
NO. 07-06-0104-CR
 
IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 23, 2007
______________________________


COLBY W. LYNCH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-407207; HONORABLE CECIL G. PURYEAR, JUDGE
_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
 Following a plea of not guilty, Appellant, Colby W. Lynch, was convicted by a jury
of injury to a child and sentenced to life imprisonment.  Presenting four issues, Appellant
contends (1) the trial court erred by allowing the State to present expert testimony after it
failed to comply with pretrial discovery orders, (2) the trial court erred by allowing the State
to admit a golf club as demonstrative evidence, (3) the State failed to prove that the object
that caused the victim's injuries was unknown, and (4) the State asserted facts at trial that
were not alleged in the indictment.  We affirm.
	Appellant was charged with three counts of injury to a child after hospital personnel
discovered multiple injuries on his girlfriend's three-year-old daughter.  The victim was
taken to University Medical Center in Lubbock after her mother found her nonresponsive
and suffering from seizure-like symptoms in Appellant's apartment.  Upon arrival, pediatric
surgeon Dr. Christopher Blewett diagnosed the victim with a serious head injury caused
by blunt-force trauma.  After further observation, Dr. Blewett discovered that the victim also
suffered from numerous cuts and bruises that he believed were nonaccidental and
indicative of a pattern of abuse.  Investigators learned that the victim lived with her mother
and two older brothers in Appellant's apartment.  As a result of the investigation, Appellant
was arrested for child abuse.  
	Following his arrest, the State proceeded to jury trial on the count in the indictment
alleging that Appellant intentionally and knowingly caused serious bodily injury to the victim 
by striking her with an unknown object.  Several days prior to trial, Appellant moved to
exclude the State's expert testimony on the ground that the State failed to comply with
pretrial discovery orders.  At a hearing on the motion, the trial court concluded that the
State's witness lists adequately gave notice of the expert witnesses that were expected to
testify at trial and denied Appellant's motion.  Appellant was subsequently convicted and
filed this appeal. 
	By his first issue, Appellant contends the trial court erred by denying his motion to
exclude expert testimony because the State "willfully and intentionally" failed to comply with
pretrial discovery orders.  Specifically, Appellant alleges the State failed to timely disclose
pictures in its possession and Dr. Blewett's medical reports and curriculum vitae.  He also
alleges the State failed to divulge the nature and summary of its experts' testimony, which
resulted in "trial by ambush" and prejudiced his defense.  We disagree.
	A trial court's decision to admit or exclude evidence is reviewed under an abuse of
discretion standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).  We
must uphold the trial court's decision to admit the evidence as long as it falls within the
zone of reasonable disagreement.  Wheeler v. State, 67 S.W.3d 879, 889 (Tex.Crim.App.
2002); Hernandez v. State, 205 S.W.3d 555, 558 (Tex.App.-Amarillo 2006, pet. ref'd).
	Despite Appellant's contention, we find no record of the pretrial discovery orders that
form the basis of his allegations of noncompliance.  The record indicates that the trial court
was aware of Appellant's motion for discovery but does not show whether the trial court
granted or denied the motion.  Apparently, Appellant's discovery motion was addressed
at a pretrial hearing on April 1, 2005.  At the hearing, defense counsel explained that he
had taken advantage of the State's open-file policy but expressed concern that the files
had been updated.  Defense counsel then requested to receive all available medical
records at least six weeks prior to trial.  The trial court stated, "I'll set it 45 days before trial."
  	In response to Appellant's motion for discovery, the prosecutor informed the court
that the State was still receiving updated medical records and that it would plan a meeting
with defense counsel in the upcoming weeks to "see what they have and then get copies
of all these things to him."  Following the prosecutor's remarks, the trial court moved on to
defense counsel's next motion.  The record is silent as to whether the State's proposed
meeting ever took place.
	In this case the record reflects that there was no oral or written order granting or
denying Appellant's discovery motion.  Because Appellant complains about a violation of
a discovery request, we find that the failure to obtain a ruling on his discovery motion
leaves nothing for review.  Appellant's first issue is overruled.
	By his second issue, Appellant contends the trial court erred by allowing the State
to admit a golf club, similar to one found in Appellant's apartment, as demonstrative
evidence of the weapon used to inflict the injuries sustained by the victim.  On direct
examination, the prosecutor questioned Detective Bill Carter about a golf club found
leaning against the wall in the victim's bedroom.  The detective speculated that some of
the linear marks found on the victim could have resulted from being struck with that club. 
He also testified that investigators did not retrieve the club from Appellant's apartment. 
The prosecutor then introduced a golf club that it believed was similar to the one found in
Appellant's apartment.  The detective confirmed that it had similar characteristics, and the
State offered to admit the club for demonstrative purposes.  Defense counsel immediately
objected that the club served no purpose but to prejudice the jury and that use of a golf
club was not alleged in the indictment.  The trial court overruled Appellant's objection and
the club was admitted.
	Citing Miskis v. State, 756 S.W.2d 350 (Tex.App.-Houston [14th Dist.] 1988, pet.
ref'd), Appellant contends it was error to admit the club as demonstrative evidence
because (1) there was no evidence that the original club was unavailable, (2) there was no
evidence that the original club would have been admissible at trial, (3) the club was
irrelevant considering the charge alleged in the indictment, (4) the club was more
prejudicial than probative, (5) the jury was not instructed that the State's club was not used
in the commission of the offense, and (6) there was no evidence that the State's club was
similar to the club owned by Appellant.  We disagree.
	First, Appellant's objections at trial pertained only to relevance and whether the club
was more prejudicial than probative.  Therefore, the remainder of his contentions were not
brought to the attention of the trial court and present nothing for review.  See Tex. R. App.
P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (explaining
that objections below that do not comport with those on appeal are generally not preserved
for review). With respect to the issues preserved, Appellant contends the evidence has no
probative value because the indictment alleged that the victim's injuries were caused by
an "unknown object."  Without citing any supporting authority, Appellant claims that
admitting the club constituted reversible error.
	The record, however, reveals that the State did not attempt to prove that the club
was the actual object used to inflict the serious bodily injury suffered by the victim.  Instead,
the State merely introduced the club as an example of the type of object that could have
caused the victim's linear injuries.  In this regard, we find that the club did have some
probative value and did not unfairly prejudice his defense.  Thus, the trial court did not
abuse its discretion and we overrule Appellant's second issue.
	By his third issue, Appellant contends the evidence was factually insufficient to
support his conviction because the State failed to prove an essential element alleged in the
indictment.  He claims that, by submitting evidence that a golf club may have been used,
the State disproved that the victim's injuries were caused by an object unknown to the
grand jurors as alleged in the indictment.  Alternatively, he contends that the grand jury
should have returned an indictment alleging that he struck the victim with a golf club.  We
disagree.
         	When an appellant challenges the factual sufficiency of the evidence, we review all
the evidence in a neutral light and determine whether the jury was rationally justified in
finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484
(Tex.Crim.App. 2004), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17
(Tex.Crim.App. 2006).  We will not reverse a conviction and order a new trial unless we
find some objective basis in the record that demonstrates that the great weight and
preponderance of the evidence contradicts the jury's verdict.  Watson, 204 S.W.3d at 417. 
In other words, we cannot conclude that Appellant's conviction is "clearly wrong" or
"manifestly unjust" simply because we disagree with the jury's verdict.  Id.; Cain v. State,
958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
	Furthermore, when an indictment alleges that an injury was caused by an unknown
object and the evidence at trial does not show what type of object was used, there is a
prima facie showing that the object was unknown to the grand jury.  Maston v. State, 819
S.W.2d 839, 847 (Tex.Crim.App. 1991).  If, however, the evidence at trial shows that a
specific object was used to inflict the injury, an issue is raised with respect to whether the
grand jury had information as to the object used.  Id.  Only then must the State prove that
the grand jury did not know the identity of the object used to inflict the injury and that it
used due diligence in its attempt to identify the object.  Id.
	As previously stated, the record in the present case reveals that the State submitted
the club as a demonstrative example of the type of object that could have caused the linear
marks discovered on the victim.  There was no attempt by the State to show that the
victim's injuries were actually caused by the golf club found in Appellant's apartment.  In
fact, they established evidence to the contrary.  For example, the State elicited testimony
from multiple witnesses that the victim's injuries could just as easily have been caused by
a belt, a hand, a fist, a wall, a floor, or any number of unknown household objects.  These
witnesses also testified that there was no way of knowing exactly what object caused the
victim's numerous injuries.
	The evidence in this case simply does not establish that a golf club was the only
possible object that caused the victim's injuries.  It merely raises that scenario as one of
many possibilities.  Thus, the State was not obligated to prove that the grand jury exercised
due diligence in ascertaining the identity of the unknown object. (1)  We find that this
evidence was sufficient to support the charge alleged in the indictment and the jury's
finding of guilt beyond a reasonable doubt.  Accordingly, Appellant's third issue is
overruled.
	By his fourth and final issue, Appellant claims the State committed reversible
constitutional error by presenting an indictment alleging that he struck the victim with an
unknown object and then "ambushing" him at trial with evidence that the object was a golf
club.  Again, the record is clear that the State proceeded on the theory that the victim's
injuries could have been caused by any number of unknown objects.  The golf club was
admitted only as a demonstrative exhibit of the type of object that could have caused some
of the linear marks on the victim.  The State made no attempt to link the club, or any other
object, as the instrument that caused the numerous other injuries to the victim.  Therefore,
we overrule Appellant's fourth issue.
	Accordingly, the trial court's judgment is affirmed.

							Patrick A. Pirtle
							      Justice
 
Do not publish.	         
1. Even so, the record shows that the State called the grand jury foreman as its first
witness.  She testified that, based on the available evidence, the grand jury was, in fact,
unable to determine the exact object used by Appellant. 

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NO. 07-09-00102-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

APRIL
20, 2010
 

 
MICHELLE ROCHA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
RAYMOND DWAYNE BINGLE, APPELLANT
 
v.
 
POTTER COUNTY, TEXAS, ET AL., APPELLEE 

 

 
 FROM THE 181ST DISTRICT COURT OF POTTER
COUNTY;
 
NO. 91,748-B; HONORABLE DAVID L. GLEASON, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
OPINION
 
 
Appellant, Michelle Rocha, appeals
the trial courts grant of appellees, Potter County,
plea to the jurisdiction and motion for summary judgment relating to Rochas 42
U.S.C. § 1983 claims.[1]  We affirm.
 
 
Factual and Procedural Background
            On
October 24, 2001, Raymond Bingle, the 19-year-old son
of Rocha, was arrested on charges of aggravated sexual assault of a child and
possession of drug paraphernalia.  He was
incarcerated in the Potter County Detention Center while awaiting trial on
these charges.  In accordance with Potter
County Detention Center policy, Bingle was screened
to assess whether he presented any special housing, medical,
or mental health issues.  During this
screening, Bingle denied having ever attempted to
commit suicide and denied having suicidal thoughts at the time of the
screening.  Nonetheless, the screening
officer concluded that Bingle presented special
management concerns due to psychological impairment, mental deficiency, and
suicide risk.
            On
or about December 11, 2001, Bingle was involved in a
fight with another inmate.  As a result
of this incident, Bingle was rescreened.  The rescreening again classified Bingle as presenting management concerns due to
psychological impairment, mental deficiency, and suicide risk.  Bingle was served
with a review board notice for his involvement in the fight, but he waived his
right to a hearing and accepted a sanction of ten days of lockdown and loss of
privileges.  Bingle
was placed in a fishbowl cell that allowed officers to more closely observe
the inmates in the cells.  However, it
appears that the reason that Bingle was placed in
this cell was due to his involvement in the fight rather than because of his
suicide risk.  
            On
December 25, 2001, Bingle was denied the opportunity
to visit with his family because the visitation list had been filled.  This upset Bingle
and he threatened to throw a fit or do something if he was not allowed to
see his family.  However, Bingle did not expressly threaten to commit suicide.
            On
December 26, 2001, Officers Gasparovich and Dorrance went on duty overseeing the A pod in which Bingle was being housed. 
Gasparovich and Dorrance
were not aware that Bingle had been classified as a
suicide risk.  As a result, Bingle was checked in the same manner as any other inmate
housed in A pod. 
When Gasparovich and a trustee took Bingle his breakfast, the trustee discovered that Bingle had hanged himself with a sheet that he had tied to
the railing of his shower.  Gasparovich called a medical officer, who checked Bingle for a pulse, but did not find one.  
            On
December 31, 2003, Rocha, Bingles mother, filed her
First Amended Petition wherein she claimed, inter
alia, that appellees, Potter County and Sheriff
Mike Shumate, were responsible for Bingles suicide
pursuant to § 1983 and the Texas Tort Claims Act, see Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005).  On May 23, 2008, as a result of a rule 11
agreement between the parties, Rocha filed her Second Amended Petition, which
reasserted her § 1983 claims but omitted her claims under Texas law.  On October 13, 2008, Potter County and
Shumate filed their Plea to the Jurisdiction and Motion for Summary
Judgment.  In her response, Rocha
voluntarily dismissed her claims against Shumate as being duplicative in
nature.  On February 28, 2009, the trial
court entered its judgment granting Potter Countys Plea to the Jurisdiction
and Motion for Summary Judgment, dismissing Rochas claims, and assessing costs
of court against Rocha.  On March 30,
2009, Rocha filed her Notice of Appeal.
            By one issue, Rocha appeals. 
Rocha contends that more than a scintilla of evidence was presented to
raise a genuine issue of material fact on her § 1983 and Texas Tort Claims Act
claims[2]
and that there were insufficient grounds for the trial court to grant Potter
Countys Plea to the Jurisdiction.  While
Rochas appellate brief presents only one issue, we will address the trial
courts grant of Potter Countys jurisdictional plea and summary judgment
motion separately.
Plea to the Jurisdiction
Standard of Review
            A
plea to the jurisdiction is a proper pleading for challenging a courts subject
matter jurisdiction over a claim.  See
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000).  When a plea to
the jurisdiction is filed, the plaintiff bears the burden of alleging facts
that affirmatively show that the trial court has subject matter jurisdiction
over plaintiffs claims.  See Tex.
Assn of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  As such, consideration of a plea to the
jurisdiction must begin by focusing on the plaintiffs petition to determine
whether the facts pled affirmatively demonstrate the trial courts jurisdiction
over the case.  State
v. Holland, 221 S.W.3d 639, 642-43 (Tex. 2007).  However, in some instances, evidence may be
relevant to the jurisdictional issue.  Id. at 643. 
When evidence is relevant to the jurisdictional issue, the reviewing
court must consider this evidence to determine whether the evidence raises a
fact question regarding the jurisdictional issue.  Tex. Dept of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).  If the evidence raises a fact question
regarding the jurisdictional issue, the court cannot grant the plea and the
fact question must be resolved by the fact finder.  Id. at 227-28.
            Generally,
a county has no sovereign immunity from a § 1983 claim.  County of Dallas v. Sempe,
151 S.W.3d 291, 299-300 (Tex.App.Dallas 2004, pet. dismd w.o.j.).  To present a valid claim for a violation of §
1983, a plaintiff must plead facts showing that: (1) a policy or custom
existed, (2) the governmental policymakers actually or constructively knew of
the policys existence, (3) a constitutional violation occurred, and (4) the
custom or policy served as the moving force behind the violation.  Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th
Cir. 1996).  A plaintiffs
description of the policy or custom and its relationship to the constitutional
violation cannot be conclusory; it must contain
specific facts.  Spiller
v. City of Texas City, Police Dept, 130 F.3d 162, 167 (5th Cir.
1997).
Analysis
            A
review of Rochas live pleading reveals that each of these elements of a § 1983
claim were alleged.  She specifically
alleges that Potter County had eight policies or customs of which policymakers
were aware and that were the moving force behind a violation of Bingles Fourth and Fourteenth Amendment rights.  However, our review of Rochas live pleading
leads to the conclusion that the factual allegations do not support her claims
of Potter Countys policies and customs. 
The facts pled are not sufficient to support that Potter County had these claimed policies or customs nor how these policies
or customs were the moving force behind the violation of Bingles
constitutional rights.  Thus, we conclude
that Rochas live pleading fails to provide specific facts sufficient to
present a prima facie claim that
Potter County violated Bingles constitutional
rights.  See id.; Meadowbriar, 81 F.3d at 532-33.
            However,
both parties presented significant amounts of evidence to the trial court that might
be relevant to the jurisdictional issue. 
We must consider this evidence.  See
Miranda, 133 S.W.3d at 227.  Since the issue of whether this evidence is
sufficient to establish a prima facie
case for a § 1983 claim is subsumed within the issue of whether Rocha has
presented sufficient evidence to raise a fact question on the elements of her
claim, we will review this jurisdictional evidence in our analysis of Rochas
issue regarding the trial courts grant of summary judgment.  See id.  However, we will conclude that the evidence
does not raise a fact issue regarding whether Rocha has sufficiently pled a
cause of action under § 1983.
            Consequently,
we affirm the trial courts grant of Potter Countys Plea to the Jurisdiction.
Summary Judgment
            By
its summary judgment motion, Potter County asserted both no-evidence and
traditional grounds.  See Tex. R. Civ. P. 166a(c), (i); Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004) (permitting
motions combining no-evidence and traditional grounds).  We review both no-evidence and traditional
grounds for summary judgment de
novo.  See Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.
2004).  
Standard of Review  No-Evidence
Because
a no-evidence motion for summary judgment is, essentially, a pretrial directed
verdict, we apply the same legal sufficiency standard.  Kelly v. Demoss
Owners Ass=n, 71 S.W.3d 419, 423 (Tex.App.BAmarillo 2002, no
pet.).  A no-evidence motion for summary judgment is
properly granted unless the nonmovant brings forth
more than a scintilla of evidence to raise a genuine issue of material fact on
the elements challenged by the motion.  See
Tex. R. Civ. P. 166a(i); Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). 
More than a scintilla of evidence exists when the evidence Arises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.@  Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995).  On
the other hand, less than a scintilla of evidence has been described as
evidence Aso weak as to do no more than create
a mere surmise or suspicion.@ 
King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003).  In reviewing a
summary judgment, we must view all of the summary judgment evidence in the
light most favorable to the nonmovant and indulge
every reasonable inference in his or her favor as well.  See City of
Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).  However, when the summary judgment does not
specify the grounds asserted in the motion that it was premised upon, it will
be affirmed if any of the grounds presented are meritorious.  Kelly, 71 S.W.3d at
422.
Standard of Review  Traditional
            In
reviewing a traditional summary judgment, the following standards apply:
1.    the movant has the burden of
showing that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law;
2.    in deciding whether there is a disputed material fact
issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and
3.    every reasonable inference must be indulged in favor of the
nonmovant and any doubts resolved in its favor.
 
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)
(citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.
1985)).  Summary
judgment is proper if the defendant disproves at least one element of the
plaintiffs claims or establishes all elements of an affirmative defense to
each claim.  Id.
Law Applicable to Rochas § 1983
Claims
To establish a violation of § 1983, a
plaintiff must prove that: (1) a policy or custom existed, (2) the governmental
policymakers actually or constructively knew of the policys existence, (3) a
constitutional violation occurred, and (4) the custom or policy served as the
moving force behind the violation.  Meadowbriar, 81 F.3d at 532-33.  Liability for violations of constitutional
rights may be established by a § 1983 claim, but § 1983 will not provide a
remedy for violations of duties of care arising out of tort law, such as
negligence.  Baker
v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).  Pretrial detainees possess a constitutional
right to basic needs, such as medical care and safety, that
flows from the procedural and substantive due process guarantees of the
Fourteenth Amendment.  Hare v. City of
Corinth, 74 F.3d 633, 639 (5th Cir. 1996).  The failure to provide adequate protection
against a pretrial detainees known suicidal impulses is actionable under §
1983.  Rhyne v. Henderson County,
973 F.2d 386, 391-92 (5th Cir. 1992).  
Rocha contends that her claims state
challenges to both a condition of confinement and an episodic act or
omission.  Each of these types of
challenges is governed by a different standard of review.  See Flores v. County of Hardeman,
124 F.3d 736, 738 (5th Cir. 1997).  The Fifth Circuit has interpreted § 1983 to
prohibit plaintiffs from conflating claims concerning a prison officials act
or omission with a condition of confinement complaint.  See Anderson v.
Dallas County, 286 F.Appx 850, 858 (5th
Cir. 2008) (unpub. op.) (citing
Flores, 124 F.3d at 738).  A
condition of confinement claim is a constitutional attack on general
conditions, practices, rules[,] or restrictions of
pretrial confinement.  Flores,
124 F.3d at 738 (quoting Hare, 74 F.3d at 644).  By contrast, a claim is an episodic act or
omission claim when the harm complained of arises from a particular act or
omission of one or more officials.  Id. (citing Hare, 74 F.3d at 645).  
Rocha appears to premise her
contention that she has stated a condition of confinement claim on Potter
Countys inadequate training and supervision and failure to comply with the
policies in place when Bingle was assessed to be a
suicide risk.  However, proof of a single
incident generally will not support a finding of inadequate training as a
matter of custom or policy.  Forgan
v. Howard County, 494 F.3d 518, 522 (5th Cir. 2007).  Looking at Rochas complaints as a whole
reveals that she does not contend that Potter County did not have policies in
place that, if followed, would have prevented Bingles
suicide.  Rather, Rochas contentions
relate to the failure of Potter Countys employees to follow the policies that
were in place.  Rochas contentions are
very similar to the claims asserted in other § 1983 claims based on suicides
committed by detainees, and claims based on these sorts of contentions have consistently
been determined to present episodic act or omission claims.  See Forgan,
494 F.3d at 522 (claims of deviation from suicide policy require proof of
deliberate indifference); Anderson, 286 F.Appx
at 859 (failure to follow policies is a classic episodic-act-or-omission
case); Flores, 124 F.3d at 738 (failure to take precautions under
policy is an episodic act or omission case); Hare, 74 F.3d at 647-48
(failure to take a suicide threat seriously states an episodic act or omission
case).  Therefore, we will apply the
standard applicable to episodic act or omission claims in our review of Rochas
§ 1983 claims.
Having concluded that Rochas § 1983
claims are episodic act or omission claims, to overcome summary judgment, Rocha
must prove that a genuine issue of material fact exists that (1) a county
employee violated Bingles constitutional rights with
subjective deliberate indifference, and (2) the violation resulted from a
county policy or custom adopted or maintained with objective deliberate
indifference.  Scott
v. Moore, 114 F.3d 51, 54 (5th Cir. 1997).  
A prison official acts with
subjective indifference if he knows that an inmate faces a substantial risk of
serious bodily harm, yet disregards that risk by failing to take reasonable
measures to abate it.  Gobert
v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).  Stated another way, a plaintiff must show
both that the employee was aware of facts from which an inference of an
excessive risk to the prisoners safety could be drawn, and that the employee
actually drew an inference that such potential for harm existed.  Bradley v. Puckett,
157 F.3d 1022, 1025 (5th Cir. 1998).  Deliberate indifference is an extremely high
standard to meet.  Gobert,
463 F.3d at 346.  It is the subjective culpability that is key; merely finding that a reasonable person would have
known or that the defendant should have known is insufficient.  Farmer v. Brennan,
511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994).
If a plaintiff is unable to show that
a county employee acted with subjective deliberate indifference, the county
cannot be held liable for an episodic act or omission.  See Flores, 124
F.3d at 739.  However, proof of an
employees subjective indifference is insufficient without showing that the
employees act resulted from a county policy adopted and maintained with
objective deliberate indifference to the inmates rights.  See Scott, 114
F.3d at 54.  A county acts with
objective deliberate indifference if it promulgates or fails to promulgate a
policy or custom despite the known or obvious consequences that constitutional
violations would result.  Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir.
2001) (internal quotations omitted). 
Further, there must be a direct causal link between the county policy
and the constitutional violation.  Id. at 580.
Analysis
            In
the present case, Rocha contends that the district court erred in granting
summary judgment because genuine issues of fact exist.  Rocha contends that Potter County employees
were deliberately indifferent to Bingles medical
needs because, while Bingle was assessed to be a
suicide risk, this risk was not communicated to the officers on duty and, as a
result, those officers did not comply with the countys suicide prevention
policy.  In addition, Rocha contends that
the failures of the officers on duty were the result of Potter Countys policy
or custom of allowing officers with inadequate training and supervision to be
responsible for implementing these policies. 

            Because
establishment of subjective deliberate indifference requires proof that the
countys employee was actually aware of a substantial risk of serious bodily
injury, we conclude that Rocha has failed to present more than a scintilla of
evidence to establish her § 1983 claim. 
No evidence raised a fact issue regarding whether Officers Gasparovich and Dorrance were
ever made aware that Bingle was on a suicide
watch.  In fact, Rocha complains that the
officers were not aware of Bingles suicide risk.[3]  In addition, Rocha has presented no evidence
that Bingle acted in a manner that would give rise to
an inference that he was a risk to commit suicide.  Because Rocha has presented no evidence that
either officer on duty knew that there was a substantial health risk, Officers Gasparovich and Dorrance could
not have been deliberately indifferent toward such risk.  See Calton
v. Dallas County, No. 3:05-CV-2022-N, 2007 U.S. Dist. LEXIS 97628, at
*16-*17 (N.D. Tex. June 25, 2007) (notice of suicide risk contained in medical
record is insufficient without evidence of actual knowledge of suicide
risk).  Even if the evidence were
sufficient to raise a fact issue regarding whether the officers should have
known that Bingle was a suicide risk, at best, a fact
issue would be raised as to whether the officers were negligent in failing to
follow Potter Countys suicide prevention policy, but negligence will not
support liability under § 1983.  See
Farmer, 511 U.S. at 837-38.
            Further,
while not named in Rochas petition, Rocha seems to contend that certain Potter
County employees were aware of the suicide risk posed by Bingle,
yet failed to ensure that the suicide prevention policy was implemented.  However, the evidence would establish only
that an Officer A. Moore and Shift Sergeant James Cook were aware of the
suicide risk noted in the assessment and reassessment.  However, there is no evidence that either of
these officers ignored the risk of harm to Bingle.  These officers prepared or acknowledged that
the appropriate documentation was completed so that Bingle
would be appropriately treated as a suicide risk.  In addition, Rochas pleading states that she
advised an unnamed duty nurse about the possibility that Bingle
was a suicide risk.  However, Rochas
pleading acknowledges that she was reassured that Bingle
would be screened for suicide risk, which the evidence establishes was
done.  Rocha further contends that she
advised several unnamed members of the Detention Centers personnel that Bingle was afraid of other inmates.  She was assured that Bingle
would be placed in a cell by himself for his safety and well-being.  Bingle was, in
fact, placed in a cell by himself.  Finally,
Rocha contends that she informed unnamed Detention Center personnel that Bingle had discussed suicide during the 2001 holidays.  However, because Rocha does not identify the
individual or individuals to whom she gave this information, there is no evidence
presented that those individuals failed to take appropriate precautions.  We reiterate that a person having subjective
knowledge that a detainee poses a substantial suicide risk is insufficient to
establish subjective deliberate indifference without further proof that the
person disregarded the risk by failing to take reasonable precautions.  Gobert, 463 F.3d at 346.
            It
appears, from her live pleading and appellate brief, that Rochas contentions
are predicated on the concept of collective knowledge.  While the doctrine of collective knowledge
does apply to some actions of law enforcement, see Woodward v. State,
668 S.W.2d 337, 345-46 (Tex.Crim.App. 1984) (probable
cause determination may be based on what all officers knew rather than what the
arresting officer personally knew), it does not apply to § 1983 claims.  See Meadours
v. Ermel, 483 F.3d 417, 421-22
(5th Cir. 2007).  Further, it
is clear that the test for deliberate indifference requires an analysis of what
the individual actors knew and how they acted in the face of this
information.  See Gobert, 463 F.3d at 346.
            Rocha
bases her claims, in large part, on Potter Countys alleged violations of Texas
Jail Standards.  However, violations of
state law are not actionable under § 1983. 
See San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 n.4 (5th Cir. 1991)
(citing Jones v. Diamond, 594 F.2d 997, 1011 (5th Cir.
1979)).  Administrative protocols do not
establish constitutional rights for treatment of detainees.  Whitt v. Stephens County,
236 F.Appx 900, 902-03 (5th Cir. 2007).
            Rocha
presents specific arguments that Potter Countys acts or omissions were the
moving force behind Bingles suicide and that Potter
Countys failure to follow its suicide prevention policy constituted a
State-Created Danger.  Both of these
arguments go to the causation element necessary for a § 1983 claim and, as
addressed above, if a plaintiff fails to establish that the defendant was both
subjectively and objectively deliberately indifferent, causation is not
reached.
            Additionally,
while Rocha has failed to present any evidence that would support her claim
that any Potter County employee acted with subjective deliberate indifference
in regard to Bingles suicide, we will address
Rochas contention that Potter County failed to properly train or supervise its
employees and that such failure was the moving force behind Bingles
suicide.[4]  To establish a claim for failure to train or
supervise under § 1983, Rocha must show that: (1) Potter County failed to train
or supervise the officers involved, (2) there is a causal connection between
the alleged failure to supervise or train and the alleged violation of Bingles rights, and (3) the failure to train or supervise
constituted deliberate indifference to Bingles
constitutional rights.  Thompson v. Upshur County, 245 F.3d 447, 459 (5th
Cir. 2001).  Deliberate
indifference cannot be inferred merely from a negligent or even grossly
negligent response to a substantial risk of harm.  Id. 
This is so because to hold a county liable for the negligent acts of its
employees would state a claim for respondeat superior,
which is not actionable under § 1983.  Ashcroft v. Iqbal, 2009 U.S. LEXIS
3472, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); Monell v. Dept of Soc. Servs.,
436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978).  To establish that Potter
County was deliberately indifferent in its training and supervision, Rocha
must demonstrate a pattern of violations and that the inadequacy of the
training and supervision is obvious and obviously likely to result in a
constitutional violation.  Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003) (quoting Thompson,
245 F.3d at 459).  
            The
evidence does not raise a genuine issue of material fact regarding the training
and supervision of Gasparovich or Dorrance.[5]  The evidence establishes that Gasparovich had received a temporary jailers license prior
to the date of Bingles suicide.  Rochas complaints focus on the fact that, on
the date of Bingles suicide, Gasparovich
had not received classroom training in suicide prevention or even in performing
cell checks.  However, there is no
evidence in the record that Gasparovichs
on-the-job training did not include practical instruction in performing these
tasks.  Further, Rocha has identified no
statute or regulation that prohibits temporary jailers license holders from
performing the tasks required of a fully licensed jailer.  In fact, the law authorizes
the holder of a temporary jailers license to perform the functions of a
jailer.  See Tex. Occ. Code Ann. § 1701.310 (Vernon Supp. 2009).  Thus, the evidence establishes that Potter
County was in compliance with the applicable law in allowing Gasparovich to oversee the A pod of the Potter County
Detention Center on the night of Bingles
suicide.  Further, Rochas evidence in no
way establishes a pattern of violations such that the inadequacy of training
and supervision is obvious and obviously likely to result in a constitutional
violation.  See Cousin, 325 F.3d at 637.
            Rocha
additionally argues that a genuine issue of material fact is raised as to
Potter Countys training and supervision based on Potter Countys ratification
of Gasparovichs actions that is the result of Potter
County failing to take corrective or disciplinary action against Gasparovich. 
Ratification of an officers actions or omissions can impact whether a
single incident can support a claim of inadequate training and
supervision.  See Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985).  However, as addressed above, there is no
evidence that Gasparovich was aware that Bingle posed a suicide risk.  As such, there is no evidence that her
actions were not appropriate for a pretrial detainee that was not classified as
a suicide risk.
            For
the foregoing reasons, we conclude that Rocha has failed to provide any
evidence that would raise a genuine issue of material fact regarding her § 1983
claims.  Consequently, we affirm the
trial courts grant of summary judgment in favor of Potter County.
Spoliation of Evidence
            Finally,
Rocha contends that Potter County was guilty of spoliation of evidence.  Rochas allegation is that Potter County
destroyed videotaped evidence that would establish how often officers checked Bingles cell.  But,
assuming that we were to conclude that Potter County was guilty of spoiling
this evidence, such evidence would have no bearing on whether Gasparovich was aware that Bingle
posed a suicide risk.  Thus, even if we
assume that Potter County spoiled this evidence and, therefore, presume that the
evidence was unfavorable to Potter County, see Brumfield v. Exxon
Corp., 63 S.W.3d 912, 920 (Tex.App.Houston [14th
Dist.] 2002, pet. denied), Rocha has still not presented evidence that raises a
genuine issue of material fact regarding her § 1983 claim.
 
 
Conclusion
            Having
overruled Rochas sole appellate issue, we affirm the trial courts judgment granting
Potter Countys Plea to the Jurisdiction and Motion for Summary Judgment.
 
 
                                                                                                Mackey K. Hancock
                                                                                                            Justice
 
 
 
            




 




[1]
Further
reference to 42 U.S.C. § 1983 will be to § 1983.


[2]
While Rochas
issue complains of the dismissal of her claims under the Texas Tort Claims Act,
as previously noted, these claims were abandoned in Rochas live pleading.  Consequently, at the time of the trial
courts dismissal, Rochas state law claims were no longer part of the case.


[3]
Actually, the
facts known to the officers in charge at the time of Bingles
suicide would lead to the more likely inference that he was housed in the A pod
because of his recent involvement in a fight rather than because he was under a
suicide watch.  


[4]
While the
failure to train or supervise a specific individual could state a claim for an
episodic act or omission, Rochas claims, as pled, would seem to require proof
of a systemic failure and, therefore, be more properly classified as a
condition of confinement.  However, the
Fifth Circuit has addressed claims of inadequate training and supervision as
part of episodic act or omission cases.  See
Brumfield v. Hollins, 551 F.3d 322, 327-29 (5th
Cir. 2008); Anderson, 286 F.Appx at 859-63 (5th
Cir. 2008); Flores, 124 F.3d at 738-39. 
Thus, without expressing any opinion on whether Rochas training and
supervision claims constitute episodic act or omission claims, we will address
these claims.


[5] Actually, Dorrance is identified by Rocha not as an individual that
lacked sufficient training, but rather as the individual that had been trained
sufficiently that she could have prevented Bingles
suicide if she had properly supervised Gasparovich.


