No. 19-20194 19-20194 Sufficient... · 2020. 1. 15. · No. 19-20194. IN THE UNITED STATES COURT OF...

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 United States District Court for the Southern District of Texas

4:15-CV-2226

BRIEF OF APPELLANT Jacqueline Smith

Amy C. Eikel Texas Bar No. 00787421 [email protected] Thomas M. Gutting State Bar No. 24067640 [email protected] Zachary C. Burnett Texas Bar No. 24105560 [email protected] KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Tel: (713) 751-3200 Fax: (713) 751-3290

Peter Steffensen Texas Bar No. 24106464 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741 Tel: (512) 474-5073 ext. 101 Fax: (512) 474-0726 [email protected]

Ranjana Natarajan Texas Bar No. 24071013 UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC 727 E. Dean Keeton St. Austin, TX 78705 Tel: (512) 232-7222 Fax: (512) 232-0800 [email protected]

Attorneys for Jacqueline Smith, Individually and as Independent Administrator of the Estate of Danarian Hawkins, Deceased

Case: 19-20194 RESTRICTED Document: 00515045199 Page: 1 Date Filed: 07/23/2019 Case: 19-20194 Document: 00515036772 Page: 1 Date Filed: 07/16/2019

i

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed 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 in order that the

judges of this court may evaluate possible disqualification or recusal.

Appellees: Counsel for Appellees:

Harris County, Texas

Laura Hedge of County Attorney’s Office Houston, TX Keith Toler of County Attorney’s Office Houston, TX Fred Keys of Fred Keys Consulting, L.L.C. Sonoita, AZ

Appellants: Counsel for Appellants:

Jacqueline Smith Estate of Danarian Hawkins

Amy Eikel of King & Spalding, L.L.P. Houston, TX Zachary C. Burnett of King & Spalding, L.L.P. Austin, TX Thomas Gutting of King & Spalding, L.L.P. Houston, TX Peter Steffensen of Texas Civil Rights Project Austin, TX Ranjana Natarajan of University of Texas School of Law Austin, TX

S/Amy Couvillon Eikel

Attorney of record for Appellant Jacqueline Smith


ii

STATEMENT REGARDING ORAL ARGUMENT

Plaintiff respectfully requests oral argument because she believes it will assist

in the Court in its determination of the important issues in this case.


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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ......................................................... i STATEMENT REGARDING ORAL ARGUMENT .............................................. ii TABLE OF CONTENTS ......................................................................................... iii TABLE OF AUTHORITIES .................................................................................. vii JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 2

1. The district court erred in granting summary judgment on Plaintiff Jacqueline Smith’s Americans with Disabilities Act and Rehabilitation Act claims based on Harris County’s intentional refusal to accommodate the known disabilities and limitations of her son Danarian Hawkins, resulting in his suicide in the Harris County Jail. . 2

a. Contrary to Federal Rule of Civil Procedure 56 and well-established case law, the district court resolved disputed facts in favor of the movant Harris County in concluding that Harris County’s refusals to reasonably accommodate Danarian were “medical decisions” not actionable under the ADA and RA. ........ 2

b. Contrary to Rule 56 and well-established case law, the district court disregarded Plaintiff’s evidence that raised genuine issues of material fact on whether jail officers violated jail policies and failed to adequately monitor Danarian on the night of his death. .. 2

c. The district court erred in granting summary judgment on intentional discrimination by misapplying applicable law and disregarding Plaintiff’s evidence that showed Harris County’s documented knowledge of Danarian’s history of severe mental illness and multiple attempts to hang himself, Harris County’s knowledge of what accommodations Danarian needed to be safely housed, and Harris County’s deliberate refusal to provide those accommodations. ..................... 2

2. The district court erred as a matter of law in concluding, contrary to the controlling statute and regulations, that the Rehabilitation Act does not apply unless Harris County’s federal funding is directed specifically at Harris County Jail programs or activities that affected Danarian. .......................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3


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I. Procedural History ........................................................................................... 3

II. Statement of Facts ............................................................................................ 3

A. After attempting suicide eight times in the Harris County Jail—once by overdose and seven times by hanging—Danarian died by hanging himself on February 5, 2014. .................................................. 3

B. Plaintiff identified six reasonable accommodations that were obvious to Harris County and were necessary for Danarian to be safe in jail, but none of them were provided. ................................... 5

C. Harris County had ample documented knowledge of Danarian’s long history of severe mental illness and multiple attempts to commit suicide by hanging. .................................................................. 6

D. Being housed alone exacerbated Danarian’s suicidal symptoms, and he was often sent to the jail’s Mental Health Unit (MHU) for acute psychiatric care. ........................................................................... 6

E. After MHU discharge, jail classification, not medical staff, chooses the inmate’s subsequent housing placement. .......................... 7

F. Despite knowing of Danarian’s 2013 attempted suicide with a sheet tied to a smoke detector and another attempted hanging with his sheet in January 2014, Harris County did not modify his smoke detector or replace his sheet with a suicide blanket. ............................. 8

G. Danarian made a suicidal statement the day before his death, but in violation of jail policy, no mental health referral was made and unit housing officers were not informed. ............................................ 11

H. Danarian’s ninth attempt at suicide in the Harris County Jail succeeded after he was allowed to leave his cell window covered with a towel in violation of jail policy. ............................................... 12

I. The parties disagree about how long detention officers allowed the towel to stay up covering Danarian’s cell window, but even under Defendant’s view of the evidence, the towel could have covered the window for seventeen minutes, violating jail policy. ...... 13

J. A consultant hired by Harris County criticized suicide prevention efforts in the Harris County Jail. ......................................................... 16

SUMMARY OF THE ARGUMENT ...................................................................... 17

STANDARD OF REVIEW ..................................................................................... 19

ARGUMENT ........................................................................................................... 20


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I. The district court misapplied the summary judgment standard and case law in granting summary judgment on Plaintiff’s ADA and RA claims. ..... 20

A. Plaintiff produced evidence raising genuine issues of material fact on whether Harris County violated the ADA and RA by intentionally failing to accommodate Danarian’s known disabilities and limitations, causing his death. ............................................................. 22

1. Danarian was a qualified individual with a disability. ................ 23

2. Harris County failed to accommodate Danarian’s known disabilities and limitations. .......................................................... 25

B. In concluding that Plaintiff’s failure-to-accommodate claims were essentially challenges to a “medical decision,” the district court erred by relying on inapplicable and factually distinguishable case law. .... 29

C. The district court disregarded Plaintiff’s evidence that Harris County’s failures to accommodate Danarian were not caused by a medical decision. ......................................................................... 33

1. The district court disregarded Plaintiff’s evidence that medical staff had no authority to determine an inmate’s housing placement and conditions after discharge from the MHU. ......... 33

2. The district court disregarded Plaintiff’s evidence that Harris County does provide suicide prevention clothing and bedding to inmates housed outside the MHU. ...................... 35

3. The district court erred in disregarding Plaintiff’s evidence that modifying cell smoke detectors would have been a reasonable accommodation and was not an undue hardship. ...... 37

4. The district court disregarded Plaintiff’s evidence that Chelsea Ford violated jail policy applicable to both medical and non-medical staff by failing to report Danarian’s suicidal statement the night before his death. ........................................... 41

5. The district court disregarded Plaintiff’s evidence that Harris County does provide more frequent monitoring to suicidal inmates housed outside the MHU. ................................. 44

D. The district court disregarded Plaintiff’s evidence that detention officers allowed the towel to stay up covering Danarian’s cell window for at least seventeen minutes, violating jail policy. ............. 45


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E. The district court disregarded Plaintiff’s evidence that raised a fact issue on whether Officer Perkins’ last observation round occurred as reported the night Danarian died. .................................... 47

F. Summary judgment on intentional discrimination was error because Harris County knew about Danarian’s disabilities and limitations but deliberately refused to provide the accommodations it knew Danarian needed to be safely housed. .................................... 51

II. The district court erred in concluding, contrary to the controlling statute and governing regulations, that the Rehabilitation Act does not apply because Harris County’s federal funding is not directed specifically at programs or activities in the Harris County Jail that affected Danarian. ...... 54

CONCLUSION ........................................................................................................ 57

CERTIFICATE OF SERVICE ................................................................................ 59

CERTIFICATE OF COMPLIANCE ....................................................................... 60


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TABLE OF AUTHORITIES

Page(s) Cases

A.H. v. St. Louis Cty., Mo., 891 F.3d 721 (8th Cir. 2018) ......................................................... 33

Arbogast v. Kan., Dept. of Labor, 789 F.3d 1174 (10th Cir. 2015) ..................................................... 59

Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448 (5th Cir. 2005) ......................................................... 22

Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495 (5th Cir. 2001) ......................................................... 40

Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) ........................................................... 31

Castle v. Eurofresh, Inc., 731 F.3d 901 (9th Cir. 2013) ......................................................... 43

Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996) ........................................................... 32

Comeaux v. Sutton, 496 F. App’x 368 (5th Cir. 2012) .................................................. 19

Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567 (5th Cir. 2002) ......................... 1, 7, 23, 25, 43, 53-55

Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009) ............................................. 20, 50, 51

Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134 (10th Cir. 2005) ..................................................... 31

Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009) ......................................................... 59

Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) ......................................................... 59


viii

Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL 2861456 (S.D. Tex. July 5, 2017) ................................................................. 53

Gay v. Hammersley, No. 08-59-DRH, 2009 WL 596114 (S.D. Ill. Mar. 6, 2009) .................................................................. 32

Grove City College v. Bell, 465 U.S. 555 (1984) ....................................................................... 57

Hacker v. Cain, 759 F. App’x 212 (5th Cir. 2018) .................................................. 22

Harkless v. Brazoria Cty., Tex., No. 3:14-CV-329, 2016 WL 1702595 (S.D. Tex. Apr. 28, 2016) .............................................................. 39

Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193 (3d Cir. 2008) .................................................... 57, 59

Hinojosa v. Livingston, 994 F. Supp. 2d 840 (S.D. Tex. 2014) ........................................... 26

Hott v. Hennepin Cty., 260 F.3d 901 (8th Cir. 2001) ......................................................... 32

Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997) ....................................................... 39

Kemp v. Holder, 610 F.3d 231 (5th Cir. 2010) ......................................................... 23

Lightbourn v. Cty. of El Paso, Tex., 118 F.3d 421 (5th Cir. 1997) ......................................................... 58

Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F. 2d 77 (5th Cir. 1987) .......................................................... 20

McCollum v. Livingston, No. 4:14-CV-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) ............................................... 27-29, 54-55


ix

McCoy v. Tex. Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055 (S.D. Tex. Aug. 9, 2006).......................................................... 26, 27

Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565 (5th Cir. 2018) ................................................... 53, 54

Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019) ......................................................... 19

Neely v. PSEG Tex. Ltd P’ship, 735 F.3d 242 (5th Cir. 2013) ......................................................... 24

Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012) ...................................... 31, 58, 59

Orr v. Copeland, 844 F.3d 484 (5th Cir. 2016) ......................................................... 19

Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206 (1998) ....................................................................... 22

Peel & Co., Inc. v. Rug Market, 238 F.3d 391 (5th Cir. 2001) ............................................. 19, 34, 37

Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180 (5th Cir. 2015) ............................................ 54, 55

Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164 (2d Cir. 2003) .......................................................... 25

Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410 (5th Cir. 2003) ......................................................... 19

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289 (11th Cir. 2005) ............................................... 30, 31

Shelton v. Ark Dept. of Human Servs., 677 F. 3d. 837 (8th Cir. 2012) ....................................................... 33

Steele v. Thaler, No. CIV.A. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011) ........................................................ 30, 31


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Taylor v. City of Shreveport, 798 F.3d 276 (5th Cir. 2015) ......................................................... 59

Tolan v. Cotton, 572 U.S. 650 (2014) ................................................................. 20, 34

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ....................................................................... 39

U.S. v. Ga., 546 U.S. 151 (2006) ....................................................................... 22

Val Velzor v. City of Burleson, 43 F. Supp. 3d 746 (N.D. Tex. 2014) ............................................ 39

Walls v. Texas Dep’t of Criminal Justice, 270 F. App’x 358 (5th Cir. 2008) ............................................ 30, 31

Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039 (N.D. Cal. 2012) ......................................... 43

Windham v. Harris Cty., Tex., 875 F.3d 229 (5th Cir. 2017) ................................................... 23, 26

Winzer v. Kaufman Cty., 916 F.3d 464 (5th Cir. 2019) ......................................................... 52

Wright v. Tex. Dept. of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994 (N.D. Tex. Dec. 16, 2013) ..................... 1, 10, 25, 28-29, 33, 39, 54

Yeskey v. Com. Of Pa. Dept. of Corrs., 118 F. 3d 168 (3d Cir. 1997) ......................................................... 57

Statutes

29 U.S.C. § 705 ................................................................................... 24

29 U.S.C. § 794 ............................................................ 18, 22-23, 56-57

42 U.S.C. § 12102 ............................................................................... 24

42 U.S.C. § 12131 ............................................................................... 24


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42 U.S.C. § 12132 ............................................................................... 22

42 U.S.C. § 12134 ............................................................................... 57

42 U.S.C. § 12206 ............................................................................... 57

Civil Rights Restoration Act of 1987, Pub. L. No. 100–259, 102 Stat. 28 (1988) ..................................... 57

Other Authorities

28 C.F.R. § 35.130 .................................................................. 11, 23, 43

28 C.F.R. § 42.540 .............................................................................. 58

29 C.F.R. § 1630.2 .............................................................................. 25

Fed. R. Civ. P. 56 ................................................................................ 19

Fed. R. Civ. P. 30(b)(6) ....................................................................... 14


1

JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§

1331 and 1343 because Plaintiff’s claims were brought under 42 U.S.C. § 12101 et

seq., and 29 U.S.C. § 794. (ROA.27, 121). This Court has jurisdiction pursuant to

28 U.S.C. § 1291 because the district court entered a final summary judgment

disposing of all claims on February 25, 2019 and Plaintiff timely appealed on March

27, 2019. (ROA.6925, 6950, 6961).


2

STATEMENT OF THE ISSUES

1. The district court erred in granting summary judgment on Plaintiff Jacqueline Smith’s Americans with Disabilities Act and Rehabilitation Act claims based on Harris County’s intentional refusal to accommodate the known disabilities and limitations of her son Danarian Hawkins, resulting in his suicide in the Harris County Jail.

a. Contrary to Federal Rule of Civil Procedure 56 and well-established case law, the district court resolved disputed facts in favor of the movant Harris County in concluding that Harris County’s refusals to reasonably accommodate Danarian were “medical decisions” not actionable under the ADA and RA.

b. Contrary to Rule 56 and well-established case law, the district court disregarded Plaintiff’s evidence that raised genuine issues of material fact on whether jail officers violated jail policies and failed to adequately monitor Danarian on the night of his death.

c. The district court erred in granting summary judgment on intentional discrimination by misapplying applicable law and disregarding Plaintiff’s evidence that showed Harris County’s documented knowledge of Danarian’s history of severe mental illness and multiple attempts to hang himself, Harris County’s knowledge of what accommodations Danarian needed to be safely housed, and Harris County’s deliberate refusal to provide those accommodations.

2. The district court erred as a matter of law in concluding, contrary to the controlling statute and regulations, that the Rehabilitation Act does not apply unless Harris County’s federal funding is directed specifically at Harris County Jail programs or activities that affected Danarian.


3

STATEMENT OF THE CASE

I. PROCEDURAL HISTORY

On July 30, 2015, Plaintiff-Appellant Jacqueline Smith brought this lawsuit

individually and on behalf of the estate of her son Danarian Hawkins against

Defendant-Appellee Harris County, alleging violations of her son’s rights under

Title II of the Americans with Disabilities Act (ADA) and Section 504 of the

Rehabilitation Act (RA). ROA.5, 27, 121.

The district court granted summary judgment in favor of Harris County,

ROA.3792, 5863, 6356, 6925, and on February 25, 2019 entered a Final Judgment

disposing of all claims. ROA.6950. Plaintiff timely appealed on March 27, 2019.

ROA.6961.

II. STATEMENT OF FACTS

A. After attempting suicide eight times in the Harris County Jail—once by overdose and seven times by hanging—Danarian died by hanging himself on February 5, 2014.

On February 5, 2014, Danarian Hawkins committed suicide in isolation cell

2R in the 2J2 cellblock in the Harris County Jail by threading his bed sheet through

the smoke detector in his cell and hanging himself. ROA.3834, 4966, 8544–8545,

8843, 8987–8988, 9179–9180. Although the window of Danarian’s cell, 2R, was

visible to the officer stationed in the pod control center, ROA.3900–3901, 4962,

5710, 8994–8996, Danarian was able to hang himself without detection because jail


4

officers allowed Danarian to keep his cell window covered in violation of jail policy,

ROA.8908–8910, for at least the amount of time necessary for Danarian to tear and

knot his bed sheet, tie it around his neck, climb on his table, secure the sheet to the

smoke detector, and hang himself, plus the five to six minutes it took him to die from

asphyxiation. ROA.3834, 5711, 7246–7253, 8026, 8544–8546.

As Harris County knew, Danarian had attempted suicide at least eight times

during seven different periods of incarceration in the Harris County Jail between

2009 and 2014, see ROA.4792—once by overdose and seven times by hanging—

before the successful suicide attempt on February 5, 2014 that ended his life.

ROA.3840, 8542–8543, 8551–8553, 8581, 8604, 8606, 8610, 8612, 8629, 9007. Jail

staff documented 25 different incidents in which Danarian made suicidal statements,

engaged in self-harm, or attempted suicide. ROA.5703, 6016–6020, 8542–8644,

8850–8882. These incidents, including Danarian’s numerous statements to detention

officers and other jail staff that he heard voices in his head telling him to kill himself,

resulted in Danarian being referred numerous times to the jail’s Mental Health Unit

(MHU) and receiving diagnoses and treatment for a number of serious mental

illnesses from the Mental Health and Mental Retardation Authority of Harris County

(MHMRA), which provided mental health care to inmates under a contract with

Harris County. ROA.5692, 5695–5696, 5747, 5750–5774; see generally

ROA.8542–8647, 8845–8882, 8998–9051.


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B. Plaintiff identified six reasonable accommodations that were obvious to Harris County and were necessary for Danarian to be safe in jail, but none of them were provided.

Plaintiff identified six reasonable, necessary and feasible accommodations

that were obvious to Harris County, any one of which would have prevented

Danarian’s death, and which Harris County chose not to provide. ROA.5705–5722,

6942:

• Replacing Danarian’s bed sheet with a knot-proof suicide blanket.

ROA.5705–5707.

• Modifying the smoke detector in his cell to prevent him from using it

as a tie-off point, as he had done before. ROA.5707–5709.

• Following policy by removing the towel covering his window that

allowed him to hang himself undetected. ROA.5709–5712.

• Following policy by referring him to the MHU after his suicidal

statement on February 4, 2014, the day before his death. ROA.5712–

5717.

• Following policy by faithfully conducting the 25-minute observation

rounds required in Administrative Separation. ROA.5717–5720.

• Monitoring him every five to ten minutes due to his history of multiple

suicide attempts and statements. ROA.5720–5722.


6

Any one of these reasonable accommodations would have saved Danarian’s

life, particularly the first four listed above.

C. Harris County had ample documented knowledge of Danarian’s long history of severe mental illness and multiple attempts to commit suicide by hanging.

Danarian’s death at age 27 was a tragic end to his years-long struggle with

mental illness, including schizophrenia, schizoaffective disorder, bipolar disorder,

and major depressive disorder. ROA.5695–5696, 9031, 9034–9037, 9040–9046,

9049–9051, 9054–9115, 9118. During childhood he exhibited compulsive behaviors

and was easily agitated. ROA.5982–5983. As he got older, Danarian heard voices

telling him to hurt himself, ROA.5977–5978, and was often confused and

disoriented. ROA.5988, 5989. Plaintiff’s expert psychiatrist, Dr. Shane Konrad,

explained that Danarian’s symptoms were manifestations of depression and

psychosis, which caused behavioral problems, auditory hallucinations and delusions,

suicidal ideation, and self-injurious conduct. ROA.9160–9161, 9163, 9170.

D. Being housed alone exacerbated Danarian’s suicidal symptoms, and he was often sent to the jail’s Mental Health Unit (MHU) for acute psychiatric care.

Most of Danarian’s time in jail was spent in administrative separation (also

called “Ad Sep”) where he was held in an isolation cell alone for twenty-three hours

a day. ROA.5873, 5962, 8845–8848, 8988–8991. Danarian’s mental health and


7

suicidal behaviors worsened when he was incarcerated. ROA.5970, 5978–5979,

5989–5990.

During the last period of incarceration before his death, Danarian was sent

numerous times to the MHU’s acute term “crisis unit” after trying to harm himself,

making suicidal statements or attempting suicide. ROA.4083–4084, 8845–8848,

8850–8882. MHU medical staff, including psychiatrist Dr. Enrique Huerta,

diagnosed and treated Danarian for a number of serious mental illnesses. ROA.5692,

5695–5696; see generally 8998–9051. Because acute MHU treatment is intended to

be short term, ROA.4083, Danarian’s stays in the MHU never lasted more than two

weeks. ROA.8846–8848.

E. After MHU discharge, jail classification, not medical staff, chooses the inmate’s subsequent housing placement.

Once the MHU’s medical staff determined that a patient should be released

from acute psychiatric care in the MHU, the patient was transferred from the MHU’s

control and placed in the custody of the jail’s classification unit. ROA.5723, 5930–

5931, 5953–5954. Dr. Huerta testified that MHU staff members have no say in where

their former patients are placed when returned to the jail. ROA.5853–5856. Rather,

jail classification is solely responsible for all inmate housing assignments, including

where to place inmates after they are discharged from the MHU, an administratively

distinct area of the jail. ROA.5930–5934.


8

It is undisputed that classification staff were aware when making Danarian’s

placement decisions that Danarian had a well-documented history of suicide

attempts and self-harm when held in isolation. Jail classification staff had access to

Danarian’s incident reports, records of prior conduct, staff observations, mental

health referrals, pages of “caution text” indicating dozens of referrals to the MHU,

various attempted suicides and self-harming incidents, and documentation of

Danarian’s mental health issues. ROA.5702–5703, 5924–5931, 5933–5936, 8886–

8894.

Nonetheless, each time Danarian was discharged from the MHU during the

eighteen months preceding his death, including on January 31, 2014, jail

classification staff intentionally returned Danarian to the same level of isolation and

the same conditions that they knew had previously exacerbated his suicidal

symptoms. ROA.8843, 8845–8848; see also ROA.6047. In his administrative

separation cell, Danarian was isolated from all human contact nearly every day,

twenty-three hours a day, for a year and a half. ROA.5873, 8843, 8845–8848.

F. Despite knowing of Danarian’s 2013 attempted suicide with a sheet tied to a smoke detector and another attempted hanging with his sheet in January 2014, Harris County did not modify his smoke detector or replace his sheet with a suicide blanket.

Danarian’s April 2013 suicide attempt ten months prior to his death was

identical in method to his final and successful attempt—he threaded his bed sheet

through the smoke detector in his isolation cell and tied his bed sheet around his


9

neck. Compare ROA.3834, 8544–8545 with ROA.3840, 8551–8553; see

ROA.4966.

In the 2013 incident, Officer Christopher Cano found Danarian with the sheet

wrapped tightly around his neck and the other end tied to the smoke detector, leaning

forward with his eyes closed. ROA.3840, 8551, 8553. Cano was also the officer who

found Danarian after his successful suicide attempt on February 5, 2014, “hanging

in exactly the same way.” ROA.3834, 5801–5802, 8544.

In addition, on January 17, 2014, only three weeks before his death, Danarian

was found with a sheet tied around his neck, attempting to tie the other end to the

upper deck of his cell block. ROA.8542–8543. Officers “asked him what was he

trying to do, and he stated that he was hearing voices telling him that he needed to

kill himself.” ROA.8542–8543. Danarian was given a suicide smock to prevent

further self-harm and was sent to the MHU for two weeks. ROA.8542–8543, 9178–

9179. Yet upon his release from the MHU on January 31, 2014, jail classification

assigned him to the same type of separation cell, with the same type of smoke

detector and the same type of bed sheet as those he had used in his prior suicide

attempts. Compare ROA.3834, 8544–8545 with ROA.3840, 8542–8543, 8551–

8553, 8566, 8617; see ROA.8845–8848, 8881–8882, 9178–9179. Harris County

could have modified the smoke detector in Danarian’s cell so that it could not be


10

used as a tie-off point (or otherwise housed him in a cell without tie-off points), but

Harris County chose not to do so.1

Detention officers could have replaced Danarian’s bed sheet with a suicide or

safety blanket,2 which is made of a firm, heavy fabric that provides warmth but

cannot be tied around the inmate’s neck or tied into a ligature. ROA.5850, 5863.

Suicide blankets and smocks were available for suicidal inmates and had in fact been

given to Danarian four times previously occasions by non-medical jail staff after he

made suicidal statements or gestures. ROA.8542–8543, 8558, 8610, 8617. But this

was not done in the days before Danarian’s death.

Jail policy provides that any staff member, medical or non-medical, can

initiate a suicide watch; deputies can choose without MHMRA involvement to

monitor an inmate every fifteen minutes, which is required for inmates considered

suicidal. ROA.8905. Harris County could have chosen to provide increased

monitoring of Danarian but, again, chose not to do so.3

1 See ROA.5707–5709, 5948, 6010–6012, 6016, 6025, 6056–6057, 6083, 9163–9164, 9186, 9195; see also Wright v. Tex. Dept. of Criminal Justice, No. 7:13-cv-0116-O, 2013 WL 6578994, at *4 (N.D. Tex. Dec. 16, 2013) (“a safe cell without tie-off points” is a reasonable accommodation that a prison should have provided to a disabled inmate with a “well-known history of suicide attempts”). 2 ROA.5692, 5705–5707, 5850, 5863–5864, 5866, 6010, 6016, 6076, 8901, 8905, 9163–9164, 9195. 3 ROA.5717–5722, 5846, 5872, 5946–5947, 6012–6016, 6058–6059, 6065, 6076, 8905, 9163, 9191–9193.


11

G. Danarian made a suicidal statement the day before his death, but in violation of jail policy, no mental health referral was made and unit housing officers were not informed.

Four days after Danarian’s January 31 release from the MHU—the day before

his death—Danarian was visited by Chelsea Ford, a MHMRA licensed practitioner

of the healing arts (LPHA), during Ford’s twice-weekly administrative separation

rounds. ROA.5712, 5807:14–20, 5812:23–5813:4, 5814:10–19, 5815:17–5816:8,

8683.

Danarian told Ford that he had just been discharged from the MHU after trying

to hang himself, and told her that “the [I]lluminat[i] is watching me and makes me

want to kill myself.” ROA.4155:3–22, 8683. Jail policy, which Ford was required to

follow,4 mandated an immediate mental health referral when an inmate exhibits

behavior “indicative of a mental health issue”—including suicidal statements.

ROA.8904–8905, 5747. Ford did not follow this policy, which binds all jail staff,

including MHMRA staff. ROA.4156:25–4157:16, 4162:8–4163:11, 8904–8905.

Instead, Ford merely “made her notes” of the incident “and moved on.” ROA.3809.

No mental health referral was made as mandated by jail policy, and no attempt was

4 By contract, MHMRA providers such as Ford must follow all Harris County administrative policies and rules. ROA.5754. The ADA and RA hold Harris County vicariously responsible for the acts of its agents whether they are employees or independent contractors. See 28 C.F.R. § 35.130(b)(1)(i) (2019); Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574–75 (5th Cir. 2002).


12

made to inform the unit officers. Danarian was left in his cell to endure the voices in

his head alone. ROA.4155–4163, 5823–5824, 9163–9165, 9187.

H. Danarian’s ninth attempt at suicide in the Harris County Jail succeeded after he was allowed to leave his cell window covered with a towel in violation of jail policy.

The day after Ford failed to report Danarian’s suicidal statement, Danarian

succumbed to the voices telling him to take his life. ROA.3834, 8544–8545.

Sometime towards the end of the 9 p.m. hour on February 5, 2014, Danarian covered

his window with a towel and hanged himself by fashioning a noose with his bed

sheet and threading it through the smoke detector in his isolation cell—the same

method he had attempted just ten months before. ROA.3834, 3840, 5474, 5691,

5785, 5801–5802, 8544–8545, 8551. By the time guards discovered Danarian

hanging in his cell at 10:10 p.m., ten minutes after the evening’s shift change, it was

too late. Danarian was pronounced dead at 10:43 p.m. ROA.9048. An email in the

record indicates that Danarian “was hanging for about 20 [minutes]” ROA.7890. By

the time Danarian was discovered, his body was already “cold to the touch,” and

fifteen minutes later, rigor mortis had already begun. ROA.9019–9020. Danarian left

behind a devastated family who will always remember Danarian as a “loving,

playful, artistic, happy man.” ROA.5970–5971, 5979–5980, 5991.


13

I. The parties disagree about how long detention officers allowed the towel to stay up covering Danarian’s cell window, but even under Defendant’s view of the evidence, the towel could have covered the window for seventeen minutes, violating jail policy.

The district court concluded at ROA.6931 that “detention officer Marvin

Perkins completed the last observation round on his shift5 in [Danarian] Hawkins’s

unit at 9:53 p.m.” (citing ROA.3867, 8840). Perkins testified that the towel was not

covering Danarian’s window during the last round, but even crediting Perkins’

testimony, the towel could have been put up as soon as the round was completed at

9:53 p.m. ROA.5892–5897. It is undisputed that the towel was covering the window

when Danarian was found hanging at 10:10 p.m. ROA.3798, 3834, 5474, 5785,

8544–8545. No officer had told Danarian to take the towel down in the minutes

before he was discovered hanging. ROA.5785–5786, 5892–5893, 5896–5897, 5919.

Taking the evidence in the light most favorable to Plaintiff as required on

summary judgment, the towel was hanging in Danarian’s window, at a minimum,

from 9:53 p.m. to 10:10 p.m.—a seventeen-minute period—which was long enough

for Danarian to tear his bed sheet, tie it into “at least two to three knots”6 to fashion

a noose, tie it around his neck, climb on his table, and secure the bed sheet to the

5 As discussed in Section II(B) below, Plaintiff introduced evidence that she contends raises a genuine issue of material fact as to whether this last observation round occurred as reported. 6 ROA.8546; see also ROA.7246–7253, 8026 (photos of knotted sheet).


14

smoke detector, plus the five to six minutes it took him to die from asphyxiation.

ROA.3834, 5711, 5963, 6058, 8544–8545, 9196.

By allowing the towel to cover Danarian’s window for seventeen minutes,

Harris County violated jail policy, which strictly forbids administrative separation

inmates from covering their windows for any amount of time, in order to prevent

self-harm. The policy further requires the pod officer to alert the rounds officer

immediately if he sees a window covered. ROA.5709–5712, 5874, 5916, 8910 (“At

no time shall hanging towels be allowed to interfere with or hinder the view of

staff.”).

Major John Martin testified as Harris County’s Rule 30(b)(6) witness that

officers are responsible for continually monitoring inmates from the pod for

behaviors indicative of a suicide attempt. ROA.5875. Jail policy requires officers to

“be continually vigilant monitoring all housing areas,” inspect cellblocks for blocked

windows, and immediately rectify any violations. ROA.8908–8910, 8915. At all

times, at least one officer must be in the pod control center, which is designed to

allow continuous, nearly unobstructed view of the inmates. ROA.3900–3901, 8915.

Photos in the record show that the window of Danarian’s cell, 2R, was clearly visible

from the pod control center. ROA.4962, 8994–8996. Officer Cano testified that the

pod officer could see all the cells in 2J2. ROA.3900–3901. Perkins testified that the


15

pod officer’s job was to observe the inmates, and that the pod officer would be able

to tell if any window in the pod was covered. ROA.5888, 5893.

Plaintiff’s correctional expert, James Upchurch, opined that the pod officer

should have seen immediately that Danarian’s window was covered and should have

ordered the towel removed. ROA.5946. Lindsay Hayes, a suicide-prevention

consultant hired by Harris County, stressed that a suicidal inmate cannot be safely

housed if he is allowed to cover his window; recommended that cell windows “allow

for unobstructed view of the entire cell interior at all times” and windows “never be

covered,” even for reasons of privacy or discipline. ROA.6081 (emphasis in

original).

Richard Bartholomew,7 who was detained in the 2J2 administrative separation

cellblock on the night Danarian died, testified that he and the other detainees would

sometimes cover up their cell windows with paper, and “[t]he guards would let us,

for a while.” ROA.5963. Bartholomew recalled that “once I had paper covering my

window for an hour before a guard told me to take it down.” ROA.5963. Officer

Clayton Aguirre, who was in the pod starting at 10 p.m. the night Danarian died,

acknowledged that inmates were known to cover their windows, which hindered

guards in keeping visual account of inmates. ROA.5785–5786.

7 Although the district court excluded the declarations of inmates Matthew Sowders and Everette Williams from evidence, ROA.6931–6932 n.29, the court did not exclude Bartholomew’s testimony.


16

J. A consultant hired by Harris County criticized suicide prevention efforts in the Harris County Jail.

In 2014, four months after Danarian’s death, Lindsay Hayes, a consultant

engaged by Harris County to assess its suicide-prevention policies, issued a report

criticizing many of the Harris County Jail’s suicide prevention practices.

ROA.6034–6084. Hayes reviewed the circumstances surrounding nine individuals,

including Danarian, who committed suicide while in the custody of the Harris

County Sherriff’s Office, toured the Harris County Jail, interviewed officials, and

reviewed policies, procedures, protocols, and training materials. ROA.6037–6038.

Hayes’ report confirms the reasonableness and effectiveness of the accommodations

that could have saved Danarian’s life. ROA.6042, 6056–6057, 6059, 6065–6066,

6075–6076, 6083. Hayes’ recommendations are consistent with and provide further

support for the opinions of Plaintiff’s correctional expert Upchurch and Plaintiff’s

psychiatric expert, Dr. S. Shane Konrad. ROA.6008, 6011–6012, 6021–6023, 9160,

9177, 9185–9187.

Hayes observed that “any individual with a history of one or more suicide

attempts is at a much greater risk for suicide than those who have never made an

attempt” and that the suicide risk is much higher when an inmate is housed alone.

ROA.6046–6047. Hayes concluded that the Harris County Jail’s single cell housing

locations (including 2J where Danarian died), were not suicide-resistant “because

they contained various protrusions that could act as an anchoring device from which


17

an inmate could attach a ligature in a suicide attempt by hanging.” ROA.6055–6056;

see also ROA.4966, 8987–8988 (photos of the smoke detector Danarian used to hang

himself). Hayes noted potentially dangerous devices such as “smoke detector cages”

and recommended that to “every extent possible, [suicidal] inmates should be housed

in suicide-resistant, protrusion-free cells.” ROA.6055–6056. Hayes further noted

that “common anchoring devices” in recent inmate suicides “included smoke

detector cages and sprinkler heads.” ROA.6056 n.15.

Hayes recommended that Harris County provide “close observation” every

ten to fifteen minutes for an inmate who “expresses suicidal ideation and/or has a

recent prior history of self-destructive behavior.” ROA.6049, 6059, 6065, 6076.

Hayes also recommended uninterrupted “constant observation” for inmates

considered a high suicide risk. ROA.6058–6060, 6076. These recommendations

support the opinions of Plaintiff’s correctional expert Upchurch. ROA.6021–6023.

SUMMARY OF THE ARGUMENT

Harris County had ample documented knowledge from its own jail records

that Danarian Hawkins had serious, debilitating mental illnesses that limited his

ability to care for himself because the voices in his head impelled him repeatedly to

attempt suicide while in jail. Harris County knew that Danarian needed reasonable

accommodations to meaningfully enjoy the benefits of safe confinement that Harris

County Jail must provide to every inmate. Although these disabilities and limitations


18

were open, obvious, and apparent, Harris County failed to reasonably accommodate

Danarian, resulting in his death. Specifically, Harris County denied Danarian the

benefit of safe housing by failing to replace his bed sheet with a suicide blanket or

modify his cell’s smoke detector when placing him in the same type of cell in which

he previously had attempted to hang himself using those same tools. Harris County

denied Danarian the benefit of adequate monitoring by not ordering him to remove

the towel covering his cell window, not referring him to the jail’s mental health unit

or informing housing personnel after Danarian made a suicidal statement, and not

conducting observation rounds in accordance with its own policies, let alone with

the frequency Danarian required due to his multiple documented suicide attempts.

Plaintiff’s evidence raised issues of material fact on all key aspects of this

case. The district court erred by misinterpreting applicable law and improperly

resolving multiple disputed fact issues in favor of the summary judgment movant,

Harris County. These errors require reversal of the summary judgment and remand

of the case for trial before a jury.

Plaintiff also appeals the district court’s erroneous conclusion that the

Rehabilitation Act does not apply to this case, because nothing in the statute or its

governing regulations required Plaintiff to produce evidence that the programs and

activities to which Harris County denied Danarian access directly received federal

funding.


19

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

if “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).

“An issue of material fact is genuine if a reasonable jury could return a verdict for

the nonmovant.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019).

“When making this determination, a court should review the record as a whole

but ‘must disregard all evidence favorable to the moving party that the jury is not

required to believe.’” Id. (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,

874 (5th Cir. 2000)). The court 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.” Peel & Co., Inc. v. Rug Market, 238 F.3d 391,

394 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150 (2000); accord Comeaux v. Sutton, 496 F. App’x 368, 369 (5th Cir. 2012);

Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412–13 (5th

Cir. 2003).

Because witnesses on both sides of a case typically have their own

perceptions, recollections, and even potential biases, “genuine disputes are generally

resolved by juries in our adversarial system.” Tolan v. Cotton, 572 U.S. 650, 660


20

(2014) (noting “the fundamental principle that at the summary judgment stage,

reasonable inferences should be drawn in favor of the nonmoving party”).

When a party opposing summary judgment presents evidence that could lead

a reasonable person to doubt the credibility of testimony favorable to the movant,

summary judgment should not be granted. See Lodge Hall Music, Inc. v. Waco

Wrangler Club, Inc., 831 F. 2d 77, 81 (5th Cir. 1987). Summary judgment is not

appropriate when questions about the credibility of key witnesses loom large and the

evidence could permit the trier-of-fact to treat their testimony with “skeptical

scrutiny.” Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 2009) (citing Thomas v.

Great Atl. and Pac. Tea Co., 233 F.3d 326, 331 (5th Cir. 2000)).

ARGUMENT

I. THE DISTRICT COURT MISAPPLIED THE SUMMARY JUDGMENT STANDARD AND CASE LAW IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S ADA AND RA CLAIMS.

Plaintiff’s evidence demonstrated that Harris County knew about Danarian’s

serious mental illness and multiple suicide attempts but violated the ADA and RA

by refusing him known accommodations that he needed to be safe.

Plaintiff identified six reasonable, necessary and feasible accommodations

that were obvious to Harris County, any one of which would have prevented

Danarian’s death, and which Harris County chose not to provide. ROA.5705–5722,

6942.


21

• Replacing Danarian’s bed sheet with a knot-proof suicide blanket.

ROA.5705–5707.

• Modifying the smoke detector in his cell to prevent him from using it

as a tie-off point, as he had done before. ROA.5707–5709.

• Following policy by removing the towel covering his window that

allowed him to hang himself undetected. ROA.5709–5712.

• Following policy by referring him to the MHU after his suicidal

statement on February 4, 2014, the day before his death. ROA.5712–

5717.

• Following policy by faithfully conducting the 25-minute observation

rounds required in administrative separation. ROA.5717–5720.

• Monitoring him every five to ten minutes due to his history of multiple

suicide attempts and statements. ROA.5720–5722.

The district court concluded that Plaintiff’s failure-to-accommodate claims

with regard to four of the items above (“suicide blankets, suicide-resistant cells, and

more frequent monitoring” as well as the failure to report Danarian’s suicidal

statement the day before he died) were “medical decisions that are not actionable

under the ADA and RA.” ROA.6942–6945. In so concluding, the district court erred

in two ways.


22

First, the district court relied on inapplicable and factually distinguishable

case law to incorrectly conclude that Plaintiff’s ADA and RA claims are based on a

nonactionable medical decision.

Second, the district court repeatedly misapplied the summary judgment

standard by disregarding Plaintiff’s evidence and resolving disputed facts in favor

of the movant Harris County.

A. Plaintiff produced evidence raising genuine issues of material fact on whether Harris County violated the ADA and RA by intentionally failing to accommodate Danarian’s known disabilities and limitations, causing his death.

“The Rehabilitation Act (RA) and Title II of the ADA prohibit state and local

governments, including prisons, from discriminating on the basis of disability.”

Hacker v. Cain, 759 F. App’x 212, 215 (5th Cir. 2018). Title II of the ADA provides

that “no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132 (2012). Jails and prisons are “public entities” for this purpose.

Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); U.S. v. Ga., 546 U.S. 151,

157 (2006).

The rights and remedies under the ADA and Section 504 of the RA are

“almost entirely duplicative”; accordingly, ADA and RA claims are evaluated under

the same legal standards. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,


23

454 (5th Cir. 2005); Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).8 The ADA

and RA hold a public entity vicariously responsible for its agents’ acts whether they

are employees or independent contractors. See 28 C.F.R. § 35.130(b)(1)(i) (2019).

“[N]either a policymaker, nor an official policy must be identified.” Delano-Pyle,

302 F.3d at 575.

1. Danarian was a qualified individual with a disability.

As the district court correctly noted at ROA.6939–6940, one form of disability

discrimination is the failure to accommodate the plaintiff’s known disabilities and

limitations. See Windham v. Harris Cty., Tex., 875 F.3d 229, 235 (5th Cir. 2017)

(citing Bennett-Nelson, 431 F.3d at 454 & n.11). “A plain reading of the ADA

evidences that Congress intended to impose an affirmative duty on public entities to

create policies or procedures to prevent discrimination based on disability.” Delano-

Pyle, 302 F.3d at 575 (citing 42 U.S.C. § 12182(b)(2)(A)(ii)–(iii) (1985)).

An ADA or RA plaintiff alleging failure to accommodate must prove: (1) the

plaintiff is a qualified individual with a disability; (2) the disability and its

consequential limitations were known by the public entity; and (3) the public entity

8 The RA applies to “any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (2012). Plaintiff’s evidence showed that the Harris County Sheriff’s Office receives millions of dollars in federal funding. ROA.3827–3828 & n.219, 5049–5058, 5728–5729. Plaintiff appeals the district court’s erroneous conclusion at ROA.6938 that the RA applies only if Harris County’s federal funding was directed specifically at Harris County Jail programs or activities that affected Danarian. See Section II, infra.


24

failed to make reasonable accommodations for the plaintiff’s known limitations.

Neely v. PSEG Tex. Ltd P’ship, 735 F.3d 242, 247 (5th Cir. 2013).

The district court in this case assumed without deciding that Danarian was a

qualified individual with a disability within the meaning of the ADA and RA.

ROA.6942 at n.55. Plaintiff’s evidence established that Danarian was “qualified”

under 42 U.S.C. § 12131(2) (2012)—he met the essential eligibility requirements

for safe confinement in the Harris County jail, including safe housing and adequate

monitoring, because he was an inmate and all inmates were so qualified.9

Plaintiff’s evidence also established that Danarian was disabled. See

ROA.5694–5700. A disability under the ADA and RA is “a physical or mental

impairment that substantially limits one or more major life activities.” 42 U.S.C. §

12102(1) (2012); see also 29 U.S.C. § 705(9) (2012). The ADA’s implementing

regulations list Danarian’s mental impairments (including schizophrenia, bipolar

disorder, and major depressive disorder) as among conditions that will “virtually

always be found to impose a substantial limitation on a major life activity.” See 29

C.F.R. § 1630.2(j)(3)(ii)–(iii) (2019).

“Caring for oneself” is a major life activity. 29 C.F.R. § 1630.2(i)(1)(i); see

also ROA.9162. “A mental illness that impels one to suicide can be viewed as a

9 ROA.5695 (citing ROA.5781, 5791, 5793, 5844–5845, 5870, 5878, 5883, 5908, 5955–5957).


25

paradigmatic instance of inability to care for oneself” and is therefore “a protected

disability under the [RA].” Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164,

168 (2d Cir. 2003); see also Wright, 2013 WL 6578994, at *3–5 (denying motion to

dismiss ADA and RA claims for failure to accommodate suicidal inmate, finding

that plaintiff had adequately alleged that decedent “was a qualified individual with

a disability”). Dr. Konrad opined that Danarian’s “severe and chronic mental

illnesses interfered with and substantially compromised his ability to care for

himself.” ROA.9162.

2. Harris County failed to accommodate Danarian’s known disabilities and limitations.

“The ADA expressly provides that a disabled person is discriminated against

when an entity fails to ‘take such steps as may be necessary to ensure that no

individual with a disability is excluded, denied services, segregated or otherwise

treated differently than other individuals because of the absence of auxiliary aids and

services.’” Delano-Pyle, 302 F.3d at 575 (quoting 42 U.S.C. § 12182(b)(2)(A)(iii)

(1985)). “In the prison context . . . failure to make reasonable accommodations to

the needs of a disabled prisoner may have the effect of discriminating against that

prisoner because the lack of an accommodation may cause the disabled prisoner to

suffer more pain and punishment than non-disabled prisoners.” Hinojosa v.

Livingston, 994 F. Supp. 2d 840, 843 (S.D. Tex. 2014) (quoting McCoy v. Texas


26

Dep’t of Criminal Justice, No. C-05-370, 2006 WL 2331055, at *7 (S.D. Tex. Aug.

9, 2006)).

Plaintiff’s evidence established Danarian needed reasonable accommodations

to receive the safe housing and suicide prevention services provided to all Harris

County Jail inmates. ROA.5695 (citing ROA.5781, 5791, 5793, 5844–5845, 5870,

5878, 5883, 5908, 5955–5957).

When a plaintiff’s disability, resulting limitation, and necessary reasonable

accommodation are “open, obvious, and apparent” to the public entity, the plaintiff

is not required to make an explicit request for the accommodation. Windham, 875

F.3d at 237. Accordingly, when jail officers know of an inmate’s disability and

limitations, but fail to provide known, needed accommodations, the jail has

discriminated against the inmate in violation of the ADA and RA. See McCoy, 2006

WL 2331055, at *7–8. In McCoy, the court denied summary judgment for the

defendant Texas Department of Criminal Justice because TDCJ was on notice of the

plaintiff inmate’s disability; his need for accommodation was obvious; and TDCJ’s

failure to provide accommodations resulted in the plaintiff’s fatal asthma attack. Id.

Plaintiffs have evidence that TDCJ and its officers knew that the conditions of administrative segregation might pose risks to asthmatic inmates . . . . Viewing this evidence in the light most favorable to the Plaintiffs, a jury could find that TDCJ had sufficient knowledge of Burrell’s disability, and the dangers posed by housing him in the administrative segregation unit, that it was required to take steps to accommodate him regardless of whether Burrell expressly requested a specific accommodation.


27

Id. at *8 (citations omitted).

Another court similarly denied summary judgment when a prison’s failure to

accommodate an inmate’s disability and limitations resulted in his death. McCollum

v. Livingston, No. 4:14-CV-3253, 2017 WL 608665, at *38 (S.D. Tex. Feb. 3, 2017)

(denying summary judgment because plaintiffs raised fact issues on whether failure

to reasonably accommodate the inmate’s disability violated ADA and RA by

denying him the benefit of safe confinement in a state jail facility).

The McCollum plaintiffs presented evidence that defendants TDCJ and

UTMB “jointly failed to give unit-level providers the power to assign disabled

inmates to climate-controlled housing, did not train heat-sensitive inmates about the

hazards posed by extreme heat, and assigned McCollum to a top bunk despite his

morbid obesity.” Id. at *38. “A reasonable jury could find that these kinds of

accommodations were reasonable and that the failure to utilize any of them led to

the denial of safe confinement for McCollum at Hutchins Unit.” Id.

The facts of Wright are also similar; a mentally ill and suicidal inmate, Rodney

Wright, hanged himself in his isolation cell, and his mother sued both TDCJ and

Texas Tech University Health Sciences Center (TTUHSC) who provided medical

care at the prison unit where Wright died. The court denied TTUHSC’s motion to

dismiss the plaintiff’s ADA and RA claims, concluding that TTUHSC violated the

ADA and RA by failing to instruct TDCJ to provide Wright the reasonable


28

accommodation of “placing him in a cell appropriate for someone with his well-

known history of suicide attempts,” specifically, “a safe cell without tie-off points.”

Id. at *4. TTUHSC stated in its motion that it does not make housing assignments,

but the court when determining the motion to dismiss was required to accept as true

the Plaintiff’s pleaded allegation that TTUHSC had the authority to instruct TDCJ

to provide accommodations to prevent Wright’s suicide. Id. The court in Wright also

found that the plaintiffs had adequately alleged that the discrimination was

intentional because Wright’s disability, limitations, and needed accommodations

were open and obvious. Id.

In this case, as in Wright, Defendant Harris County had ample documented

knowledge of Danarian’s mental illnesses, numerous suicidal acts, and suicide

attempts.10 Nonetheless, Harris County’s jail classification staff intentionally chose

to house Danarian unsafely with the same type of bed sheet and smoke detector he

previously had used to attempt suicide, and jail officers allowed him to cover his

window and failed to monitor him adequately, causing his death. ROA.3801–3802,

5691–5693. Like in McCollum and Wright, the accommodations identified by

Plaintiff were reasonable and well-known to Harris County and a reasonable jury

10 ROA.5929–5931, 5933–5936, 6010, 6016–6020, 9007, 9162–9163, 9191, 9195; see generally ROA.8542–8644, 8850–8882.


29

could find that the county’s failure to utilize any of them was intentional and denied

Danarian the benefit of safe confinement in violation of the ADA and RA. See

McCollum, 2017 WL 608665, at *38.

B. In concluding that Plaintiff’s failure-to-accommodate claims were essentially challenges to a “medical decision,” the district court erred by relying on inapplicable and factually distinguishable case law.

The district court noted case law holding that the “ADA does not provide a

remedy for medical malpractice” and concluded that “claims like Plaintiff’s are

regarded as challenges to medical decisions that are not actionable under the ADA

and RA.” ROA.6943. This was error because the cases relied upon by the district

court are legally and factually distinguishable.

The court cites Walls v. Texas Dep’t of Criminal Justice, 270 F. App’x 358

(5th Cir. 2008), in which this Court held that the ADA “does not set out a standard

of care for medical treatment.” Walls, 270 F. App’x at 359; ROA.6940, 6945.

However, Walls is factually distinguishable; the ADA claim in Walls was that TDCJ

refused to “surgically install a protective metal plate to cover a hole in [the

plaintiff’s] skull”—indisputably a complaint about the quality of the plaintiff’s

medical care. Id. at 358. Similarly, the district court at ROA.6941 cited Steele v.

Thaler, No. CIV.A. H-09-4076, 2011 WL 739524 (S.D. Tex. Feb. 22, 2011), which

involved denial of “adequate dental care,” a medical treatment decision not

actionable under the ADA or RA. Id. at *11.


30

The cases relied upon in Steele, also cited by the district court at ROA.6940–

6941, similarly involved attempts to directly challenge medical treatment decisions

and are factually distinguishable:

• Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (RA

and ADA were “never intended to apply to decisions involving the termination

of life support or medical treatment”);

• Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (prison

did not violate ADA and RA by inadequately treating plaintiff’s diabetes or

denying him surgery for his broken hip);

• Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996). (plaintiff “complaining

about incompetent treatment of his paraplegia” failed to state claim under ADA).

The district court also cites Nottingham v. Richardson, 499 F. App’x 368 (5th

Cir. 2012), ROA.6940, in which this Court noted that the plaintiff’s “general

complaint was that he received ‘inadequate’ medical care” and that “his lack of

medical care was a violation of the ADA.” Id. at 375–77.

In contrast to Walls, Steele, Schiavo, Fitzgerald, Bryant, and Nottingham,

Harris County’s decisions challenged in this case were not medical decisions. The

district court noted that Plaintiff “filed this suit alleging that Defendant violated [the

ADA and RA] by placing [Danarian] Hawkins in unsafe housing and failing to

monitor him.” ROA.6935. As detailed in Section I(C)(1) below, Plaintiff produced


31

evidence raising genuine issues of material fact that Harris County’s decisions about

where and how to house and monitor Danarian were made by non-medical

personnel, namely, jail classification staff and unit detention officers.

The district court also cited five cases that involved the failure to prevent a

suicide. ROA.6941–6945. Three of the cases—Hott, Gay, and Estate of Cole—did

not involve ADA or RA disability discrimination claims for failure to accommodate.

Instead, they involved Section 1983 claims and decided whether deliberate

indifference to an inmate’s risk of suicide falls under the heading of deliberate

indifference to medical needs for purposes of the Eighth Amendment. See Hott v.

Hennepin Cty., 260 F.3d 901, 903–06 (8th Cir. 2001) (finding no deliberate

indifference for jail nurse’s failure to identify suicide risk because decedent “denied

having suicidal inclinations” and there was no evidence that jail employees had

actual knowledge that decedent posed a serious risk of harm to himself); Gay v.

Hammersley, No. 08-59-DRH, 2009 WL 596114, at *7 (S.D. Ill. Mar. 6, 2009)

(finding that social worker’s exercise of medical judgment in removing decedent

from suicide watch did not constitute deliberate indifference to serious medical

needs); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 263 (7th Cir. 1996)

(holding that psychiatrist’s medical treatment of suicidal pretrial detainee in

psychiatric ward did not amount to deliberate indifference).


32

Two of the cases the district court cites at ROA.6941–6944 involved ADA

and RA claims based on failure to prevent a suicide, but both are factually

distinguishable because, in contrast to this case, the evidence in those cases showed

that a medical decision-maker in each was the proximate cause of the decedents’

deaths. See Shelton v. Ark. Dept. of Human Servs., 677 F. 3d. 837, 839 n.2, 843 (8th

Cir. 2012) (evidence showed that doctor was the sole decision-maker in removing

decedent from suicide watch and there was no allegation that the decision was

influenced by anything other than a physician’s judgment”); A.H. v. St. Louis Cty.,

Mo., 891 F.3d 721, 728–30 (8th Cir. 2018) (affirming summary judgment on ADA

and RA claims because evidence showed that inmate’s housing conditions were

based on a clinical psychologist’s medical judgment). By contrast, Plaintiff’s

evidence showed that detention officers, not medical staff, made the critical

decisions that led to Danarian’s death, including failing to remove the towel, provide

a suicide blanket, or modify the smoke detector. See Section I(C), infra.

The Northern District of Texas has correctly distinguished between ADA/RA

claims that implicate medical decisions and those that do not. See Wright, 2013 WL

6578994, at *4–5 (denying motion to dismiss ADA/RA claim for unsafe housing of

suicidal inmate (placing him in a cell with tie-off points), but granting the motion to

dismiss other ADA/RA claims based on failure to ensure that the decedent took his

medications, because those allegations involved medical decisions).


33

C. The district court disregarded Plaintiff’s evidence that Harris County’s failures to accommodate Danarian were not caused by a medical decision.

The district court also erred by failing to apply the correct summary judgment

standard in concluding that the “substance of [Plaintiff’s] argument is really to

challenge a medical decision.” ROA.6942; see ROA.6943–6945. The district court

drew numerous factual inferences in favor of Harris County and thus “neglected to

adhere to the fundamental principle that at the summary judgment stage, reasonable

inferences should be drawn in favor of the nonmoving party.” Tolan, 572 U.S. at

660.

Evidence supporting the moving party must be disregarded on summary

judgment unless it is “uncontradicted and unimpeached.” Peel, 238 F.3d at 394

(emphasis added). Accordingly, wherever Harris County’s evidence is contradicted

or impeached, that evidence must be disregarded at the summary judgment stage.

The district court repeatedly and improperly credited Defendant’s evidence that

Plaintiff’s evidence had contradicted and impeached.

1. The district court disregarded Plaintiff’s evidence that medical staff had no authority to determine an inmate’s housing placement and conditions after discharge from the MHU.

The court disregarded Plaintiff’s contrary evidence in concluding that “Dr.

Huerta’s medical decision to discharge Danarian from the MHU with no

restrictions” was the sole reason Harris County did not provide accommodations that


34

would have prevented Danarian’s suicide, including a suicide blanket, a cell without

tie-off points, and more frequent monitoring. ROA.6943. Plaintiff’s evidence

showed that MHMRA staff members (including Dr. Huerta), upon discharging an

inmate from the MHU, did not have the authority to dictate the subsequent housing

assignments and conditions for the inmate. ROA.5853–5857, 5928, 5930–5936; see

also ROA.5703, 5705, 5723. Major Greg Summerlin admitted that jail classification

alone determined housing assignments for all inmates, including inmates who have

been discharged from the MHU. ROA.5930–5931, 5933–5936; see also ROA.5703

n.18, 5723.

Dr. Huerta testified that he was told by Harris County that he did not have the

authority to determine where an inmate being discharged from MHU would be

placed. ROA.5853–5857. Dr. Huerta also lacked any authority to dictate how often

an inmate would be monitored or the configuration of an inmate’s cell, such as the

presence of a certain type of smoke detector. Indeed, on January 31, 2014, when the

MHU discharged Danarian, it was jail classification officers—not Dr. Huerta—who

chose to place Danarian in an administrative separation cell without any restrictions.

ROA.5705 (citing ROA.8848 (housing history); ROA.8881 (transfer sheet)).

Dr. Konrad opined that the “Harris County Jail failed to properly assess,

document, and respond to Mr. Hawkins’ elevated risk of suicide by assigning him

and allowing him to remain in a single-person twenty-three hour lock-down jail cell


35

with an exposed smoke detector on the ceiling that was a known ligature tie-off

point, while he had access to clothing and bedsheets that could be used to tie a

noose.” ROA.9163–9164. Like Harris County consultant Hayes, Dr. Konrad opined

that “inmates who the facility assigns to restrictive housing for security reasons,

including administrative segregation,” should, “to every extent possible . . . be

housed in suicide-resistant, protrusion-free cells.’” ROA.9186. Harris County’s

consultant also cautioned that suicides by hanging can and do occur with inmates

who are not under formal suicide watch, and that “common anchoring devices in the

suicides included smoke detector cages and sprinkler heads.” ROA.6056.

By making the improper inference that Dr. Huerta’s decision to discharge

Danarian from the MHU was the only reason Danarian was not provided with

accommodations that could have prevented his suicide, the district court failed to

view the facts and make inferences in the manner most favorable to Plaintiff, the

non-movant, as required by well-settled law. The summary judgment should be

reversed.

2. The district court disregarded Plaintiff’s evidence that Harris County does provide suicide prevention clothing and bedding to inmates housed outside the MHU.

The district court erroneously assumed that “suicide prevention components”

such as a suicide blanket “are not provided to the general jail population” but instead

“are available in the MHU.” ROA.6943. Contrary to Plaintiff’s evidence and in


36

violation of the summary judgment standard, the district court made a factual

inference that suicide blankets are never available to inmates housed in general

population, including administrative separation. ROA.6943. As a result, the district

court concluded that Dr. Huerta’s “medical decision” precluded jail staff from giving

Danarian a suicide blanket in the administrative separation unit on the date of his

death. ROA.6942–6946.

Plaintiff showed that jail policy did permit (and in fact required) suicide

blankets and suicide smocks to be given to suicidal inmates outside the MHU; in

fact these items were given to Danarian on four previous occasions between 2009

and 2014 by non-medical jail staff when he made suicidal statements or gestures.

ROA.8542–8543, 8558, 8610, 8617, 8623. Policy required a “suicide smock” to be

issued “when a person is experiencing a mental health crisis.” ROA.8905.

Because Plaintiff offered contradictory evidence in opposition to Defendant’s

summary judgment evidence, the district court was required to disregard

Defendant’s evidence. See Peel, 238 F.3d at 394. In crediting Defendant’s, rather

than Plaintiff’s, version of the facts, the district court acted in opposition to well-

settled law, and therefore committed reversible error.


37

3. The district court erred in disregarding Plaintiff’s evidence that modifying cell smoke detectors would have been a reasonable accommodation and was not an undue hardship.

The smoke detector in Danarian’s administrative separation cell had a

protruding head with holes which Danarian had previously threaded a bed sheet to

hang himself. ROA.4966, 8987–8988; see also ROA.3840, 8551–8553. Harris

County therefore knew that Danarian was likely to use a bed and smoke detector to

hang himself, as he had attempted in April 2013. Dr. Konrad identified “clear

knowledge by HCJ staff of a potentially dangerous tie-off point (smoke detector) in

Administrative Separation cells” and opined that “Harris County knew or should

have known that [Danarian] was genuinely at high risk of suicide.” ROA.9191–

9193.

The smoke detector in Danarian’s cell should have been modified, as a

reasonable accommodation, so that he could not use it again as a tie-off point. See

ROA.5707. Upchurch testified that “it would have been open, obvious, and apparent

to any reasonable corrections professional that he should not have been housed in a

cell with a sheet and that kind of covered smoke detector . . . .” ROA.6016. Dr.

Konrad testified that “even a layperson . . . might say, wait a minute . . . you want

us to house him in the exact same cell with a bed sheet where we almost had him

kill himself a few months ago? That seems unsafe to me.” ROA.5864. When there

has been a “documented suicide attempt by hanging from a smoke detector,” Dr.


38

Konrad testified, jail staff should evaluate ways to modify the smoke detector “to

reduce or remove the safety risk.” ROA.9195.

Modifying the smoke detector to provide Danarian a safer cell was a

reasonable accommodation that should have been provided. See Wright, 2013 WL

6578994, at *4. A plaintiff “need only show that an ‘accommodation’ seems

reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways, Inc. v.

Barnett, 535 U.S. 391, 402 (2002). Accordingly, once the plaintiff has “suggest[ed]

the existence of a plausible accommodation, the costs of which, facially, do not

clearly exceed its benefits . . . he has made out a prima facie showing that a

reasonable accommodation is available.” Val Velzor v. City of Burleson, 43 F. Supp.

3d 746, 752 (N.D. Tex. 2014) (citations omitted); accord Harkless v. Brazoria Cty.,

Tex., No. 3:14-CV-329, 2016 WL 1702595, at *4 (S.D. Tex. Apr. 28, 2016). The

burden of proof then shifts to the defendant to show “that the accommodation

generally would not be reasonable” or it may “move[] on to the affirmative defense”

of “undue hardship.” Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052,

1058 (5th Cir. 1997) (citing Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683–84 (5th

Cir. 1996)). “[Under the ADA] the term ‘undue hardship’ means an action requiring

significant difficulty or expense.” Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495,

502 n.20 (5th Cir. 2001). The inquiry into undue hardship “turns the focus” from the

facial reasonableness of an accommodation to the plaintiff’s “specific


39

circumstances,” i.e., “the hardships imposed . . . in the context of the particular

[defendant’s] operations.” Riel, 99 F.3d at 683–84.

Plaintiff’s evidence showed that modifying the smoke detectors would have

been a reasonable accommodation and not an undue hardship.11 Plaintiff’s

correctional expert Upchurch testified that he had seen “conically shaped sprinkler

heads” and detectors covered with “fine mesh” that could not be used for a hanging.

ROA.5948, 6012.

Harris County’s consultant Hayes concluded that Ad Sep cells “were not

suicide resistant” because the unmodified smoke detector cages “could act as an

anchoring device” in a suicide by hanging. ROA.6056–6057; see also ROA.4966,

8987–8988 (photos of smoke detector). Hayes recommended that smoke detectors

be flush with the ceiling or covered with “security screening mesh” not “large

enough to thread a noose.” ROA.6083.

The district court incorrectly adopted Defendant’s unsupported argument

(ROA.3807–3808, 3817, 3820) that “suicide-resistant cells” are not provided outside

the MHU and that Defendant’s refusal to modify the smoke detector was somehow

a “medical decision” not actionable under the ADA. ROA.6942–6943. However,

Harris County did not prove, or even present any evidence, that modifying a smoke

11 ROA.5707, 5948, 6010–6012, 6016, 6025, 6056–6057, 6083, 9163–9164, 9186, 9195.


40

detector would have been a medical decision requiring the participation of MHMRA

staff or would have been an undue hardship. ROA.3817–3821, 6366–6367. Rather,

it made a no-evidence challenge on that point. ROA.3818–3819.

Plaintiff’s evidence also showed that detention officers could remove a

suicidal inmate temporarily from an administrative separation cell into an alternative

location if concerned that the inmate would injure himself. On two occasions in 2009

and 2010, when Danarian was deemed suicidal but could not be immediately

transferred to the MHU, he was placed temporarily in a visitation cell. See

ROA.8626, 8647. This shows Harris County’s knowledge that administrative

separation cells were not suicide resistant and were an unsafe place to keep an inmate

who was actively suicidal. The court therefore erred in assuming suicide-resistant

cells were simply not available to inmates housed in administrative separation.

ROA.6943.

Plaintiff proposed a reasonable accommodation—modifying the smoke

detectors so that they could not be used as tie-off points—that would have made

Danarian’s Ad Sep cell more suicide-resistant. The burden should then have shifted

to Harris County to explain and produce evidence as to why that accommodation

would be an undue hardship, which it failed to do. ROA.3817–3821, 6366–6367.

The district court erred in granting summary judgment on this issue in disregard of

Plaintiff’s evidence.


41

4. The district court disregarded Plaintiff’s evidence that Chelsea Ford violated jail policy applicable to both medical and non-medical staff by failing to report Danarian’s suicidal statement the night before his death.

The district court erred in concluding that Chelsea Ford’s failure to report

Danarian’s suicidal statement was “a medical decision” not actionable under the

ADA, and further erred in disregarding Plaintiff’s evidence raising a genuine issue

of material fact as to whether Ford’s failure violated jail policy. ROA.5712–5717,

6945.

When Ford came to Danarian’s cell during routine rounds, Danarian told Ford

that he had just been discharged from the MHU, where he had been admitted for

trying to hang himself, and said “the [I]lluminat[i] is watching me and makes me

want to kill myself.” ROA.4155:3–22, 8683; see also ROA.5807:14–20, 5812:23–

5813:4, 5814:10–19, 5815:17–5816:8.

Ford was required by MHMRA’s contract with Harris County to follow all

jail rules and policies. ROA.5754. One such policy made it mandatory to initiate an

immediate mental health referral when an inmate exhibits behavior “indicative of a

mental health issue”—including suicidal statements. ROA.8904–8905, 5747, 5875.

That referral would result in timely response by a mental health provider, like Dr.

Huerta. It is undisputed that Ford did not make the required referral, violating a

policy that binds all jail staff members. ROA.4155–4163, 8904–8905.


42

Harris County argued that as a MHMRA employee, Ford was an independent

contractor. ROA.3810. But the ADA does not allow Harris County to contract away

its liability to a private entity. See 28 C.F.R. § 35.130(b)(1) (2019) (“A public entity,

in providing any aid, benefit, or service, may not, directly or through contractual,

licensing, or other arrangements . . . [d]eny a qualified individual with a disability

the opportunity to participate in or benefit from the aid, benefit, or service.”)

(emphasis added); Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1045–

46 (N.D. Cal. 2012); Castle v. Eurofresh, Inc., 731 F.3d 901, 909–10 (9th Cir. 2013).

Harris County is liable for Ford’s violation of policy because the ADA holds public

entities vicariously responsible for the acts of their agents. Delano-Pyle, 302 F.3d at

574–75.12

Plaintiff’s psychiatric expert Dr. Konrad concluded that Ford’s violation of

policy constituted a failure by Harris County “to properly assess, document, and

respond to Mr. Hawkins’s elevated risk of suicide.” ROA.9163. “Although Mr.

Hawkins did not explicitly say, ‘I am going to kill myself,’ his statement is sufficient

that, when taken together with his suicidal history and numerous risk factors, a

12 Plaintiff argued and produced evidence raising a genuine issue of material fact on whether Ford was even making “medical decisions” in her routine observation rounds, where her role was limited to observing inmates and determining whether a mental health referral was required. ROA.5716–5717. Regardless, Ford violated a jail policy requiring any staff member to make a mental health referral after witnessing behavior indicating a mental health issue.


43

reasonable person would conclude he was acutely in danger for self-harm and

needed to be immediately referred to a psychiatrist,” Dr. Konrad stated. ROA.9163.

Like Harris County consultant Hayes, Dr. Konrad opined that suicidal statements

should be reported immediately “regardless of staff’s perception of the genuineness

of the behavior.” ROA.9187. Had Ford made the immediate referral required by

policy or even alerted unit detention officers about Danarian’s statement, Dr. Konrad

opined, “the risk of his suicide would have been significantly reduced.” ROA.9164.

The district court found it significant that Ford “did not follow up with jail

staff or refer Hawkins to the MHU because she did not consider him to be actively

suicidal.” ROA.6945. However, the policy uses mandatory language and does not

require active suicidality; it mandates that a referral form “shall” be completed and

forwarded if any “behavior indicative of a mental health issue” is observed.

ROA.8904–8905, 5747, 5875.

Ford heard Danarian state that he was hearing voices that were telling him to

commit suicide. Plaintiff produced evidence raising a genuine issue of material fact

as to whether Ford violated a jail policy that mandated a response to Danarian’s

suicidal statement, a mental health referral that could have saved his life. The district

court erred in disregarding this evidence.


44

5. The district court disregarded Plaintiff’s evidence that Harris County does provide more frequent monitoring to suicidal inmates housed outside the MHU.

Plaintiff’s experts opined that an inmate with Danarian’s history—indeed, a

“red-zoned patient” according to Dr. Konrad—should have been observed in 5- to

10-minute intervals to account for the time it takes to die by hanging, including the

time it would take to fashion a bed sheet into a noose. ROA.5865, 5946–5947, 6012–

6013, 9162, 9164, 9195–9196; see also ROA.6058–6059, 6065, 6076.

The district court incorrectly adopted Defendant’s unsupported argument

(ROA.3807–3808, 3821) that Defendant failed to monitor Danarian more frequently

in the days before his death because he had been discharged from the MHU and that

increased monitoring as a precaution against suicide was wholly unavailable to

inmates elsewhere. ROA.6943.

The court’s disregard of Plaintiff’s evidence was error. Jail policy permits any

staff member, medical or non-medical, to initiate a suicide watch and allows deputies

to monitor an inmate every fifteen minutes without MHMRA involvement (for

inmates considered suicidal, the policy requires monitoring every fifteen minutes

or more often as the situation or circumstances mandate). ROA.8905; cf. ROA.8901

(revised policy issued 5 months after Danarian’s death); see also ROA.5846, 5872,

5946–5947, 6012–6016, 6058–6059, 6065, 6076, 9163, 9191–9193.


45

Margo Frasier, Defendant’s corrections expert regarding mental-health

services, testified that housing staff had discretion to check more frequently on an

inmate housed in administrative separation. ROA.5846. Major John Martin testified

that “[e]verybody’s responsible for suicide prevention,” ROA.5878, and that

“anybody can say . . . I think I need to keep an eye on this inmate because of concerns

about potential suicide.” ROA.5872; see also ROA.6056–6059.

Disregarding Plaintiff’s evidence in violation of the summary judgment

standard, the district court made a factual assumption that more frequent monitoring

of potentially suicidal inmates is only available in the MHU, and incorrectly

concluded that Harris County failed to monitor Danarian more frequently solely due

to Dr. Huerta’s non-actionable “medical decision.” ROA.6943. The district court

therefore committed reversible error.

D. The district court disregarded Plaintiff’s evidence that detention officers allowed the towel to stay up covering Danarian’s cell window for at least seventeen minutes, violating jail policy.

Even without challenging Officer Perkins’ testimony that his last round was

completed at 9:53 p.m., Plaintiff’s evidence raises a genuine issue of material fact

that detention officers allowed a towel to remain covering Danarian’s window from

9:53 p.m. to 10:10 p.m.—a 17-minute period—long enough for Danarian to tear his

bed sheet, tie “at least two to three knots” into the sheet to fashion it into a noose, tie

it around his neck, climb on his table, and secure the bed sheet to the smoke detector,


46

plus the five to six minutes it took him to die from asphyxiation. ROA.3798, 3834,

5474, 5711, 5785, 5892–5897, 5963, 7246–7253, 8026, 8544–8546, 9196.

Allowing the towel to cover Danarian’s window for seventeen minutes

violated jail policy that prohibits administrative separation inmates from covering

their windows for any amount of time. ROA.5709–5712, 5874–5875, 5916, 8908–

8910, 8915. Officers were required to observe inmates to ensure their safety, and

window obstructions would hamper their ability to do so. ROA.5785–5786, 5872,

5875.

The district court therefore erred in concluding that Plaintiff had “offered no

admissible summary judgment evidence” to support her failure-to-accommodate

claim for failure to remove the towel. ROA.6945–6946.

Officer Cano saw Danarian’s window completely covered by a towel at 10:10

p.m., when he found him hanging. ROA.3798, 5474, 5785, 8544–8545. Neither

Officer Cano nor Aguirre, who began their 2J pod shift at 10:00 p.m., had told him

to take down the towel in the ten minutes prior. ROA.5785–5786, 5892–5893, 5896–

5897, 5919.

Danarian’s cell window was clearly visible from the pod control center.

ROA.3900–3901, 4962, 5710, 5946, 8994–8996, 9196. Cano testified that the pod

officer (who sat in the pod control center) could see all the cells in 2J1 and 2J2.

ROA.3900–3901. Perkins testified that the pod officer would be able to tell if any


47

window in the pod was covered. ROA.5888, 5893. And having just started their

shifts, Cano’s and Aguirre’s sight and other senses should have been at their

sharpest.

Bartholomew testified that the J-pod guards would sometimes let inmates

cover their windows for up to an hour. ROA.5963. Officer Aguirre, who was in the

pod by 10 p.m. the night Danarian died, acknowledged that inmates were known to

cover their windows, which hindered guards in keeping visual account of inmates.

ROA.5785–5786.

Plaintiff’s evidence on this issue raised a genuine issue of material fact that

officers failed to observe Danarian as required by policy, resulting in his death. The

district court erred in disregarding this evidence.

E. The district court disregarded Plaintiff’s evidence that raised a fact issue on whether Officer Perkins’ last observation round occurred as reported the night Danarian died.

The district court’s conclusion that no admissible evidence raised a fact issue

on performance of observation rounds (ROA.6945–6946) was error because Plaintiff

introduced evidence that raises a genuine issue of material fact as to whether the last

observation round occurred as reported between 9:52 p.m. and 9:53 p.m. that night,

and Plaintiff produced evidence that would allow a reasonable jury to disbelieve

Officer Perkins’ testimony.


48

First, a jury could disbelieve Perkins because he testified to a profound lack

of memory about the events surrounding Danarian’s death. ROA.5718 at n.39.

Perkins did not remember anything about Danarian or Danarian’s suicide and had

no independent recollection of working with detention officer Arbey Reyes on

February 5, 2014. ROA.5885–5888, 5890–5894; see also ROA.5884, 5902–5903.

When asked if he recalled conducting rounds the evening Danarian died, Perkins

responded: “[D]o I remember conducting rounds? I don’t even remember that day.”

ROA.5892. From jail records, Perkins testified that he conducted the last round of

his shift that night at 9:52 p.m. ROA.3866–3867, 5894–5896, 6888–6889. Despite

his lack of memory, Perkins testified that Danarian’s cell window “wasn’t covered

when I did my last round,” ROA.5896, because if he had seen a towel he would have

taken it down or ordered it taken down. ROA.5892–5893, 5896–5897.

Second, Perkins was disciplined for failing to complete observation rounds,

which impeached Perkins’ testimony and would allow a reasonable jury to

disbelieve him. See Deville, 567 F.3d at 165–66 (reversing summary judgment

because plaintiffs provided discipline records that would have allowed the jury to

disbelieve a police officer’s testimony).

Harris County disciplined Perkins with a one-day unpaid suspension and 30-

day probation in 2016 for failing to conduct observation rounds in a 2015 incident

unrelated to Danarian in which the lack of rounds allowed an administrative


49

separation inmate to attempt to hang himself. ROA.9121–9123. Although Perkins

claimed he was not at fault because three officers had agreed to split rounds and

Perkins merely forgot to sign the round sheet,13 Harris County concluded that

Perkins “failed to conduct the last round of night watch.” ROA.9123.

This disciplinary history impeached Perkins’ testimony and would have

allowed a jury to disbelieve him. See Deville, 567 F.3d at 165. “Summary judgment

is not appropriate when questions about the credibility of key witnesses loom large

and the evidence could permit the trier-of-fact to treat their testimony with skeptical

scrutiny.” Id. at 165–66 (internal citations, brackets, ellipses and quotation marks

omitted).

Third, Plaintiff’s evidence cast doubt on the accuracy of the observation log

for cell block 2J2 the night of Danarian’s death. The log showed Perkins’ rounds

occurring exactly twenty-five minutes apart and taking exactly one minute each.

ROA.3855–3856, 8840–8841. In fact, Plaintiff’s correctional expert Upchurch

reviewed sixteen months of 2J2 observation logs showing the same pattern, and

opined that records showing no variation in rounds over more than a year are

“generally seen by corrections managers to be an indication of inaccuracy in

13 ROA.9121; see ROA.5898–5901.


50

reporting and documenting” and raised doubt as to whether “rounds were being

accurately documented, if conducted at all.” ROA.5718–5719, 6013, 6025.

The logs showing unnaturally regular observation rounds also were

contradicted by Bartholomew’s testimony that rounds occurred only about every

other hour and were “not always the same frequency.” ROA.5962–5964. Further, if

accurate, the non-varied round logs show a violation of jail policy, which requires

monitoring in administrative separation “at irregular intervals not to exceed every

twenty-five minutes.” ROA.8915 (emphasis added).

Perkins’s testimony and the observation logs are further called into question

by an email indicating that Danarian “was hanging for about 20 [minutes]” and

records showing that when discovered his body was already “cold to the touch.”

ROA.7890, 9019–9020. If Perkins had done his round between 9:52 p.m. and 9:53

p.m., as he testified, twenty minutes could not have elapsed between Perkins’

observation of Danarian and the 10:10 p.m. discovery of Danarian’s body. This

evidence raises a genuine issue of material fact that should be resolved by a jury.

The district court’s repeated failure to construe all facts and inferences in the

light most favorable to Plaintiff requires reversal of the summary judgment. See

Winzer v. Kaufman Cty., 916 F.3d 464, 474 (5th Cir. 2019) (reversing summary

judgment granted in favor of defendant police officer; holding that “the central error

is the district court’s failure to credit [the plaintiff/nonmovant]’s testimony, instead


51

adopting the [defendant/movant] officers’ characterization of the events preceding

the shooting. This alone is reversible error.”).

F. Summary judgment on intentional discrimination was error because Harris County knew about Danarian’s disabilities and limitations but deliberately refused to provide the accommodations it knew Danarian needed to be safely housed.

“A plaintiff asserting a private cause of action for violations of the ADA or

the RA may only recover compensatory damages upon a showing of intentional

discrimination.” Delano-Pyle, 302 F.3d at 574. This Court repeatedly has declined

to define “intent” for purposes of the ADA and RA. See, e.g., Miraglia v. Bd. of

Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir. 2018). However, this

Court’s decisions make clear that a genuine issue of material fact on intentional

discrimination is created by evidence that a defendant knew about the plaintiff’s

disability and resulting limitations and decided not to provide needed

accommodations.

The district court, in granting summary judgment on intentional

discrimination, cited Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL

2861456, at *7 (S.D. Tex. July 5, 2017), in which the court noted that the plaintiffs

did not “plead any facts from which the Court can reasonably infer ill will or animus”

toward the decedent). ROA.6947–6948. However, in Delano-Pyle, the Court

affirmed a jury award of compensatory damages in a failure to accommodate case


52

without any showing of malice or willfulness. Delano-Pyle, 302 F.3d at 571, 575–

76.

In Delano-Pyle, this Court affirmed damages based on a defendant’s

knowledge of the plaintiff’s disability and a decision not to accommodate him. Id.

at 575–76. Similarly, in Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App’x

180, 184–85 (5th Cir. 2015), the Court affirmed damages when a defendant “ignored

clear indications” of the plaintiff’s impairment and “failed to provide an effective

form of communication.” Id. The Miraglia opinion reversed a damage award when

there was no evidence of defendant’s requisite knowledge but noted with approval

the Delano-Pyle and Perez holdings that a finding of intentional discrimination is

supported by evidence that defendant had knowledge of the disability and limitations

yet failed to accommodate. Miraglia, 901 F.3d at 575–76.

Several district courts in the Fifth Circuit have concluded that when jail

officers know of an inmate’s disability and limitations and know what

accommodations are needed, but fail to provide the accommodations, the jail has

intentionally discriminated against the inmate in violation of the ADA and RA. The

court in McCollum denied summary judgment on intentional discrimination because

the prison was on notice of the plaintiff inmate’s disability; his need for

accommodation was obvious; and TDCJ’s failure to provide accommodations

resulted in the plaintiff’s fatal asthma attack. McCollum, 2017 WL 608665, at *40.


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In Wright, the court denied a motion to dismiss on intentional discrimination

in a case involving the failure to provide accommodations to a suicidal inmate such

as a cell without tie-off points, because the inmate’s disability, limitations, and

needed accommodations were open and obvious. Wright, 2013 WL 6578994, at *4.

Like in Perez and Delano-Pyle, Plaintiff’s evidence establishes that Harris

County’s agents “ignored clear indications” that Danarian had a limiting disability.

Harris County knew that Danarian was unable to care for himself because his mental

illnesses manifested as voices in his head which impelled him to repeatedly attempt

suicide. Further, Harris County’s agents knew that Danarian needed

accommodations to benefit from the safe housing and adequate monitoring that

Harris County Jail must provide to every inmate, namely, a suicide blanket,

modification of his smoke detector, and removal of the towel covering his window.

Like in McCollum, a reasonable jury could find that Plaintiff’s proposed

accommodations were reasonable and well-known to Harris County, that the failure

to utilize any of them led to the denial of safe confinement for Danarian, and that

such failure constituted intentional discrimination. See McCollum, 2017 WL

608665, at *38–40; see also ROA.9163.

“Given that Mr. Hawkins had a nearly fatal overdose in July 2013, followed

by three more serious suicide attempts in October, November, and January, there is

no question Mr. Hawkins was at chronic elevated risk for suicide,” Dr. Konrad


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stated. ROA.9191. Dr. Konrad opined that Danarian’s “acute risk factors for suicide”

were known to Harris County. ROA.9192–9193. Upchurch expressed similar

opinions. ROA.6010. Danarian’s hanging attempts gave Harris County knowledge

on how to protect him through accommodations, but Harris County refused to

provide them.

The district court erred in granting summary judgment on the issue of

intentional discrimination for Plaintiff’s ADA and RA claims. This Court should

reverse and remand for trial before a jury.

II. THE DISTRICT COURT ERRED IN CONCLUDING, CONTRARY TO THE CONTROLLING STATUTE AND GOVERNING REGULATIONS, THAT THE REHABILITATION ACT DOES NOT APPLY BECAUSE HARRIS COUNTY’S FEDERAL FUNDING IS NOT DIRECTED SPECIFICALLY AT PROGRAMS OR ACTIVITIES IN THE HARRIS COUNTY JAIL THAT AFFECTED DANARIAN.

The Rehabilitation Act of 1973 permits a “qualified individual with a

disability” to recover damages against an entity that subjects him to disability

discrimination “under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a) (2012). Congress has defined “program or activity”

to include “all of the operations of . . . a department, agency, . . . or other

instrumentality of . . . a local government,” id. § 794(b)(1)(A), “any part of which


55

is extended Federal financial assistance.” Id. § 794(b) (both emphases added).14 The

district court misconstrued the RA to require proof that federal funding be directed

to the specific programs or activities applicable to Danarian, notwithstanding the

statute’s and related regulations’ language that dictates the opposite result.

ROA.6937–6938.

The regulations promulgated to enforce Section 50415 similarly define

“[p]rogram or activity” to mean “all of the operations of any entity described in

paragraphs (h)(1) through (4) of this section, any part of which is extended Federal

financial assistance.” 28 C.F.R. § 42.540(h) (emphasis added). The entities

referenced include “[a] department, agency, . . . or other instrumentality of a . . .

local government; or [t]he entity of such . . . local government that distributes such

14 Importantly, in 1988, Congress enacted the Civil Rights Restoration Act of 1987 “to restore the broad scope of coverage and to clarify the application of . . . section 504 of the Rehabilitation Act of 1973,” Pub. L. No. 100–259, 102 Stat. 28 (1988), “[i]n response to Grove City and its progeny,” which “narrowed RA coverage and greatly reduced the likelihood of any potential immunity waiver.” Haybarger v. Lawrence Cty. Adult Prob. And Parole, 551 F.3d 193, 199–200 (3d Cir. 2008) (citing Grove City College v. Bell, 465 U.S. 555 (1984); Consol. Rail Corp. v. Darrone, 465. S. 624 (1984)). The Civil Rights Restoration Act thus amended 29 U.S.C. § 794 to apply to programs and activities offered by entities who receive, to any extent, “Federal financial assistance.” See Pub. L. No. 100–259, § 4, 102 Stat. 28, 29–30. 15 Regulations to enforce the RA “were expressly authorized by Congress, 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a), 12206, and . . . should be accorded ‘controlling weight unless [they are] ‘arbitrary, capricious, or manifestly contrary to the statute.’” Yeskey v. Com. Of Pa. Dept. of Correcs., 118 F. 3d 168, 170–71 (3d Cir. 1997), aff’d sub nom., Pa. Dept. of Correcs. v. Yeskey, 524 U.S. 206 (1998) (quoting Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418 (1995)).


56

assistance and each such department or agency . . . to which the assistance is

extended.” Id. § 42.540(h)(1).

Plaintiff’s evidence showed “millions in federal funding” to the Harris County

Sheriff’s Office during Danarian’s confinement, which was sufficient to carry her

evidentiary burden. ROA.5729 (citing ROA.3828 & n.219; ROA.5049–5058).

Accordingly, the RA’s plain language and governing regulations alone require

reversal of the district court’s grant of summary judgment on Plaintiff’s RA claims.

Further, the two Fifth Circuit cases cited by district court are distinguishable

because they both turned on plaintiffs’ failure to offer any federal-funding evidence,

and so neither case supports the district court’s interpretation. In Lightbourn v. Cty.

of El Paso, Tex., 118 F.3d 421 (5th Cir. 1997), this Court affirmed dismissal of

plaintiffs’ RA claim because plaintiffs neither “argued that the [defendant] receives

federal financial assistance” nor “presented any evidence on this point.” Id. at 427.

Similarly, in Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012), the

plaintiff “offered no evidence that the [defendant] jail received federal funds,” and

this Court held the RA inapplicable to his claims. Id. at 376 (emphasis added).

Here, Plaintiff has offered ample evidence that Harris County’s mental-health

and housing programs directly benefitted from federal financial assistance.

ROA.5729 (citing ROA.3828 & n.219; ROA.5049–5058); cf. Taylor v. City of

Shreveport, 798 F.3d 276, 283 (5th Cir. 2015) (finding plaintiffs adequately pleaded


57

their RA claim by alleging the defendant-city received federal funds for the police

department); Frame v. City of Arlington, 657 F.3d 215, 227 (5th Cir. 2011) (en banc)

(noting operations of public entity include the whole process of planning and

performing those operations).

The district court’s error is further confirmed by well-reasoned case law from

other circuits on this issue. See, e.g., Haybarger v. Lawrence Cty. Adult Prob. &

Parole, 551 F.3d 193, 200 (3d Cir. 2008) (citing Koslow v. Commonwealth of Penn.,

302 F.3d 161, 168 (3d Cir. 2002)); Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938,

942 (9th Cir. 2009); cf. Arbogast v. Kan., Dept. of Labor, 789 F.3d 1174, 1187 (10th

Cir. 2015).

The district court’s misinterpretation of the RA and its governing regulations

is an error of law that requires reversal.

CONCLUSION

For the reasons stated above, Plaintiff prays that the judgment of the district

court be reversed, and the case remanded for trial.


58

s/ Amy C. Eikel_________ Peter Steffensen Texas Bar No. 24106464 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741 Tel: (512) 474-5073 ext. 101 Fax: (512) 474-0726 [email protected]

Ranjana Natarajan Texas Bar No. 24071013 UNIVERSITY OF TEXAS SCHOOL OF LAW CIVIL RIGHTS CLINIC 727 E. Dean Keeton St. Austin, TX 78705 Tel: (512) 232-7222 Fax: (512) 232-0800 [email protected]

Amy C. Eikel Texas Bar No. 00787421 [email protected] Thomas M. Gutting State Bar No. 24067640 [email protected] Zachary C. Burnett Texas Bar No. 24105560 [email protected] KING & SPALDING LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Tel: (713) 751-3200 Fax: (713) 751-3290


59

CERTIFICATE OF SERVICE

I hereby certify that, on July 23, 2019, I served the foregoing brief upon the

following counsel of record by filing a copy of the document with the Clerk through

the Court’s electronic docketing system:

Keith Toler Laura Beckman Hedge HARRIS COUNTY ATTORNEY’S OFFICE

1019 Congress, 15th Floor Houston, TX 77002 Telephone: (713) 274-5265 Fax: (713) 755-8924

s/ Amy C. Eikel_________ Amy C. Eikel


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CERTIFICATE OF COMPLIANCE

The foregoing brief is in 14-point Times New Roman proportional font with

footnotes in 13-point Times New Roman proportional font and contains 12,945

words, and thus complies with the type-volume limitation of Rules 32(a)(7)(B) and

29(d).

s/ Amy C. Eikel_________ Amy C. Eikel

July 23, 2019


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

July 17, 2019

Ms. Amy Couvillon Eikel King & Spalding, L.L.P. 1100 Louisiana Suite 4000 Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Ms. Eikel, 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). Please make this the last page. Record citations were not found. Every assertion in briefs regarding matters 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. See FED. R. APP. P. 28(a)(8)(A) and 5TH CIR. R. 28.2.2. See Form 1 "http://www.ca5.uscourts.gov/docs/default-source/forms/fifth-circuit-court-of-appeals-form-1.pdf?sfvrsn=4". Any citation that has multiple pages should include the whole page number. For example: ROA.5717-22 should be ROA.5717-5722. 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

Case: 19-20194 Document: 00515038026 Page: 1 Date Filed: 07/16/2019

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: Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen Mr. Keith Adams 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

July 25, 2019

Ms. Amy Couvillon Eikel King & Spalding, L.L.P. 1100 Louisiana Suite 4000 Houston, TX 77002 No. 19-20194 Jacqueline Smith v. Harris County Sheriff USDC No. 4:15-CV-2226 Dear Ms. Eikel, 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. Exception: As of July 2, 2018, Anders briefs only require 2 paper copies. 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: _________________________ Monica R. Washington, Deputy Clerk 504-310-7705 cc: Mr. Thomas M. Gutting Mrs. Laura Beckman Hedge Mr. Fred Alton Keys Jr. Ms. Ranjana Natarajan Mr. Peter Steffensen Mr. Keith Adams Toler


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