     Case: 13-50631      Document: 00512643847         Page: 1    Date Filed: 05/28/2014




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

                                                                                 FILED
                                                                              May 28, 2014
                                      No. 13-50631
                                                                              Lyle W. Cayce
                                                                                   Clerk
CYNTHIA CARDENAS, Individually, and as Next Friend for A.C. and N.C.;
ANDRES CARDENAS; SABINA CARDENAS,

                                                 Plaintiffs – Appellants
v.

LEE COUNTY, TEXAS,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:12-CV-85


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Cynthia Cardenas appeals the district court’s granting of summary
judgment to the defendant, Lee County (the “County”), on Cardenas’s 42 U.S.C.
§ 1983 and state wrongful death claims. Cardenas alleges that the County
violated the constitutional rights of her deceased husband, Cesar Cardenas
(“Cesar”), by either denying him medical care, maintaining a policy of denying
medical care to inmates, or by failing to adequately train prison guards in the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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provision of emergency medical care. Cardenas also argues that the district
court erred in granting summary judgment before the County had produced
responsive documents. Because taking the evidence in the light most favorable
to Cardenas, she cannot prove her claims, we AFFIRM the judgment of the
district court.
                                             I.
       Cesar was placed in the custody of the Lee County Sheriff’s Office in
November 2011. On December 3, he became ill and was transported to a
nearby hospital, but was subsequently returned to the jail. Two days later,
Cesar fell ill again. A prison officer took Cesar’s blood pressure and pulse, and
both were elevated. The officer also noted that Cesar was shaking. No further
action was taken at that time, except that the incoming prison officers were
told to keep an eye on Cesar’s condition. At some point during the night, the
prison officers were informed by Cesar’s cellmates that Cesar had vomited a
white substance into the cell toilet. The officials checked on Cesar again near
midnight, but they were unable to wake Cesar and thus did not check his vital
signs. Cesar was not checked on again until the next morning, around 6:00
a.m., when Cesar was found dead in his cell. 1 An autopsy revealed that Cesar
had died of multiple drug toxicity.
       Cardenas filed suit against the County on behalf of herself and her minor
children. In the district court, Cardenas, in support of her claim that the
County had a policy and practice of denying medical care to its prisoners,
introduced the affidavit of another inmate, Michael Sanders. In his affidavit,
Sanders indicated that he had been an inmate in the Lee County jail. During
his time in custody, he became ill, and a prison officer summoned an


       1As noted by the district court, the County argues that the prison officials visually
checked on Cesar throughout the night. Consistent with taking the facts in the light most
favorable to Cardenas at the summary judgment stage, we ignore this argument.
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                                 No. 13-50631
ambulance to take Sanders to the hospital. When the ambulance arrived,
Sanders states that Lee County Sheriff Rodney Meyer (“Sheriff Meyer”) turned
it away because he believed that Sanders was faking his illness. Cardenas
argues that these two incidents—the turning away of the ambulance for
Sanders and the failure to summon medical care for Cesar—are evidence of a
policy of denying medical care to inmates.
      The district court granted summary judgment to the County.            The
district court held that, even taking Sanders’s affidavit as completely true,
these two incidents could not support Cardenas’s claim of a County policy
because they were isolated incidents as evidenced by both Sanders and Cesar
receiving medical care during their time in the County jail. The district court
held that the failure to get timely medical care in these cases was a failure in
judgment as opposed to a policy of denying medical care. The district court
also rejected Cardenas’s failure-to-train theory. After recognizing that the
County’s medical care training was inadequate, the district court nonetheless
held that under the high standard the Supreme Court has imposed for failure-
to-train liability, Cardenas could not recover. The district court accordingly
granted summary judgment to the County and entered final judgment in the
County’s favor.
      Cardenas now appeals arguing that the district court was incorrect on
the merits, and that the district court should not have granted summary
judgment because the County had failed to produce records related to the
Sanders incident despite Cardenas’s request for their production.
                                      II.
      We review a grant of summary judgment de novo. Royal v. CCC & R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). Summary judgment is
improper if there is a genuine dispute of material fact such that a reasonable
jury could return a verdict for the nonmoving party. Id. At the summary
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judgment stage, we view the evidence in the light most favorable to the
nonmoving party—Cardenas. Id; see also Tolan v. Cotton, 134 S. Ct. 1861,
1863 (2014) (per curiam) (“[Courts must] adhere to the axiom that in ruling on
a motion for summary judgment, ‘the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.’”).
      Cardenas attempts to demonstrate a § 1983 violation by the County in
three alternative ways: (1) showing that prison officials were deliberately
indifferent to Cesar’s medical needs in this single individual case; (2)
demonstrating that the County had a policy or custom of denying medical care
to prisoners; or (3) demonstrating that the County’s training for prison officials
was inadequate. To establish liability for the County, Cardenas must satisfy
the “high standard of proof” that this court requires for imposing liability on a
municipality. Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998). We now
turn to address whether Cardenas has satisfied this standard with respect to
any of these theories.
                                        A.
      Cardenas first argues that the County was deliberately indifferent to
Cesar’s medical needs specifically on the night he died, and that the County
directly, by this single incident, violated Cesar’s constitutional rights. See
Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2001) (“[P]retrial
detainees have a constitutional right . . . not to have their serious medical
needs met with deliberate indifference on the part of the confining officials.”).
To establish deliberate indifference against a County or other municipality
based on a single episode, Cardenas must show that a prison officer was aware
of facts from which an inference of substantial risk of harm could be drawn,
the officer drew that inference, and the officer subjectively intended that harm
occur. Id. at 458–59.


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                                  No. 13-50631
      Before the district court, Cardenas conceded that no prison officer had
subjective knowledge of a substantial risk of harm to Cesar. Specifically,
Cardenas “[did] not deny that a jail or detention official did not have subjective
knowledge of the substantial risk of serious harm to [Cesar]. . . .” Accordingly,
Cardenas cannot establish deliberate indifference based on a single episode;
the district court was correct to dismiss Cardenas’s claims based on this theory.
                                       B.
      Cardenas next attempts to show that Cesar’s death was a result of a
County policy of denying medical care to inmates. This policy can be an (1)
express policy of violating the Constitution, (2) a widespread practice or
custom—even if that custom has not received formal approval by an official
decision-making body—or (3) a decision by an individual with express policy-
making authority. Monell v. Dept. of Social Services of N.Y., 436 U.S. 658, 690–
91 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 481–83 (1986). We now
look at each of these possibilities.
                                        1.
      It is immediately clear that Cardenas cannot establish that the County
has an express policy of refusing medical care to inmates. Just the opposite is
true. The County policy is that “[e]mergency medical care is available twenty-
four (24) hours a day.” If an emergency exists, the prisoner is to be transported
to a local hospital via ambulance. Thus, Cardenas cannot establish that the
County has an express policy of denying medical care to inmates.
                                        2.
      Cardenas next argues that, despite the express policy to the contrary,
the County has a widespread custom amounting to a policy of denying medical
care to inmates. Monell, 436 U.S. at 690–91 (recognizing that a municipality
may be liable for deprivations caused by a government custom “even though
such a custom has not received formal approval through the body’s official
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                                 No. 13-50631
decisionmaking channels”). For support, Cardenas points to the circumstances
surrounding Cesar’s death, as well as the affidavit of Sanders.
      In his affidavit, Sanders states that while he was in the custody of the
County, he became ill. After one prison officer summoned an ambulance,
Sheriff Meyer turned the ambulance away. As a result, Sanders was not taken
to the hospital until the following day; he required emergency surgery and a
lengthy hospital stay. Cardenas argues that this denial of timely medical care
to Sanders, combined with the similar circumstances surrounding Cesar’s
death—i.e. the failure to procure timely medical care for Cesar—indicate that
the County has a custom or policy of denying medical care to inmates.
      Even taking all of Cardenas’s claims as true, there is not sufficient
evidence to demonstrate that the County had a custom of denying medical care.
The undisputed facts indicate the opposite.     Both Sanders and Cesar did
receive medical care during their time in County custody. Sanders was taken
to the hospital the day after the ambulance was turned away by Sheriff Meyer.
Cesar was taken to the hospital several days prior to his death. Thus, in both
cases, the prisoners received medical care. That they received it either too
early or too late may indicate, as the district court suggested, a failure in
judgment by the prison officials. These two isolated failures in judgment
cannot, however, establish a custom or policy of denying medical care to
inmates. See, e.g., Arshad v. Congemi, No. 08-30061, 2009 WL 585633, *8 (5th
Cir. Mar. 9, 2009) (unpublished) (dismissing Monell claim for failure to show a
“custom” where plaintiffs “point to only one similar previous incident”).
                                       3.
      Cardenas next argues that Cesar’s constitutional deprivation was caused
by the decision of an individual with express policy-making authority: Sheriff
Meyer. See Pembaur, 475 U.S. at 481–83. Cardenas to some extent conflates
this theory with the custom or policy theory from above. Cardenas alleges that
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                                  No. 13-50631
by turning the ambulance away in Sanders’s case, Sheriff Meyer created a
policy or custom of denying medical care to inmates. As discussed above, the
two isolated incidents are not enough to establish a policy or custom. Similarly,
Cardenas’s argument on this theory fails because Cardenas does not allege
that Sheriff Meyer himself had any part in the denial of medical care to Cesar.
      Here, taking Cardenas’s allegations as true, Sheriff Meyer made a
decision in Sanders’s case to take a particular course of action. And although,
under Pembaur, that could be interpreted as “an act of official government
policy” in Sanders’s case, it does not support Cardenas’s claim because Sheriff
Meyer was not involved in Cesar’s case. See Thompson, 245 F.3d at 459
(recognizing that a sheriff “not personally involved in the acts that deprived
the plaintiff of his constitutional rights” is liable under § 1983 only under a
failure-to-train theory). Thus, Cardenas cannot establish that Cesar’s alleged
constitutional injury was caused by an official with policy-making authority.
                                       C.
      Finally, Cardenas argues that she can recover under § 1983 based on the
County’s inadequate training of prison officials. In short, Cardenas alleges
that the County provided inadequate training in how to deal with medical
emergencies, and this failure led to Cesar’s death.
      In determining municipal liability based on inadequate training, “the
focus must be on adequacy of the training program in relation to the tasks the
particular officers must perform.” City of Canton, Ohio v. Harris, 489 U.S. 378,
390 (1989). Establishing municipal liability for a failure to train is a difficult
task. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“A municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.”). Cardenas must establish that the County’s failure to
train was deliberately indifferent to the constitutional rights of inmates. Id.


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                                  No. 13-50631
                                        1.
      Establishing deliberate indifference generally requires a showing that
the municipality failed to change its training methods in the face of several
incidents in which the training methods caused constitutional deprivations.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003); Connick, 131 S. Ct. at 1360
(“A pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of
failures to train.”).
      Here, Cardenas again relies on the cases of Cesar and Sanders and
alleges that these two occurrences demonstrate the inadequacy of the County’s
training methods.       Cardenas cannot clear the high bar that exists for
establishing a failure to train by pointing only to these two claims. These
claims undoubtedly represent a small proportion of the inmates that the
County has held over the relevant time period. Additionally, these events are
contrasted by the times that these exact two inmates did receive medical care
while in County custody. Thus, these facts cannot establish the “pattern of
similar constitutional violations by untrained employees” that is necessary to
demonstrate deliberate indifference on the part of the County. Connick, 131
S. Ct. at 1360.
                                        2.
      It is also possible, in limited circumstances, to establish a failure-to-train
claim based on a single incident. See id. at 1361 (recognizing that the Court
has left open the possibility of failure-to-train liability based on a single
incident when the unconstitutional consequences of the failure are “patently
obvious”). In Harris, the Supreme Court provided an example of a training
failure that would be “so obvious” to support liability based on a single incident:
      For example, city policymakers know to a moral certainty that
      their police officers will be required to arrest fleeing felons. The

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       city has armed its officers with firearms, in part to allow them to
       accomplish this task. Thus, the need to train officers in the
       constitutional limitations on the use of deadly force can be said to
       be “so obvious,” that failure to do so could properly be characterized
       as “deliberate indifference” to constitutional rights.

489 U.S. at 390 & n.10 (internal citation omitted). The Supreme Court has
subsequently made clear that this language applies to a narrow set of cases.
Connick, 131 S. Ct. at 1366 (“We conclude that this case does not fall within
the narrow range of ‘single-incident’ liability. . . .”).
       The district court stated that the County’s training “is inadequate by any
reasonable measure.” Although the County disputes this characterization, we
see no need to pass judgment on the County’s training program.                       Even
assuming that the training is inadequate, a constitutional violation via
inadequate training was not “so obvious” as to establish liability. Cardenas
needed to demonstrate that, absent further training, it was “highly
predictable” that prison officials would be “confounded” by decisions about
whether to summon emergency medical care. See id. at 1365. Cardenas had
to demonstrate that this was “so predictable that failing to train the [prison
officials] amounted to conscious disregard” for a prisoner’s right to medical
care. Id. (emphasis in original). Cardenas did not satisfy this burden.
       In sum, the Supreme Court has made clear that failure-to-train liability
for municipalities is only appropriate in the most egregiously apparent cases.
Even accepting that the district court was correct that the County’s training
was inadequate, this case does not fit within that narrow band of
circumstances where a failure to train is so obvious as to result in liability. 2




       2 Cardenas also brought a state law survivorship action. This allows for an
individual’s § 1983 claim to survive to his heirs. As we have held that there is no viable
§ 1983 claim, the district court was correct in dismissing the state law survivorship claim.
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                                       III.
       Finally, Cardenas argues that the district court erred in granting
summary judgment to the County in the light of the County’s failure to produce
responsive documents related to Sanders’s incarceration and affidavit. The
district court rejected this request for production as well as Cardenas’s motion
for sanctions for spoliation of evidence. We review this decision on a discovery
motion for abuse of discretion. Turnage v. Gen. Elec. Co., 953 F.2d 206, 208
(5th Cir. 1992).
       We hold that the district court did not abuse its discretion in refusing to
sanction the County and in granting summary judgment despite Cardenas’s
discovery complaints. Cardenas has not shown that she was prejudiced by any
failure to produce evidence. See Marshall v. Norwood, 741 F.2d 761, 764 (5th
Cir. 1984). At this stage in the proceedings, we take Sanders’s affidavit as
wholly true, so it is unclear what would be added to Cardenas’s case by
evidence that merely affirms the affidavit. Thus, we cannot say that the
district court abused its discretion in denying this discovery motion. See Greer
v. Bramhall, 77 F. App’x 254, 255 (5th Cir. 2003) (unpublished) (“As Greer
suffered no prejudice, Greer has not shown that the district court abused its
discretion . . . .”).
                                       IV.
       In this opinion, we hold that Cardenas has not established that the
County violated § 1983. Specifically, the evidence, taken in the light most
favorable to Cardenas, does not create an issue of material fact as to whether
the County was deliberately indifferent to Cesar’s medical needs, whether
Cesar’s deprivation was a result of a County policy, or whether the deprivation
resulted from inadequate training. Similarly, the district court did not abuse
its discretion in denying Cardenas’s discovery motion presented in Cardenas’s


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response to the County’s motion for summary judgment. The judgment of the
district court is therefore
                                                                   AFFIRMED.




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