     Case: 11-20154     Document: 00512003961         Page: 1     Date Filed: 10/01/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          October 1, 2012
                                       No. 11-20154
                                                                           Lyle W. Cayce
                                                                                Clerk
CHANEL HALL, Individually and as next friend and personal representative of
the estate of J.C.P.,

                                                  Plaintiff - Appellant,

v.

LASANDRA SMITH; TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES; JOYCE JAMES; CYNTERA DONATTO; KEITH LASCO;
LUTHERAN SOCIAL SERVICES OF THE SOUTH,

                                                   Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 4:09-CV-2611


Before STEWART, Chief Judge, and ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        This case involves the tragic death of a young child while she was in the
custody of a foster parent. The child’s natural mother, Chanel Hall (“Hall”),
brought this action against the Texas Department of Protective and Regulatory
Services (“TDPRS”), several TDPRS employees, and Lutheran Social Services of
the South (“Lutheran”), alleging violations of 42 U.S.C. § 1983 and Texas

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-20154

common law. Hall appeals the district court’s grant of summary judgment to
TDPRS and its employees and the denial of her motion for leave to amend her
complaint to include a § 1983 claim against Lutheran. For the reasons that
follow, we AFFIRM the district court’s rulings.
                                         I.
      The events in this case involve the tragically short life of Jasmine Chanel
Preston (“Jasmine”). Jasmine was born on June 24, 2007, approximately eight
weeks prematurely.       She suffered from several life-threatening medical
problems, including an abnormality in her airway that made it difficult for her
to breathe. Shortly after her birth she was transferred to Memorial Hermann
Hospital, where doctors inserted an intubation tube into her throat to help her
breathe. Jasmine continued to be treated at Memorial Hermann and on
December 21, 2007, she accidentally pulled out her intubation tube. Doctors
had difficulty re-intubating her and expressed concern that a similar incident
could result in Jasmine’s death.       Based in part on this incident, doctors
recommended that Jasmine undergo surgery allowing doctors to insert a
tracheostomy tube that would provide a more stable method of providing
Jasmine with the air she needed to stay alive.1
      Doctors attempted to obtain Hall’s consent to this surgery, however Hall
requested a second opinion on the necessity of the recommended procedure.
Memorial Hermann agreed to this request and a second doctor provided Hall
with the opinion that the insertion of a tracheostomy tube was necessary. At
this point, Hall demanded another opinion, this time from a doctor outside of
Memorial Hermann. Attempting to meet Hall’s request, Memorial Hermann
arranged to transfer Jasmine to Texas Children’s Hospital but could not get in
touch with Hall to complete the transfer. Eventually, it was discovered that


      1
         Doctors had been recommending this procedure for a few months, however this
incident increased the perceived urgency for the surgery.

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Hall’s insurer would not pay for a transfer to another hospital, but Hall still
would not consent to the surgery.
       On December 24, 2007, doctors from Memorial Hermann referred Hall to
TDFPS because Hall would not consent to the surgery they believed Jasmine
urgently needed.        Cyntera Donatto, a TDFPS employee, was assigned to
Jasmine’s case and conducted an investigation, speaking with Hall and
individuals at Memorial Hermann about Jasmine’s situation. After completing
its investigation, TDFPS concluded that Hall’s delay in consenting to the surgery
amounted to medical neglect and obtained temporary custody of Jasmine to
allow Memorial Hermann to perform the tracheotomy. Jasmine’s tracheotomy
was conducted in late January and she remained hospitalized until June. In
June 2008, upon Jasmine’s release from the hospital, she returned to Hall’s
custody.
       Only a few months later, in early August, Jasmine was readmitted to the
hospital after suffering second-degree burns resulting from being bathed in
extremely hot water by Hall.2 After this incident, TDFPS opened another
investigation into Jasmine’s care and sought conservatorship of her. LaSandra
Smith (“Smith”), a TDFPS employee,3 was assigned as Jasmine’s care worker.
On September 11, 2008, a state court entered an agreed order requiring TDFPS
to place Jasmine in foster care upon her release from the hospital and permitting
Hall supervised access to Jasmine.
       Pursuant to this order, Smith placed a request with the TDFPS


       2
        Hall admits that she did not test the temperature of the bath water before immersing
Jasmine in it, however she claims that the incident was accidental and resulted from recent
plumbing work at her home. A court appointed child advocate concluded that “a reasonable
person would expect a mother to test the temperature of the bath water of a child especially
when the child is unable to cry in a manner to demonstrate discomfort. Due to Jasmine’s
tracheotomy [sic], her cry [was] not audible.”
       3
        TDFPS employees Joyce James, deputy commissioner, and Keith Lasco, a care worker
assigned to Jasmine’s case after the initial investigation, have also been included as Appellees
on Hall’s declaratory relief claims. We address these claims in Part IV infra.

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Centralized Placement Team (“CPT”) for a foster home placement. A few days
later, CPT notified Smith that Jasmine would be placed with Joanie Cochran
(“Cochran”), a licensed vocational nurse. Lutheran, a child placement agency
that provides foster placement services pursuant to a contractual relationship
with TDFPS, ensured that Cochran was qualified and trained to provide care for
Jasmine. Cochran was employed outside of the home and required additional
caregivers to provide care for Jasmine. Accordingly, caregivers were hired to
assist in Cochran’s home after Lutheran verified their qualifications and
training. Upon Jasmine’s release from the hospital on October 8, 2008, she was
placed in Cochran’s home.
      During Jasmine’s stay with Cochran, Hall had regular supervised visits
with Jasmine. After meeting Cochran for the first time, Hall expressed concern
to Smith about Cochran’s personal appearance and hygiene. Specifically, Hall
explained that she was concerned Cochran was a drug user because her “hair
was greasy, her nails and feet were dirty and her teeth were rotted [sic].” In
December 2008, Hall allegedly observed Cochran traveling with Jasmine without
her oxygen monitor. Hall reported this incident to Smith on several occasions.
During Jasmine’s placement with Cochran, Smith, on at least a monthly basis,
visited with Jasmine and her caregivers. Smith documented her observations
from these meetings, including Jasmine’s adjustment to her placement, her
interactions with foster siblings, and her physical condition.      Smith also
observed and documented Jasmine’s condition during her supervised visits with
Hall. Finally, Smith’s monthly evaluations document situations where Jasmine
required medical attention and discuss the care Jasmine was receiving for her
ongoing medical issues. Jasmine also received rehabilitative services from Early
Childhood Intervention (“ECI”), services beneficial to Jasmine’s physical




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                                       No. 11-20154

development, on a regular basis beginning in February 2009.4
       On June 3, 2009, Cochran, Smith, and Hall met with Dr. Edmonds, an ear,
throat, and nose specialist, who advised that Jasmine’s trachea was obstructed
by scar tissue. During the meeting, Dr. Edmonds also discussed the results of
Jasmine’s sleep study that had been conducted a few weeks earlier. Smith’s
notes regarding this meeting noted that Dr. Edmonds explained surgery was
required “sometime [that] summer” to repair the obstruction, cautioning that
Jasmine was at risk of brain damage or death if her tracheostomy tube was
dislodged. Dr. Edmonds sent a letter the same day to Dr. Liaw, Jasmine’s
pediatrician, explaining that he “recommended that she undergo reconstructive
surgery as soon as is feasible.” He further explained that “[b]ecause of the life-
threatening nature of this [condition], I have further recommended that Jasmine
have 24-hour nursing care. If her tracheostomy tube were to become dislodged,
she may suffer life-threatening consequences.” Following this meeting, Smith
was informed on June 10, 2009 that a recommendation had been made that
Jasmine undergo a second sleep study prior to surgery, and on June 24, 2009,
Smith was informed that Dr. Edmonds had requested 24-hour nursing care for
Jasmine.
       On June 23, 2009, an agreement was reached to place Jasmine with Hall’s
relatives after Jasmine’s recommended surgery was completed. The agreement
contemplated transferring Jasmine to HealthBridge Children’s Hospital on July
1, 2009, the date the agreement was expected to be presented and approved by
the court. Pursuant to the agreement, after Jasmine had recovered from
surgery, and Hall’s relatives had completed training on caring for Jasmine,
Jasmine would be placed in their home. At the hearing on July 1, 2009, a letter



       4
        There is some ambiguity relating to the rehabilitative services Jasmine initially
received during her stay with Cochran. Specifically, Smith received an e-mail in December
informing her that Cochran had declined ECI rehabilitative services, but it is unclear whether
Jasmine was receiving other similar services at that time.

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                                  No. 11-20154

was presented to the court from Dr. Liaw. The letter, which had been prepared
on June 30, 2009, explained as follows:
      I saw Jasmine on June 25, 2009 . . . . She is doing very well
      considering her long list of medical problems. . . . The plan is for her
      to have surgery as soon as possible for placement of a stint to
      hopefully keep her airway open. If her tracheostomy were to come
      out it would be just about impossible to ventilate her with a bag and
      mask and probably [would] result in her death.

      As her PCP and attending physician at Healthbridge Children’s
      Hospital, it is my recommendation that she remain in her current
      placement at least until after her surgical procedure. She has
      adequate nursing in her home environment, and the home
      environment is more conducive to avoiding hospital acquired
      infections. After her up coming [sic] surgery then the court can
      revisit alternative placement options.
The court, after considering this letter, recessed the hearing until July 8, 2009
so that Dr. Liaw could provide the court with further information.
      When the hearing resumed on July 8, 2009, Dr. Liaw repeated his
recommendation that Jasmine remain at Cochran’s home until her surgery.
When asked what was causing the delay in Jasmine’s surgery, he responded:
“[t]hat would be in Dr. Edmonds’ realm . . . I don’t know.” The court, after
considering this testimony, ordered that Jasmine remain at Cochran’s home
until the surgery and then only be moved to her new placement with Hall’s
relatives after she had fully recovered. Additionally, the court instructed TDFPS
to request that Jasmine’s surgery be scheduled as soon as possible.
      Later that same day, Smith contacted Dr. Edmonds’ office and explained
the court’s request that Jasmine be scheduled for surgery as soon as feasible.
Smith was informed that Dr. Edmonds would need to review the results of the
sleep study, which had been conducted on July 7, 2009, before the surgery could
be scheduled. The record does not indicate whether the surgery was ever
scheduled by Dr. Edmonds, nor does it indicate what contributed to the delay.
      Tragically, only days later in the early morning hours of July 12, 2009,


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Jasmine died in the manner predicted by Dr. Edmonds and Dr. Liaw. On July
11, 2009, Jasmine was playing on the ground near the couch in Cochran’s home.
At the time of the incident, Cochran and Jackie Lollis, a licensed vocational
nurse who often helped out at the Cochran home, were both at the home.
Cochran had just finished changing another foster child’s diaper and was in the
kitchen throwing away the diaper. Lollis, who was sitting on the couch about
three feet from Jasmine working on paperwork,5 saw Jasmine fall down and
went to pick her up. At that time, she noticed that Jasmine’s tracheostomy tube
was out and immediately alerted Cochran who ran back to assist. Around this
time, they heard the oxygen monitor alert, signaling that Jasmine’s oxygen
saturation level was too low. They quickly carried Jasmine to a nearby bed, laid
her down, and attempted to re-insert the tube. Their initial attempts were
unsuccessful, but eventually, they were able to re-insert the tube. Cochran
called 911, and Lollis proceeded to administer CPR and gave Jasmine oxygen
with an oxygen bag until EMS arrived. EMS took Jasmine to East Houston
Hospital and from there Jasmine was life-flighted to Memorial Hermann, where
she was pronounced dead in the early morning hours of July 12, 2009.6




       5
         TDFPS conducted an investigation of the circumstances surrounding Jasmine’s death.
Based on the finding that Lollis was working on paperwork, it cited Lutheran for a violation
of Rule No. 749.2593(a)(5), which requires caregivers to refrain from tasks that “clearly impede
the caregiver’s ability to supervise and interact with the children.”
       6
        Hall disputes the version of events surrounding Jasmine’s death, based on an affidavit
provided by Patsy Minchew. Minchew explains that her ex-husband told her that “Jasmine
was dead for several hours before anyone discovered her body or called 911.” This hearsay
version of Jasmine’s death is inconsistent with the undisputed facts contained in the summary
judgment record. Specifically, it is undisputed that Jasmine (1) was treated by EMTs on the
way to East Houston Hospital, (2) was life-flighted to Memorial Hermann for further attempts
to save her life, and (3) survived until the early morning hours of July 12, 2009. Even if
Minchew’s affidavit created a genuine issue of fact, it is not material to Hall’s claims against
Smith because there is no indication that Smith was, or should have been, aware of a risk that
Jasmine would be left alone for hours at a time while in Cochran’s care.

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       Hall filed suit in state court on July 20, 2009 against numerous defendants
who subsequently removed the case to federal court.7 After Hall filed an
amended complaint, each Appellee filed dispositive motions. Lutheran, sued
only on state law claims, filed a motion to dismiss. Hall filed a response
opposing Lutheran’s motion to dismiss on its merits and noting that she had
inadvertently omitted a § 1983 claim against Lutheran, but provided no
explanation of the omitted § 1983 claim. TDFPS and its employees filed a
motion for summary judgment, which they amended on February 4, 2010. On
February 5, 2010, Hall responded with a request for additional discovery, but did
not respond to the merits of the motion for summary judgment. On February 8,
2010, at Hall’s request, the district court held a hearing and ordered that
TDFPS produce certain discovery and make certain employees available for
depositions within 60 days. On August 11, 2010, Hall filed a motion to compel
Lutheran to provide discovery. Lutheran filed a response on August 19, 2010.
       On September 30, 2010, before Hall had filed a response to the merits of
the motion for summary judgment, the district court entered an opinion
granting the motion for summary judgment filed by TDFPS and its employees
and Lutheran’s motion to dismiss. Also, interpreting Hall’s vague reference to
a § 1983 claim as a request for leave to amend, the district court denied the
request as futile because Hall offered no suggestion of any basis to assert such
a claim against Lutheran.
       Hall filed a motion for reconsideration of the dismissal of her claims
against TDFPS and its employees. That motion for reconsideration did not
mention the district court’s dismissal of her claims against Lutheran, but Hall
also filed a “Reply in Answer to the Court’s Dismissal,” in which she proposed


       7
         Hall’s lawsuit involved numerous other individuals and entities, however she has
only appealed the district court’s disposition of certain claims against TDFPS, certain TDFPS
employees, and Lutheran. We limit our review to facts and claims relevant to Hall’s appeal.


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to amend her already-dismissed complaint to state a claim under § 1983 against
Lutheran that she had inadvertently left out of her amended complaint. Hall
attached various exhibits to each of her filings and, now on appeal, cites to that
evidence to challenge the district court’s decisions on the dispositive motions.
After Lutheran opposed Hall’s unorthodox method of challenging the district
court’s decision to grant its motion to dismiss, Hall filed an actual motion for
reconsideration of the dismissal of claims she had previously asserted against
Lutheran and for the first time properly sought leave to amend to assert a § 1983
claim against Lutheran. Lutheran and the TDFPS defendants responded to
each of these motions.
      On February 7, 2011, the district court denied Hall’s request for
reconsideration. Although the district court determined that there was no basis
to reconsider its prior rulings, it nevertheless considered the evidence offered by
Hall in great detail, ultimately concluding that the new evidence did not raise
a genuine issue of fact material to qualified immunity. The district court also
concluded that Hall failed to show a basis for granting her leave to amend to
include a § 1983 claim against Lutheran. The district court remanded Hall’s
remaining state law claims.
      Hall filed a notice of appeal indicating that she appeals from the
memorandum and order “dismissing, with prejudice, the claims against the
above-named defendants and entered in this action on the 7th day of February,
2011.” Hall’s briefs, instead of challenging the district court’s denial of her
motion for reconsideration entered on February 7, 2011, appear to challenge the
district court’s opinion entered on September 30, 2010. Specifically, Hall appeals
the district court’s: (1) decision to rule on the motion for summary judgment filed
by TDFPS and its employees prior to Hall’s response; (2) dismissal of Hall’s
claims for declaratory relief against TDFPS and its employees; (3) denial of
Hall’s motion for leave to amend her complaint to include a § 1983 claim against
Lutheran; (4) conclusion that Smith was entitled to qualified immunity from

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Hall’s claim that Smith violated Jasmine’s substantive due process rights; and
(5) conclusion that the Texas Tort Claims Act barred Hall’s claim against TDFPS
for wrongful death.
       The Appellees jointly moved to dismiss Hall’s appeal for lack of
jurisdiction, claiming that the district court orders are not final judgments and
are therefore inappropriate subjects for appellate review. Lutheran also moved
this court to dismiss Hall’s appeal of the district court’s denial of her motion to
amend to include a § 1983 claim against it, arguing that Hall had failed to allege
her § 1983 claim within the statute of limitations. This court denied both
motions.8
                                               II.
       Initially, we must address the Appellees’ contention that we lack
jurisdiction over Hall’s appeal. Federal Rule of Appellate Procedure 3(c)(1)(B)
requires an appellant to “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). This court utilizes a “liberal construction”
policy when a notice of appeal, albeit technically deficient, is clear in its intent
to appeal an order. See Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144,
1148 (5th Cir. 1992) (“Interpreting notices of appeal liberally, this Court often
has exercised its appellate jurisdiction—despite an improper designation under
Rule 3(c)—where it is clear that the appealing party intended to appeal the
entire case.”); C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049,
1056 (5th Cir. 1981) (per curiam) (“[A] policy of liberal construction of notices
of appeal prevails in situations where the intent to appeal an unmentioned or
mislabeled ruling is apparent and there is no prejudice to the adverse party.”).


       8
         As to the joint motion to dismiss, we explained that there were sufficient indicia of the
district court’s intent to enter a final, appealable judgment. As to the statute of limitations
argument, we explained that dismissal of an appeal is not the proper remedy for a successful
limitations defense. Where the appeal itself is timely filed, and there is no defect in appellate
jurisdiction, the appeal is to be resolved on the merits, including consideration of any
limitations defense.

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        Hall’s notice of appeal explicitly references the February 7, 2011 order
denying Hall’s motions for reconsideration and leave to amend, but does not
expressly refer to the September 30, 2010 order dismissing her claims against
the Appellees. Nevertheless, although Hall does not explicitly mention the
September 30, 2010 order, the notice of appeal explains that she appeals from
the     order   “dismissing,       with    prejudice,      the    claims     against”     the
Appellees—directly referring to the order entered on September 30, 2010. It is
clear that Hall intended to appeal the dismissal of her claims against Appellees,
not merely the denial of her motion for reconsideration. Moreover, Appellees
will not suffer any prejudice if this court exercises appellate jurisdiction over
Hall’s appeal. We conclude that Hall’s notice of appeal, while technically
insufficient, is effective and permits this court to exercise appellate jurisdiction
over both orders entered by the district court. See Trust Co. Bank, 950 F.2d at
1148.
                                             III.
        Hall appeals the decision by the district court to grant the dispositive
motion filed by TDFPS and its employees prior to receipt of a response to the
merits of the motion by Hall. Specifically, Hall argues that it was an abuse of
discretion for the district court to “cut off discovery and rule on the . . . summary
judgment motion without notice.”               We disagree.        Although there were
circumstances that could have supported an extension of time to respond to the
motion for summary judgment,9 the impact of these circumstances on Hall’s
ability to respond to the motion for summary judgment were not made known
to the district court.


        9
        For instance, there was an outstanding motion for a status conference filed by the
defendants seeking clarification of the impact of the February 8, 2010 discovery hearing on the
case dispositive motion deadline and Hall had made a request for production of documents
from Lutheran that Hall believed was relevant to her claims against the TDFPS defendants.
Also, Hall was diagnosed with lung cancer during this time period and her counsel ceased
working on the case due to Hall’s financial constraints.

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      The district court’s local rules provide that a response to a properly filed
motion for summary judgment must be filed 21 days after filing. S.D. Tex. L.R.
7.3 & 7.4. This court has held that a district court does not abuse its discretion
by granting summary judgment after the local rule’s response deadline has
passed.   Daniels v. Morris, 746 F.2d 271, 275 (5th Cir. 1984).          We have
explained that when “the parties have been given ample opportunity to respond
to the motion for summary judgment, the district judge may rule on it even
after a significant delay, without giving the parties advance notice of the court’s
intention to consider and decide the motion on a ‘date certain.’” Id. at 275-76.
      In this case, the TDFPS defendants filed their amended motion for
summary judgment on February 4, 2010. Hall filed a response on February 5,
2010, requesting discovery on the qualified immunity defense but failing to
respond to the merits of the motion. After holding a hearing on February 8,
2010, the district court ordered that TDFPS produce certain discovery and
make certain employees available for depositions within 60 days.               On
September 30, 2010, over five months after the targeted discovery was expected
to be completed, the district court entered an opinion granting the TDFPS
defendants’ motion for summary judgment. Hall has not argued that the
district court induced her failure to respond, but rather acknowledges that other
factors were the cause of her inability to respond during the five-month period
following the date the district judge expected the targeted discovery to be
completed. Accordingly, we conclude that the district court did not commit
reversible error by ruling on the TDFPS defendants’ motion for summary
judgment.
                                       IV.
      Hall next argues that the district court erred by concluding that she was
not entitled to declaratory relief. Hall mistakenly challenged what she believed
was a finding that these claims failed based on a qualified immunity defense.


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The district court, however, did not deny Hall’s requests for declaratory relief
based on a finding of qualified immunity—rather, the district court denied Hall’s
claims for declaratory relief based on a lack of standing.10 We agree that Hall
lacks standing for the requested declaratory relief. See, e.g., Bauer v. Texas, 341
F.3d 352, 358 (5th Cir. 2003) (citations omitted) (“In order to demonstrate that
a case or controversy exists to meet the Article III standing requirement when
a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts
from which it appears there is a substantial likelihood that [s]he will suffer
injury in the future.”). Hall has failed to allege facts that demonstrate any
likelihood that she will suffer injury in the future that the declaratory relief she
seeks would redress. Accordingly, we affirm the district court’s conclusion that
we lack subject-matter jurisdiction over her claims for declaratory relief.
                                            V.
       Hall challenges the district court’s order denying leave to amend her
complaint to include a § 1983 claim against Lutheran.11 The district court
analyzed, in great depth, Hall’s proposed amendment to the complaint and
concluded that it was inadequate to state a claim because there was no basis to
find that Lutheran was acting under color of state law.12 We review a district
court’s denial of a motion for leave to amend a pleading for abuse of discretion.
Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th
Cir. 2010) (citation omitted).        Denial of a motion for leave to amend is
appropriate if “the proposed amendment would be futile because it could not


       10
         The district court explained that “[a]lthough the Texas Supreme Court justices are
the only parties who have moved for dismissal for lack of standing to seek injunctive and
declaratory relief,” the pleadings demonstrate that Hall lacks standing to proceed on her
declaratory and injunctive relief claims.
       11
         The district court dismissed Hall’s state law claims against Lutheran pursuant to
Rule 12(b)(6), however Hall has not appealed the dismissal of those claims.
       12
         The district court also concluded that even if Hall could demonstrate that Lutheran
was acting under color of state law, Hall’s allegations were inadequate to state a claim.

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survive a motion to dismiss.” Id. (citation omitted).
       We agree with the district court’s conclusion that Hall failed to
demonstrate that Lutheran was acting under color of state law. “To state a
claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). Conduct by a private entity is not subject to suit
under § 1983 unless the private entities’ allegedly unconstitutional conduct is
fairly attributable to the state. See, e.g., Cornish v. Corr. Servs. Corp., 402 F.3d
545, 549 (5th Cir. 2005) (citations omitted). Initially, in determining whether a
deprivation of a protected right is fairly attributable to the state, we must
identify “the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quotation omitted). Here, that
conduct involves Lutheran’s alleged failures to “to exercise professional
judgment in both its initial placement decision and in its oversight of Jasmine’s
care.” At issue, therefore, is whether Lutheran’s decision to place Jasmine in
Cochran’s home and its level of continuing oversight of the placement are fairly
attributable to the State.
       When considering whether a private entities’ conduct can be fairly
attributable to the State, the Supreme Court utilizes a number of tests. Cornish,
402 F.3d at 549 (describing the public function test, state compulsion test, the
nexus or state action test, and the joint action test).               The district court
considered each test in depth, ultimately concluding that Lutheran was not a
state actor. On appeal, Hall, albeit unclearly and without case support, argues
only that Lutheran should be considered a state actor under the state
compulsion test.13 Hall argues that the contractual relationship between TDFPS


       13
        Because Hall only identified error with the district court’s analysis under the state
compulsion test, we will not disturb its analysis on the remaining tests. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, we do not

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and Lutheran provided Lutheran with “financial incentives” to deprive Jasmine
of her rights.
       “Under the ‘state compulsion test,’ a private actor’s conduct is attributable
to the State when it exerts coercive power over the private entity or provides
significant encouragement.” Id. There are no factual allegations that TDFPS
exerted coercive power over Lutheran with regard to its placement decisions or
monitoring responsibilities. Hall’s mere allegation that Lutheran had financial
incentives to minimize its costs in providing its services does not demonstrate
that TDFPS provided significant encouragement for Lutheran to abdicate its
responsibilities under the contract to properly screen potential placements for
foster children and to monitor those placements.14 As the district court astutely
observed, it is the deviation from Lutheran’s requirements as a child-placing
agency that forms the basis for Hall’s allegations, not the compliance with all
applicable requirements that likely arise under the contract. Based on the
futility of Hall’s § 1983 claim against Lutheran, the district court did not abuse
its discretion in denying Hall leave to amend her complaint.
                                             VI.
       Hall also appeals the district court’s resolution of her § 1983 claim against
Smith based on an alleged violation of Jasmine’s substantive due process rights
to personal security and reasonably safe living conditions while in foster care.15
The district court granted summary judgment over this claim in favor of Smith,


opine on whether, if applying the public function test, a private child placement agency could
be considered a state actor with respect to the foster child placement decisions it makes
pursuant to a contractual relationship with a state. See, e.g., Smith v. Beasley, 775 F. Supp.
2d 1344, 1354 (M.D. Fla. 2011); Harris ex rel. Litz v. Lehigh Cnty. Office of Children & Youth
Servs., 418 F. Supp. 2d 643, 651 (E.D. Pa. 2005).
       14
         Any contract providing a fixed sum for services potentially provides an incentive for
a business to minimize costs incurred in providing those services. This cost minimization
incentive, without more, is insufficient to attribute a private entities’ conduct to a state.
       15
         Although Smith was sued under various other theories of liability, this is the only
claim against Smith for monetary relief Hall has raised on appeal.

                                             15
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                                   No. 11-20154

concluding that Smith was entitled to qualified immunity because Hall failed to
demonstrate that Smith was deliberately indifferent to Jasmine’s rights.
                                         A.
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008). Our inquiry “is limited to the summary judgment record before the trial
court.” Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir. 1992). We must
view the evidence in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and
the movant has the burden of showing this court that summary judgment is
appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary
judgment is appropriate where the evidence demonstrates that there is no
genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. Brumfield, 551 F.3d at 326; see Fed. R. Civ. P. 56(c). A
genuine issue of material fact exists if a reasonable jury could enter a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
                                         B.
      Qualified immunity protects government officials from money damages
unless a plaintiff shows “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A Government official’s
conduct violates clearly established law when, at the time of the challenged
conduct, the contours of a right are sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Id. at
2083 (internal quotations omitted). Courts may exercise their discretion in
deciding which question to answer first. See Pearson v. Callahan, 555 U.S. 223,
236 (2009).



                                         16
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                                      No. 11-20154

                                            C.
       Hall’s § 1983 claim against Smith, alleging a violation of Jasmine’s rights
to personal security and reasonably safe living conditions in foster care, is a
substantive due process claim that requires proof that Smith acted “with
deliberate indifference” toward Jasmine.16 Hernandez ex rel. Hernandez v. Tex.
Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004). To act
with deliberate indifference, a state actor must consciously disregard a known
and excessive risk to the victim’s health and safety. Farmer v. Brennan, 511
U.S. 825, 837 (1994). This court has emphasized that the test of deliberate
indifference is a “significantly high burden for plaintiffs to overcome.”
Hernandez, 380 F.3d at 882 (citation omitted). A plaintiff must demonstrate
culpability a degree beyond mere negligence, or even gross negligence. Id.; see
also James v. Harris Cnty., 577 F.3d 612, 617-18 (5th Cir. 2009) (internal
quotations and citation omitted) (“Deliberate indifference is a degree of
culpability beyond mere negligence or even gross negligence; it must amount to
an intentional choice, not merely an unintentional oversight.”); Alton v. Tex.
A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999) (“Actions and decisions by officials
that are merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference . . . .”).
       Liability based on deliberate indifference is inappropriate if an official can
demonstrate “that [she] did not know of the underlying facts indicating a
sufficiently substantial danger and that [she was] therefore unaware of the
danger, or that [she] knew the underlying facts but believed (albeit unsoundly)
that the risk to which the facts gave rise was insubstantial or nonexistent.”


       16
         Hall contends that we should apply a professional judgment standard instead of the
deliberate indifference standard. This court has concluded that the deliberate indifference
standard is the appropriate standard for considering substantive due process claims based on
foster children’s rights to personal security and reasonably safe living conditions. See
Hernandez, 380 F.3d at 880. We will not disregard this established precedent. See In re
Pilgrim’s Pride Corp., 2012 WL 3239955, at *11 (5th Cir. Aug. 10, 2012).

                                            17
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                                       No. 11-20154

Farmer, 511 U.S. at 844. Moreover, it is not enough to demonstrate than an
official is aware of a substantial risk—rather, such an official “may be found free
from liability if [she] responded reasonably to the risk, even if the harm
ultimately was not averted.” Id.
       To begin, it is undisputed that Jasmine was in a medically fragile state at
all points during her short life. Caring for Jasmine in this delicate condition
required caretakers who not only were trained in providing adequate medical
care, but also able to provide constant attention to her well-being. Considering
these needs, Hall would successfully demonstrate that Smith was deliberately
indifferent if there was record evidence supporting a conclusion that Smith
consciously disregarded a known and excessive risk that Jasmine was not
receiving the level of care she required for her survival. Hall alleges that Smith
was aware that Jasmine was not receiving the level of care she required and
consciously disregarded that risk. We will consider each of the facts emphasized
by Hall on appeal in support of this allegation.
       The summary judgment record17 reveals that Hall, on several occasions,
notified Smith of potential concerns regarding Cochran’s ability to care for
Jasmine. The first incident, in December 2008, involved Hall’s observation that
Jasmine was traveling without her oxygen monitor. Hall was very concerned
and reported this incident several times to Smith. Second, after meeting
Cochran for the first time, Hall asked Smith to conduct a background check on
Cochran because her hygiene and personal appearance, at least in Hall’s opinion,
indicated that Cochran was a drug user.18 It appears that Hall’s concerns about
Cochran’s care were brought to Smith’s attention in late 2008 or early 2009. In

       17
         The district court considered evidence Hall provided after it initially granted Smith
summary judgment in ruling on Hall’s motion for reconsideration. We will also consider this
evidence on appeal in reviewing Hall’s § 1983 claim against Smith.
       18
         Hall explains in her affidavit: “[Cochran’s] hair was greasy, her nails and feet were
dirty and her teeth were rotted [sic]. These were obvious signs to me that Cochran was using
drugs.”

                                             18
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                                       No. 11-20154

addition to these concerns brought to Smith’s attention by Hall, Smith received
an e-mail on December 4, 2008 informing her that Cochran had declined ECI
rehabilitative services for Jasmine.19 It is undisputed that these were the only
potential concerns that Smith was aware of regarding Cochran’s ability to
provide appropriate care for Jasmine.20
       In light of these concerns expressed by Hall, we must consider Smith’s
involvement with Jasmine’s case. After numerous hospital stays, Jasmine was
placed with Cochran on October 8, 2008.                Cochran, along with the other
individuals who cared for Jasmine, was verified and trained by Lutheran, an
agency specializing in child placement. Smith did not have a role in the selection
of Jasmine’s placement. During Jasmine’s placement with Cochran, Smith was
continuously involved in monitoring and documenting Jasmine’s progress. She
visited Jasmine approximately once a month and frequently communicated with
Cochran and other members of the nursing staff who cared for Jasmine at
Cochran’s home. Each time that Smith met in person with Jasmine, Smith
observed that all her medical equipment, including her oxygen monitor, was
readily available. Monthly written evaluations regarding Jasmine’s care contain
multiple entries detailing interactions with Jasmine, her health condition, and
the progress Jasmine was making. Contained in these detailed entries was a
confirmation that Jasmine, by February 2009, was attending ECI sessions on a
weekly basis to assist with her developmental delays. The evidence indicates



       19
         It is unclear from the record whether Jasmine was receiving rehabilitative services
from another provider at that time, but it is undisputed that by February 2009, Cochran had
enrolled Jasmine in ECI rehabilitative services.
       20
          Hall has failed to adequately explain how these concerns, even if Smith believed them
to be accurate and consciously disregarded them, caused Jasmine’s death. First, Hall
speculates that Jasmine was not attached to the oxygen monitor at the time her tracheostomy
tube disconnected; however, this is belied by the record, which indicates that Cochran and
Lollis heard the alarm sound shortly after the tracheostomy tube disconnected. Second, Hall
fails to tie the potential lapse in rehabilitative services for Jasmine to her death. It is
undisputed that Jasmine received ECI services regularly after February 2009.

                                              19
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                                        No. 11-20154

that Smith believed Cochran and the other individuals caring for Jasmine were
providing her with the care she needed.
       Although Smith did not make any specific inquiries into potential drug use
by Cochran, given the nature of the suspicion expressed by Hall, Smith’s
response was reasonable. Specifically, Hall’s warning was not a warning that
Cochran appeared intoxicated, was arrested for using drugs, or had been seen
using drugs—instead, Hall’s stated basis for her suspicion was that Cochran’s
hair, nails, and feet were dirty and that she had rotting teeth. After receiving
such speculative information, it was reasonable for Smith to rely on her regular
observations of Cochran, ensuring that there were no signs of drug use. The
summary judgment record is devoid of any indication that Smith had reason to
believe, or actually believed, that Hall’s concerns about Cochran’s potential drug
use or failure to use Jasmine’s medical equipment as needed were accurate.
Accordingly, because Smith, based on her observations, did not believe that the
reports Hall made regarding Cochran actually gave rise to a substantial risk to
Jasmine’s health and safety, we conclude that Smith was not deliberately
indifferent in allowing Jasmine to remain in Cochran’s home. See Hernandez,
380 F.3d at 884 (concluding that an official was not deliberately indifferent to
reports of child abuse because, based on her observations, she did not believe
that there was a substantial danger of harm to the foster child, despite reports
of abuse).
       Hall’s claims, however, are not limited to whether Cochran was qualified,
but also encompass the alleged failure of Smith to ensure Dr. Edmonds’ June 3,
2009 medical recommendation was followed.21 At that time, Dr. Edmonds made

       21
          Hall also criticizes Smith for her alleged failure to ensure that Jasmine received 24-
hour nursing care. Smith was informed of Dr. Edmonds’ recommendation on June 24, 2009.
At this time, Jasmine was approved for 88 hours of nursing care each week. On July 1, 2009,
Smith was informed that Jasmine was receiving 96 nursing hours each week and that Dr.
Liaw had entered an order for 24-hour nursing care. It remains unclear if Jasmine was
receiving 24-hour nursing care by July 11, 2009. Even if Jasmine was not receiving 24-hour
nursing care, however, it could not be the basis for Hall’s deliberate indifference claim against

                                               20
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                                       No. 11-20154

it clear that Jasmine faced grave danger if her tracheostomy tube dislodged.
Because Smith was obviously aware of a grave risk to Jasmine’s health after Dr.
Edmonds’ warning, our focus is on whether Smith was deliberately indifferent
to this known risk.
       Considering the circumstances surrounding Dr. Edmonds’ warning,
although Smith’s actions were not ultimately successful, or particularly
commendable, her response was reasonable. First, the urgency of the surgery
recommendation by Dr. Edmonds was, and remains, unclear. Smith believed
that Dr. Edmonds explained that the surgery “may occur sometime this
summer.” In a letter sent to Dr. Liaw on June 3, 2009, Dr. Edmonds explained
that the surgery should occur “as soon as is feasible,” without providing any
timetable. As late as July 8, 2009, Dr. Liaw indicated that he was not aware of
when the surgery was going to be scheduled, but explained that: “I know it’s
coming up. I just don’t know the exact date. I mean, that’s what Dr. Edmonds
had indicated to us, that he was going to plan for an operating time and schedule
all that.”
       In addition to confusion around the urgency of the surgery, Smith was
informed on June 10, 2009 that Jasmine required a second sleep study prior to
the surgery. This study was not completed until July 7, 2009. During this
period of time, it was reasonable for Smith to believe that the surgery had to be
delayed until the second sleep study was completed. On July 8, 2009, Dr. Liaw
testified that he believed it was in the best interests of Jasmine to remain in the
Cochran home during the time leading up to her surgery, where he explained
she was receiving all the care she needed. The court overseeing Jasmine’s case
ordered that Jasmine remain in Cochran’s home until the surgery. The court
also ordered TDFPS to communicate with Dr. Edmonds to schedule the surgery


Smith because two nurses were caring for Jasmine at the time her tracheostomy tube was
dislodged. Jasmine’s death did not result from a lack of nurses—rather, it was the distraction
of a nurse providing care for Jasmine that might have contributed to Jasmine’s death.

                                             21
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                                       No. 11-20154

as soon as Jasmine was “capable of handling the surgery safely.” Later that
same day, Smith contacted Dr. Edmonds’ office explaining this request. Smith
was informed that Dr. Edmonds needed to review the results of the sleep study
that occurred on July 7, 2009 prior to scheduling Jasmine’s surgery.
       Based on the record, although everyone involved understood that surgery
was needed, it was not clear that the surgery had to occur before July 11, 2009.
Actually, both doctors involved in Jasmine’s case—Dr. Edmonds and Dr.
Liaw—indicated that delaying the surgery was not inappropriate.22 Smith’s
failure to do more to ensure that the surgery occurred prior to the incident on
July 11, 2009, in light of these circumstances, does not constitute deliberate
indifference.    Furthermore, even though there was a heightened need for
Jasmine to receive constant care and attention, Smith had no reason to believe
that she was not receiving the appropriate level of care in June and July 2009.
       We conclude that Smith was not deliberately indifferent to Jasmine’s
rights to personal security and reasonably safe living conditions during her
foster placement with Cochran. Because we do not find that Smith violated
Jasmine’s constitutional rights, we do not need to consider the second prong of
the qualified immunity analysis. The district court correctly determined that
Smith was entitled to qualified immunity from Hall’s § 1983 claim.
                                            VII.
       Finally, Hall challenges the district court’s grant of summary judgment in
favor of TDFPS on Hall’s wrongful death claim. The district court concluded
that Hall failed to properly articulate facts demonstrating that her claim fell
within one of the three general exceptions to sovereign immunity under the
Texas Tort Claims Act (“TTCA”), Tex. Civ. Prac. & Rem. Code § 101.001 et seq.


       22
          For instance, the response by Dr. Edmonds’ office that the second sleep study had to
be considered prior to scheduling the surgery does not indicate that surgery was required
immediately. Dr. Liaw, in contrast, deferred to Dr. Edmonds’ scheduling and indicated that
prior to the surgery, instead of being admitted into a hospital, Jasmine was better off in
Cochran’s home where she was receiving the care that he believed she required.

                                             22
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                                      No. 11-20154

On appeal, Hall reiterates her argument that her claim against TDFPS falls
within the exception to sovereign immunity “for death caused by a use of
tangible personal property.” San Antonio St. Hosp. v. Cowan, 128 S.W.3d 244,
245 (Tex. 2004). Waiver of sovereign immunity under this exception applies
“only when the governmental unit is itself the user” of the property. Id. at 246;
see also Rusk State Hosp. v. Black, No. 10-0548, 2012 WL 3800218, at *7 (Tex.
Aug. 31, 2012) (“A governmental unit does not ‘use’ property within the meaning
of the [T]TCA when it merely allows someone else to use it.”). Hall explains that
TDFPS’s consent to Jasmine’s surgery allowing doctors to insert a tracheostomy
tube ultimately led to her death. Even if we assume arguendo that the use of
the tracheostomy tube caused Jasmine’s death,23 it is clear that TDFPS did not
“use” the tracheostomy tube. See Black, 2012 WL 3800218, at *7. Rather,
TDFPS authorized surgeons at Memorial Hermann to conduct a strongly
recommended surgery, a surgery which required the use of a tracheostomy tube.
After surgery, Jasmine used the tracheostomy tube as part of her ongoing
medical treatment. The record simply does not support a conclusion that
TDFPS “used” the tracheostomy tube. See id. Accordingly, we conclude that
TDFPS was entitled to summary judgment on Hall’s wrongful death claim.
       AFFIRMED.




       23
         The district court relied on Hall’s failure to demonstrate causation because Hall’s
claim focused on negligence in removing Jasmine from Cochran’s care, not on the use of the
tracheostomy tube. On appeal, Hall alters her explanation of causation, focusing on negligent
oversight of the continuing use of the tracheostomy tube.

                                             23
