     Case: 19-10311      Document: 00515144739         Page: 1    Date Filed: 10/03/2019




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

                                                                             FILED
                                    No. 19-10311                       October 3, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
TAYLOR FREELAND, Individually and as representative of the Estate of
Billy LaRae Freeland, Deceased; JOSH FREELAND, Individually and as
representative of the Estate of Billy LaRae Freeland, Deceased,

                                                 Plaintiffs - Appellants
v.

TARRANT COUNTY, TEXAS; SHERIFF BILL E. WAYBOURN,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                USDC 4:18-CV-845


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Taylor Freeland and Josh Freeland appeal the district court’s dismissal
of their lawsuit, arising out of an alleged violation of their father’s Eighth
Amendment rights. Taylor and Josh Freeland assert that their father, Billy
LaRae Freeland, died as a result of deliberate indifference to his medical needs


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10311
while he was an inmate at a prison in Tarrant County, Texas. For the following
reasons, we AFFIRM the district court’s dismissal of the claims against
Tarrant County.
                                        I.
      On October 18, 2017, Billy LaRae Freeland was booked into the Tarrant
County jail as a result of his conviction for driving while intoxicated. Jail
personnel knew that Freeland had a history of alcohol abuse and placed him
in a program to treat his alcohol-withdrawal symptoms. Medical staff from the
Tarrant County Hospital District administered this program and used the
Clinical Institute Withdrawal Assessment for Alcohol, a diagnostic tool, to
assess Freeland’s alcohol withdrawal.
      On October 19, Freeland reported moderate tremors, which he described
as normal. He was seen by a detoxification nurse on October 21. That nurse
wrote, in Freeland’s medical records, that he was naked, did not appear
“oriented to place or time,” and was “unwilling to let this nurse obtain his signs
or assess him.” His nurse commented that “[i]t is unclear if he has essential
tremors or alcohol withdrawal tremors.” The nurse subsequently conferred
with a physician assistant, who prescribed Ativan, thiamine, and folic acid.
The nurse returned to Freeland approximately three hours later. She noted
that Freeland “continue[d] to refuse assessment and vital signs” but that he
agreed to take seizure medication and Ativan. The nurse wrote that she would
“continue to monitor” his condition. Around this time, Freeland was relocated
to the “infirmary floor” due to his declining medical condition.
      Around October 23, Freeland’s condition deteriorated further, and he
was reportedly “combative and resistant.” He had an “[i]ncreased alcohol
withdraw assessment score” and was relocated to the emergency room for
further assessment at the county hospital. Freeland was suffering acute


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                                 No. 19-10311
respiratory and renal failure and was observed mumbling incoherently. He
was later placed in the intensive care unit, where he died on November 4, 2017.
      Taylor Freeland and Josh Freeland (“the Freelands”), the sons of Billy
LaRae Freeland, sued Tarrant County, Texas, and Sheriff Bill E. Waybourn,
in his official capacity, asserting claims under 42 U.S.C. § 1983 and the Texas
Wrongful Death and Survival Statutes, Tex. Civ. Prac. & Rem. Code Ann.
§ 71.001, et seq. The Freelands alleged that Tarrant County and Waybourn
provided constitutionally inadequate medical care to Freeland during his
confinement. They also asserted that Tarrant County had a custom and
practice of not properly evaluating the detoxification of inmates suffering from
substance abuse. In response, Tarrant County and Waybourn filed a motion to
dismiss based primarily on qualified-immunity grounds. The Freelands were
permitted to amend their complaint three times, and Tarrant County and
Waybourn responded with a similar motion to dismiss.
      The district court granted the motion to dismiss, finding that the
Freelands pleaded nothing more than conclusory allegations. The district court
also found that the Freelands failed to plead that Tarrant County had an
official policy, custom, or practice that caused a violation of Freeland’s
constitutional rights. The Freelands timely appealed only the district court’s
dismissal of their § 1983 claims against Tarrant County.
                                      II.
      “This court reviews a district court’s grant of a motion to dismiss de
novo.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). “The grant of a
motion to dismiss based on qualified immunity similarly is reviewed de novo.”
Id. Under this standard, we accept all well-pleaded facts as true and view those
facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen,
681 F.3d 215, 219 (5th Cir. 2012). Nonetheless, these facts must “state a claim
that is plausible on its face.” Amacker v. Renaissance Asset Mgmt. LLC, 657
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F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Complaints that offer only “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action” are insufficient. Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
      In addition, “a court ruling on a 12(b)(6) motion may rely on the
complaint [and] its proper attachments.” Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). This includes documents attached
to the motion to dismiss “that are referred to in the plaintiff's complaint and
are central to the plaintiff's claim.” Scanlan v. Tex. A&M Univ., 343 F.3d 533,
536 (5th Cir. 2003).
                                       III.
      Before holding a government liable under § 1983, a claimant must first
establish that a constitutional violation occurred. See, e.g., Piotrowski v. City
of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (noting that “unconstitutional
conduct must be directly attributable” to the local government). Therefore, we
first consider whether Tarrant County provided deliberately indifferent
medical care in violation of Freeland’s Eighth Amendment rights. We conclude
that it did not.
                                       A.
      “Deliberate indifference is an extremely high standard to meet.” Domino
v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “A prison
official acts with deliberate indifference ‘only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’” Jones v. Tex. Dep’t of Criminal Justice, 880
F.3d 756, 759 (5th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 847
(1994)). “A plaintiff must show that officials ‘refused to treat him, ignored his
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complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs.’” Id. at 759 (quoting Domino, 239 F.3d at 755). “[A]lthough inadequate
medical treatment may, at a certain point, rise to the level of a constitutional
violation, malpractice or negligent care does not.” Stewart v. Murphy, 174 F.3d
530, 534 (5th Cir. 1999).
      Under this standard, neither “the decision whether to provide additional
treatment” nor a “failure to alleviate a significant risk” is sufficient to establish
deliberately indifferent medical care standing alone. Domino, 239 F.3d at 756
(citations omitted). Moreover, a “delay in medical care” does not amount to a
constitutional violation unless it is both deliberate and results in “substantial
harm.” Delaughter v. Woodall, 909 F.3d 130, 136-38 (5th Cir. 2018) (quoting
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)). In the context of
alcohol withdrawal, this court has suggested in dicta that “ignoring the
dangers of alcohol withdrawal and waiting for a ‘manifest emergency’” could
constitute deliberate indifference in certain circumstances. Thompson v.
Upshur County, 245 F.3d 447, 458 (5th Cir. 2001). Nonetheless, “[m]edical
records of sick calls, examinations, diagnoses, and medications may rebut an
inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41
F.3d 232, 235 (5th Cir. 1995).
                                         B.
      Even when viewing well-pleaded facts in the light most favorable to the
plaintiffs, the record establishes that Tarrant County did not act with
deliberate indifference to Freeland’s serious medical needs. As noted above,
Freeland was placed in an alcohol-detoxification program upon booking, and
medical personnel used the Clinical Institute Withdrawal Assessment for
Alcohol to assess his condition. One day after booking, Freeland reported
having moderate tremors, which he characterized as normal. Two days later,
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                                 No. 19-10311
Freeland was treated by a detoxification nurse, and he was unwilling to let her
take his vital signs or assess him. Nonetheless, a physician assistant
prescribed Ativan, thiamine, and folic acid. The nurse continued to monitor the
situation, and Freeland was also relocated to the “infirmary floor” as his
condition worsened. Approximately four days after his booking, Freeland had
an “[i]ncreased alcohol withdraw assessment score,” and was consequently
relocated to the emergency room at the county hospital “for further
evaluations.”
      This course of medical treatment does not clearly evince wanton
disregard for Freeland’s serious medical needs. Freeland’s alcohol-withdrawal
symptoms were monitored and assessed, and he subsequently received medical
attention, treatment, and medication. There is no indication that Tarrant
County disregarded the substantial risk of Freeland’s alcohol withdrawal and
avoided reasonable measures to abate it, nor did the county wait for a manifest
emergency before providing medical attention.
      To the extent the Freelands contest the degree and kind of treatment
that Freedland received, it was not cruel and unusual punishment. At most,
the failure to provide more aggressive treatment or alleviate a significant risk
could be characterized as negligence or medical malpractice. Since the
Freelands cannot plausibly establish that their father received deliberately
indifferent medical treatment, there is nothing “that allows the court to draw
the reasonable inference” that Tarrant County violated the Eighth
Amendment, Iqbal, 556 U.S. at 678.
                                      IV.
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
the Freelands’ claims against Tarrant County.




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