In the United States Court of Appeals for the Fifth Circuit 19-20194 Sufficient Appellee Br… ·...

No. 19-20194

_____________________________________________________________

In the United States Court of Appeals for the Fifth Circuit _____________________________________________________________

JACQUELINE SMITH, Independent Administrator of the

Estate of Danarian Hawkins, Deceased,

Plaintiff - Appellant,

v.

HARRIS COUNTY, TEXAS,

Defendant - Appellee.

_______________

On Appeal from the United States District Court

for the Southern District of Texas, Houston Division

Cause of Action No. 4:15-cv-2226

_____________________________________________________________

PRINCIPAL BRIEF OF APPELLEE HARRIS COUNTY, TEXAS

_____________________________________________________________

KEITH A. TOLER

Assistant County Attorney

Attorney in Charge

HARRIS COUNTY ATTORNEY’S OFFICE

1019 Congress Avenue, 15th Floor

Houston, Texas 77002

(713) 274-5265

Of Counsel:

VINCE RYAN

Harris County Attorney

LAURA BECKMAN HEDGE


Counsel for Defendant-Appellee

Filed: August 15, 2019 Harris County, Texas

Case: 19-20194 Document: 00515078879 Page: 1 Date Filed: 08/15/2019

ii

CERTIFICATE OF INTERESTED PERSONS

No. 19-20194

_______________

JACQUELINE SMITH, Independent Administrator of the

Estate of Danarian Hawkins, Deceased,

Plaintiff - Appellant,

v.

HARRIS COUNTY, TEXAS,

Defendant - Appellee.

The undersigned counsel of record certifies that the following persons

and entities, as described in the fourth sentence of Fifth Circuit Rule 28.2.1,

have an interest in the outcome of this case. These representations are made

so the judges of this Court can evaluate possible disqualification or recusal.

Plaintiff-Appellant Counsel

Jacqueline Smith Amy Eikel

Zachary C. Burnett

Thomas Gutting

KING & SPALDING LLP

Peter Steffensen

TEXAS CIVIL RIGHTS PROJECT

Ranjana Natarajan

UNIVERSITY OF TEXAS SCHOOL OF

LAW

Defendant-Appellee Counsel

Harris County, Texas Keith Toler

Laura Hedge

Vince Ryan, County Attorney



iii

/s/ Keith A. Toler

KEITH A. TOLER


Attorney of Record for Appellee

Harris County, Texas


iv

STATEMENT REGARDING ORAL ARGUMENT

Appellee, Harris County, Texas, believes the facts and legal arguments

in this case are adequately presented in the briefs and record and the decisional

process would not be significantly aided by oral argument. However, Harris

County welcomes the opportunity to present oral argument if the Court would

find it helpful.


v

TABLE OF CONTENTS

Certificate of Interested Persons ..................................................................... ii

Statement Regarding Oral Argument ............................................................ iv

Table of Contents .............................................................................................v

Table of Authorities ...................................................................................... vii

Statement of the Issues Presented for Review .................................................1

Statement of the Case ......................................................................................1

Summary of the Argument ........................................................................... 10

Standard of Review ....................................................................................... 11

Argument and Authorities ............................................................................ 13

I. The district court properly granted summary judgment on

Smith’s ADA claims ............................................................................. 13

A. The district court assumed without deciding Hawkins was a

qualified individual with a disability ............................................. 13

B. Hawkins made no request for accommodations and his

disability and resulting limitations, if any, were not open,

obvious, or apparent ...................................................................... 16

II. Smith challenges an inactionable medical treatment decision ............. 21

A. Smith agrees with the district court that medical treatment

decisions are not actionable ........................................................... 21

B. The district court considered Smith’s admissible evidence .......... 23

1. Whether medical staff has authority to determine

housing outside of MHU is a red herring .............................. 23

2. It is immaterial whether suicide clothing and bedding is

available outside MHU because no one knew Hawkins

needed them ........................................................................... 25

3. Smith has no admissible evidence regarding

modifications to smoke detectors .......................................... 26

4. Chelsea Ford is a medical professional who evaluated

Hawkins and determined he was not suicidal, which is a

medical treatment decision .................................................... 28


vi

5. Hawkins was not more frequently monitored because no

one knew he needed it ........................................................... 31

C. Smith speculates and relies on inadmissible evidence to

support her towel-related arguments ............................................. 33

D. Smith has no evidence Officer Perkins did not complete his

last round ....................................................................................... 35

E. Smith has no evidence of intentional discrimination .................... 37

III. Fifth Circuit precedent requires federal funding for the specific

program, service, or activity Smith challenges, and she lacks

evidence ................................................................................................. 40

Conclusion .................................................................................................... 42

Certificate of Compliance ............................................................................. 44

Certificate of Service .................................................................................... 43


vii

TABLE OF AUTHORITIES

Page(s)

Cases

A.H. v. St. Louis Cnty., Mo.,

891 F.3d 721 (8th Cir. 2018) ............................................................... 22, 23

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ............................................................................ 11, 12

Bennett-Nelson v. La. Bd. of Regents,

431 F.3d 448 (5th Cir. 2005) ..................................................................... 17

Brown v. Sibley,

650 F.2d 760 (5th Cir. 1981) ............................................................... 40, 41

Bryant v. Madigan,

84 F.3d 246 (7th Cir. 1996) ....................................................................... 21

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................. 12

Cooper v. Hung,

485 Fed. App’x 680 (5th Cir. 2012) .......................................................... 30

Crose v. Humana Ins. Co.,

823 F.3d 344 (5th Cir. 2016) ....................................................................... 8

Delano-Pyle v. Victoria Cnty., Tex.,

302 F.3d 567 (5th Cir. 2002) ............................................................... 38, 39

Dupre v. Charter Behavioral Health Sys. of Lafayette Inc.,

242 F.3d 610 (5th Cir. 2001) ..................................................................... 14

E.E.O.C. v. Chevron Phillips Chem. Co., LP,

570 F.3d 606 (5th Cir. 2009) ..................................................................... 14

Estate of Cole v. Fromm,

94 F.3d 254 (7th Cir. 1996) ....................................................................... 21

Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P.,

894 F.3d 665 (5th Cir. 2018) ............................................................... 25, 37

Fitzgerald v. Corr. Corp. of Am.,

403 F.3d 1134 (10th Cir. 2005) ................................................................. 21


viii

Garza v. City of Donna,

No. 7:16-CV-00558, 2017 WL 2861456 (S.D. Tex. July 5, 2017) .......... 13

Gay v. Hammersley,

No. 08-59-DRH, 2009 WL 596114 (S.D. Ill. Mar. 6, 2009) .................... 21

Gonzales v. Bexar Cnty., Tex.,

No. SA-13-CA-539, 2014 WL 12513177 (W.D. Tex. Mar. 20, 2014) .... 17

Hott v. Hennepin Cnty., Minn.,

260 F.3d 901 (8th Cir. 2001) ............................................................... 21, 23

In re Katrina Canal Breaches Litig.,

495 F.3d 191 (5th Cir. 2007) ..................................................................... 11

Liebe v. Norton,

157 F.3d 574 (8th Cir. 1998) ..................................................................... 22

Lightbourn v. Cnty. of El Paso, Tex.,

118 F.3d 421 (5th Cir. 1997) ............................................................... 40, 41

Little v. Liquid Air Corp.,

37 F.3d 1069 (5th Cir. 1994) ..................................................................... 12

Malacara v. Garber,

353 F.3d 393 (5th Cir. 2003) ..................................................................... 12

Martin v. The Brown Schs. Edu. Corp.,

No. 3:02-CV-0144G, 2003 WL 21077454 (N.D. Tex. Aug. 6, 2003) ...... 13

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ............................................................................ 11, 12

McCollum v. Livingston,

No. 4:14-CV-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) .............. 20

McCoy v. Tex. Dep’t of Criminal Justice,

No. C-05-370, 2006 WL 2331055 (S.D. Tex. Aug. 9, 2006) ................... 19

Miraglia v. Bd. of Supervisors of La. State Museum,

901 F.3d 565 (5th Cir. 2018) ..................................................................... 39

Nottingham v. Richardson,

499 Fed. App’x 368 (5th Cir. 2012) .................................................... 21, 22

Peel & Co., Inc. v. Rug Mkt,

238 F.3d 391 (5th Cir. 2001) ............................................................... 12, 13

Salcido v. Harris Cnty., Tex.,

No. H-15-2155, 2018 WL 4690276 (S.D. Tex. Sept. 28, 2018) ............... 41


ix

Saudi v. S.T Marine Atl.,

159 F. Supp. 2d 512 (S.D. Tex. 2011) ...................................................... 16

Schiavo ex rel. Schindler v. Schiavo,

403 F.3d 1289 (11th Cir. 2005) ................................................................. 21

Shelton v. Ark. Dep’t of Human Servs.,

677 F.3d 837 (8th Cir. 2012) ..................................................................... 22

Steele v. Rowles,

No. 1:06-CV-485, 2009 WL 2905903 (E.D. Tex. Sept. 3, 2009) ............. 13

Steele v. Thaler,

No. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011) .................. 21

Taylor v. Principal Fin. Grp.,

93 F.3d 155 (5th Cir. 1996) ....................................................................... 17

Vela v. Travis Cnty., Tex.,

No. A-10-CA-247-LY, 2011 WL 251224 (W.D. Tex. Jan. 25, 2011) ..... 21

Wade v. Montgomery Cnty., Tex.,

No. 4:17-CV-1040, 2017 WL 7058237 (S.D. Tex. Dec. 6, 2017) ...... 13, 16

Walls v. Tex. Dep’t of Criminal Justice,

270 Fed. App’x 358 (5th Cir. 2008) .......................................................... 21

Wright v. Tex. Dep’t of Criminal Justice,

No. 7:13-cv-0116-O, 2013 WL 6578994

(N.D. Tex. Dec. 16, 2013) ............................................................ 20, 21, 23

Zaragoza v. Dallas Cnty.,

No. 3:07-CV-1704-K, 2009 WL 2030436 ................................................ 38

Statutes

29 U.S.C. § 794 ............................................................................................... 7

42 U.S.C. § 12102 ......................................................................................... 14

42 U.S.C. § 12132 ........................................................................................... 7

42 U.S.C. § 1983 ........................................................................................... 21

Rules

Fed. R. Civ. P. 56 .......................................................................................... 11

Fed. R. Evid. 407 .......................................................................................... 25

Fed. R. Evid. 801 .......................................................................................... 25


x

Regulations

37 Tex. Admin. Code § 271.1 ......................................................................... 7

37 Tex. Admin. Code § 275.1 ................................................................. 31, 32

37 Tex. Admin. Code. §§ 263.31, 263.51..................................................... 27


1

PRINCIPAL BRIEF OF APPELLEE HARRIS COUNTY, TEXAS

To the Honorable Judges of the Fifth Circuit Court of Appeals:

Defendant-Appellee Harris County, Texas, files its principal appellate

brief in response to Plaintiff-Appellant Jacqueline Smith’s opening brief, and

respectfully requests the Court affirm the district court’s final order granting

summary judgment in Harris County’s favor on all of Smith’s claims, and

respectfully shows the following:

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Issue 1: Whether Smith’s reliance on inadmissible evidence and

speculation met her burden to provide specific facts showing a genuine

dispute of material fact on her ADA and RA claims.

Issue 2: Whether Hawkins’s suicidality was open, obvious, and

apparent, or a qualified disability.

Issue 3: Whether the medical treatment decisions about which Smith

complains state an ADA or RA claim.

Issue 4: Whether a RA plaintiff must show a public entity receives

federal funding for the specific program, activity, or service at issue.

STATEMENT OF THE CASE

Harris County is dissatisfied with Smith’s representation of facts in her

principal brief, and thus it corrects the record.

I. Statement of Facts

During the 10:00 p.m. shift change on February 5, 2014, Hawkins

briefly put a towel over the inside window of his cell door to restrict officers’

view inside, fashioned his bedsheet into a noose, slotted the sheet through the

smoke detector on the ceiling, put his head in the noose, and let his body slump


2

down onto his bed.1 Only 17 minutes elapsed between the time Hawkins was

last observed by the ending second-shift officer at 9:53 p.m. and he was found

hanging by the oncoming third-shift officer at 10:10 p.m.2 These observations

were done in accordance with Harris County’s 25-minute observation policy.3

Hawkins was housed in 2J2, a maximum-security cellblock known as

administrative separation that houses violent and assaultive inmates like

Hawkins in single cells.4 At 10:10 p.m., while conducting the first round of

his shift, Detention Officer Christopher Cano appeared at Hawkins’s cell door

and first noticed a towel hanging over the window, which is prohibited by

Harris County jail policy and practice.5 Cano first banged on the door to get

Hawkins’s attention. When he received no answer, Cano unlocked the pan-

hole in the door, peered through, and saw Hawkins hanging.6

Officer Cano immediately motioned for the attention of his partner in

the pod control center (“PCC”), a secure observation unit located in the center

of 2J2 and its sister pod, 2J1.7 The PCC officer immediately opened

Hawkins’s cell door and Cano rushed in and attempted to pick Hawkins up by

his armpits to loosen the noose and allow Hawkins to breathe.8 Hawkins was

1 E.g., ROA.3798, 3834.

2 ROA.3798, 3834, 3855, 3866:23–3867:18.

3 ROA.3798, 8267.

4 ROA.3799, 3874, 3834, 3877, 4174:13–4175:1, 8263.

5 ROA.3799, 3890:8–19, 3834, 3914:9–3915:15, 3931, 3932, 3952–3953.

6 ROA.3799, 3834.

7 ROA.3799, 3834, 3836, 3907:18–3908:13, 3964:2–19.

8 ROA.3799, 3834, 3836, 3908:14–24, 3965:9–13.


3

too heavy, so Cano ran out of the cell, requested his partner immediately open

a nearby inmate’s cell door, and ordered the inmate to assist him in getting

Hawkins down.9 Cano and the inmate ran back into Hawkins’s cell and, while

Cano lifted Hawkins’s body weight, the inmate yanked the bed sheet loose

from the smoke detector.10 From the time Cano found Hawkins hanging until

he pulled him down was only seconds.11

Officer Cano put Hawkins on the bed in his cell, checked to make sure

the noose was not tight around his neck, and immediately began applying

cardiopulmonary resuscitation (“CPR”).12 Meanwhile, as soon as the PCC

officer learned there was an emergency in Hawkins’s cell, he sent out a

building page requesting emergency assistance.13 Sergeant Steve Wilson,

Cano’s supervisor on that shift, arrived shortly after the building page and

placed his hand between the noose and Hawkins’s neck to confirm there was

sufficient room to breathe.14 As more officers responded to the location,

Sergeant Wilson directed them to line up and be ready to relieve Officer

Cano’s CPR and told one of the responding officers to retrieve a cut-down

tool to preserve the noose knots for evidence.15

9 ROA.3799, 3834, 3836, 3908:25–3909:7.

10 ROA.3799, 3834, 3836, 3909:7–14.

11 ROA.3909:15–17.

12 ROA.3800, 3834, 3836, 3909:18–3910:14, 3911:6–13, 3979:14–18.

13 ROA.3800, 3834, 3836, 3966:12–21, 3978:1–11.

14 ROA.3800, 3836, 3980:8–3981:15.

15 ROA.3800, 3836, 3837, 3982:13–19, 3967:19–21, 3988:4–19.


4

Medical personnel arrived quickly and before officers could relieve

Officer Cano’s CPR efforts.16 Medical staff took Hawkins to the medical

clinic on the first floor of the jail and called EMS, which arrived and

pronounced him dead.17

Smith, Hawkins’s mother, testified she was not aware Hawkins had any

mental illness until he was released from a 6-year prison sentence in the Texas

Department of Criminal Justice (“TDCJ”).18 Upon his discharge from TDCJ,

Hawkins was 21 or 22 years old and he lived with his mother.19 Although she

knew he was seeing a caseworker, she did not know what type of treatment or

medication he was receiving, if any.20

Smith was not aware Hawkins had ever attempted suicide until after he

was released from TDCJ.21 After his release, Hawkins attempted suicide by

taking numerous pills, and he was rushed to the emergency room and

hospitalized for a couple of weeks.22

Hawkins’s most recent incarceration in the Harris County jail was from

July 2012 to February 2014 for aggravated robbery.23 During this time,

16 ROA.3800, 3834, 3836. See also ROA.3837.

17 ROA.3800, 3836, 3985:8–3987:23, 3991.

18 ROA.3801, 4002:3–9, 4002:17–27:2.

19 ROA.3801, 4002:3–9, 4003:25–4004:5, 4005:16–22, 4035:4–9, 4036:25–22:7.

20 ROA.3801, 4009:24–4010:9.

21 ROA.3801, 4006:3–17, 4008:8–10.

22 ROA.3801, 4006:6–11, 4007:13–4008:4.

23 ROA.3801, 157, 4042.


5

Hawkins attempted suicide three times.24 On April 13, 2013, an officer

conducting observation rounds found Hawkins with a sheet tied around his

neck and the other end around a smoke detector. Coincidentally, Officer Cano

was working in Hawkins’s cellblock at that time and discovered Hawkins’s

suicide attempt.25 Cano saved Hawkins by rushing in, lifting him up, and

removing the pressure of the sheet around his neck.26 On July 28, 2013,

Hawkins hid (or “lipped”) his prescribed medication, eventually amassing 100

pills he took all at once.27 He was admitted to LBJ Hospital in Houston, Texas,

for a month.28 On January 17, 2014, officers observed Hawkins standing on

the second floor in the main area of his cellblock with a sheet tied around his

neck and attempting to tie the other end to a rail.29

After each suicide attempt or the recognition of odd behavior, officers

documented the incident in an in-house report and completed a psychiatric

referral to MHMRA so Hawkins could be assessed by a mental health

professional, often a psychiatrist.30

24 See generally ROA.3801, 3834–3854.

25 ROA.3801, 3840.

26 ROA.3801–3802, 3840.

27 ROA.3802, 3843, 8415, 8416, 4015:6–4016:20.

28 ROA.3802, 8415, 8416.

29 ROA.3802, 3850, 4044.

30 See generally ROA.3802, 3834–3854, 4044–4053. Mental Health and Mental

Retardation Authority of Harris County (“MHMRA”) is the predecessor to The Harris

Center, a separate legal entity with which the Harris County Sheriff’s Office contracts to

provide mental health care to inmates in the Harris County jail. ROA.3802 n.41, 4054–

4078.


6

While incarcerated between 2012 and 2014, Hawkins received

extensive mental health treatment. His mental health records for this period

total more than 2,200 pages.31 Hawkins was treated when he requested or

needed it.32 He was often diagnosed with “malingering,” or exaggerating his

symptoms to derive a benefit.33 Other times, particularly after suicide

attempts, Hawkins was admitted to the acute unit of the jail’s Mental Health

Unit (“MHU”).34

On January 18, 2014—about two weeks before he completed his

suicide—Hawkins was admitted to the acute unit of MHU after he tied his bed

sheet around his neck and to the top rail of the main floor of his cellblock.35

He was placed on suicide precautions and treated with medication and

therapy.36 From January 18–31, 2014, Hawkins’s mental health improved.37

After jail psychiatrist Dr. Enrique Huerta evaluated Hawkins on January 31,

Dr. Huerta discharged Hawkins from MHU to the jail’s “general

population.”38 Importantly, Dr. Huerta discharged all suicide precautions and

31 ROA.3802. See also generally, e.g., ROA.8444–8527 (excerpt of relevant records

at BATES numbers HC-1314 to HC-3541).

32 ROA.3802, 3838, 3842, 3844–3847, 3849, 4045, 4047–4052.

33 ROA.3802, 8445–8446, 8448, 8450–8451, 8458–8459, 8464, 8467, 8469–8471,

4098:14–23. See also infra notes 72–77 & accompanying text.

34 ROA.3802, 4123, 4137, 4139. See also ROA.4083:15–16, 4084:2–6, 4164:15–25.

35 ROA.3803, 4144, 3850, 4044.

36 ROA.3803, 8349, 8352.

37 ROA.3803, 8333–8351.

38 ROA.3803, 8301–8303, 4143. General population refers to all non-special-

management housing in the jail, such as administrative separation but not MHU.

ROA.4178:1–12.


7

placed no restrictions on Hawkins upon his discharge from MHU, including

his clothing and bedding.39

When an inmate is released from MHU, the discharging doctor can

request—but not order—the inmate be transferred to a particular housing

location.40 Numerous times, psychiatrists releasing Hawkins from MHU

requested he be housed in administrative separation.41 Jail classification is

responsible for reviewing the inmate’s jail record and assigning appropriate

housing based on state standards.42 Jail classification cannot access inmates’

medical or mental health records due to HIPAA.43 Also, jail records indicate

Hawkins requested to be housed in a single-person cell, which is consistent

with Smith’s and his grandmother’s testimony that Hawkins was a loner who

preferred solitude.44

II. Procedural History

Smith filed this lawsuit on July 30, 2015, under Title II of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the

Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794.45 Smith originally filed

in her individual capacity and as representative of the estate of her son,

Danarian Hawkins, though the Court later dismissed Smith’s claims in her

39 ROA.3803, 8301–8303, 4143, 4096:8–4097:11, 4099:2–7, 4101:4–8.

40 ROA.3803, 4088:12–23, 4171:3–24.

41 ROA.3803, 4116, 4118, 4124, 4130, 4141.

42 ROA.3803, 4172:19–4173:22, 4180:16–23. See also 37 Tex. Admin. Code § 271.1.

43 ROA.3803, 4182:12–18. See also infra notes 43 & 90 & accompanying text.

44 ROA.3803–3804, 8322, 8323, 8325, 8326, 4014:9–14, 4017:23–4018:6, 4034:8–

10.

45 See generally ROA.27–37.


8

individual capacity with prejudice.46 After nearly three years of discovery, the

district court granted summary judgment to Harris County and entered final

judgment on February 25, 2019.47 Smith appealed five separate orders on

March 27, 2019, although on appeal she only argues against the district court’s

summary judgment order.48

III. Response to Smith’s Statement of Facts

Much of Smith’s brief is inaccurate, unsupported, and based on

inadmissible sham affidavits and affidavits of witnesses Smith never disclosed

to Harris County. While these inaccuracies are addressed in argument, a few

are also identified below.

A. Smith misstated her individual capacity claims

Smith incorrectly states she has claims in her individual capacity.49

However, the district court dismissed all of her claims in her individual

capacity with prejudice and Smith does not challenge that order on appeal.50

B. Much of Smith’s facts are argumentative and unsupported

Smith also makes unsupported statements. For example, she argues at

page 18 that accommodations would have saved Hawkins’s life, but cites

nothing to support her speculation. She also argues at page 20 that Hawkins’s

46 ROA.267–276.

47 ROA.6925–6949, 6950–6951.

48 ROA.6961–6963. See also generally Appellant’s Brief at 1, 15. (Note: Citations to

pages numbers in Appellant’s brief refer to CM/ECF pagination at the top).

49 Appellant’s Brief at 1, 15.

50 ROA.267–276. See also Crose v. Humana Ins. Co., 823 F.3d 344, 351 n.5 (5th Cir.

2016) (failure to brief issue in opening brief abandons issue on appeal).


9

housing in administrative separation exacerbated his suicidal symptoms, but

the evidence she cites does not support this argument. Also, Smith’s statement

that Hawkins “was isolated from all human contact” at page 20 is

unsupported. Although he was housed in a single-person cell, he talked to

other inmates and jail and medical staff at least twice hourly during rounds—

and more frequently than he would have in general population.51 And he was

a loner.

Finally, Smith incorrectly argues at page 20 that it is undisputed

classification staff was aware of a “well-documented history of suicide

attempts and self-harm when held in isolation.” Not only is this fact disputed,

Smith has no evidence to support it. Jail classification does not have access to

inmates’ medical or mental health records.52

C. Smith relies on inadmissible, prejudicial evidence

Smith relies on inadmissible evidence, including (1) her own sham

declaration (at ROA.5982–5991) that contradicted her deposition testimony,

(2) sham affidavits from her two experts (at ROA.5997–6028 & ROA.9155–

9201) that contradicted their deposition testimony and added new opinions,

(3) declarations from a felon-witness (at ROA.5962–5964) who was not

disclosed to Harris County until after Harris County moved for summary

judgment and who lacks personal knowledge of the events on the day Hawkins

died and the officers on that shift, and (4) a consultant’s report (at ROA.6036–

6084) created after Hawkins committed suicide and never mentioned him.

51 See infra section II.B.5.

52 ROA.4182:12–18.


10

Harris County moved to strike this inadmissible evidence.53 The district court

did not consider it in its ruling, and this Court should likewise decline to

consider Smith’s inadmissible evidence.54

SUMMARY OF THE ARGUMENT

None of Smith’s claimed disabilities or resulting limitations were open,

obvious, or apparent to anyone, and no one requested any accommodation.

Less than a week before his death, Hawkins was released from the jail’s

mental health unit by a psychiatrist because he was no longer suicidal.

Importantly, the psychiatrist released him without any restrictions, including

on his bedsheet, smoke detector, and monitoring.

The day before he committed suicide, Hawkins told Chelsea Ford, a

mental health professional, that he heard voices telling him to kill himself.

Ford followed up and evaluated Hawkins, who reported he was not suicidal

and would tell staff if he became suicidal. Using her professional medical

judgment, she determined he was not suicidal and did not report the incident

or take further action. There is no evidence anyone else heard or saw anything

indicating Hawkins was suicidal. Thus, it was not open, obvious, or apparent

Hawkins needed suicide-prevention clothing or bedding, a cell without a

smoke detector, additional monitoring, or any other accommodation. Smith

only challenges the medical treatment decisions of Dr. Huerta and Ford, which

is not actionable under the ADA or RA.

53 ROA.6229–6271.

54 ROA.6925 n.1 (“[N]one of the evidence implicated by the remaining motions and

objections is material to the Court’s analysis even if all of Plaintiff’s motions and

objections were granted and all of Defendant’s other objections were denied. They are

therefore DENIED as moot except for Defendant’s objection sustained in Footnote 29.”).

See also ROA.6931–6932 n.29.


11

Smith’s psychiatry expert criticized the psychiatrist’s and Ford’s

medical treatment decisions, though he testified they did not act with

deliberate indifference—a lower standard than the intentional conduct

required to meet her burden. Thus, the district court properly granted summary

judgment on Smith’s ADA and RA claims.

STANDARD OF REVIEW

I. Rule 56

The Court reviews de novo a district court’s order granting summary

judgment, viewing the evidence in the light most favorable to the nonmovant

and drawing all reasonable inferences in favor of the nonmovant.55 Under

Federal Rule of Civil Procedure 56, a court shall grant summary judgment if

the movant shows there is no genuine dispute of material fact and the movant

is entitled to judgment as a matter of law.56

“The mere existence of some alleged factual disputes between the

parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”57

An issue or dispute is “genuine” if the evidence is sufficient for a reasonable

jury to return a verdict for the nonmoving party.58 A fact is “material” if its

55 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007)

(citations omitted), cert. denied, 552 U.S. 1182 (2008).

56 Fed. R. Civ. P. 56(a). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

(“Matsushita”), 475 U.S. 574, 587 (1986).

57 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original

and added).

58 Id. at 248.


12

resolution in favor of one party might affect the outcome of the suit under

governing law.59

The movant need not prove an absence of a genuine dispute of material

fact.60 But if the movant does show such an absence, the nonmovant must

provide “specific facts showing the existence of a genuine issue for trial.”61

The non-movant must identify evidence in the record to show the existence of

a genuine dispute of material fact as to each element of the cause of action.62

The nonmovant “must do more than simply show that there is some

metaphysical doubt as to the material facts . . . [T]he [nonmovant] must come

forward with ‘specific facts showing that there is a genuine issue for trial.’”63

Conclusory allegations, unsubstantiated assertions, or only a scintilla of

evidence will not satisfy the nonmovant’s burden.64

II. Response to Smith’s Standard of Review

Smith misstates case law that “Evidence supporting the moving party

must be disregarded on summary judgment unless it is ‘uncontradicted and

unimpeached.’”65 However, the complete quote adds important context,

namely that the court should only disregard evidence the jury is not required

to believe:

59 Id.

60 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

61 Matsushita, 475 U.S. at 587.

62 Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citation omitted).

63 Matsushita, 475 U.S. at 586–87 (citations omitted).

64 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

65 Appellant’s Brief at 31, 45 (citing Peel & Co., Inc. v. Rug Mkt, 238 F.3d 391, 394

(5th Cir. 2001) (citations omitted)).


13

In reviewing all the evidence, the court must disregard all

evidence favorable to the nonmoving party that the jury is not

required to believe, and should give credence to the evidence

favoring the nonmoving party as well as to the evidence

supporting the moving party that is uncontradicted and

unimpeached.”66

Smith does not argue the jury would not be required to believe Harris

County’s evidence.

ARGUMENT AND AUTHORITIES

I. The district court properly granted summary judgment on Smith’s

ADA claims

A. The district court assumed without deciding Hawkins was a

qualified individual with a disability

The district court assumed without deciding Smith met the first element

of her ADA and RA claims.67 But allegations of suicidal risk alone are

insufficient to show an impairment is disabling.68 Smith ignores this Fifth

Circuit case law and relies on nonbinding, Second Circuit case law. Because

66 Rug Mkt., 238 F.3d at 394 (citations omitted) (emphasis added).

67 ROA.6942 n.55.

68 E.g., Wade v. Montgomery Cnty., Tex., No. 4:17-CV-1040, 2017 WL 7058237, at

*6 (S.D. Tex. Dec. 6, 2017) (citing Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL

2861456, at *8 (S.D. Tex. July 5, 2017) (stating “a person’s ‘risk of suicide’ is not a life

activity” sufficient to maintain an ADA claim); Martin v. The Brown Schs. Educ. Corp.,

No. 3:02-CV-0144G, 2003 WL 21077454, at *5 (N.D. Tex. Aug. 6, 2003) (noting plaintiff

“fail[ed] to even show how being ‘suicidal’ translates into a perceived impairment and to

designate any major life activity in which she is substantially limited by the unidentified

impairment”); Steele v. Rowles, No. 1:06-CV-485, 2009 WL 2905903, at *10 (E.D. Tex.

Sept. 3, 2009) (holding a plaintiff who expressed suicidal intent did not show he was

disabled)).


14

Smith’s complaints are based solely on Hawkins’s suicidal risk, she has no

evidence any impairment was disabling.69

While true some medical records and testimony indicate Hawkins may

have been diagnosed with mental illness, there is no evidence Hawkins’s

mental illness, if any, substantially limited any major life activity. In jail, he

communicated with jail and MHMRA staff, concentrated on writing letters to

his family, created artful drawings, composed rap lyrics, and understood he

could manipulate the jail system by feigning “hearing voices” to move out of

the jail. 70 Outside of the jail, he worked and committed crimes.71

Hawkins was also repeatedly diagnosed with “malingering,” or

exaggerating symptoms to derive a benefit.72 Doctors underlined and

capitalized the word “malingering” to emphasize the diagnosis.73 In a letter to

his grandmother, Hawkins admitted he malingered: “I didn’t wanna go back

to state jail, so I told my lawyer I was hearing voices and I was feelin suicidal

so she helped me get to this hospital.”74

69 42 U.S.C. § 12102(1); E.E.O.C. v. Chevron Phillips Chem. Co., LP (“Chevron

Phillips”), 570 F.3d 606, 614 (5th Cir. 2009) (citation omitted) (explaining plaintiff must

show impairment substantially limits major life activity; defining “substantially limits”);

Dupre v. Charter Behavioral Health Sys. of Lafayette Inc., 242 F.3d 610, 615 (5th Cir.

2001) (citations omitted) (explaining plaintiff must show substantially limited one or more

major life activities even for “record of impairment”). See also ROA.3811–3814.

70 ROA.3813, 3838, 3842, 3844–3847, 3849, 8272–8274, 8276, 8278, 8281–8285,

8287–8289, 8292, 8300. See also ROA.4774–4791, 4782 (feigning hearing voices).

71 ROA.3813, 4000:14–4001:4, 4792–4796.

72 ROA.3813, 3814, 8353–8355, 8413, 8414, 4208:7–19.

73 ROA.3813, 8273–8274, 8276, 8278–8279, 8286–8287, 8292, 8295, 8297–8299.

74 ROA.3813, 4782 (emphasis added). See also ROA.3813–3814, 4208:7–19.


15

Smith’s psychiatry expert, Dr. Shane Konrad, agreed Hawkins’s letter

was consistent with malingering.75 Harris County’s psychiatry expert, Dr.

William Penn, opined Hawkins exhibited malingering behavior and “mental

illness” that was difficult to diagnose because of Hawkins’s heavy drug and

alcohol use.76 Dr. Penn further testified none of the jail psychiatrists or

psychologists were convinced Hawkins actually met criteria for a serious

mental illness and he did not find any evidence that Hawkins was definitively

diagnosed with schizophrenia.77

Two of Hawkins’s competency-to-stand-trial evaluations concluded:

(1) he was competent to stand trial and (2) he was not psychotic and did not

have a psychotic disorder, such as schizophrenia, schizoaffective disorder, or

bipolar.78 These evaluations found Hawkins had a substance-induced

psychotic disorder in remission and antisocial personality disorder.79

Although the second competency evaluation added a major depression

diagnosis, Dr. Penn opined it was due to incarceration.80 There is no evidence

Hawkins’s mental health diagnoses affected any major life activity.

On appeal, Smith relies on her expert’s 47-page sham declaration (at

ROA.9155–9201). Harris County objected to the exact sentence Smith cites

in her appellate brief at page 37 because it was a new opinion expressed solely

75 ROA.3814, 4209:20–4211:5 (emphasis added).

76 ROA.3814, 4798:24–4799:13.

77 ROA.3814, 4801:7–4802:9.

78 ROA.3814, 4803:15–4805:14, 4808–4822 (see highlighted portions).

79 ROA.4811, 4813, 4821, 4803:15–4805:14.

80 ROA.4821, 4804:17–4805:14.


16

for purposes of defeating summary judgment.81 Expert declarations are

inadmissible if they offer opinions that contradict prior testimony or offer

entirely new opinions not contained in the expert’s report.82 The district court

did not consider this sham affidavit,83 and neither should this Court.

Smith’s allegations are conclusory and unsupported by the evidence.84

In essence, she alleges Hawkins suffered from a mental health impairment

that caused him to have a higher risk of suicide. Because suicidal risk is not a

disabling impairment under the ADA, Smith’s evidence did not establish

Hawkins was a qualified individual with a disability.

B. Hawkins made no request for accommodations and his

disability and resulting limitations, if any, were not open,

obvious, or apparent

On appeal, Smith focuses only on the open, obvious, and apparent

nature of Hawkins’s disabilities, if any.85 However, the issue is whether the

limitations—i.e., suicidality—were open, obvious, and apparent. Because no

one knew Hawkins was suicidal when he committed suicide—and because he

81 ROA.6245.

82 ROA.6243 n.49 & accompanying text (citing Saudi v. S.T Marine Atl., 159 F. Supp.

2d 512, 521 (S.D. Tex. 2011)).

83 ROA.6925 n.1. See also ROA.6243–6246, 6252–6255.

84 See Wade, 2017 WL 7058237, at *7 (noting Wade has not alleged facts reasonably

implying impairments for bipolar disorder, major depression, borderline personality

disorder substantially limited a major life activity).

85 Smith does not dispute there was no request for accommodation, other than to be

housed in a single cell, ROA.3816, 4025:16–17, 4026:3–11, 4027:25–4028:6, 4040:4–6,

8272, 8276, 8322, 8323, 8325, 8326, which is consistent with his mother and

grandmother’s testimony he was a loner.


17

did not request an accommodation—the limitations of his disability, if any,

were not open, obvious, or apparent.

Public entities must make reasonable accommodations for disabled

individuals who take advantage of the entity’s services or programs.86

“Because [the ADA and RA] require intentional discrimination, they do not

‘require public entities to ‘guess’ an individual’s need for an

accommodation.’”87 Rather, an individual must request an accommodation

unless the “disability, resulting limitations, and necessary reasonable

accommodations are not open, obvious, and apparent.”88

Assuming, without admitting, Harris County knew Hawkins had

bipolar disorder and schizophrenia, it was not open, obvious or apparent that

Harris County should have known the resulting limitations and necessary

accommodations that existed when Hawkins committed suicide on February

5, 2014. This is true particularly in light of Dr. Huerta’s professional medical

judgment to discharge Hawkins without any restrictions to general population

on January 31, 2014.89

It was not open, obvious, or apparent to Dr. Huerta that Hawkins should

be housed without a bedsheet. He could have issued a restriction on Hawkins’s

86 E.g., Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).

87 Gonzales v. Bexar Cnty., Tex., No. SA-13-CA-539, 2014 WL 12513177, at *5

(W.D. Tex. Mar. 20, 2014) (citations omitted). See also Taylor v. Principal Fin. Grp., 93

F.3d 155, 165 (5th Cir. 1996).

88 Gonzales, 2014 WL 12513177, at *5 (citations omitted).

89 Jail staff, including those in Classification that decide where to house Hawkins, do

not have access to Hawkins medical or mental health records due to HIPAA. ROA.3817,

4181:15–22, 4182:12–18. Neither Officer Cano nor Officer Aguirre knew Hawkins had

any diagnosed mental illness or that Hawkins took medication for mental illness. ROA.

3902:11–20, 3962:22–3963:4.


18

bedding, but he did not. It was not open, obvious or apparent to Dr. Huerta

that Hawkins should be housed in a cell without a smoke detector (the only

option would have been the rubber room, a room for imminently suicidal

inmates). It was also not open, obvious, or apparent to Ford the day before

Hawkins’s suicide that he posed a serious suicidal risk. Ford spoke with him,

noted his statements about hearing voices telling him to kill himself, asked

follow-up questions to evaluate him, determined he was not suicidal, and

moved on—and did not report it, including to jail staff.90

If licensed, trained medical professionals observed no suicide warning

signs in the days before Hawkins’s suicide, how could non-medical jailers be

expected to detect a suicide risk? Harris County detention officers are licensed

and certified by the State of Texas and trained on suicide prevention.91 Indeed,

Officer Cano, who found Hawkins after his suicide, had previously saved

Hawkins from committing suicide in a similar way. Yet even he, who spoke

to and built a rapport with Hawkins, detected no risk of suicide in the days

prior to February 5, 2014. Prior suicide history does not establish someone is

suicidal later as Smith admitted at her deposition.92

Smith only cites single-page excerpts from Harris County employees’

depositions that have nothing to do with accommodations for Hawkins or even

90 See infra section II.B.4. Even if these mental health professionals got it wrong—

which the evidence, other than Hawkins’s completed suicide, does not support—that is

simple negligence, a medical malpractice claim that does not rise to an ADA violation. See

infra section II.E.

91 ROA.3817–3818, 4245–4766 (new-jailer training re suicide detection and

prevention, recognizing and dealing with mentally ill inmates), 4828–4829, 4834–4837

(Cano’s suicide prevention, mental health, and crisis intervention training records).

92 ROA.3818, 4866, 4021:17–22, 4022:10–18.


19

mention Hawkins at all.93 Thus, Smith’s evidence did not establish Hawkins’s

need for accommodations was open, obvious, or apparent.

This case is distinguishable from the case law upon which Smith relies.

In McCoy v. Texas Department of Criminal Justice, the plaintiffs sued on

behalf of Micah Burrell, who died of an asthma attack in prison.94 The

evidence showed TDCJ knew of Burrell’s asthmatic condition, but more

importantly the resulting limitations of his asthma were open, obvious, and

apparent: (1) inmates reported administrative segregation was excessively hot

and poorly ventilated and thus might pose a risk to asthmatic inmates; (2)

Burrell told TDCJ officers he was having trouble breathing; and (3) Burrell

complained of suffering an asthma attack and was observed wheezing in the

month before his death.95 Here, by contrast, it was not open, obvious, or

apparent Hawkins was suicidal when he committed suicide. A psychiatrist

released Hawkins from MHU after psychiatric evaluations determined he was

no longer suicidal. And the day before his death, he reported to Ford, a mental

health professional, about voices telling him to kill himself, but also reported

93 Appellant’s Brief at 38 (citing ROA.5695 (Smith’s summary judgment briefing);

ROA. 5781 (Officer Aguirre explaining he worked at the jail); ROA.5791, 5793 (Officer

Cano explaining his job duties generally and regarding suicide prevention); ROA.5844–

5845 (Harris County’s corrections expert explaining Plaintiff’s counsel’s use of phrase

“safe environment can be a lot of things”); ROA.5870, 5878 (Harris County’s 30(b)(6)

representative explaining jail is responsible for care, custody, and control of inmates and

“everbody’s responsible for suicide prevention”); ROA.5883 (Officer Perkins explaining

his job duties); ROA.5908 (Officer Reyes explaining his employment history and job

duties); ROA.5955–5957 (Sergeant Wilson explaining mission statement, suicide

prevention).

94 McCoy v. Tex. Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055, at *1

(S.D. Tex. Aug. 9, 2006).

95 Id. at *8.


20

he was not suicidal.96 Other than these medical treatment decisions (which are

not actionable as discussed below), the limitations of Hawkins’s disability, if

any, were not open, obvious, and apparent.

Similarly, in McCollum v. Livingston, the court tersely ruled on the

defendant’s argument that McCollum did not request an accommodation:

“McCollum’s failure to ask [the defendant] for a lower bunk restriction is not

determinative of their duty to provide him one.”97 The court determined

McCollum’s morbid obesity and the resulting limitation of climbing up onto

a top bunk was open, obvious, and apparent.98 But mental illness and

suicidality are not analogous to morbid obesity and inability to climb onto a

top bunk. Hawkins was offered substantial and continual mental health

treatment in the Harris County jail as shown by his more than 2,200 pages of

medical records.99

Finally, Wright v. Texas Department of Criminal Justice is inapposite

because it was an order denying a Rule 12(b) motion to dismiss, not a Rule 56

summary-judgment motion.100 The Wright plaintiffs were not required to

support their claims with evidence at the motion to dismiss stage.101 Smith, on

the other hand, was required to—but could not—support her claims with


97 McCollum v. Livingston, No. 4:14-CV-3253, 2017 WL 608665, at *36 (S.D. Tex.

Feb. 3, 2017) (Ellison, J.).

98 Id. at *33, 36.

99 See supra note 31 & accompanying text.

100 Wright v. Tex. Dep’t of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994,

at *1 (N.D. Tex. Dec. 16, 2013).

101 E.g., id. at *2.


21

evidence to defeat summary judgment. And the Wright court noted, “[T]o the

extent that Wright may have been required to request an accommodation but

did not, this is a matter for summary judgment, not a matter to be decided at

the pleading stage.”102 Smith had no evidence Hawkins requested an

accommodation or that his disability and resulting limitations were open,

obvious, and apparent.

II. Smith challenges medical treatment decisions

A. Smith agrees medical treatment decisions are not actionable

The ADA provides no remedy for claims based on medical treatment

decisions.103 Smith agrees, citing numerous cases in support.104 Smith argues

these cases are distinguishable, but the district court only cited them to support

the general rule that medical treatment decisions, while perhaps actionable

under 42 U.S.C. § 1983, are not actionable under the ADA or RA.105

Smith glosses over the on-point case relied upon by the district court.

In A.H. v. St. Louis County, Missouri, the Eighth Circuit held claims that a

suicidal inmate was not given “protection from safety hazards” and “adequate 102 Id. at *5.

103 Steele v. Thaler, No. H-09-4076, 2011 WL 739524, at *11 (S.D. Tex. Feb. 22,

2011) (Werlein, J.) (citing Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th

Cir. 2005); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005); Bryant

v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (Posner, J.) (ADA does not create a remedy

for medical malpractice)). See also, e.g., Vela v. Travis Cnty., Tex., No. A-10-CA-247-LY,

2011 WL 251224, at *5 (W.D. Tex. Jan. 25, 2011).

104 Appellant’s Brief at 41–44.

105 ROA.6940–6946 (citing Walls v. Tex. Dep’t of Criminal Justice, 270 Fed. App’x

358, 359 (5th Cir. 2008) (per curiam); Steele, 2011 WL 739524, at *11; Schiavo, 403 F.3d

at 1294; Fitzgerald, 403 F.3d at 1144; Bryant, 84 F.3d at 249; Nottingham v. Richardson,

499 Fed. App’x 368, 377 (5th Cir. 2012); Hott v. Hennepin Cnty., Minn., 260 F.3d 901,

905 (8th Cir. 2001); Gay v. Hammersley, No. 08-59-DRH, 2009 WL 596114, at *6 (S.D.

Ill. Mar. 6, 2009); Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)).


22

monitoring” were, “in essence, claims of inadequate medical treatment

indistinguishable from the claims we held could not be brought under the

ADA or RA in Shelton.”106 In A.H., an inmate committed suicide by hanging

himself with a bed sheet in his cell.107 The inmate was discharged by a clinical

psychologist on precautionary status due to his prior suicide attempts and

returned to general population on January 28.108 On February 5, the inmate

was found hanging in his cell by his cellmate 50 minutes after the last round.109

The inmate was discharged from the mental health provider for a couple days

longer than Hawkins and both were found hanging. Like A.H., Smith

challenges the failure to prevent Hawkins’s suicide. Because these claims are

for inadequate medical treatment, they are not actionable under the ADA or

RA.110

“Once one is classified as a suicide risk, the right to be protected from

that risk would seem to fall under the ambit of the right to have medical needs

addressed.”111 The failure to provide “adequate monitoring” and “safe

housing” are rooted in a medical treatment decision that is not actionable

under the ADA or RA. “We have generally treated allegations that officials

106 A.H. v. St. Louis Cnty., Mo., 891 F.3d 721, 730 (8th Cir. 2018) (emphasis added).

107 Id. at 724.

108 Id. at 725.

109 Id. Coincidentally, both inmates committed suicide on February 5th.

110 Id. at 730.

111 Shelton v. Ark. Dep’t of Human Servs., 677 F.3d 837, 843 (8th Cir. 2012) (quoting

Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)). The decedent in Shelton hung herself

three days after a doctor took her off suicide watch. Shelton, 157 F.3d at 839.


23

failed to prevent jail suicides as claims for failure to provide adequate medical

treatment.”112

Smith’s continued reliance on Wright is misplaced. The order was on a

motion to dismiss, not a motion for summary judgment, and it did not mention

medical treatment decisions but only that Wright’s claim for failure to ensure

he took his psychotropic medications failed to state a prima facie ADA

claim.113 And unlike Smith’s summary-judgment burden, Wright did not need

to produce evidence supporting his claims.114 Because all of Smith’s claims

challenge medical treatment decisions, the district court properly granted

summary judgment.

B. The district court considered Smith’s admissible evidence

1. Whether medical staff has authority to determine housing

outside of MHU is a red herring

Smith’s argument is a red herring because the issue is not whether

Hawkins should have been housed elsewhere outside MHU, but whether he

should be housed in MHU or outside it—a decision squarely on jail

psychiatrists. Only a psychiatrist has the ability to discharge an inmate from

MHU to general population.115 Smith’s proposed accommodations were

available in MHU, where suicidal inmates are housed.116 In MHU, inmates

112 A.H., 891 F.3d at 729–30 (quoting Hott, 260 F.3d at 905).

113 Wright, 2013 WL 6578994, at *5.

114 See id. at *2.

115 ROA.3809, 3811, 4229, 4107:6–18, 4108:14–19.

116 E.g., ROA.8905.


24

“are within sight or sound of a mental health care staff member at all times.”117

Actively suicidal inmates are not housed outside of MHU, except temporarily

until they can be evaluated and transferred to MHU.118 Indeed, Smith is silent

on precisely where Hawkins should have been housed. There was no

indication Hawkins was suicidal and needed to be housed in MHU.

Dr. Huerta released Hawkins from MHU after days of observation,

evaluation, and treatment showed he was no longer suicidal.119 Dr. Huerta

released Hawkins without any restrictions, including on his clothing, bed

sheets, or frequency of monitoring.120 Dr. Huerta knew that by releasing

Hawkins he could go anywhere in the jail, which is part of the decisionmaking

process.121 Smith’s psychiatry expert criticized Dr. Huerta’s medical

treatment decision to discharge Hawkins from MHU back to general

population without restrictions where he would not be under constant

observation.122

Smith improperly relies on her expert’s 47-page sham declaration (at

ROA.9155–9201) that added new opinions and contradicted prior testimony,

117 ROA.3810–3811, 4239 (emphasis added).

118 E.g., ROA.8905.

119 ROA.3807–3808, 4094:13–4097:11, 4100:24–4101:8, 4107:6–18.

120 E.g., ROA.3821, 4096:24–4097:11, 4099:2–7, 4106:20–23, 8301–8303, 4143.

121 ROA.4088:12–21, 4097:7–11, 4099:2–7.

122 ROA.3806–3807, 4205:10–4206:4 (emphasis added), 4203:7–4204:6, 4204:22–

4205:4. Smith also thought Hawkins should have been left in MHU under constant

observation. 4030:5–15 (emphasis added), 4029:5–19.


25

to which Harris County objected and moved to strike.123 Harris County also

objected to and moved to strike the consultant’s report, which was created

after Hawkins’s suicide and therefore did not provide notice of anything.124

The consultant’s report does not mention or relate to Hawkins or his suicide,

is hearsay, and is a subsequent remedial measure.125 However, it is worth

noting the consultant’s report found, “[T]he suicide rate in the HCSO was 15.6

deaths per 100,000 inmates – a rate that is substantially below that of county

jails of varying size throughout the United States.”126

2. It is immaterial whether suicide clothing and bedding is

available outside MHU because no one knew Hawkins needed

them

In her summary judgment briefing, Smith did not argue that suicide-

resistant clothing and bedding was available outside MHU and made no

arguments regarding suicide smocks.127 Thus, Smith has waived this argument

for failure to raise it before the district court.128

123 See supra note 82 & accompanying text. See also ROA.6245 n.56, 6253 ¶ 3

(generally and specifically objecting to ROA.9163–9164), ROA.6245–6246, 6254 ¶ 10

(generally and specifically objecting to ROA.9186).

124 ROA.6247.

125 ROA.6247–6248. See also Fed. R. Evid. 407, 801(c).

126 ROA.6038 (emphasis in original).

127 ROA.5705–5707. See also generally ROA.5683–5731.

128 E.g., Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 670 n.18 (5th

Cir. 2018) (citations omitted).


26

Nevertheless, Dr. Huerta released Hawkins without any restrictions,

including a bedsheet, because he was no longer suicidal.129 Smith’s psychiatry

expert testified that taking away an inmate’s bedding would be a restriction

and that it was a “very bad clinical decision” for Dr. Huerta to release Hawkins

from MHU without restrictions.130 And her jail expert agreed inmates should

be housed in the least restrictive means necessary, and necessities like

clothing and bedding should not be restricted unless necessary for a short

period of time.131

Smith cites a policy about inmates in crisis being provided a suicide

smock, but the provision is in the “Housing” section of the policy, right under

the statement, “Suicidal inmates shall be housed in cellblocks under the

direction of mental health professionals,” and does not say suicide smocks are

available in non-MHU housing units.132 Thus, there is no evidence of any

indication Hawkins was suicidal or needed suicide-resistant clothing or

bedding after Dr. Huerta released him from MHU. The district court did not

disregard Smith’s evidence. She had none.

3. Smith has no admissible evidence regarding modifications to

smoke detectors

Smith’s complaint about the smoke detectors is, ironically, a “smoke

screen.” Smith has no evidence of any reasonable accommodation or

modification to the smoke detectors. Every cell in the Harris County jail has

129 See supra note 39 & accompanying text. See also ROA.3807–3808, 4100:24–

4101:8 (emphasis added).

130 ROA.3808, 4202:1–4, 4206:24–4207:7, 4190:17–4191:9 (emphasis added).

131 ROA.3820, 4983:15–23, 4981:11–22. See also ROA.4186:3–4189:5.

132 ROA.8905.


27

the same smoke detectors at issue, including the cells in MHU.133 The smoke

detectors are cone-shaped, metal devices attached to the ceiling of all jail cells.

Small slots allow smoke to penetrate and be detected by the unit.134 A smoke

detector is a necessary life component in any human-occupied building,

especially jails—which is why Texas law mandates all jail cells contain a

smoke detector.135 Harris County’s suicide prevention committee met shortly

after Hawkins’s suicide and researched whether alternatives existed to the

smoke detectors, but concluded there were no reasonable alternatives.136

Smith has no evidence of any reasonable accommodation or

modification that could be made to the jail’s smoke detectors.137 Smith cites

an inadmissible consultant’s report created after Hawkins’s death and that

does not mention him, which Harris County moved to strike.138 Moreover,

Smith’s jail expert had never been to the Harris County jail, had never

inspected the smoke detectors in the jail, did not know the same smoke

detectors are in every cell, and had no idea whether there is a “suicide-

resistant” modification that works with the smoke detectors or would be

approved by the State.139 Smith’s jail expert testified if Hawkins could not

have been housed in a cell without a smoke detector—and he could not

133 ROA.3819, 3891:6–3892:3, 4969:2–7.

134 ROA.3818–3819, 4964–4966.

135 ROA.3819. See also 37 Tex. Admin. Code. §§ 263.31, 263.51.

136 ROA.3819, 3892:11–3893:4.

137 Certainly, if Plaintiff’s expert cannot identify a reasonable accommodation or

modification in 2018, it was not “open, obvious or apparent” in 2014.

138 ROA.6247–6249. See also infra note 197 & accompanying text.

139 ROA.3819, 4968:3–7, 4969:2–7, 4977:19–4978:6, 4979:1–4980:13.


28

identify an appropriate cell outside of MHU—then he should never have been

moved out of MHU.140

Smith continues to improperly rely on her experts’ 47- and 32-page

sham declarations (at ROA.9155–9201 and ROA.5997–6028), to which

Harris County objected, instead of their admissible deposition testimony.141

The cited portions are new opinions and are thus inadmissible.142

Smith’s argument that Hawkins could have been temporarily moved to

another cell is immaterial. There was no indication at that time Hawkins

needed to be moved to another cell, even to Ford who determined Hawkins

was not presently suicidal.143 Dr. Huerta released Hawkins from MHU

without restrictions, and these are medical treatment decisions. Had anyone

reasonably known Hawkins was suicidal, he would have been referred to a

psychiatrist and moved to MHU as officers did numerous times before.

4. Chelsea Ford is a medical professional who evaluated Hawkins

and determined he was not suicidal, which is a medical

treatment decision

Smith misrepresents the interaction between Hawkins and Chelsea Ford

the day before Hawkins died. Ford is a Licensed Professional Counselor,

trained by MHMRA, and familiar with bipolar disorder, schizophrenia,

140 ROA.3819, 4969:14–24. See also ROA.4970:16–4972:4.

141 ROA.6243–6247, 6252–6255, 6262–6268.

142 ROA.6243–6247, 6252–6255, 6262–6268. See also supra note 82.



29

schizoaffective disorder, psychosis, and other mental health diagnoses.144 Her

duties included “counseling and case management.”145

The day before Hawkins died, Ford was conducting routine, bi-weekly

mental health rounds of inmates in Hawkins’s cellblock.146 Importantly, after

Hawkins told Ford “the illuminate is watching me and makes me want to kill

myself,” Ford followed up, evaluated Hawkins, and determined he was not

presently suicidal based on Hawkins’s own report to Ford:

Writer encouraged [patient] [to] notify myself or deputies when

[suicidal ideation] worsens and he feels the need to act on

thoughts. [Patient] states “the illuminate is watching me and

makes me want to kill myself.” [Patient] reports he is presently

not experiencing [suicidal ideation] and agrees to notify writer if

symptoms worsen.147

Ford had a protocol for detection of suicide risk, which included

notifying security staff, encouraging security staff to follow their suicide

protocol, reporting the incident, and referring to a mental health doctor.148

Ford did none of this because she determined Hawkins was not suicidal.149

Ford testified that “he reported he wasn’t presently experiencing suicidal

ideation.”150

144 ROA.3808, 4146:10–12, 4146:25–4147:2, 4150:8–24.

145 ROA.5716.

146 ROA.3821–3822, 8281–8285, 8300.

147 ROA.8300 (emphasis added). See also ROA.4160:5–4161:3.

148 ROA.4151:21–4152:4, 4153:4–22.

149 ROA. 3809, 4151:21–4152:4, 4153:4–22, 4156:25–4157:24, 4158:6–10, 4159:1–

4161:3, 4162:8–4163:11, 4165:19–22, 4166:9–10.

150 ROA.4160:5–4161:3.


30

Ford did not violate jail policy requiring officers to immediately refer

inmates exhibiting behavior indicative of a mental health issue because her

entire job was to observe and evaluate inmates with mental health issues.

Although Harris County trains its detention officers on suicide prevention and

some levels of suicide-risk detection,151 it has chosen to contract with

MHMRA to provide mental health services in the Harris County jail.152 Jail

officials are entitled to rely on the judgment of medical professionals, like

Ford.153

Smith continues to rely heavily on her psychiatry expert’s sham

declaration (at ROA.9155–9201) rather than admissible deposition testimony.

Nevertheless, even his new opinions about what a “reasonable person would

conclude” after Ford’s evaluation of Hawkins and how she should have made

an immediate referral challenge Ford’s medical treatment decision. At

deposition, Dr. Konrad criticized Ford for not making “further interventions”

or responding differently.154

Dr. Konrad opined Ford’s “best decision” would have been to notify a

psychiatrist, but “at a minimum” she should have discussed Hawkins’s

statements with a supervisor.155 Her decision not to do so is a medical

treatment decision. Moreover, Dr. Konrad admitted Ford did not act with

151 ROA.3810, 4420–4472, 4730–4744, 4753–4766.

152 ROA.3810, 4054–4078, 4065.

153 E.g., Cooper v. Hung, 485 Fed. App’x 680, 684 (5th Cir. 2012) (per curiam). See

also ROA.3809 n.89 (citing other cases).

154 ROA.3808–3809, 4192:14–24, 4193:10–4194:9.

155 ROA.3809, 4196:15–4197:3.


31

deliberate indifference to Hawkins when she evaluated him on February 4th,

thus Smith has no evidence Ford acted with intent as required.156

Ford exercised her professional medical judgment, based on an

evaluation of Hawkins, that he was not presently suicidal. Her decision is a

medical treatment decision not actionable under the ADA or RA.

5. Hawkins was not more frequently monitored because no one

knew he needed it

Smith confuses this issue, which is not whether more frequent

monitoring was available outside MHU, but whether the need was open,

obvious, and apparent. Smith testified Hawkins should have been constantly

monitored, though she now argues he should only have been monitored every

5–10 minutes.157 The only area of the jail that comes close to constant, 24-

hour, eye-to-eye observation (or 5–10 minute observation) is in the acute care

unit in MHU.158 A psychiatrist discharged Hawkins from MHU without any

restrictions.159 Thus, the psychiatrist concluded that treatment in MHU—with

more frequent monitoring—was no longer necessary for Hawkins.160 By

releasing him to general population, the psychiatrist determined that he no

longer presented a risk of suicide requiring constant observation and, in fact,

only needed to be monitored every 60 minutes.161

156 ROA.3829, 4198:9–21. See also infra section II.E.

157 Compare ROA.3807 n.79 & ROA.4030:5–15 with Appellant’s Brief at 55.

158 ROA.3821, 4237, 4239, 4244.

159 ROA.3821, 8301–8303, 4143.

160 See supra note 39.

161 ROA.3821, 8266 (citing 37 Tex. Admin. Code § 275.1).


32

Jail classification staff determined Hawkins should be housed in

administrative separation, where he would be observed at least every 25

minutes instead of every 60 minutes in general population.162 Harris County’s

policies and practices exceeded state requirements of monitoring maximum-

security inmates every 30 minutes.163 It is undisputed Hawkins was found

hanging during a routine observation round only 17 minutes after the prior

observation round.164 And Hawkins received periodic bi-weekly visits by a

MHMRA professional.165 Smith has no evidence an additional 7 minutes

makes the accommodation unreasonable or that anyone knew Hawkins

needed more frequent monitoring.

If Hawkins indicated he was suicidal on February 4–5, 2014, then he

would have been placed on suicide watch and monitored at least every 15

minutes even outside MHU until he could be evaluated by a psychiatrist and

transferred to MHU.166 The record is devoid of any evidence that jail staff was

aware Hawkins exhibited any behavior or statements that would indicate he

was suicidal following his January 31, 2014 discharge from MHU.167 There is

no evidence Hawkins was denied monitoring because of his disability.

162 ROA.3821, 8267, 3889:7–24.

163 ROA.3822, 8267. See also 37 Tex. Admin. Code § 275.1.

164 ROA.3822, 3855, 3834, 3866:23–3867:18.

165 ROA.3821–3822, 8281–8285, 8300.

166 ROA.3832, 8244.

167 ROA.3822, 3903:8–3904:6, 3905:13–3906:14, 3916:16–20, 3917:9–13, 3864:17–

3865:5, 4151:21–4152:4, 4153:4–16.


33

C. Smith speculates and relies on inadmissible evidence to

support her towel-related arguments

Officers did not allow Hawkins to cover his cell window with a towel.

Smith assumes without support that an officer saw the towel in the 17 minutes

between the round on which Hawkins was found hanging and the prior round

on the prior shift.

Hawkins covered his cell door window and violated jail rules.168 There

is no evidence any officer allowed the towel to stay up or that it was up for

the full 17 minutes. Officer Perkins, the last officer to round on Hawkins

before shift change, testified that if he had seen a towel covering Hawkins’s

window, he would have taken it down or made Hawkins take it down

immediately.169 When Officer Cano rounded 17 minutes later, he noticed the

towel, banged on the door, and immediately checked on Hawkins when he

received no answer.170 Smith wholly ignores this testimony.

Smith has no evidence it took Hawkins “five to six minutes” to die from

asphyxiation except an inadmissible consultant’s report that does not mention

Hawkins or cite any support.171 Smith also improperly relies on an

inadmissible felon-witness declaration (at ROA.5962–5964). Harris County

objected to and moved to strike this declaration, primarily because Smith hid

the witness’s identity and relevant knowledge from Harris County until she

filed her summary judgment response.172 The declaration says nothing about

168 ROA.3931, 3953, 3954.

169 ROA.6368, 5892:17–25.

170 ROA.6368, 5800:11–25.

171 See generally ROA.6035–6084 and particularly ROA.6058. See also ROA.6247–

6249.

172 ROA.6235–6238.


34

Hawkins hanging a towel on his window or whether these officers allowed

any inmates to put a towel up on the day Hawkins committed suicide.173 The

Court should not consider this inadmissible evidence.

Smith incorrectly states what officers can see from the PCC. Smith’s

own evidence shows each cell has a green metal front door and a small glass

window, allowing only a very small part of the back white wall to be viewed

from the distance and angle of the PCC.174 The PCC does not have

“continuous, nearly unobstructed view of the inmates” in their cell, and Smith

has no evidence this is the PCC officer’s purpose.

Photo 1: View of 2R (2d floor, middle of photo) from PCC.175

Hawkins hung the towel on the inside of his cell door window—he was

not waving it around or otherwise calling attention to it. It is difficult for

173 See ROA.5962–5964.

174 ROA.6367, 8994–8996.

175 ROA.8995. See also ROA.6932 n.31 (district court’s description of cellblock).


35

officers to notice at first glance a white towel calmly hanging in a small

window against white background cell walls. Because such little time passed

between the rounds and over shift change—7 minutes on the prior shift and

10 minutes on the next shift—it was reasonable not to notice the towel.

D. Smith has no evidence Officer Perkins did not complete his

last round

Smith speculates and defames Officer Perkins, yet raises no fact issue

on whether he completed his 9:53 p.m. round.176 Perkins worked the shift prior

to Hawkins’s suicide and conducted the final round of his shift only 7 minutes

before the 10:00 shift change and only 17 minutes before Hawkins was found

hanging.177

Perkins’s memory is not lacking. Of course he did not recall from

memory at his deposition whether he conducted one of twice-hourly rounds

on a particular eight-hour shift four years prior.178 However, he was entitled

to rely on official records he signed showing he completed the round.179

Indeed, when questioned about his reports, Smith’s counsel objected that the

“[d]ocument speaks for itself.”180 Similarly, he could testify he did not allow

Hawkins to keep his towel up from habit—he always told inmates to take

176 See ROA.6932 n.29.

177 See supra note 2.

178 ROA.3863. Hawkins did not die on his shift, so it was not particularly memorable.

179 ROA.3866:23–3867:18 (relying on document).

180 ROA.3867:4–14.


36

down a window covering when he observed it.181 Smith’s unsupported

conjecture does not raise a fact issue on Perkins’s testimony.

Officer Perkins’s disciplinary action, which occurred more than a year

and a half after Hawkins died, is irrelevant to Hawkins’s death. Perkins

testified that, during that incident, his partner conducted the round but

accidentally wrote the wrong time on his round sheet, and all officers working

on that shift were disciplined, even though he was not at fault.182 This is the

exact opposite of what Smith uses it to try to show—that Perkins did not

complete a round but recorded one. Smith’s wild accusations are not

competent evidence, and she ignores important testimony in her arguments to

the Court.

Finally, Smith has no evidence the observation logs were inaccurate.

Smith argues 16 months of observation logs “showed the pattern,” which led

her expert to speculate in his sham declaration that this is an indication of

inaccuracy and “raised doubt” whether rounds were conducted accurately.

Smith fails to tell the Court, however, that her expert conceded his suspicion

about the rounds was based on speculation and he could not confirm it.183

Smith raises a new argument on appeal regarding an email indicating

Hawkins “was hanging for about 20 [minutes].”184 Smith has waived this

181 See ROA.5892:21–25.

182 ROA.6371, 5901:2–19.

183 ROA.6383:11–20. See also ROA.6931.

184 See generally ROA.5683–5731 (not mentioning email).


37

argument for failure to raise it before the district court.185 In any event, it

should go without saying that 17 minutes equals about 20 minutes.186

Smith continues to rely on an inadmissible declaration from a late-

produced felon-witness (at ROA.5962–5964) that says nothing about rounds

by Officer Perkins and nothing about rounds on the day Hawkins died.187 This

evidence is inadmissible and does not support Smith’s arguments. In addition,

Smith makes unsupported arguments about Hawkins being cold to the touch,

implying he was hanging for more than 20 minutes, though she has no

evidence of how long it takes a body to become cold to the touch or whether

Hawkins was cold because of his death or some other environmental factor,

like a cold jail in February. Thus, these arguments do not raise a fact issue and

the Court should not consider them.

E. Smith has no evidence of intentional discrimination

Smith admits she must show evidence of intentional discrimination to

recover compensatory damages.188 The district court determined “[Harris

County] is additionally entitled to summary judgment on [Smith’s] ADA and

RA claims for compensatory damages because [Smith] has produced no

evidence of intentional discrimination by [Harris County].”189

185 Firefighters’ Ret. Sys., 894 F.3d at 670 n.18 (citations omitted).

186 The email is from Ali Frankovich, a MHMRA supervisor, who was not present

when Hawkins was found. See ROA.1938. Smith fails to tell the Court a third-party doctor

notified Frankovich that Hawkins was reportedly hanging for about 20 minutes, that she

does not know the source of the doctor’s information, and she reviewed no documents

confirming the length of time Hawkins was hanging. ROA.1933–1934, 1939–1941.

187 ROA.5962–5964.

188 Smith abandoned her claims for declaratory and injunctive relief. ROA.5691 n.1.

189 ROA.6946.


38

Smith incorrectly argues her burden is met by simply showing

knowledge of a disability and its limitations and not providing

accommodations. But this ignores Fifth Circuit case law and makes the

intentionality requirement meaningless. “[I]n order to receive compensatory

damages [under the ADA or RA], a plaintiff must show intentional

discrimination.”190 The standard for intentional discrimination is higher than

for deliberate indifference.191

Contrary to Smith’s reading of the case law, Delano-Pyle v. Victoria

County, Texas, determined “[t]he facts addressed at trial support the jury’s

finding of intentional discrimination.”192 The Court reasoned that a videotape

of Pyle’s roadside sobriety test showed Pyle, who was hearing impaired, could

not understand what the officer was saying no matter how many times the

officer repeated himself or how loudly he spoke.193 The officer became visibly

annoyed, continued instructing Pyle verbally, and admitted at deposition, “I

knew he had a hearing problem” and denied he communicated effectively.194

There were also issues communicating Miranda warnings.195

Finally, and importantly, the Delano-Pyle defendants appealed a Rule

50(b) motion, but did not renew it at the conclusion of evidence, and thus this

190 Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574, 575 (5th Cir. 2002) (citation

omitted).

191 Zaragoza v. Dallas Cnty., No. 3:07-CV-1704-K, 2009 WL 2030436, at *11 (citing

Delano-Pyle, 302 F.3d at 575). Even under a deliberate indifference standard, which is not

the correct standard, Plaintiff has no evidence anyone acted with deliberate indifference.

192 Delano-Pyle, 302 F.3d at 575.

193 Id. at 575–76.

194 Id. at 575.

195 Id. at 576.


39

Court only reviewed the defendants’ challenge to the sufficiency of the

evidence for plain error and only required this Court “to merely ascertain if

the plaintiff has submitted ‘any evidence in support of his claim.’”196 Delano-

Pyle does not support Smith’s arguments.

Also contrary to Smith’s arguments, Miraglia v. Board of Supervisors

did not “note[] with approval” that intent is proved by evidence of knowledge

and failure to discriminate, but rather stated actual notice of a violation is

required:

We need not delineate the precise contours in this case. Instead,

we can rely on the widely accepted principle that intent requires

that the defendant at least have actual notice of a violation. We

previously seem to have required that a plaintiff prove . . .

something more than “deliberate indifference” to show intent.

Other circuits use the deliberate indifference standard. But what

is common between our courts and other courts is that a

defendant must have notice of the violation before intent will be

imputed.197

Because the plaintiff did not show the defendants had notice, this Court

reversed and rendered judgment for the defendants.198 Smith likewise fails to

show notice of a violation.

Smith’s reliance on district court cases does not overcome this Court’s

precedent. Moreover, she continues to rely on her expert’s sham declaration

(at ROA.9155–9201), which is inadmissible for reasons discussed ad

nauseum above, namely that he offered new and contradictory opinions not

196 Id. at 573 (citations omitted).

197 Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 575 (5th Cir.

2018) (citations omitted) (collecting cases).

198 Id. at 576.


40

contained in his report or deposition testimony.199 The Court should not

consider this inadmissible evidence.

Smith has no evidence there was any indication Hawkins was suicidal,

that there was an intent to deny him any accommodations, or that he was

discriminated against by reason of his disability, if any. Smith’s own

psychiatry expert conceded Ford did not act with deliberate indifference to

Hawkins when she evaluated him on February 4th.200 Thus, Smith has no

evidence of intentional conduct and summary judgment was proper.

III. Fifth Circuit precedent requires federal funding for the specific

program, service, or activity Smith challenges, and she lacks

evidence

The district court properly granted summary judgment on Smith’s RA

claims for the same reasons discussed above,201 and because it is undisputed

she has no evidence the Harris County jail receives federal funding for the

specific program, service, or activity at issue. Smith improperly relies on non-

Fifth Circuit case law for her arguments.

In the Fifth Circuit, however, what matters is whether the specific

program or activity at issue receives or directly benefits from federal

funding.202 “After analyzing the relevant statutory language and legislative

history and our case law under analogous statutes, we find persuasive reasons

for concluding that the receipt of federal financial assistance by a

multiprogram entity, for specific application to certain programs or activities, 199 See, e.g., supra at note 82.

200 ROA.3829, 4198:9–21.

201 ROA.6938 n.52. See also ROA.3827–3829.

202 Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997) (citing

Brown v. Sibley, 650 F.2d 760, 767–71 (5th Cir. 1981)).


41

does not, without more, bring all of those multiple programs or activities

within the reach of section 504.”203 As this Court further explained:

[I]t is not sufficient, for purposes of bringing a discrimination

claim under section 504, simply to show that some aspect of the

relevant overall entity or enterprise receives or has received some

form of input from the federal fisc. A private plaintiff in a section

504 case must show that the program or activity with which he

or she was involved, or from which he or she was excluded, itself

received or was directly benefited by federal financial

assistance.”204

Smith cites no evidence showing the specific program, service, or

activity she challenges received any federal funding. Thus, summary

judgment is proper.

203 Sibley, 650 F.2d at 767.

204 Id., at 769 (citations omitted, emphasis added). See also Salcido v. Harris Cnty.,

Tex., No. H-15-2155, 2018 WL 4690276, at * 53 (S.D. Tex. Sept. 28, 2018) (Mem. Op.)

(Lake, J.) (citing Lightbourn, 118 F.3d at 427).


42

CONCLUSION

Smith relies on speculation and conjecture rather than competent

evidence, and the district court properly granted summary judgment.

For these reasons, Appellee, Harris County, Texas, respectfully

requests the Court to affirm the district court’s final order granting summary

judgment to Harris County on all of Smith’s claims against it and for such

other and further relief to which it is justly entitled.

Date: August 15, 2019

Respectfully submitted,

/s/ Keith A. Toler

KEITH A. TOLER


Texas Bar No. 24088541

Attorney in Charge

Of Counsel:

VINCE RYAN

Harris County Attorney

LAURA BECKMAN HEDGE



1019 Congress Avenue, 15th Floor


(713) 274-5265

[email protected]

[email protected]

Counsel for Defendant-Appellee

Harris County, Texas


43

CERTIFICATE OF SERVICE

I certify that on August 29, 2019, I filed a true and correct copy of the

foregoing proposed sufficient brief via the Court’s electronic filing system,

which will automatically serve a copy on all parties’ registered counsel.

Amy Eikel

Zachary C. Burnett

Thomas Gutting

KING & SPALDING LLP

1100 Louisiana Street, Suite 4000


[email protected]

[email protected]

[email protected]

Peter Steffensen

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, Texas 78741

[email protected]

Ranjana Natarajan

UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC

727 E. Dean Keeton St.

Austin, Texas 78705

[email protected]

Counsel for Plaintiff-Appellant, Jacqueline Smith

/s/ Keith A. Toler

KEITH A. TOLER



44

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limit of Fifth Circuit Rule

32.2 and Federal Rule of Appellate Procedure 32(a)(7)(B) because,

excluding the parts of the document exempted by Federal Rule of

Appellate Procedure 32(f), this brief contains 12,757 words.

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of

Federal Rule of Appellate Procedure 32(a)(6) because this brief has

been prepared in a proportionally spaced typeface using Microsoft

Word for Windows 2016, version 16.0.4849.1000, in Times New

Roman 14-point typeface, except for footnotes, which are in Times

New Roman 12-point typeface. Case names are italicized or underlined.

/s/ Keith A. Toler

KEITH A. TOLER



United States Court of Appeals FIFTH CIRCUIT

OFFICE OF THE CLERK LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

August 19, 2019

Mr. Keith Adams Toler County Attorney's Office for the County of Harris 1019 Congress 15th Floor Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Mr. Toler, We have determined that your brief is deficient (for the reasons cited below) and must be corrected within 14 days. The Certificate of Compliance is out of order. See 5TH CIR. R. 28.3(m). This should be the last page after the certificate of service. Record References: Although your brief contains citations to the record, they are not in proper form. Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed by the Clerk of Court. The use of "id" is not permitted when citing to the record on appeal. (See 5TH CIR. R. 28.2.2) Please remove any colons and semi-colons within the record citations and only use commas. These prevent the links from working. Note: Once you have prepared your sufficient brief, you must electronically file your 'Proposed Sufficient Brief' by selecting from the Briefs category the event, Proposed Sufficient Brief, via the electronic filing system. Please do not send paper copies of the brief until requested to do so by the clerk's office. The brief is not sufficient until final review by the clerk's office. If the brief is in compliance, paper copies will be requested and you will receive a notice of docket activity advising you that the sufficient brief filing has been accepted and no further corrections are necessary. The certificate of service/proof of service on your proposed sufficient brief MUST be dated on the actual date that service is being made. Also, if your brief is sealed, this event automatically seals/restricts any attached


documents, therefore you may still use this event to submit a sufficient brief. Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Casey A. Sullivan, Deputy Clerk 504-310-7642 cc: Ms. Amy Couvillon Eikel Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen


United States Court of Appeals FIFTH CIRCUIT

OFFICE OF THE CLERK LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

August 30, 2019

Mr. Keith Adams Toler County Attorney's Office for the County of Harris 1019 Congress 15th Floor Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Mr. Toler, You must submit the 7 paper copies of your brief required by 5th Cir. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5th Cir. R. 42.3. If your brief was insufficient and required corrections, the paper copies of your brief must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief directly from your original file without any header. Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Casey A. Sullivan, Deputy Clerk 504-310-7642 cc: Ms. Amy Couvillon Eikel Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan


Mr. Peter Steffensen


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