Nikki Sides individually and on behalf of the estate of Thomas Middleton v. Texas Department of Criminal Justice, 01-15-00004-CV (Tex. App. – Houston [1st Dist.] November 3, 2015).
This is a Texas Tort Claims Act (“TTCA”)–inmate suicide case in which the First District Court of Appeals affirmed the granting of the TDCJ’s plea to the jurisdiction.
Thomas Middleton (Side’s son) was an inmate housed in TDCJ’s psychiatric facility. During an afternoon check of a recreational dayroom restroom, TDCJ guards discovered Middleton hanging by his neck from a handrail in a toilet stall, dead. Sides alleges that TDCJ was negligent in (1) constructing a privacy wall around the restroom area of the dayroom that was too high, (2) providing him with a hooded sweatshirt with a drawstring, and (3) failing to modify the toilet handrail to prevent suicides. The TDCJ filed a plea to the jurisdiction which the trial court granted. Sides appealed.
Under the TTCA, a governmental entity does not “use” property by allowing someone else to use it and nothing more. Nor does the non-use of property waive immunity. And while Sides is correct that the lack of an integral safety component in government property that causes a plaintiff’s injuries can be sufficient to allege a waiver of immunity, the allegation must be one in which the plaintiff put the property to its intended and ordinary use. The draw string was not used for its intended use as its ordinary use is not to hang oneself. When a drawstring and handrail are used in their intended manner, they do not present the risk associated with Middleton’s death. Additionally, being no dispute as to the cause of death and facts, Sides was not entitled to an ability to amend. Finally, Texas Supreme Court declined to recognize the existence of a “constitutional tort” remedy, so Sides’ declaratory judgment claim seeking a declaration of a deprivation of a constitutional right is not supportable. No future conduct can be enjoined for Sides. As a result, the plea was properly granted.
If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Bland and Justice Huddle. Memorandum Opinion by Justice Bland. The attorney listed for TDCJ is Kimberly Kay Coogan. The attorneys listed for Sides are Laurence W. Watts, William F. Carter and Melissa Azadeh.