unable to Odessa, a bondsman in charges that bond could not be dismissed and therefore he [Loza- Stringer jail, correct?”, made on Lozano. testified that he had had to remain in no] responded, is that she “Absolutely right.” been contacted one of sisters bond, making about and that had talked he Faught also stated that once MHMR was in- deputies, with one of the either Kloss or Tom- custody formed that his office had of a mental- McMeans, whom, my he one or the other of ly inmate, “[t]hey disturbed took care of it from testified, signed told him that com- point on.” papers, mitment and that he not be could freed Stringer present- on bond. added that he never 9. While Deputy Johns testified that he had dis- proper ed a bond on behalf of Lozano to the charge cretion “with due cause” to dismiss a he telling Stringer Sheriff’s office. Kloss denied against person, filed a there is no evidence that that no bond could be made for Lozano. Faught Johns, could have ordered or the testify. special McMeans did not In answer to deputies charges other against who filed Loza- 24, issue number found that neither no, charges, to dismiss the or that the Sheriff intentionally misrepre- Kloss nor McMeans had charges could have had the dismissed himself. Stringer signed sented to that Lozano had com- papers deprive mitment in order to Lozano of 10. Plaintiffs Virgil introduced the affidavit of right Appellants his constitutional to bail. Lumpee, County Peace, an Ector Justice of the attempted finding. have not to set aside this 11, 1978, January which states that pleaded guilty only Issue 24 was the issue submitted in re- charge driving to the at an spect (except to the matter of bail for issues speed, unsafe $50. and was fined Bail was they which were unanswered because apparently charges fixed on the other at this conditionally submitted on an affirmative an- Judge Lumpee, January time. 24), swer to issue neither re- charge display dismissed a of failure to a valid quested any objec- complaint driver’s other issues nor made license based on a filed Deputy charge. to the judge Kloss after tions Lozano showed the Farnum, related Dr. Mitis’ green again, moved Lozano into the east [sheriff’s office] that he room, suggestion George Later that stated padded which was a cell. would send two Cen- distur- began creating another day, [Medical back to the Hospital] bring Larry ter bance, (or George Captain) Ol- jail.” Hurst at MHMR and told her esh called “gone Lozano had berserk.” Hurst Harrison and p.m., Sergeant About 3:00 Mitis, Dr. testified that she then contacted and Lee Holloman Deputies Ricky Kennedy for Lozano to be arrangements who made Lozano.12 hospital pick up drove to Hospital to the admitted Medical Center Harrison testified that found Lozano Odessa. At 2:15 Lozano was taken to p.m., in his on the fifth floor. barricaded room hospital security in a room placed up Lozano had shoved his bed and mattress hospital on the fifth floor. door, and would not let refused to admit Lozano unless the Sheriffs nurses, else, anyone in the room. Harri- office deputy guard furnished stand son and the forced their into deputies’ way this, again over him. Upon learning Olesh room, began talking and Harrison Hurst, possi- called and asked her if it were Lozano. He that Lozano “was testified arrangements ble to make for Lozano to be ducts, conditioning afraid of the air he taken Big Spring Hospital, State since kept telling could hear noise. He us some-
the Medical guard, Center wanted him.” trying get one was Harrison add- spare job. could not a man for this ed that the medical staff was afraid of Lozano, but that Lozano was finally given In her report, sedative a nurse. Harrison further testi- evidence, plaintiffs put Hurst states: fied Lozano was neither violent nor “I told that I thought would be [Olesh] hospital, hostile at the but was anxious to impossible for us to make that kind of leave.13 arrangements I best could do Emergency was call our the deputies Services Coordi- When and Lozano returned nator, get jail, Natalie Rothstein and have her put Lozano was back into in touch with proceeded give him. I cell. Harrison testified that as *6 cell, Natalie a call at her residence. went to him in the seemed put “Larry She agreed resist, to take care of calling depu- up, just to blow he seemed to and we ty.” .. . talked to him for a few minutes. He finally calmed down and went on into his Rothstein, report, in her which plaintiffs patrol. cell.” Harrison went back on then evidence, also put states: Later, p.m. day, about 7:00 that same “I then called George repeated Olesh who jailer duty Jackie that he could not spare a man to stand night, banging coming heard a loud noise guard and wondered if Dr. Mitis could report, from the side His jail. west order medication for sedation and added by plain- which was introduced in evidence place would then in the Larry tiffs, states: ‘green room’ back at the County Jail. I Mitis, called Dr. who said he would order “I arrived the west side and noticed sedation to given Larry immediate- glass coming green from the west room ly Lozano, before he transported would be back to where the subject, Larry Ortega jail. He also stated that he would for his kept safety protec- prescribe oral starting again subject medication tion. I noticed that morning which we could take to his head banging violently against jail give Larry Subject’s twice ‘look head daily. glass through hole.’ This worker George then called at the was bleeding very badly. I also noticed Sergeant Harrison testified that he was in 13. Harrison also testified that Lozano had charge Kennedy hospi- previous trips hospital and Holloman at the made several for tal. sedatives. in his cell. At halí floor. also testified light
that his was still on Several over the hall floor in jail glass I rushed back office was all this time of Lozano’s cell. The added to control front Sheriff help and called downstairs for to talk to Lozano: “I told him that he tried subject hurting remove the before going get who I was and that we During himself. this time I observed the [were] take it calm and help, just easy ... and ... subject and to talk to him and calm tried ” But, weapon let me have his .. .. At this time I noticed the down. Sheriff, Lozano did not according to subject a metal from the pull piece acknowledge presence, his words or his plumbing ring]. metal toilet I tried to [a the cell door kept hitting and the subject into giving piece talk the ring. cell door window with the toilet subject me. The would not listen to me. jail I then returned to secure the area unclear, appears the record is Although help before arrived. I then went back to that, at point, this the Sheriff went back check on Lozano and noticed he had bro- call a Murphy downstairs and instructed light ken bulb I then out of his cell. Sergeant Doctor Tatum.15 Harrison then subject bang noticed still would arrived16 and was instructed Sheriff on the door with the broken glass to go upstairs. Harrison testified that pull glass panel from the with his Sheriff also told him that a doctor would be hand.”14 there presently give Lozanea sedative. The Sheriff wanted Lozano removed from Deputy Murphy, who was downstairs and the cell so that this could be done. acting as dispatcher night, received Jailer Perkins’s request help and called According report, to Harrison’s several units for assistance. These units evidence, plaintiffs put also “When I Martin, Deputy Skip consisted of Deputies jail, Randy Tenney, Skip arrived at Kennedy Holloman, Deputy Randy Martin, Perkins, Rick De- Kennedy, Jackie Tenney. Murphy’s report, in ev- introduced Holloman, wayne Roger Weaver Gary by plaintiffs, idence depu- states that these jail Mitchell area.”17 Harri- [were] ties began arriving at the about 7:10 son instructed these officers to remove their p.m., Warden, and that a Game Gary State ties and belts. Mitchell, and an officer of the Texas De- Harrison, Tenney, began and Martin then
partment (“DPS”), of Public Safety Roger trying they got to talk to Weaver, responded to the call. Sheriff response. Several of officers testified Faught also arrived. that Lozano the cell kept banging door with
The Sheriff instructed the officers to re- the toilet and some he was ring stated move weapons. screaming, leaving “I’m this world.” At officers then went toup Lozano’s cell. As point, Harrison asked other officers *7 cell, approached advice, for their Tenney Sher- testified that iff testified that he could hear Lozano suggested beat- Mace into the cell to spraying ing door, on the cell and that he could see disable long enough Lozano for the officers “glass shattering, coming out of the possi- to subdue him with as little as injury [cell in the door” falling onto the ble accepted to all concerned. Harrison window] trial, 14. At just Perkins added that he never saw turn after he arrived at the and before Lozano hit the cell door window with toilet upstairs he went to Lozano’s cell. ring, piece plumbing the metal event, Perkins saw Murphy testified that Doctor Tatum was with, only Lozano with his head. This p.m. called at 7:25 ring toilet was mounted over the floor “toilet” opening with flatheaded screws. The Sheriff 16. Harrison testified that he was called over ring testified that was three fourths of an dispatcher the radio either the Sheriff or the thick, wide, inch three fourths of an inch (Murphy) jail. to return to the twelve inches diameter. Tenney, Harrison Murphy’s testimony 17. testified that indicates that the Sher- already may was at Lozano’s cell before he arrived. iff have instructed him to call Doctor Ta- then Tenney’s suggestion, Tenney wrong? ‘What is You don’t have to do ’ I never a small amount of Mace into the this ... . And had chance.” sprayed Mace, however, cell.18 The failed to disable that he felt “fear for Tenney my added Martin, he, and, according Lozano way life” because of the Lozano held the fact, more violent. The Mace became way and the he was at him. glass looking briefly caused the officers to leave the area other, Tenney lunged and Lozano each dispersed Tenney, until it somewhat. how- Tenney threw headlock around Loza- ever, testified that the decided to Tenney applied no’s neck. testified that he quickly possible return as before the pressure as much as he could while he had dissipated According Mace inside the cell. Lozano in the headlock. Perkins and sever- to Tenney’s report, by plaintiffs, introduced al of the other officers rushed in quickly several again officers tried to talk to Loza- floor, and forced Lozano to the thus break- no, very but he was still hostile. The offi- ing Tenney’s headlock. it is Although un- attempted cers then to trade Lozano a clear, the and Perkins testimony Tenney flashlight ring. for the toilet After several suggests that have Tenney may applied a minutes, enough Lozano stuck the far ring second headlock to Lozano to hold him on through feeding or “bean” hole in the the floor. grabbed Tenney by Lozano cell door so that several officers were able genitals and began biting Tenney’s stom- pull from away grasp.19 ach. Perkins testified that he Lo- grabbed taking ring away After pulled zano under the chin and him off of Harrison open Tenney. instructed Perkins to the cell was then Lozano rolled over on door. The cell Kennedy stomach, was dark. testi- his hands were pinned behind fied stepped back, that Lozano into the light from his and he was handcuffed. Harrison the hall and that face everything that he testified instructed the officers to “[h]is had blood on it.” stepped Lozano back into place security belt on Lozano. After this darkness, done, and then again picked toward the officers up Lozano cell door. who was Tenney, just closest to the took him outside of the cell and laid door, cell stepped Harrison inside the him on the floor near the cell door. At this cell. point, Harrison testified that left the cell area Lozano “had and did not glass hand, ... in his left return. glass sliver of wide, about an inch maybe four or five Lozano continued to struggle, long.” Tenney inches testified that Lozano security belt tightened. point, At that glass in each hand. The testimony also upstairs. Sheriff returned Harrison no- shows that considerable broken glass was ticed that lying Lozano was on broken on the cell Tenney’s report floor. states glass, and Lozano was moved farther down
that, approached Lozano, as he he noticed hall glass, out of the area of the broken “appeared to have a large where it was intended for Lozano to remain amount of blood on him very and to be until the doctor Martin arrived. testified hostile and angered.” Tenney testified: kept beating his head on the
“I didn’t know who was. I was this, floor and that to kicking, prevent [Lozano] going try to establish communications officers, two one of whom was held him, but he had his arms above his down his two other officers legs and held head, glass hands, in his and I hollered at down his shoulders. Sheriff and Mar- *8 officers, one of the other I said ‘Who is tin to get then went downstairs some leath- he? Who just is he?’ I wanted to ad- leggings place er on Lozano’s ankles to mostly, dress him I was fixing keep kicking. to ask him from Sergeant Kennedy Deputies 18. Harrison testified that testified he was not 19. Martin and present sprayed away when ring the Mace was into the the toilet was taken Harrison, testimony by cell. There is no how- sprayed before the Mace was into the cell. ever, regarding gave Tenney whether or not he permission spray the Mace into the cell. time, injuries could have been self-inflict- Deputy Philip
About this Reserve pharmacist expe- ed, Neundorff a with first aid it was difficult” to tell “very and rience, report, by arrived. In his introduced all inten- “they whether accidental or that he “no- plaintiffs, Neundorff stated Both Doctor and Doctor tional.” Santos in color of hands change ticed [Lozano’s] testified, effect, that Lozano Jachimczyk so relaxing, and arms and knew was a traumatic injury died as a result of restraint I longer necessary.20 was neck, asphyxia, which caused and that breathing and heart beat checked [then] produced fatal neck could have been injury deputies There was none. Then the [sic]. neck. by headlock thrown around Lozano’s I him gave rolled over and a heart massage. I worked at this for about six II. depu-
minutes and turned over to another ty and state for about one DPS [a officer] minute, then I tried it again, to no PROCEEDINGS BELOW ambulance, avail.” An which had been Rene Appellants Randy Lozano and Law- called, arrived, and one of the attendants Lozano, rence Dereck through their also gave Lozano heart but he was massage, mother, Rufina Alvarez as next unsuccessful in his efforts to revive Lozano. friend, 22,1980, filed suit on Doctor Tatum arrived about p.m. 8:00 federal district court for the District of pronounced Lozano dead. An inquest was seeking damages declaratory Columbia held, subsequently which found that Loza- deprivation relief “to redress the under col- no’s death had been accidental.21 statute, ordinance, or of regulation, custom testified, All the who and their usage right, privilege of a or immunity reports which were prepared pursuant [appellants] secured to and their deceased Sheriff’s instruction the of Loza- Fourth, Fifth, Eighth, father evidence, no’s death and admitted into were Fourteenth the provisions Amendments and that, unanimous in their assertion other 1981,1983, 1986, of 42 U.S.C. 1988.” §§ than the headlock thrown around Lozano’s complaint also stated that pen- “[t]he neck by Deputy hit, kicked, no one Tenney, jurisdiction dant of this Court is invoked to or sat on during the incident. At consider Plaintiffs’ claims arising out of” trial, however, appellees’ expert, medical I, 9, 13, Article sections and 19 of the Texas Joseph Doctor Jachimczyk, Chief Medical 1.09, Constitution, 15.16, 15.17, articles 16.- Examiner for Harris County, testified that 21, 17.01 et seq., 43.24 of the Texas according to the autopsy reports Lozano Procedure, Code of Criminal and articles had 115 separate injuries to his Doc- body. 5115, 5116, and 6866 of the Revised Civil tor Jachimczyk testified that injuries these of Texas. Statutes State were not “self-inflicted,” but that “the vast majority” The suit was filed a host of feder- them “could” have been “acci- n dentally al, state, officials, Appellants’ inflicted.” and Ector County many medical ex- pert, Dr. Santos, trial, Reuben also a medical of whom were dismissed before examiner, testified that “some” but all parties who are not to this appeal.22 On Childers, Johnson, 20. Harrison County testified that he had Ken- Commissioners nedy loosen Guerrero, Watkins, Pressly, County Judge handcuffs on Lozano. Harrison, Faught, Sergeant Deputies Judge Lumpee presided inquest at the hear- Johns, Davis, Kloss, Martin, Murphy, Tenney, ing. testified, objection, He without that a Holloman, Kennedy, and and Jailers Perkins returned a verdict of “accidental death” after The record Farnum. shows hearing presented. inquest the evidence This Company surety sued St. Paul Insurance as the Attorney. was conducted the local District Faught deputies, for Sheriff and his but that St. Attorney An Assistant Texas General was summary judgment Paul’s motion for present. granted ground St. Paul was not the surety ruling trial, for those defendants. This following 22. When the case went appealed. appear It does not that the Sher- defendants were still in the lawsuit: the Coun- identity ty surety, is not shown County, iff’s Commissioners Court of Ector
765 There, proceeded the case to a 10,1980, court trans- Texas. the district September trial,23 week-long jury jury, after which the case to the District of ferred the Western record, custody), (forbidding persons 43.24 The in his and ever made a defendant. execution) prisoners awaiting director were of Permian Basin MHMR and its ill-treatment Procedure, defendants, subsequently Texas of and also made but were of the Code Criminal bond), (jail voluntarily by appellants. (sheriff’s 5115 stan- dismissed articles 6866 dards), (sheriff and 5116 and con- Attorney The federal defendants were the safely keep prisoners there) jail and trol States, States of the United the United General Statutes Annotated. It Texas Revised Civil Justice, Department of Attor- Sheriff, alleged was also Commis- ney Rights for the Division of the General Civil sioners, Perkins, jailer, and were liable for Department United States of Justice. The having his Latin denied Lozano “because of complaint alleged they conspired to ob- ancestry” rights “as those afforded to the same grand jury’s investigation into struct a federal of 42 Sec. white citizens ... in violation U.S.C. ancestry. because of his Latin Lozano’s death by failing provide a safe and suitable 1, 1981, 1981 April the district court dismissed On jail, resulting in loss of life to the deceased defendants, against holding these claims ” However, issue or instruction was .... against capaci- suit them in their official jury any equal protection submitted to the as to by sovereign immunity ties was barred and against (racial, against ances- appellants discrimination a claim failed to state cultural, tral, otherwise) by anyone individually. Appellants an them dismissed appeal ruling. time. earlier The state defendants were DPS Officer complained Appellants’ first cause of action Mitchell, Warden who as- Weaver Game Murphy, deputies-defendants of the actions of Kloss, Johns, subduing sisted the in Lozano on the beating dur- and Davis in They before of his death. were dismissed ing January and later “that his arrest on 10 appellants’ trial because had run limitations on night,” using in same “force excess of ruling ap- claim This was not them. necessary to effectuate an arrest.” It was al- pealed. defendants, acting leged under color that these trial, After the rested their case at law, deprivation subjected of of Lozano “to granted verdict the district court an instructed rights, privileges his and immunities secured County in favor of the four Commissioners Amendment of the U.S. Consti- the Fourteenth tution, County Judge, capacities, in their individual I, and 13 of the Texas Article Sections 9 Farnum, apparently Jailer and for both and 43.24 and Articles 1.09 State Constitution capacities. appeal individual and official No Texas Procedure Code Criminal ” rulings. has been taken from these 42 Section 1983 .... contravention of U.S.C. only jury against appellants on the The found Appellants’ complaint specified six num- respecting this cause of ac- issues submitted bered causes action. Their fourth cause of. tion, complaint find- and no is made of these action, only remaining one material on this (cid:127) action, ings appeal. and also This cause of appeal, complained of the events on the eve- third, additionally the second and contained 22, ning alleged that a few allegations complained of actions were hours after Lozano was returned to the ancestry” Latin taken “because deceased’s hospital from the he was beaten and abused 1981, but, noted, in violation of U.S.C. § Harrison, Tenney, Kennedy, Murphy, jury theory as to no such was submitted to Martin, Holloman, Mitchell, Weaver, Farnum, any of the causes of action. The second cause Newman, law, acting under color “refusing complained of the Sheriff’s of action death, manner that caused his that “far exceed- deceased, accept bail a bailable ed that which would have been reasonable to case, in State Constitution violation of Texas cell,” restrain the deceased in his Texas Article I ... Code [ ] [section] punishment, that constituted cruel and unusual [taking Articles 15.16 ar- Criminal Procedure depriving rights, him of his under the Four- magistrate], before a 15.17 [duties restee Amendment, it, through teenth under the admitting magistrate, including arrestee to bail] Amendment, person, Fourth to be secure only seq. issue sub- and 17.01 et. Amendment, [bail].” deprived Fifth under the not to be to this cause of mitted to the in reference law, process of life without due and under favorably Amendment, was answered to the defend- Eighth action to be free of cruel and (see supra), and this cause of ants note punishment. They alleged unusual pursued appeal. The third action is not “defendants’ actions and/or failure to act fur- complained of the failure “to (search seizure), cause of action ther violated” sections 9 (denial punish- the deceased to a mental institution or transfer of bail and cruel and unusual 5115,” ment), hospital Tex. (due process) ... in violation of Article I of Article of the (see supra), Constitution, (excessive and as- Rev.Civ.Stat.Ann. note Texas articles 1.09 bail County County Judge punishments), and cruel and unusual 16.21 serted that (sheriff means, keep safely, in this connection without cruel were liable Commissioners *10 766 issues, injuries caused the submitted un- failure special response
in However, the of Lozano. and/or the death 49(a), Depu- found: that der Fed.R.Civ.P. found that the “Commissioners jury further did not use excessive and Kloss Murphy ties perform- were Faught Court” and Sheriff Lozano on arresting force in good in faith at the time ing their duties 1978; Johns and Davis did Deputies that made no ob- injuries. Appellants Lozano’s booking in Lozano force not use excessive or issues sub- jury charge to the arrest; jections mitted. Perkins used excessive Tenney and Jailer Lozano in restraining subduing and force trial, moved to set aside After jail, Deputies but County the Ector Tenney and jury findings Martin, Holloman, and and Ser- Kennedy, and the Commissioners and the Sheriff not; the use of Harrison did geant Court, Appellants faith. good acted force and Perkins excessive to set aside the failure asked the court injuries cause of Lozano’s proximate damages for the jury to award death, were they performing but that rights. Appellees civil violation of Lozano’s occasion; faith on that good their duties based on the judgment filed a motion for Harrison, Mar- Kennedy, that neither alternative, but in the findings jury; Holloman, tin, Tenney, subject- nor Perkins disregard court to they moved district punishment ed to cruel and unusual finding that the Commissioners jury envi- or failed to him with a safe provide super- failed to Court and the Sheriff county ronment while incarcerated and facilities. personnel vise their
jail. The that the “Commission- jury found each “failed to motions, ers Court” and of these Upon consideration so as súpervise personnel their facilities jury finding court held that the district of” Lozano’s recognition to insure Jailer Perkins act Deputy Tenney [sic] rights; right “civil Lozano’s specifically, “the supported by faith was good ed be free from the use of excessive force of the evi great weight preponderance during custody; court, however, an arrest and while in Lo- set aside dence.” The un- right part zano’s to be free from cruel and jury finding good faith on Sheriff, usual punishment; right and Lozano’s to be hold Commissioners Court City Independ ing that under Owen provided a safe environment while incarcer- ence, 1398, 63 ated.”24 The jury also found that 445 U.S. S.Ct. provide exemplary damages. The sixth and final for “failure defendant al and [Sheriff] Faught only against procedures with a the federal manual of for such cause of action was transfer,” defendants, (see such was in trial note manual was dismissed before “[i]f provided, Faught pursued. supra), fact defendant violated Arti- and is not here by willfully maliciously failing cle 5115 ... respect supervision question, to the causing comply to and/or to fail to others jury: court instructed the district procedures.” Liability was asserted under you “If that officers used excessive force Fourteenth Amendment U.S.C. find death, allegations then § 1983. These were not submitted Lozano and caused liability pursued. you may consider the of the Commis- and have not been County alleged fifth and the Sher- cause of action that the acts com- sioners’ Court of Ector duty plained previously alleged charged by with the of in the causes of iff who are law brought personnel seeing under action that the facilities and about Lozano’s death and were compliance rights, with con- “in violation of their control are run in the deceased’s civil standards____ you may provided by the United stitutional The test States and Texas Con- supervisory determining stitutions and the whether statutes of the United States use Texas; rights is whether and the cause of action which the officials violated Lozano’s Larry Ortega may they deceased that Loza- have had knew or should have known violated, rights rights the violation of his civil civil and his no’s untimely plaintiffs death accrues to exercise control or failed to herein whether did they bring for which have exer- this claim.” It also al- exercise control when should leged prevent injuries and that defendants’ acts cised control to and omissions were grossly negligent, willful or and asked for actu- death.” (1980), they L.Ed.2d 673 were not entitled III. *11 good
to assert
the
faith defense.25 But the
THE SHERIFF
court
further held that
there was no evi-
the
Appellants contend that
district court
findings
support
jury
dence
the
the
holding
erred in
that there was no evidence
Commissioners Court
the Sheriff had
the
support
jury finding
the Sheriff
their
supervise
per-
failed
facilities and
had
his
supervise
failed
facilities and
sonnel,
any event,
and that
in
this failure
personnel.26
that,
Appellants argue
on the
a
deprivation
was not
constitutional
since
death,
night of Lozano’s
Sheriff
Faught
showing
there
no
such failure was
notice of Lozano’s mental condition and of
custom,
practice
or
enforced
policy,
situation,”
potentially explosive
“a
yet
court,
therefore,
The
them.
district
ren-
the
failed personally
supervise
take-nothing
against
dered a
judgment
ap-
and to direct his officers
their handling
pellants.
situation,
of the
specifically the removal of
Owen,
above-noted)
Supreme
provided
25.
Court held that cities
in the Act. The Texas
sued under section 1983 are not entitled to a
decisions also indicate that
Commissioners
qualified good
immunity
faith
on
based
responsible
supervision
Court was
for the
good
faith of its officials.
the offi-
jail respecting
operation,
of the
its actual
its
qualified good
still retain
cials
faith immu-
employees,
safekeeping
prisoners.
and the
of
nity
capacities.
in their individual
Vance,
702,
County
See Wichita
v.
217 S.W.2d
(Tex.Civ.App.
1949,
704
Worth
writ refd
—Fort
appeal, appellants apparently
do
On
not at-
n.r.e.).
Op.Atty.Gen. 1978,
See also
H-l
No.
190
judgment
tack
district court’s
for the
supervise, direct,
(authority to
or control the
(which
“Commissioners Court”
consists of the
daily operation
county jail
actual
vested
of
Commissioners,
County
four
each elected from
sheriff, although
the commissioners
precinct,
County
a distinct area or
general responsibilities
court
have
does
in con-
Judge,
County).
elected
entire
We note
operation
jail).
nection with the
of the
See also
any
there was
no
County Navigation
Torres v. Aransas
District
County Judge,
per-
Commissioners or the
or
1,
903,
(Tex.Civ.App.
No.
346 S.W.2d
904
by them,
personally
hired
sons
were
involved in
—San
1961, writ) (commissioners
Antonio
no
coun-
affair,
proof
the
decision,
nor was there
of a
ty
navigation
custom,
be
policy
district could
sued individual-
sanctioning,
or
or of
ly,
capacities);
involving,
but not
their official
v.
the occurrence of other
Jones
incidents
Sulphur,
304,
Depart-
use of excessive force
Texas
397 S.W.2d
308-09
Sheriffs
Gulf
1965,
(Tex.Civ.App.
n.r.e.).
ment
individuals
and/or
arrested
con-
writ refd
—Houston
county jail.
County
fined
liability
has no
And,
22,
appel-
supra,
as observed in note
Act,
under the Texas Tort Claims
Tex.
appealed
lants have
from the instructed
14(9)
Rev.Civ.Stat.Ann. art. 6252-19. Section
County
verdict for
Commissioners and the
expressly exempts “[a]ny
of the Act
claims
course,
Judge individually.
no
were
Of
issues
arising
on
based
'... or
out of the failure to
any
jury,
submitted to the
in-
nor
there
provide,
providing, police
or the
method
or
structions, respecting any of the Commission-
protection.”
County
fire
See Davis v.
of Lub-
County Judge individually.
ers or the
bock,
109,
(Tex.Civ.App.—
486 S.W.2d
appellants
We also note that
did
not attack
1972,
writ).
County
Amarillo
See also
court,
appeal,
jury
the district
nor
find-
on
Radtke,
326,
(Tex.
Brazoria
Civ.App.
566 S.W.2d
Johns,
ings
Kloss,
Murphy,
that exonerated
Da-
n.r.e.)
refd
writ
—Beaumont
vis, Kennedy, Martin, Holloman, and Harrison
(county is not
under
liable
state
for
law
failure
parts
played
for
the various inci-
supervise deputy sheriff) (dictum).
train
involving
dents
Lozano. Nor have
14(10) exempts “[a]ny
arising
Section
claim
out
officers,
findings
attacked the
assault, battery,
imprisonment,
false
or
including Tenney
subject
did not
expressly
other intentional tort.” Counties are
punishment
cruel
Lozano to
and unusual
or
liability
exempted from
under
Texas
deprive
of a
safe environment while incar-
Wrongful
Act,
Death
article
Tex.Rev.Civ.
this,
county jail.
cerated in
Stat.Ann.,
Because of
we
although under
section 3
the Tex-
appellants’
appeal
consider that
claims on
re-
may
as
“property damages,
Claims
Tort
Act counties
be liable for
garding
necessarily depend
the Sheriff
personal injuries
or death”
resulting
operation
sufficient evidence that he
to su-
from the
or
of a
failed
use
motor
pervise
tangible
personnel
vehicle or the condition or use of
his facilities and
as to
real
so
personal
however,
property, subject,
protect
right
free from the use
(see
exceptions
14(9)
14(10),
sections
force.
excessive
Tex.Rev.Civ.Stat.Ann.,
im-
Article
They
cell.
further
Lozano from
duty
super-
Texas sheriff the
poses
failure
argue that the Sheriff’s
vising
county’s jail:
“the absence of
was also manifested
instruction,
guidance
any training,
keeper
is the
“(a) Each sheriff
concerning
keep
critical de-
county.
safely
individual officers
He shall
of his
primarily
use of
committed thereto
partmental policies,”
prisoners
therein all
Upon
subject
re-
to the order
restraining
prisoner.
authority,
force in
by lawful
record,
court,
we must agree
responsi-
view of the
and shall be
proper
*12
no legal-
that there is
of
keeping
prisoners.
with the district court
ble
the safe
such
for
the
evidence that
Sheriff
ly sufficient
a
to
may appoint
jailer
The sheriff
“(b)
his
to
facilities
supervise
failed
wrongfully
the
charge
jail,
supply
take
personnel.
confined;
in
those therein
wants of
super-
all
the sheriff shall exercise a
cases
1983,
liable under section
a
To be
jail.”
vision and-control over
either
involved
personally
sheriff must be
Tex.Code
art. 16.21.27
Crim.Proc.
See
causing
deprivation
in the acts
of a
Thus,
can be held
a Texas sheriff
person’s
rights,
constitutional
or
must
if his own suffi
liable under section 1983
an
be a causal connection between
act of
supervise the
wrongful failure to
ciently
the sheriff and the constitutional violation
injury.28 How
jail causes constitutional
Jones,
to
v.
sought
be redressed. Douthit
ever,
be
liable
may
held
Sheriff
345,
(5th Cir.1981).
641 F.2d
346
A causal
basis
vicarious
1983 on the
of
under section
established,
connection
for section
may
or
of his
acts
omissions
liability
purposes,
1983
where
dep
the constitutional
Parker,
1205,
602
deputies. Baskin v.
F.2d
a
practices
rivation and
occur as
result of
Cir.1979);
621
(5th
Gladney,
1208
Dean v.
implementation
of the sheriff’s affirma
1331,
(5th Cir.1980), cert.
F.2d
1334 & n. 7
subordinates,
policies
tive
his
wrongful
1521,
denied,
983, 101
67
450 U.S.
S.Ct.
Bonner,
675,
(5th
Wanger v.
621 F.2d
679
v.
(1981); Watson
Interstate
L.Ed.2d 819
Cir.1980), where the
wrongfully
sheriff
Co.,
120,
(5th
Fire
611 F.2d
123
& Cas.
duty
breaches an affirmative
im
specially
1316,
Smith, 663
Cir.1980); Reimer v.
F.2d
upon
law,
state
and as a
posed
him
result
Cir.1981).
(5th
1323
thereof,
complained
of constitutional
Here,
that the
did
King,
undisputed
tort
Barksdale v.
699 F.2d
it is
Sheriff
occurs.
Douthit,
744,
Cir.1983).
participate
alleged
746
(5th
personally
641 F.2d
346;
though
Adams,
829,
v.
F.2d
831
administered to
beatings
Sims
537
restrained, subdued, and re-
(5th Cir.1976).
Lozano was
county power,
provides:
itory
official
27. Article
his
conduct
16.21
necessarily be
those
decisions must
considered
safely
“Every
keep
person
shall
sheriff
may fairly be said
of one ‘whose edicts or acts
custody.
his
shall
to
He
use no
committed
policy'
represent
coun
to
official
for which the
end,
cruel or unusual means to secure this
ty
responsible
may
1983.-
be held
under section
adopt
necessary
but shall
all
measures
to
”
alleged
arguable
it is
Id. While
thus
prevent
escape
may
prisoner.
of a
He
Faught
supervise
failure of Sheriff
to
tortious
number,
guard
summon a
of sufficient
jail
personnel
his
would constitute
facilities
necessary
prevent
case it
to
an es-
becomes
part
wrong
the Coun
constitutional
cape
prisoner.”
jail,
of a
rescue
itself,
ty
find insufficient evidence
because we
failure,
this
we do not reach
Briscoe,
of such tortious
v.
391
Familias Unidas
619 F.2d
question
is
nor all the Eleventh Amendment
(5th Cir.1980), this
noted that
Court
because
answer
it would
an affirmative
sues which
county
unique
government
“the
structure
2;
Briscoe,
present.
404 col.
See
619 F.2d at
virtually
Texas
the sheriff
holds
abso-
...
...
1237,
Texas,
F.Supp.
State
534
Crane v.
particular
sway
lute
tasks or areas of
over
(N.D.Tex.1982);
Ooteghem v.
Van
1243-45
responsibility entrusted
state
statute
304,
Cir.1981)
(en
(5th
Gray,
F.2d
306
654
accountable
no one other than
denied,
909,
banc),
102 S.Ct.
455 U.S.
cert.
voters
619
for his conduct
therein.”
F.2d at
Sullivan,
(1982);
Doe v.
L.Ed.2d 447
county
404. The
also noted that where
Court
(W.D.Tex.1979).
F.Supp.
976-78
authority
repos-
official
or ultimate
“is the final
pursuant
from his cell
to the Sher-
tion of his deliberate indifference. There
moved
is, however,
Nor
no evidence
the record which
iff’s command.
Sheriff
alleged
findings
would sustain
that the Sheriff was
beatings
when the
present
trial,
negligent or
indifferent
sought,
grossly
deliberately
occurred.
appellants
have
At
instead,
regarding
discharge
supervisory
his
be-
to establish
causal connection
duties,
findings
nor were any such
made.30
tween the Sheriff and
constitu-
injuries by proving
tional
the Sheriff
question
This leaves the
of whether there
failed to
facilities and
had
his
that,
single
sufficient evidence
and,
extent,
personnel,
some
occasion, the
wrongfully
failed
use
failed
train his
discharge
supervisory
over the
duties
prisoner.
force to restrain a
We
physical
our
officers.31
review
outset,
note at the
record,
most
light
taken in the
favor-
charged
was not
on the failure
train
able
as required by Boeing
Co.
Furthermore,
theory.
appellants did not
(5th
Shipman,
411 F.2d
374-75
Cir.
request an issue or
regarding
instruction
1969), has failed to disclose sufficient evi-
*13
training (nor
the complaint
does
contain
dence of
the
culpable negligence on
Sher-
any allegations concerning
train).
failure to
part.
iff’s
We
appellants’
therefore do not consider
The evidence shows that on
of
the
arguments thereon
a
for
as basis
reversal.29
1978,
January 22,
Sunday,
Faught
Sheriff
the
Regarding
alleged
Sheriff’s
failure to
jail
arrived at
after
the
sometime
seven
supervise, we note that
no conten-
o’clock, after being
telephone
notified by
tion that this asserted failure was intention-
that his
a
having
problem
officers were
knowingly
al or
with
pur-
committed
the
with an inmate.
the
When
Sheriff arrived
pose
Lozano,
of injuring
that was the
at
jail,
the
he instructed those officers who
custom,
result of an
practice,
affirmative
already present
weap-
to remove their
policy instituted by
Appellants
the Sheriff.
ons. The
pro-
Sheriff
the officers then
argue
do
that the
super-
Sheriff’s failure to
upstairs
ceeded
to Lozano’s padded cell.
grossly
vise was
negligent,
Lozano,
or a
The
attempted
manifesta-
to talk to
Sheriff
holding
29.
adequate
that there was no evidence that
tions ... would not
an
for
be
basis
liability
White,
1983”);
the Sheriff and the Commissioners Court failed
under
Vela v.
703
§
supervise
personnel,
147,
to
(5th Cir.1983);
facilities and
the
F.2d
153
Watson v. Inter
emphasized appellants’
Co.,
Indeed,
district court
failure to
state Fire &
F.2d
123.
Cas.
611
at
request
held,
that
prisoner
instructed as to the
we have
where a
sub
duty of the Sheriff and the Commissioners
police
dued died as
result
defendant
to train
hold,
Court
how
application
to avoid
officer’s
of a choke
that there
using excessive force.
liability
no
was
section 1983
since
guilty
was
showed
officer
no more
special
inquiring
30.
issue
“negligent performance
whether the fail-
than
of lawful custodi
supervise
to
ure
“was intentional and mali-
al functions” which “did not constitute ‘the
cious” was not answered since it was sub-
government power’
sort of abuse
that
conditionally
finding against
mitted
on a
cognizable
Kelley,
§
under
1983.” Williams v.
Sheriff or the
695,
Cir.1980),
denied,
Commissioners Court on
is-
(5th
624 F.2d
698
cert.
good
sue as to their
faith.
1019,
3009,
101
451 U.S.
pra. While is some confusion there support to evidence is insufficient to testimony several of conflict failed improperly that finding the Sheriff evening on transpired details of what facilities. personnel to area, particularly the cell personally direct That the Sheriff did evi simply nevertheless there is insufficient to efforts of his officers subdue on which to base an affirmative find dence circumstances amount did not under negligent that the Sheriff was ing culpably supervise, especially wrongful failure to failing pres- to realize that his personal Third, appellants fail- other cell was different assert that Harrison’s removed, just stay Loza- one from which he been ure to instruct the officers out of Moreover, Lozano was no’s cell also a lack which was concrete. showed of direction occasions, However, glass supervision. previous hall out farther on moved down taken two restrain await the doctor. it had more than officers to instances, Although Appellants that certain and subdue also assert Lozano. the evidence happened many actually as to en- of Lozano’s unclear how officers that death, before him, supervision by subduing Sher- the cell show lack of tered and aided by appellants on tends to show iff. relied First, they policy argue that assistance of several officers enabled injured prisoner, quickly regarding an them to than the treatment of subdue more Murphy only relying testimony would have been the if two otherwise case attempted policy or three officers had task. that he was unaware if there was Fourth, pris- appellants argue injured Department to ask officers the Sheriff’s an opened go hospital he to a for treat- should have the cell and tried oner if wished to door Murphy, previous attempts he talk also added that since to do ment. normally did, However, question, so had failed. manifest- asked such a Lozano had Sergeant fact, sharp swings go ask wanted ed to Harrison in his Lozano if he hospital mood and Harrison Lo- of the cut he re- behavior. had calmed to receive treatment by talking during zano twice The offi- on his his arrest. before him. ceived forehead Second, argue repeated attempts appellants made failure to cers to calm Lozano talking by Deputy getting voluntarily up report prepared him and follow Tilley days come out of the cell. and filed a few after Glenn Fifth, arrest, appellants say appellants Lo- claim shows that the events which tendencies, place during restraining a lack of took inside the cell zano had suicidal supervision. shows report removal states: of Lozano showed a total lack of This connection, January 11, processing as I was direction. argue the same “On Larry Lozano, talking kept he about how the officers uncertain as to charge. hurry up who was in die so he could come the evidence wanted to way. recognized He shows other officers Harrison back to world in a different nothing ranking as the officer and his instruc- talked about how life was followed *16 tions, person should and Harrison directed trouble. He stated that the officers Lozano, belt, get security place handcuff him in better care of himself and not take up he and remove the cell. He also stated that him from messed like he did. ready to significance respecting just above-referenced, more Of the three believed try reincarnation was contentions the events it.” they clearly place Sheriffs to which are directed took of the The evidence shows that the out presence nothing Department of mental the Sheriff and was aware of Lozano’s there is MHMR, suggest anticipated problems that he should have and that it had contacted jail part, asserted on or on by admitted into the derelictions Harrison’s whose counselors were disturbed, part others, of Lozano matters cited see Lozano. When became appellants placed padded cell. are claimed to he was in a reflect. Sixth, Third, appellants argue a lack that of the claim that there was the failure supervision hospital on the afternoon officers move Lozano to cell of at the another plainly supervision also shows a of direction. evidence lack of depu- argument charge This Lozano that was in of the overlooks fact that shows Harrison hospital, security accompanied Al- him to the was handcuffed and in a though belt. ties who successfully banging he hall Harrison calmed Lozano was head on the that brought floor, without incident. no evidence that floor of back to the the cell
773
any
in the
of
that Harri-
absence
Because
there is insufficient
evidence
son,
officer,
ranking
any
or
of the other
that
was
guilty
wrongful
of
concerned,
incapable
officers
of han-
failure to
his facilities and
person-
nel,
liable,
dling
individually
the situation without
he is
or
Sheriff’s
not
official-
direction,
supervision
ly,
active
for
death under section
in-person
Lozano’s
1983.38
(or
only
38. We do not decide whether the Sheriff indi-
same and
are the
heirs
devi
vidually
Valle,
sees)
be liable
a state
would
under
law
deceased.
v.
Sustaita
38
action,
opposed
cause of
action,
as
ato
section 1983
638,
(Tex.Civ.App.
S.W.2d
640-41
Anto
—San
pure
liability
respon-
on
vicarious
1931, writ);
Angerstein,
nio
no
Martinez v.
517
basis,
wrongful
superior
deat
for the
acts of his
811,
(Tex.Civ.App. Corpus
S.W.2d
816
Christi
—
deputies, pursuant
provisions
of article
1974,
dism’d).
Wrongful
writ
Under the
Death
6870, Tex.Civ.Stat.Ann., that “sheriffs shall be
Act,
brought
expressly
the suit must
responsible
for the official
of their
acts
statutory
of
for the benefit
all the
beneficiaries
4675,
any
including
surviving
listed in article
parent
plain
We think it
state law
such a
cause
Huffman,
of the deceased. See Webb v.
below,
presented
of action
not
was
and it has
893,
(Tex.Civ.App.—
320 S.W.2d
899-900
urged
appeal.
complaint
not been
While the
1959,
n.r.e.). Moreover,
Amarillo
writ ref'd
many
relied on and cited
provisions
Texas statutes and
damages
various actual
as
issues
submitted
Constitution,
appears
of
Texas
it
money
you
asked
amount
“what
of
do
find
these were invoked to establish the de-
reasonably compensate
would
Lozano for this
responsibility
fendants’
for the claimed inva-
rights”
violation of Lozano’s civil
or “would
rights
pur-
sions of Lozano’s constitutional
for
reasonably compensate
if he
were liv
poses
liability
1983,
under section
see Douth-
ing,”
jury
and the
instructed
consider
Jones,
345;
King,
v.
F.2d at
Barksdale v.
pain
physical
suffering;
“Lozano’s
Loza
746,
support
699 F.2d at
or in
of the section
pain
anguish;
no’s mental
allegations
denied his
projected
earnings....
future
Your verdict
rights
ancestry.
state law
because of his Latin
solely
compensate
must be
Lozano for the
complaint
appellants’ proposed
Neither the
nor
deprivation
rights.” (Emphasis
his civil
add
pretrial
(no pretrial
signed by
order
order was
ed.) This reflects a submission under
court)
section
cites article 6870 or asserts that the
1983, not
a state
under
law cause
action.
respondeat
superior
Sheriff has vicarious or
pain, suffering,
liability
While
deputies, apart
the deceased’s
for the acts of his
an
from
guish
duty
part.
some fault or breach
are
his own
recoverable under the Survival Stat
Appellants’
ute,
proposed pretrial
post-death projected earnings
not,
order states the
are
law,
only
limitations,
apart
issues
recovery
damages
are
up
limited
suffered
deprivation
any
“whether Lozano suffered
Wrongful
until
the time
death. Under the
rights”
his constitutional
and “whether Defend-
Act, predeath damages,
Death
as the
such
de
immunity.” Nothing
ants are entitled to
pain
suffering,
ceased’s
are
recovera
suggests
court’s
instructions
vicarious lia-
ble,
post-death
recoverable economic
bility
post-trial
was in issue. Nor do
damages
projected
are
deceased’s
earn
motions.
ings
such,
but rather what he would have
understanding
regard
Our
in this
is rein-
lived,
contributed
beneficiaries
only
forced
the nature of the
two causes of
losses,
say,
respective
that is to
their
not his.
personal
action available under Texas law for
Wrongful
By
See 17 Tex.Jur.2d Death
Act
injuries resulting in death.
isOne
under the
114, 115;
(at 596),
v.
§§
Landers B.F. Good
Statute,
5525,
Survival
article
Tex.Rev.Civ.Stat.
Co.,
(Tex.1963);
rich
IV.
faith
good
follows on the
defense:
THE OFFICERS
if
damages
aren’t liable for
“Defendants
injured or caused
they
that
you find
contention is that
next
Appellants’
their
while performing
death of Lozano
holding
in
that there
the district court erred
is called
faith. This
good
duties in
Deputy Tenney
that
was sufficient evidence
they
It means that
good faith defense.
their
performing
Jailer Perkins were
peace
ordinary
acted
and reasonable
the time of
good
duties in
faith at
act under the circumstanc-
officers would
with
Although
agree
we
the dis
injuries.
es,
reasonably
that
they
and it means
that
there was sufficient evi
trict court
acts
faith that
their
faith,
good
believed in all
finding
good
support
dence to
constitutionally
were
permissible
the instructions to the
disclose that
necessary
performance
were
finding is in irreconcilable conflict with
this
The
offi-
jury’s
finding
Tenney
job
supervisory
earlier
that
duties.
good
used
in
faith
restraining
Perkins
excessive force
cials are also entitled to the
subduing
judgment
faithfully
they
Lozano. The
in
if
find that
you
defense
overseeing
their favor must therefore be reversed and
executed their duties of
remanded for
new trial on these issues.
in
managing
facilities
officers
good
good
faith and
conscience.
charge
jury,
In its
to the
district
good
“No Defendant
entitled
stated:
court
reasonably
he
if
knew or
faith defense
“Excessive
great-
force is the use of force
known
the actions
should have
reasonably necessary
er than is
in order
took would violate the constitutional
accomplish
purpose
some lawful
such
with
or if he acted
rights of
as the arrest or
or
confinement
restraint
Lozano.”
malicious intention
harm
prisoner.
of a
To find
excessive
added.)
(Emphasis
you
force was used
must also find that
instructions,
jury,
in
involved in
Based on these
separate
[defendants]
effect,
in
incident knew that
the force
found
they were
force,
using
using
The
the force
excessive.
excessive
“knew
burden
is on
proof
prove
using
the Plaintiffs to
were
was excessive.” Under
instructions,
precluded
finding
an
this
Defendants used
excessive force
on Lozano and
two
be
good
findings
knew that
faith. These
cannot
using
added.)
excessive force.” (Emphasis
reconciled and hence cannot stand.
law’,”
‘grounded
appel-
injury
out
state
know
reason to
will
or have
believe
“Yes,
replied,
likely
lants’ counsel
Your
I
Honor.
be inflicted or he must have reason
any problem
anticipate
danger
don’t see
that.”
be
thereof and thereafter
Finally,
open
negligent
failing
prevent
steps
we
note that it is
considera-
to take
Freeman,
6870,
474,
injury.”);
Workman v.
ble doubt whether article
Tex.
Tex.Rev.Civ.
155
Stanford,
Stat.Ann.,
respon-
(1955); Taylor
imposes
v.
a true vicarious or
289
229
S.W.2d 910
superior liability
427,
deat
(Tex.Civ.App.
on a Texas sheriff. Older
S.W.2d
429
—Galveston
1950,
writ).
decisions
Court and
courts
are reviewed
Texas
authorities
See,
Brown,
Thomas,
e.g., King
F.Supp.
v.
indicate that it does.
v.
detail Williams
some
511
109,
535,
(1906);
(N.D.Tex.1981),
Bracken v.
100 Tex.
94
328
the con
S.W.
539-41
in which
Cato,
Cir.1932).
(5th
were dismissed as to because of his
should have realized that
condition, never be Lozano could convicted him, (2) felony charges against facility
the evidence that the MHMR shows America, UNITED STATES keep Lozano in willing in Odessa was Plaintiff-Appellee, facility guard wanted a with v. him at all office times Sheriff’s spare made the decision that could not $7,382 IN UNITED STATES personnel CURRENCY, Defendant, I am sure purpose. for this aware Sheriff was made of this. Roberts, Intervenor-Appellant. Jack budget If his that he was such could people guard America, hire Lozano at the MHMR UNITED STATES facility, approached Plaintiff-Appellee, easily could have county court for an commissioner’s amend- ment to his there is no budget, but (1) ONE 1979 LINCOLN CONTINENTAL he even attempted agree to do so. I AUTOMOBILE, VIN MARK V the appellants the Sheriff’s fail- Defendant, F9Y89S646982F, ure to in this supervise those under care Roberts, Intervenor-Appellant. gross case was and a negligence manifesta- Jack tion of his indifference. While deliberate 82-4493. No. there was no finding by actual Appeals, Court of United States regard, finding implicit such Fifth Circuit. finding that should made and same Nov. been not have set aside the court below. majority
The trouble with the opinion it focuses happened on what
fatal 22 and the actions