     Case: 12-50355       Document: 00512157972         Page: 1     Date Filed: 02/27/2013




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

                                                                            FILED
                                                                         February 27, 2013

                                       No. 12-50355                        Lyle W. Cayce
                                                                                Clerk

REGINA JACKSON, Individually; RUDOLF WILLIAMSON, Individually;
D’AMBRA JACKSON, as Representative of the Estate of Rachel Jackson,

                                                  Plaintiffs-Appellants
v.

JOHN S. FORD, M.D.; TRAVIS COUNTY, TEXAS,

                                                  Defendants-Appellees



                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:10-CV-522


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The plaintiffs brought suit against the defendants, asserting federal claims
under 42 U.S.C. § 1983 and state law negligence claims arising out of the death
of Rachel Jackson (“Jackson”). Jackson died at the age of twenty-one while being
treated for schizophrenia during pre-trial incarceration at the Travis County
Correctional Complex (“TCCC”). The district court granted summary judgment
in favor of the defendants with regard to the § 1983 claims. The jury found in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50355

favor of the defendants with regard to the state law claims of negligence, and the
district court denied the plaintiffs’ motion for a new trial. The plaintiffs now
appeal. We AFFIRM.
                                        I.
      Jackson was arrested by Austin police on July 15, 2008, for creating a
public disturbance and because there was an outstanding warrant for her arrest
for a probation violation. She previously had been diagnosed with schizophrenia.
The officers first took her to a hospital, where she was diagnosed as being
tachycardic (elevated heart rate), hypokalemic (low potassium levels), and
hyponatremic (low sodium levels), and as having likely taken illegal drugs. She
was treated and discharged that day, and was then taken to Travis County Jail.
While at the jail, Dr. John Ford, a psychiatrist and independent contractor for
Travis County, examined Jackson, diagnosed her as being schizophrenic, and
prescribed two antipsychotic medications, Abilify and Risperdal. He kept her on
suicide precautions and in psych lockdown.
      At 11:45 p.m. on July 15, 2008, Jackson was transferred to the TCCC. Ford
visited Jackson at the TCCC on July 16, July 17, and July 18, 2008. On July 18,
Ford discharged her from full suicide precautions but left her on psych lockdown,
which according to Travis County Sheriff’s Office (“TCSO”) official policy
required that she be visually observed by a TCCC officer once every thirty
minutes. Ford also prescribed a third antipsychotic medication, Mellaril, with
the goal of weaning her off the other antipsychotic drugs and finding a drug
regime that she would continue to follow after her release. TCSO Director of
Pharmacy Services Diana Gonzalez filled Jackson’s prescription for Mellaril. A
computer program alerted Gonzalez to the fact that Mellaril had a level 2 drug-
drug interaction with Risperdal, which meant that taking both drugs created an
increased risk of severe adverse reactions. Gonzalez filled the prescription
without informing Ford or the TCCC nurses who dispensed the medication.

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                                  No. 12-50355

      Jackson made several medical complaints. On July 18, she reported that
her heart was racing. TCCC staff notified medical personnel. A nurse examined
her but did not record the examination. The next day, Jackson complained of
chest pains, inability to breath, and feeling claustrophobic. Though TCSO official
policy required that such complaints be reported to medical personnel, no report
was made. Jackson was found dead at 5:44 a.m. the following morning, July 21,
2008. Although the jail records indicated that staff checked on her every thirty
minutes throughout the night and found a “living, human body,” in accordance
with TCSO policy, Jackson had already entered rigor mortis and was determined
to have been dead for several hours at the time she was found.
      Jackson’s parents, Regina Jackson and Rudolf Williamson, sued Ford and
Travis County, asserting § 1983 claims for violations of the Eighth and
Fourteenth Amendments and claims of medical negligence, general negligence,
and gross negligence. Jackson’s sister, D’Ambra Jackson, joined on behalf of
Jackson’s estate. The district court granted the defendants summary judgment
on the § 1983 claims and allowed the negligence claims to proceed to trial. The
jury found in favor of the defendants. The plaintiffs filed a motion for new trial,
contending that the jury’s verdict was against the great weight of evidence, that
the district court failed to sufficiently cure an erroneous evidentiary ruling, and
that the defense counsel improperly referred to the dismissed § 1983 claims
during trial. The district court denied the plaintiffs’ motion. The plaintiffs now
appeal.
                                        II.
      The plaintiffs first contend that a new trial is warranted because the jury’s
verdict was against the great weight of evidence. We “review the denial of a
motion for new trial for abuse of discretion.” Dresser-Rand Co. v. Virtual
Automation Inc., 361 F.3d 831, 839 (5th Cir. 2004). We will reverse only if the
appellants “demonstrate an absolute absence of evidence to support the jury’s

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                                  No. 12-50355

verdict.” Duff v. Werner Enterprises, Inc., 489 F.3d 727, 729 (5th Cir. 2007)
(internal citation and quotation marks omitted). Here, the plaintiffs have made
no such showing. The plaintiffs had to satisfy three elements to prove their
negligence claims: (1) a legal duty; (2) a breach of that duty; and (3) “damages
proximately caused by that breach.” D. Houston, Inc. v. Love, 92 S.W.3d 450, 454
(Tex. 2002). Because the defendants presented compelling expert testimony and
other evidence that their alleged negligence did not proximately cause Jackson’s
death, the plaintiffs have not shown an absolute absence of evidence to support
the verdict. The district court therefore did not abuse its discretion in finding
that the jury’s verdict was not against the great weight of evidence.
      The plaintiffs also argue that the district court should have granted their
motion for a new trial because it failed to sufficiently cure an erroneous
evidentiary ruling regarding Gonzalez’s testimony as to the standard of care due
patients in institutional settings. The district court initially sustained Travis
County’s objection to Gonzalez’s testimony, but reversed its decision the
following day. The district court cured its error by recalling Gonzalez to the
stand within the hour and allowing the plaintiffs to resume that line of
questioning. We review a district court’s evidentiary rulings only for abuse of
discretion. E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1092-93 (5th Cir.
1994). A judgment will be vacated based on an error in an evidentiary ruling
only where the “substantial rights of the parties were affected.” Id. at 1093
(internal quotation marks omitted). The district court corrected its ruling within
twenty-four hours and recalled Gonzalez within an hour of this correction. The
plaintiffs provide no evidence to support their allegation that Gonzalez was
coached in the meantime. Moreover, Gonzalez did not testify as to causation.
Because the jury’s ruling was not against the great weight of evidence because
there was competing causation evidence, the erroneous but quickly cured
evidentiary ruling could not have affected the plaintiffs’ substantial rights.

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       Finally, the plaintiffs contend that the district court abused its discretion
in refusing to grant a new trial on the basis of defense counsel’s improper
reference to the dismissed § 1983 claims during trial. “Improper comments from
the bench or by counsel will not warrant reversal unless they so permeate the
proceedings that they impair substantial rights and cast doubt on the jury’s
verdict.” Bufford v. Rowan Co., Inc., 994 F.2d 155, 157 n.1 (5th Cir. 1993). The
isolated comment did not permeate the proceedings. Indeed, the plaintiffs
specifically opted against a curative instruction that might draw unnecessary
attention to the comment. In addition, the comment was made during a witness’
testimony regarding the standard of care and did not bear upon the evidence of
causation. Therefore, it did not impair the plaintiffs’ substantial rights or cast
doubt upon the verdict.
       For these reasons, we conclude that the district court did not err in
denying the plaintiffs’ motion for a new trial.
                                             III.
       The plaintiffs also appeal the district court’s grant of summary judgment
to Travis County as to the § 1983 claims.1 We review a district court’s grant of
summary judgment de novo, applying the same standard as the district court.
Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012). Summary judgment is
appropriate if the record shows that “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a).
       To prove a § 1983 claim against Travis County, the plaintiffs must
establish municipal liability by showing that “(1) an official policy (2)
promulgated by the municipal policymaker (3) was the moving force behind the
violation of a constitutional right.” Peterson v. City of Fort Worth, Tex., 588 F.3d


       1
        The district court also granted summary judgment in favor of Ford. The plaintiffs do
not appeal or discuss this issue in their appeal brief and therefore waive it. See United States
v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005).

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838, 847 (5th Cir. 2009). The plaintiffs contend that the actions of several TCCC
officers and nurses violated Jackson’s rights by failing to report her health
complaints to the proper medical authorities and by failing to check on her every
thirty minutes. However, these actions were not in accordance with any official
policy. Indeed, the officers violated Travis County’s written policies, which
required that all prisoner complaints of chest pains be reported to medical
personnel, and that individuals housed in psych lockdown be visually checked
every thirty minutes. Therefore, the official policies of Travis County were not
the moving force behind the alleged violation of Jackson’s constitutional rights.
       The plaintiffs also claim that Gonzalez is an official policymaker for Travis
County and violated Jackson’s constitutional rights by not informing Ford or the
nurses of the potentially dangerous interaction between Mellaril and Risperdal.
However, in Texas, “[t]he sheriff is without question the county’s final
policymaker in the area of law enforcement.” Colle v. Brazos Cnty., Tex., 981
F.2d 237, 244 (5th Cir. 1993); see also Tex. Loc. Gov’t Code Ann. § 351.041 (West
2011). Travis County Sheriff Greg Hamilton, in a sworn affidavit, stated that he
did not delegate policymaking authority to Gonzalez, and Gonzalez testified that
she had not been given policymaking authority. Plaintiffs could show only that
Gonzalez had some discretionary authority, which is insufficient to prove that
she had been delegated final policymaking authority. See Bennett v. City of
Slidell, 728 F.2d 762, 769 (5th Cir. 1984). Because the plaintiffs did not show
that an official Travis County policy promulgated by the municipal policymaker
was the moving force behind a violation of Jackson’s constitutional rights, the
district court did not err in granting summary judgment on the § 1983 claims in
favor of Travis County.2


       2
        Plaintiffs claimed for the first time in its appeal brief that Ford was an official
policymaker. Because the plaintiff never raised this claim before the trial court, it is waived
on appeal. See Mick Haig Prods. E.K. v. Does 1-670, 687 F.3d 649, 652 (5th Cir. 2012).

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                                        IV.
      For these reasons, we AFFIRM the district court’s grant of summary
judgment and dismissal of the plaintiffs’ § 1983 claims; and AFFIRM the district
court’s denial of the plaintiffs’ motion for a new trial.




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