6:24-cv-00031•Wennermark v. DeWitt County et al
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION CHRISTOPHER WENNERMARK, Plaintiff, VS. § § § § § § § § § CIVIL ACTION NO. 6:24-CV-00031 DEWITT COUNTY, et al., Defendants. MEMORANDUM AND RECOMMENDATION In September 2024, Plaintiff Christopher Wennermark filed his initial complaint under 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”). (D.E. 1). In December 2024, Wennermark filed an amended complaint against Defendants DeWitt County (the “County”), Christopher Smith, William Riemenschneider, Jerry Garza, William Reese, Ronny Beldin, Southern Health Partners, Inc. (“SHP”), Jennifer Stinnett,1 Laurie Srubar Kiening, and Doe Defendants 1-30. (D.E. 23). Wennermark’s claims arise from his time as a prisoner in the DeWitt County Jail, during which time he alleges that Defendants were deliberately indifferent to his serious medical needs, violated the ADA and RA by failing to reasonably accommodate his diabetes, and were medically negligent in treating him. (Id.). 1 Wennermark also named the Estate of Jennifer Stinnett in the alternative, but these claims have been dismissed. (D.E. 41). United States District Court Southern District of Texas ENTERED November 06, 2025 Nathan Ochsner, Clerk Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 1 of 47
2 Currently pending are: (1) the County’s motion to dismiss Wennermark’s § 1983, ADA, and RA claims against it (D.E. 32); (2) SHP, Kiening, and Stinnett’s (collectively, “the Medical Defendants”) motion to dismiss Wennermark’s § 1983, ADA, and RA claims against them (D.E. 34); and (3) all associated responses and replies (D.E. 40, 44, 45, 48). The undersigned previously entered a Memorandum and Recommendation (“M&R”) on August 28, 2025, and following the parties’ objections, the District Court recommitted these motions for further consideration and entry of a new M&R. (D.E. 61). Accordingly, this memorandum also considers the parties’ objections and responses to the previous M&R. (D.E. 59, 60, 62, 63). As discussed further below, it is recommended that the County’s motion to dismiss (D.E. 32) be DENIED and the Medical Defendants’ motion to dismiss (D.E. 34) be GRANTED in part and DENIED in part. It is further recommended that Wennermark be granted leave to file an amended complaint. I. ALLEGATIONS Wennermark alleges the following in his amended complaint, in relevant part. (D.E. 23). He was arrested and detained in the DeWitt County Jail on October 1, 2022. (Id. at 4). He suffers from type 2 diabetes with complications including retinopathy, which causes partial blindness, and neuropathy, which causes insensitivity to pressure and pain in his extremities. While in jail, he did not receive the appropriate amounts of insulin to control his diabetes. This limited the function of his circulatory system, ultimately causing diabetic neuropathy. (Id.). This made him more susceptible to injuries and more likely to need Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 2 of 47
3 immediate care if injured. (Id. at 4-5). Because Wennermark routinely received insulin, all jail staff and contractors knew that he had diabetes. (Id. at 5). The DeWitt County Jail was filthy and Wennermark was not provided any materials to clean his living space. (Id.). In January 2023, he began to suffer from a wound on his foot, suggestive of an infection and necrosis. It began on the back of his heel, which made it hard for him to perceive due to his neuropathy. This hole expanded until it was approximately half an inch deep. On January 1, 2023, Wennermark complained in a written grievance that he was denied the ability to clean his cell and denied medical service, but jail staff denied this grievance. (Id.). The infection in his foot continued to get worse. (Id. at 6). Jail staff regularly conducted face-to-face observation of Wennermark and could see that the infection was worsening. Wennermark informed them that the infection was related to his diabetes. It should have been obvious by the middle of January 2023 that the infection required medical treatment. For weeks, jail staff refused treatment or access to a doctor. (Id.). Wennermark complained of the lack of treatment to his sister, who called Smith on February 2, 2023, and told him that Wennermark needed treatment. (Id.). She also emailed Smith and Riemenschneider and told them that Wennermark’s foot smelled, which was likely due to an infection, and that it required medical treatment. (Id. at 7). A few days later, jail officials took Wennermark to see Stinnett, a nurse employed by SHP. (Id. at 3, 7). However, Stinnett did not properly treat the infection and only provided Wennermark with an over-the-counter athlete’s foot cream. (Id. at 7). Kiening, another nurse employed Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 3 of 47
4 by SHP, also approved this treatment. (Id. at 3, 7). Jail officials, Stinnett, and Kiening all knew this cream would not be effective to treat Wennermark’s infection, and the wound continued to expand despite the cream. (Id. at 7). They also knew that his glucose levels were uncontrolled, aggravating his neuropathy and worsening the injury. (Id.). The discoloration, change in shape, and smell of the infection were clear signs of a serious infection even to a layperson. (Id. at 8). Despite the obviously worsening infection and Wennermark’s complaints, jail staff, Stinnett, and Kiening continued to refuse treatment. (Id. at 8-9). On March 8, 2023, jail staff, Stinnett, and Kiening finally allowed Wennermark to visit a podiatrist. (Id. at 9). However, they provided either a false medical history or no medical history to the podiatrist. (Id. at 9-10). The podiatrist prescribed antibiotics and recommended daily dressing changes in written instructions received by both the jail and the nurses. (Id. at 10). Nonetheless, when he returned to the jail, Wennermark was refused antibiotics, and his dressing was changed only twice over seven days. On one day, Stinnett told Reese to bring Wennermark to the clinic, even though visiting him in his cell would have been more appropriate given his foot injury. Reese told her that Wennermark refused to come without a wheelchair, which Stinnett denied. Alternatively, Reese did not report this, and Stinnett fabricated medical records saying he did. (Id.). Regardless, Wennermark never refused a dressing change and was never told to go to the clinic for a dressing change that day. (Id. at 11). Due to the continued lack of proper medical care, the infection Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 4 of 47
5 continued to worsen, and jail officials, Stinnett, and Kiening all knew that Wennermark needed to visit an emergency room. (Id.). On March 14, 2023, Stinnett admitted to Garza that there was a medical need to send Wennermark to the emergency room. (Id.). This did not happen, and instead jail officials forced Wennermark to walk an extended amount on his injured foot. Wennermark was released on March 15, 2023, and went to the emergency room, where he was diagnosed with severe gangrene. (Id.). This gangrene was caused by the unsanitary conditions at the jail, intentional mistreatment of his infection, delay in treatment, false information provided to the podiatrist, refusing the medicine prescribed by the podiatrist, failing to change the dressing every day as prescribed by the podiatrist, refusing to take him to the emergency room, and making him walk on his damaged foot. (Id. at 12). County policymakers, including the Sheriff and county commissioners, made a policy-level decision to limit prisoner access to medical care. As a result of these policies, jail officials and the nursing staff routinely withheld medical care to save money. It was County policy to allow unqualified jail employees and contractors to decide when an inmate needed medical care. (Id.). The County also failed to provide any training to jail staff regarding infections, diabetic retinopathy, or other common medical conditions. (Id.). The County adopted these policies despite knowing it would endanger prisoners and deny necessary care. (Id. at 13). Jail officials were not trained to understand their responsibility to obtain medical care for disabled or sick inmates, even for common medical problems like diabetes and infections. The County Sheriff knew jail staff would encounter inmate Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 5 of 47
6 suffering from serious medical conditions, but did not train them for that inevitability. (Id.). Further, the County hired SHP with the expectation that it would intentionally withhold medical treatment to save money. (Id.). SHP medical providers were also not authorized to directly send inmates to receive a higher level of care, but instead had to obtain approval from an untrained jail official. (Id. at 13-14). The Sheriff and other County policymakers approved these policies to save money, despite knowing it would endanger prisoners. (Id. at 14). SHP specifically marketed itself as a cost-effective solution for jail medical care. It cuts costs by failing to provide adequate care for inmates and avoiding sending them for outside care. Their goal is to refuse care long enough that the inmate gets released and must obtain medical care on their own. SHP adopted these policies through its corporate final policymaker. (Id.). SHP also failed to train and supervise its staff to facilitate proper and consistent care for inmates despite knowing that this would endanger inmates. (Id. at 14-15). SHP’s policies, failure to train, and failure to supervise proximately caused the failures by Stinnett and Kiening. (Id. at 15). In his first cause of action, Wennermark raises a Monell2 claim against the County, alleging that it violated his Fourteenth Amendment rights. (Id.). He alleges that the County had several policies and practices, known to policymakers, that were adopted with deliberate indifference to the well-being and rights of detainees, including: (1) denying adequate medical care; (2) delaying access to medical care; (3) underfunding health care at 2 Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 6 of 47
7 the jail; (4) failing to train officers regarding diabetes and infections; (5) failing to train officers to recognize medical conditions that required professional treatment; (6) failing to provide sanitary living conditions; (7) failing to implement policies or procedures to address the dangers of diabetes and infections; (8) improper use of over-the-counter medications to delay proper medical treatment; (9) inserting a jail official with no medical training into the process of approving off-site medical care; (10) hiring SHP in a contractual agreement intended to effectuate the dangerous conditions of confinement; (11) failing to follow discharge instructions from medical providers; and (12) failing to obtain and provide medication consistent with doctor instructions. (Id. at 15-16). These conditions were well known and pervasive enough to constitute policymakers’ intended conditions of confinement, policies, and practices at DeWitt County Jail. (Id. at 16). They had no legitimate penological purpose and were adopted with deliberate indifference to the safety of inmates. The known and obvious consequences of these policies was that jail staff and contractors would routinely be put in a position to violate constitutional rights. (Id.). Despite knowingly and deliberately adopting these policies, policymakers did nothing to protect the rights of prisoners or remedy the dangerous conditions. (Id. at 17). This caused Wennermark to suffer pain and permanent impairment. (Id.). In his second cause of action, Wennermark raises a Monell claim against SHP, alleging that it violated his Fourteenth Amendment rights. (Id.). He alleges that SHP had several policies and practices, known to corporate policymakers, that were adopted with deliberate indifference to the well-being and rights of detainees, including: (1) denying Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 7 of 47
8 adequate medical care; (2) delaying access to medical care; (3) underfunding health care at the jail; (4) failing to train staff on the proper treatment for diabetic ulcers and infections; (5) failing to train staff to recognize medical issues that needed off-site treatment; (6) failing to implement policies or procedures to address the dangers of diabetic ulcers and infections; (7) improper use of over-the-counter medications to delay or avoid allowing inmates to see a doctor; (8) failing to follow discharge instructions from off-site providers; (9) failing to obtain and provide prescribed medications; (10) requiring individual nurse practitioners to supervise an impractical number of patients; and (11) assigning solitary nurses to large facilities and requiring them to make treatment decisions without supervision, training, or resources. (Id. at 17-18). These conditions were well known and pervasive enough to constitute policymakers’ intended conditions of confinement, policies, and practices at DeWitt County Jail. (Id. at 18). They had no legitimate penological purpose and were adopted with deliberate indifference to the safety of inmates. (Id. at 18- 19). The known and obvious consequences of these policies was that SHP staff, including Stinnett and Kiening, would routinely be put in a position to violate constitutional rights. (Id. at 19). Despite knowingly and deliberately adopting these policies, SHP policymakers did nothing to protect the rights of prisoners or remedy the dangerous conditions. (Id.). This caused Wennermark to suffer pain and permanent impairment. (Id. at 20). In his third cause of action, Wennermark alleges that Stinnett and Kiening violated his Fourteenth Amendment right to receive medical care and be provided access to medical Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 8 of 47
9 care as a pretrial detainee. (Id. at 20).3 Specifically, he alleges that Stinnett and Kiening subjectively knew that he was suffering from an objectively serious medical problem with obvious symptoms of an internal infection that they could not diagnose or treat. They also knew that Wennermark was not being treated and needed to be taken to a hospital, emergency room, or specialist physician, but delayed this necessary care for two months. Even after allowing Wennermark to visit a podiatrist, Stinnett and Kiening failed to follow the prescribed care by failing to provide antibiotics and failing to change Wennermark’s dressing as often as necessary. (Id.). As to Stinnett specifically, Wennermark alleges that she declined to send him to receive the necessary care despite knowing his serious medical need, instead delaying his care and providing knowingly incorrect treatment. (Id. at 22). Further, even after sending Wennermark for outside care, Stinnett failed to follow the discharge instructions given by the podiatrist. She further refused to provide cell-side treatment or to authorize a wheelchair to bring Wennermark to the clinic despite knowing that walking would aggravate Wennermark’s injury. Even after telling jail staff that Wennermark needed to go to the emergency room, Stinnett still did not send him there. (Id.). As to Kiening specifically, Wennermark alleges that she declined to send him for medical care despite knowing of his serious medical need and worsening condition. (Id. at 22-23). She delayed his care and knowingly provided incorrect treatment. (Id. at 23). Further, even after sending Wennermark for outside care, Kiening failed to follow the 3 This cause of action also includes claims against other individual defendants that are not at issue in the motions to dismiss. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 9 of 47
10 discharge instructions given by the podiatrist. (Id.). Wennermark alleges that, because of Stinnett’s and Kiening’s deliberate indifference, he suffered pain, permanent injuries, and permanent impairment. (Id.). In his fourth cause of action, Wennermark alleges that both the County and SHP, as recipients of federal funds, are covered by the requirements of the RA, and the County, as a public entity, is further covered by the requirements of the ADA. (Id. at 23-24). He further alleges that he was a qualified individual with a mental impairment, diabetic neuropathy, and a physical impairment, insulin-dependent type II diabetes and diabetic retinopathy. (Id. at 24). The County and SHP knew that Wennermark suffered from diabetes and was suffering from symptoms of a severe infection that required monitoring and medical care. They also knew that his diabetes was uncontrolled, worsening the risk of harm from a diabetic ulcer and infection. (Id.). Despite this knowledge, the County’s and SHP’s agents intentionally discriminated against Wennermark by refusing to provide reasonable accommodations such as sanitary housing conditions, access to proper medical care and medicine, safe transportation to medical care and court, and proper training for staff. (Id. at 24-25). The failure to provide these accommodations denied Wennermark equal access to the programs, services, and facilities of the DeWitt County Jail and SHP. (Id. at 25). Wennermark raises one other cause of action that is not at issue in the motions to dismiss. (Id. at 25-26). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 10 of 47
11 II. RULE 12(b)(6) STANDARD Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In determining whether to grant a motion to dismiss, the court must not go outside the pleadings and must accept all well- pleaded facts as true, looking at them in the light most favorable to the plaintiff. Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003). Although the court must construe the complaint in a light most favorable to the plaintiff, courts are not required to “accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted). A pleading must include a short and plain statement of the claim showing that the pleader is entitled to relief and giving the defendant fair notice of what the claim is. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, but the plaintiff must nonetheless provide more than merely labels and conclusions, and a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The factual allegations in the complaint are assumed to be true, even if unlikely, but the allegations must “raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Id. at 555, 570. A claim has facial plausibility where the factual allegations allow the court to reasonably infer that the defendant is liable Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 11 of 47
12 for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facts that are merely consistent with a defendant’s liability are insufficient. Id. III. DISCUSSION a. Fourteenth Amendment Claim Against DeWitt County In its motion to dismiss, the County first argues that Wennermark has failed to allege facts showing that it sanctioned an unconstitutional custom, practice, policy, or procedure that was the moving force behind a violation of his rights. (D.E. 32 at 4). Instead, the County argues that Wennermark has provided only conclusory allegations regarding various policies and practices related to the failure to provide adequate medical care. (Id. at 4-5). The County contends that Wennermark alleges various instances in which he received medical care, and instead of showing a County practice or policy of denying medical care, the allegations show that Wennermark simply disagreed with the care he received. (Id. at 5). The County asserts that Wennermark’s allegations show that it hired a company that specialized in providing licensed medical providers for inmate medical care. (Id.). The County argues that Wennermark’s complaint makes only conclusory statements about the alleged policies and practices at issue and provides no factual allegations in support of any of them. (Id. at 5-8). Wennermark responds that he has alleged various policy decisions that caused the constitutional violations and does not need to show a pattern of prior violations. (D.E. 40 Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 12 of 47
13 at 6).4 He argues that he raised both a conditions-of-confinement claim and an episodic- acts-or-omissions claim, but that the County waived any argument about his conditions-of- confinement claim by failing to raise them in its motion. (Id. at 9-10). On the merits, he contends that he has adequately stated both a conditions-of-confinement claim and an episodic-acts claim. (Id. at 10-15). Finally, Wennermark asserts that the County is independently liable for the constitutional violations because it failed to train its employees about providing access to medical treatment. (Id. at 15-18). He argues that the County knew jail staff would routinely be placed in a situation where they had to decide whether to provide detainees access to medical care, but failed to provide any training on this issue. (Id. at 16-18). The County replies that, as an initial matter, Wennermark’s conditions-of- confinement claim is not separate from his Monell claim, and it has not waived any argument about that claim. (D.E. 44 at 1-2). As to the conditions-of-confinement claim, the County argues that Wennermark’s complaint merely recites the elements of a Monell claim without any specific factual allegations showing a pattern of deficiencies. (Id. at 3- 4). As to the episodic-acts-or-omissions claim, the County contends that Wennermark 4 Wennermark also spends several pages arguing that he has adequately alleged that County staff and contractors violated his constitutional rights. (D.E. 40 at 6-9). However, the undersigned does not read the County’s motion as challenging the adequacy of these allegations. Instead, the County challenges whether Wennermark adequately alleged a policy, custom, or practice of the County that caused the alleged constitutional violations, as is necessary to state a Monell claim against the County. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 13 of 47
14 makes only conclusory allegations and has not offered any factual basis for a claim that the County sanctions a policy of failing to provide medical care. (Id. at 4-5). In relevant part, § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Municipalities and other local government entities are “persons” within the meaning of § 1983 and can be held liable for violating a pretrial detainee’s constitutional rights, including the right to medical care. Sanchez v. Young Cnty., Texas, 956 F.3d 785, 791 (5th Cir. 2020). However, they may not be held liable under a theory of respondeat superior or vicarious liability for the actions of their employees. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 689). Instead, to hold a municipality liable, a plaintiff must identify a municipal custom or policy that caused his injury. Id. This limits a municipality’s liability to only deprivations arising from its own decisions or from a custom “so widespread as to have the force of law.” Id. at 403-04. Accordingly, “[t]o support a claim based upon the existence of an official custom or policy, the Plaintiff must plead facts which show that: 1) a policy or custom existed; 2) the governmental policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 14 of 47
15 the moving force behind the violation.” Meadowbriar Home for Child., Inc. v. Gunn, 81 F.3d 521, 532–33 (5th Cir. 1996). “For section 1983 purposes, an official policy may be either a written policy or a persistent widespread practice of municipal officials and employees which, although not an authorized or officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.” Morris v. Dallas Cnty., 960 F. Supp. 2d 665, 683–84 (N.D. Tex. 2013) (citing Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir.2002); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984)). “The description of a policy or custom and its relationship to the underlying constitutional violation … cannot be conclusory; it must contain specific facts.” Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997). A “plaintiff cannot plead facts “peculiarly within the knowledge of defendants.” Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). “[I]n the context of municipal liability, like that of qualified immunity, it is ‘exceedingly rare that a plaintiff will have access to (or personal knowledge of) specific details regarding the existence or absence of internal policies or training procedures prior to discovery.’” Bright v. City of Killeen, Texas, No. 6:20-CV-431, 2021 WL 1226560, at *4 (W.D. Tex. Mar. 31, 2021) (citing Thomas v. City of Galveston, 800 F. Supp. 2d 826, 842 (S.D. Tex. 2011)). “Accordingly, only minimal factual allegations should be required at the motion to dismiss stage,” and “those allegations need not specifically state what the policy is, as the plaintiff will generally not have access to it, but may be more general.” Thomas, 800 F. Supp. 2d at Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 15 of 47
16 842-43. However, the plaintiff’s allegations must still give fair notice to the defendant and cannot merely restate the generic elements of municipal liability. Id. at 843. “Allegations that provide such notice could include, but are not limited to, past incidents of misconduct to others, multiple harms that occurred to the plaintiff himself, misconduct that occurred in the open, the involvement of multiple officials in the misconduct, or the specific topic of the challenged policy or training inadequacy.” Id. at 843-44. “To survive a motion to dismiss on an unconstitutional custom or practice claim, Plaintiffs must point to factual allegations sufficient to allow a reasonable inference that there was a pattern of misconduct involving similar acts.” Robles v. Aransas Cnty. Sheriff's Dep't, No. 2:15-CV-495, 2016 WL 4159752, at *8 (S.D. Tex. Aug. 5, 2016). A “custom consists of actions that occur for so long and with such regularity that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct.” Morris, 960 F. Supp. 2d at 684 (citing Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir. 2010)). To show that the custom or policy was the moving force behind the violation, a plaintiff must further show that the municipality adopted the policy or custom with deliberate indifference to the rights of its inhabitants. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (stating this rule in the context of a failure to train claim). The Fifth Circuit characterizes “§ 1983 violations of a pretrial detainee's rights as either episodic-acts-or-omissions claims or conditions-of-confinement claims.” Sanchez II, 956 F.3d at 791. For a conditions-of-confinement claim, the relevant question is whether general jail conditions “amount to punishment of the detainee.” Bell v. Wolfish, Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 16 of 47
17 441 U.S. 520, 535 (1979); Flores v. Cnty. of Hardeman, Tex., 124 F.3d 736, 738 (5th Cir. 1997). “To state such a claim, a plaintiff must plead facts that plausibly establish that (1) a condition (2) that is not reasonably related to a legitimate government objective (3) caused the constitutional violation.” Rangel v. Wellpath, LLC, No. 5:23-CV-128-H, 2024 WL 1160913, at *13 (N.D. Tex. Mar. 18, 2024). In contrast, “if the complained-of harm is a particular act or omission of one or more officials, the action is characterized as an ‘episodic act or omission’ case.” Flores, 124 F.3d at 738. In such a case, the detainee typically “complains first of a particular act of, or omission by, [an individual] and then points derivatively to a policy, custom or rule (or lack thereof) of the municipality that permitted or caused the act or omission.” Id. The detainee must show that the individual acted with subjective deliberate indifference to show a violation of his constitutional rights. Id. “To succeed in holding a municipality accountable for such a violation, the detainee must show that the municipal employee (1) violated his clearly established constitutional rights with subjective deliberate indifference and (2) the violation resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference.” Id. “Deliberate indifference is an extremely high standard to meet but can be satisfied by a wanton disregard for an inmate's serious medical needs.” Cope v. Cogdill, 3 F.4th 198, 207 (5th Cir. 2021) (internal quotation marks and brackets omitted). A failure to train claim is a type of episodic-acts-or-omissions claim. Sanchez II, 956 F.3d at 792. Inadequate training is typically insufficient for municipal liability, but Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 17 of 47
18 failure to properly train may be a “policy” if “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Harris, 489 U.S. at 390. “If city policymakers know that their officers will be required to do a particular task, the need to train officers in that task can be characterized as ‘so obvious’ that failure to give such training could be considered deliberate indifference to constitutional rights.” Morris, 960 F. Supp. 2d at 684-85 (citing Harris, 489 U.S. at 390 n.10). Accordingly, to “prevail on a failure to train claim, the plaintiff must demonstrate 1) that the county's training procedures were inadequate; 2) that the municipality was deliberately indifferent in adopting its training policy; and 3) that the inadequate training policy directly caused the constitutional deprivations in question.” Id. at 685 (citing Zarnow, 614 F.3d at 170). To establish deliberate indifference for a failure to train, “a plaintiff usually must demonstrate a pattern of violations and that the inadequacy of the training is obvious and obviously likely to result in a constitutional violation.” Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (internal quotation marks omitted). “[A] showing of deliberate indifference is difficult, although not impossible, to base on a single incident.” Sanders- Burns v. City Of Plano, 594 F.3d 366, 381 (5th Cir. 2010). “The ‘single incident exception’ is narrow and to rely on the exception a plaintiff must prove that the highly predictable consequence of a failure to train would result in the specific injury suffered, and that the Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 18 of 47
19 failure to train represented the moving force behind the constitutional violation.” Id. (internal quotation marks omitted). The Monell analysis applies regardless of whether the plaintiff is raising a conditions-of-confinement claim or an episodic-acts-or-omissions claim. See Sanchez, 956 F.3d at 791 (noting that a plaintiff must show that a municipal policy was the moving force behind the violation under either theory); Est. of Bonilla by & through Bonilla v. Orange Cnty., Texas, 982 F.3d 298, 308 (5th Cir. 2020) (stating that the legal standards for a Monell claim and for a conditions-of-confinement claim have no meaningful difference, and the failure of a conditions-of-confinement claim is fatal to a Monell claim). Here, as an initial matter, the County has not waived any argument about Wennermark’s conditions-of-confinement claim. The Fifth Circuit has recognized that the legal standards under Monell and for a conditions-of-confinement claim have no meaningful difference and that the failure of one is fatal to the other. Bonilla, 982 F.3d at 308. For both claims, Wennermark must adequately allege a municipal policy or custom that was the moving force of the constitutional violation. Sanchez, 956 F.3d at 791. Thus, if Wennermark has not adequately alleged a Monell claim against the County, he has also failed to state a conditions-of-confinement claim. Further, because the County challenges only whether Wennermark has adequately alleged a policy or custom that was the moving force behind the alleged constitutional violation, the same analysis applies at this stage regardless of whether Wennermark is raising a conditions-of-confinement claim or an episodic-acts claim. (See generally D.E. 32); Bonilla, 982 F.3d at 308; Sanchez, 956 F.3d Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 19 of 47
20 at 791. Under each legal standard, Wennermark must have adequately alleged a policy or custom that was the moving force behind the constitutional violation. Wennermark has adequately alleged several policies or customs that are the moving force behind the alleged constitutional violation. Notably, at this stage, Wennermark must make only minimal factual allegations and need not state exactly what the County’s policies are. Thomas, 800 F. Supp. 2d at 842-43. So long as Wennermark’s allegations do not merely restate the general elements of municipal liability, they are sufficient to survive a motion to dismiss. Id. at 843. In his complaint, Wennermark does not merely restate the general elements of municipal liability, but rather makes extensive factual allegations and lists several County policies or customs that he alleges caused the constitutional deprivations. (See D.E. 23 at 4-16). Widely construed, Wennermark’s complaint alleges that the County had policies to: (1) intentionally delay or deny proper medical care (Policies a, b, c, h, i, j, l); (2) fail to provide sanitary living conditions (Policy g); and (3) fail to train officers regarding how to recognize common medical conditions, when medical care was necessary, or what their constitutional responsibilities were with regard to providing detainees adequate medical care (Policies d, e, f, k). (Id. at 15-16). Wennermark has not merely alleged that the County had generic policies that caused the constitutional deprivations, but rather has named the specific topics and policies that led to his injuries. Thomas, 800 F. Supp. 2d at 843-44. Further, Wennermark has alleged sufficient factual background to give the County notice of what specific conditions of confinement and acts of its employees the policies Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 20 of 47
21 caused. Among other allegations, Wennermark has alleged that: (1) officials provided no materials to clean jail cells; (2) jail staff ignored his complaints about his growing foot infection; (3) jail staff continued to refuse medical treatment for his foot despite it being obvious that the infection needed treatment; (4) his infection continued to worsen even after initial treatment, and jail staff refused additional treatment; (5) even after allowing Wennermark to seek outside medical treatment, jail staff refused to follow the doctor’s orders regarding treatment and dressing changes; (6) even when medical contractors at the jail acknowledged that Wennermark needed to go to the emergency room, jail officials refused; and (7) jail officials forced Wennermark to walk on his injured foot, aggravating the injury. (D.E. 23 at 5-12). These factual allegations include misconduct that occurred in the open by multiple officials, which is sufficient to give notice to the County of what Wennermark’s claims are. Thomas, 800 F. Supp. 2d at 843-44. In short, Wennermark’s allegations of County policy are not merely conclusory or limited to the generic elements of municipal liability, but rather are as detailed as can be expected prior to discovery given that the specific details of the County’s policies are peculiarly within the knowledge of the County. Schultea, 47 F.3d at 1434; Bright, 2021 WL 1226560 at *4. Wennermark has also adequately alleged a failure-to-train claim based on his allegation that the County required unqualified jail personnel to decide when to provide medical care despite providing no training regarding how to recognize common medical conditions, when medical care was necessary, or their constitutional responsibility to provide detainees with adequate medical care. However, Wennermark has not alleged a Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 21 of 47
22 pattern of conduct involving other incidents and thus must rely on the exceptionally narrow single-instance exception to adequately allege a failure to train. Sanders-Burns, 594 F.3d at 381. However, as in Morris, Wennermark has made such allegations here. Morris, 960 F. Supp. 2d at 688. In Morris, which was decided at the summary judgment stage, the evidence showed that the defendant county did not train its jail officers “to look for or be aware of symptoms of physical illness, how to recognize and respond to medical needs, how to document requests from inmates for medical care, or how to pass on medical concerns to jail nursing staff.” Id. The court noted that, given the structure of the jail, inmates were required to rely on the jail officers to obtain medical attention. Id. However, the county provided no training to the officers as to “how to monitor for, observe, and determine potential medical needs in the inmates, how to respond to those needs, or how to forward those needs on to the health care staff.” Id. Thus, applying the single-instance exception, the court concluded that the plaintiff had raised a fact issue regarding whether the defendant county should be held liable for the failure to provide necessary medical care. Id. By comparison, at the motion to dismiss stage, Wennermark has alleged that the County required unqualified jail employees to determine when an inmate needed medical care. (D.E. 23 at 12-14). He has further alleged that, even when the County’s medical contractors indicated that an inmate needed outside medical treatment, the decision to seek such treatment was left up to an unqualified jail employee. (Id. at 13-14). Wennermark has also alleged that the County failed to provide any training to jail employees regarding Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 22 of 47
23 common medical problems or their constitutional responsibility to provide adequate medical care to detainees, and that the County Sheriff was aware that unqualified jail employees were put in a position to determine when medical care was necessary. (Id. at 13, 16-17). Wennermark’s well-pleaded allegations support that: (1) the County’s training was inadequate where it failed to provide any training regarding how to determine medical needs in inmates; (2) the need for more training on this issue was obvious where the provision of medical care was fully left to the discretion of jail employees; (3) Wennermark’s injury was a highly predictable consequence of the lack of training because jail employees failed to recognize his need for medical care despite his complaints and worsening condition over the course of several months; and (4) the lack of training was the moving force behind the denial of medical care because, had the jail officials received training, they would have known that Wennermark required medical attention. See Harris, 489 U.S. at 390 (discussing when a failure to train can be a policy); Zarnow, 614 F.3d at 170 (discussing the standard for a failure-to-train claim); Sanders-Burns, 594 F.3d at 381 (discussing the single-instance exception); Morris, 960 F. Supp. 2d at 684-85, 688 (discussing and applying the legal standard). These allegations are sufficient to survive at the motion to dismiss stage. Accordingly, it is recommended that the County’s motion to dismiss be denied as to Wennermark’s Fourteenth Amendment claims. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 23 of 47
24 b. Fourteenth Amendment Claims Against Stinnett and Kiening In their motion to dismiss, the Medical Defendants argue that Wennermark’s allegations show only that he disagreed with the medical treatment he received, not that Stinnett or Kiening showed deliberate indifference to his serious medical needs. (D.E. 34 at 8-10). Wennermark responds that Stinnett and Kiening violated his constitutional right to adequate medical care. (D.E. 45 at 6). He contends that they were acting under color of state law by providing medical care on behalf of the County, knew that he had a substantial risk of serious harm, and intentionally refused and delayed medical treatment anyway. (Id. at 7-8). Wennermark argues that this was not merely medical malpractice because Stinnett and Kiening knew the treatment they provided was incorrect and continued to harm him anyway. (Id. at 8-10). The Medical Defendants reply that Wennermark merely disagrees with the treatment he received and has not adequately alleged deliberate indifference. (D.E. 48 at 5-6). “A prison official’s deliberate indifference to serious medical needs of prisoners can constitute unnecessary and wanton infliction of pain of the type proscribed by the Eighth Amendment and actionable under 42 U.S.C. § 1983.” Baughman v. Garcia, 254 F. Supp. 3d 848, 869 (S.D. Tex. 2017) (internal quotation marks omitted). “Both pretrial detainees and convicted inmates are entitled to and may not be denied medical care.” Morris v. Dallas Cnty., 960 F. Supp. 2d 665, 677-78 (N.D. Tex. 2013) (citing Hare v. City of Corinth, 74 Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 24 of 47
25 F.3d 633, 650 (5th Cir.1996)). A serious medical need is one for which treatment has been recommended or the need is so apparent that even laymen would recognize that care is required. Id. (citing Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006); Gilbert v. French, 665 F. Supp. 2d 743, 757 (S.D. Tex. 2009)). “Deliberate indifference is an extremely high standard to meet.” Domino v. Texas Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). “The deliberate indifference standard has both an objective and subjective component.” Baughman, 254 F. Supp. 3d at 869 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Under the subjective prong, a “prisoner must show that the defendants were both (1) aware of facts from which an inference of an excessive risk to the prisoner’s health or safety could be drawn, and (2) that they actually drew an inference that such potential for harm existed.” Id. In other words, a prison official must both know that the inmate faces a substantial risk of serious bodily harm and disregard that risk. Id. To establish deliberate indifference to medical needs, a plaintiff must show that the officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino, 239 F.3d at 756 (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985)). “Unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor does a prisoner’s disagreement with his medical treatment, absent exceptional circumstances.” Gobert, 463 F.3d at 346. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 25 of 47
26 “A delay in medical treatment that results in substantial harm can constitute deliberate indifference.” Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) Here, as an initial matter, the Medical Defendants do not dispute that Kiening and Stinnett can be liable under § 1983 if they were deliberately indifferent to Wennermark’s serious medical needs. (See D.E. 34 at 8-10). Instead, the motion to dismiss centers on whether Wennermark has adequately alleged deliberate indifference. (Id.). At the motion to dismiss stage, Wennermark’s allegations are sufficient to state a claim for deliberate indifference against Stinnett and Kiening because, contrary to the Medical Defendants’ arguments, he has not merely alleged medical negligence or that he disagreed with the treatment he received. Wennermark’s complaint alleges that: (1) Stinnett and Kiening were aware of his serious infection by February 6, 2023, at the latest; (2) they provided a foot cream treatment that they knew would not be effective to treat the infection, particularly given Wennermark’s diabetes complications; (3) they delayed further medical care for a month despite the wound worsening even after Wennermark used the foot cream; (4) once Wennermark was allowed to visit an outside podiatrist, Stinnett and Kiening provided a false medical history or no medical history to the podiatrist; (5) after Wennermark returned to the jail, Stinnett and Kiening failed to follow the podiatrist’s instructions regarding antibiotics and daily dressing changes; (6) Stinnett denied Wennermark access to a wheelchair to get to the clinic or cell-side treatment, instead making him walk to the clinic despite knowing this would aggravate his injury; (7) Stinnett knew Wennermark needed to visit an emergency room, but failed to Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 26 of 47
27 send him there; and (8) the delays and knowingly incorrect treatment caused Wennermark to suffer from severe gangrene on his foot. (D.E. 23 at 5-11, 20-23). In short, while these allegations certainly indicate that Wennermark disagrees with the treatment he received, that is not the full breadth of his factual allegations. Taking the allegations as true at the motion to dismiss stage, Wennermark alleges that his infection was a serious medical need, Stinnett and Kiening knew of the serious risk of bodily harm should the infection not receive proper treatment, and they knowingly disregarded that risk by ignoring his complaints, failing to administer a doctor’s prescribed treatment, and intentionally treating him incorrectly for over a month. See Domino, 239 F.3d at 756 (stating that a plaintiff can state a deliberate indifference claim by showing that officials refused treatment, ignored complaints, or intentionally provided incorrect treatment). At the motion to dismiss stage, Wennermark has sufficiently stated a claim for deliberate indifference to his serious medical needs. c. Fourteenth Amendment Claim Against SHP In their motion to dismiss, the Medical Defendants argue that Wennermark has failed to sufficiently plead a Monell claim against SHP. (D.E. 34 at 3-4). First, SHP argues that Wennermark failed to allege that SHP, a third-party contractor, was the final policymaking authority at the jail. (Id. at 5). SHP contends that the final policymaker at a Texas county jail is the sheriff. (Id. at 5-7). SHP further asserts that Wennermark has failed to adequately allege the remaining Monell elements because his complaint makes only conclusory allegations regarding policies and practices. (Id. at 7-8). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 27 of 47
28 Wennermark responds that SHP, as a private corporation, remains vicariously liable for the acts of its employees, and therefore its liability is not limited by Monell. (Id. at 10- 11). However, even under Monell, Wennermark argues that SHP is liable because he has alleged that SHP’s corporate policymakers enacted official decisions that led to the constitutional violations. (Id. at 11-14). He contends that SHP’s policymaker adopted policies to cut costs by failing to provide adequate care and failing to train staff regarding the treatment of diabetic ulcers, infections, and medical conditions requiring off-site treatment. (Id. at 14-15). Wennermark asserts that SHP has waived any argument to his conditions-of-confinement claim by failing to address it, but regardless, that SHP is liable for creating unconstitutional conditions of confinement due to delaying and denying medical treatment. (Id. at 16-18). Wennermark contends that this policy served no legitimate penological interest and was the proximate cause of his injuries. (Id. at 18-20). As to his episodic-acts claim, Wennermark argues the denial of medical care also resulted from official policy decisions made with deliberate indifference to the known risk of serious harm by SHP, which SHP is also responsible for. (Id. at 20-21). Finally, Wennermark argues that SHP is independently liable for its employees’ constitutional violations because it purposefully failed to train them in their duty to provide adequate medical care. (Id. at 21-23). He contends that SHP knew its employees would routinely be placed in a position to decide whether to provide access to medical care, but provided no training on this issue, which was likely to cause the type of constitutional violation at issue here and caused Wennermark’s injuries. (Id. at 23-24). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 28 of 47
29 The Medical Defendants reply that Wennermark failed to allege a § 1983 claim based on vicarious liability. (D.E. 48 at 1-2). Further, they argue that, even if he did allege such a claim, even private corporations cannot be held liable under § 1983 based on a respondeat superior or vicarious liability theory. (Id. at 2-3). As to Wennermark’s Monell claim, the Medical Defendants argue that he has not properly alleged that SHP was a final policymaker at the jail. (Id. at 3-4). They argue that they have not waived any argument on the conditions-of-confinement claim because the same standard applies to both that claim and an episodic-acts-or-omissions claim under Monell. (Id. at 4-5). Here, as an initial matter, SHP has not waived any argument about Wennermark’s conditions-of-confinement claim because, as discussed above, the legal standards under Monell and for a conditions-of-confinement claim have no meaningful difference, and the failure of one is fatal to the other. Bonilla, 982 F.3d at 308. On the merits, Wennermark has adequately alleged that SHP’s final policymaker was aware of any alleged policies or customs. Although it does not appear that the Fifth Circuit has directly addressed this issue, several other circuits have concluded that a Monell claim raised against a corporation contracted to provide state services must show a policy of the corporation that was the moving force behind a constitutional violation. See, e.g., Shields, 746 F.3d at 789. Thus, SHP’s argument that the County Sheriff is the relevant final policymaker is misplaced. While the County Sheriff is undoubtedly the final policymaker for the purposes of Wennermark’s Monell claim against the County, the relevant final policymaker for his Monell claim against SHP is SHP’s corporate Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 29 of 47
30 policymaker. See Baughman v. Garcia, 254 F. Supp. 3d 848, 887 (S.D. Tex. 2017) (noting that the County Sheriff is the final policymaker at a county jail under Texas law). Naturally, SHP would accordingly not be liable for unconstitutional actions arising from policies of the County, but it can be liable for unconstitutional actions arising from its own corporate policies. Further, Wennermark has adequately alleged several SHP policies or customs that are the moving force behind the alleged constitutional violation. The analysis here largely mirrors the analysis of Wennermark’s Monell claims against the County. Wennermark must make only minimal factual allegations and need not state exactly what SHP’s policies are. Thomas, 800 F. Supp. 2d at 842-43. So long as Wennermark’s allegations do not merely restate the general elements of municipal liability, they are sufficient to survive a motion to dismiss. Id. at 843. In his complaint, Wennermark does not merely restate the general elements of a Monell claim, but rather lists several SHP policies or customs that he alleges caused the constitutional deprivations. (See D.E. 23 at 18). Widely construed, Wennermark’s complaint alleges that SHP had policies to: (1) delay or deny proper medical care, both intentionally or as a side-effect of another policy (Policies a, b, c, h, i, j, k, l); and (2) fail to train employees regarding how to treat common medical conditions and how to recognize when medical issues needed off-site treatment (Policies d, e, f, g, m). (D.E. 23 at 18). Wennermark has not merely alleged that SHP had generic policies that caused the constitutional deprivations, but rather has named the specific topics and policies that led to his injuries. Thomas, 800 F. Supp. 2d at 843-44. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 30 of 47
31 Further, Wennermark has alleged sufficient factual background to give SHP notice of what specific conditions of confinement and acts of its employees the policies were connected to these policies. Among other allegations, Wennermark has alleged that SHP employees: (1) did not properly treat his infection and gave him treatment they knew would not be effective; (2) refused additional treatment despite his obviously worsening infection; (3) denied him use of a wheelchair and denied in-cell treatment, instead forcing him to walk on his injured foot. (D.E. 23 at 7-11). These factual allegations include misconduct that occurred in the open by multiple SHP employees, which is sufficient to give notice to SHP of what Wennermark’s claims are. Thomas, 800 F. Supp. 2d at 843-44. In short, Wennermark’s allegations of SHP policy are not merely conclusory or limited to the generic elements of Monell liability, but rather are as detailed as can be expected prior to discovery given that the specific details of SHP’s policies are peculiarly within the knowledge of SHP. Schultea, 47 F.3d at 1434; Bright, 2021 WL 1226560 at *4. Wennermark has also sufficiently alleged a failure-to-train claim against SHP based on his allegation that SHP lacked training on a standard operating procedure for subjects like record-keeping and wound care, which resulted in a solitary licensed vocational nurse making treatment decisions without the necessary supervision, training, or resources. (D.E. 23 at 14-15, 18). However, Wennermark has not alleged a pattern of conduct involving other incidents and thus must rely on the exceptionally narrow single-instance exception to adequately allege a failure to train. Sanders-Burns, 594 F.3d at 381. However, as Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 31 of 47
32 discussed above regarding Wennermark’s claims against the County, he has made such allegations here. Morris, 960 F. Supp. 2d at 688. In his complaint, Wennermark alleges that SHP failed to train and supervise its staff by failing to establish any standard operating procedures related to, among other topics, record-keeping and wound care. (D.E. 23 at 14-15). This failure to train, along with SHP’s policy to avoid seeking outside medical care, ultimately required licensed vocational nurses to make treatment decisions they were not qualified to make. (Id. at 14, 19). Wennermark further alleges that SHP policymakers were aware that these policies posed a substantial risk of serious harm to inmates who would be denied proper medical care. (Id. at 15). Wennermark’s well-pleaded allegations support that: (1) SHP’s training was inadequate where it failed to provide any training regarding a standard operating procedure for record- keeping and wound care; (2) the need for more training on this issue was obvious where the ensuing treatment decisions were left entirely with a licensed vocational nurse without the necessary supervision; (3) Wennermark’s injury was a highly predictable consequence of the lack of training because SHP employees were not able to provide appropriate care for his injuries or send him for treatment off-site; and (4) the lack of training was the moving force behind the denial of medical care because, had SHP employees received training, they would have known that Wennermark required greater medical attention. See Harris, 489 U.S. at 390 (discussing when a failure to train can be a policy); Zarnow, 614 F.3d at 170 (discussing the standard for a failure-to-train claim); Sanders-Burns, 594 F.3d at 381 (discussing the single-instance exception); Morris, 960 F. Supp. 2d at 684-85, 688 Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 32 of 47
33 (discussing and applying the legal standard). These allegations are sufficient to survive at the motion to dismiss stage. As to vicarious liability, Wennermark has not adequately alleged a vicarious liability theory against SHP in relation to his § 1983 claim. In his amended complaint, he subtitled his § 1983 claim against SHP as “Plaintiff’s Monell Claim against Southern Health Partners, Inc.,” and all the allegations within this section follow the legal standard for raising a Monell claim. (D.E. 23 at 17-20). In contrast, in his negligence claim, which is not at issue in the motion to dismiss, Wennermark alleges that SHP is vicariously liable for the negligent acts of Stinnett and Kiening. (Id. at 26). Contrary to his objection to the original M&R, this analysis is not merely a “parsing of the subtitles.” (D.E. 60 at 6). Wennermark is subject to the requirements of Rule 8 and counsel, unlike a pro se plaintiff, is not entitled to liberal construction of his allegations. A complaint must provide the opposing party fair notice of what the claim is. Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555. Wennermark’s amended complaint makes a single reference to vicarious liability in the allegations related to his negligence claim, while the allegations related to his § 1983 claim mention only Monell and mirror the legal standard for a Monell claim. (D.E. 23 at 17-20, 26). These allegations do not provide SHP with fair notice that Wennermark intended to raise a § 1983 claim based on a vicarious liability theory in addition to his Monell theory. However, in the alternative to dismissal, Wennermark requests leave to amend his complaint to raise a vicarious liability theory. Accordingly, this memorandum will also Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 33 of 47
34 briefly address the viability of such a claim. The Fifth Circuit has not addressed whether a private corporation that has contracted to provide essential public services, such as health care for prisoners, can be held vicariously liable under § 1983. Moore v. LaSalle Mgmt. Co., L.L.C., 41 F.4th 493, 509 (5th Cir. 2022). Every circuit to have addressed this issue has concluded that private corporations cannot be held liable under § 1983 for the actions of their employees absent a showing of an official policy or custom under the Monell standard. See Soliz v. Nueces Cnty., No. 2:23-CV-00107, 2024 WL 2137672, at *17 (S.D. Tex. Jan. 5, 2024) (collecting cases). However, as Wennermark argues, several district courts in the Fifth Circuit have concluded that corporations can be vicariously liable under § 1983, and a panel of the Seventh Circuit has reached the same conclusion. Shields v. Illinois Dep't of Corr., 746 F.3d 782, 789-96 (7th Cir. 2014); Belknap v. Leon Cnty., Texas, No. 622CV01028ADAJCM, 2023 WL 3604728, at *8 (W.D. Tex. Apr. 3, 2023); Hutchison v. Brookshire Bros., 284 F. Supp. 2d 459, 473 (E.D. Tex. 2003). In Shields, the panel reasoned that the Supreme Court’s analysis in Monell provided “no persuasive reason to extend its holding to private corporations.” Id. at 790-92. The panel noted that lower courts were bound to follow Monell as applied to municipalities, but it was not required to extend the reasoning to private corporations. Id. at 792. The panel concluded that: (1) the general reasoning supporting vicarious liability in other contexts applies equally to claims raised under § 1983; (2) the language of § 1983 and its reference to “cause” do not foreclose the application of vicarious liability to corporations; (3) the legislative history that the Supreme Court relied on in deciding Monell is uniquely Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 34 of 47
35 applicable to municipalities; (4) no other Supreme Court decision requires an extension of Monell to private corporations; and (5) in the context of qualified immunity under § 1983, the Supreme Court has distinguished between employees of municipalities and employees of corporations. Id. at 792-94. The panel acknowledged that the Seventh Circuit and every other circuit to consider the issue had applied the Monell standard to private corporations, but found that these conclusions all led back to a single Fourth Circuit opinion with limited reasoning. Id. at 794-95 (citing Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982). Accordingly, the panel concluded that corporations should not be insulated by Monell, but instead should be vicariously liable for the actions of their employees acting in the scope of their employment. Id. at 795. Notably, however, the Shields panel ultimately applied the Monell standard under Seventh Circuit precedent, and it does not appear that the Seventh Circuit has followed the opinion of the panel and overturned its prior precedent in the over 11 years since Shields was decided. Id. at 795-96. With this background, it is recommended that Wennermark be granted leave to amend his complaint to allege a vicarious liability theory against SHP in relation to his § 1983 claim. It is possible that, following discovery, it will be unnecessary for the Court to resolve this open question of law if, for example, there is insufficient evidence of an underlying constitutional violation. Finally, the proposed vicarious liability theory shares significant factual overlap with both the § 1983 claim against Stinnett and Kiening and the Monell claim against SHP, so delaying a decision on the viability of such a claim is unlikely to increase the discovery burden on the parties. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 35 of 47
36 Accordingly, it is recommended that SHP’s motion be denied regarding Wennermark’s Fourteenth Amendment claim and that Wennermark be granted leave to file an amended complaint including a vicarious liability theory. d. ADA and RA Claims Against DeWitt County In its motion to dismiss, the County argues that Wennermark has failed to state an ADA or RA claim because the Fifth Circuit has held that the ADA and RA do not cover the absence or inadequacy of medical treatment for prisoners. (D.E. 32 at 8-9). Wennermark responds that his complaint does not merely allege treatment below the standard of care, but rather that the County and its agents refused to accommodate his disability and intentionally inflicted disproportionate pain, suffering, and other harms because of that disability. (D.E. 40 at 18-19). He argues that it is undisputed that he had a disability and that the County knew of this disability. (Id. at 20). Wennermark contends that he was excluded from accessing programs and services offered to non-disabled detainees, including medical care, access to court, and safe housing. (Id. at 20-21). Finally, Wennermark argues that the County intentionally discriminated against him by refusing to provide him with reasonable accommodations, including medical care and sanitary living conditions, and by inflicting pain, punishment, and suffering on him that was not imposed on non-disabled detainees. (Id. at 21-25). The County replies that Wennermark has failed to properly allege the causation element by showing that he was denied medical care because of his disability. (D.E. 44 at Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 36 of 47
37 5). Instead, the County argues that Wennermark has merely alleged that his medical care was inadequate, not that he was treated differently because he had diabetes. (Id. at 5-6). 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. Similarly, under the RA, “[n]o qualified individual with a disability ... shall, solely by reason of her or his such disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Thus, both the ADA and the RA “prohibit employment discrimination against qualified individuals with disabilities,” but the “the ADA applies only to public entities, including private employers,” and “the RA prohibits discrimination in federally-funded programs and activities.” Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). “The RA and the ADA are judged under the same legal standards, and the same remedies are available under both Acts.” Id. Accordingly, a “plaintiff raises a viable claim under either by alleging that (1) he has a qualifying disability; (2) he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) he is being discriminated against by reason of his disability.” Back v. Texas Dep't of Crim. Just. Institutional Div., 684 F. App'x 356, 358 (5th Cir. 2017). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 37 of 47
38 The third element requires a showing of intentional discrimination on the part of the defendant. Borum v. Swisher Cnty., No. 2:14-CV-127-J, 2014 WL 4814541, at *9 (N.D. Tex. Sept. 29, 2014) (citing Delano–Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574 (5th Cir.2002)). The Fifth Circuit has remained vague about how to define this requirement, although it does not require a showing of deliberate indifference. Id. Regardless of this standard, however, “the Fifth Circuit has made it clear that a defendant's failure to make reasonable accommodations to the needs of disabled persons can constitute intentional discrimination under the ADA and the Rehabilitation Act.” Id. at *10 (citing Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 672 (5th Cir.2004)). “This principle has been extended to ADA claims in the prison context, where ‘failure to make reasonable accommodations to the needs of a disabled prisoner may have the effect of discriminating against [a] prisoner because the lack of an accommodation may cause the disabled prisoner to suffer more pain and punishment than non-disabled prisoners.’” Id. (citing McCoy v. Tex. Dep't of Criminal Justice, C.A. No. C–05–370, 2006 WL 2331055, at *7 (S.D.Tex. Aug.9, 2006)). Moreover, public entities have an affirmative obligation under both the ADA and RA to make reasonable accommodations. Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454-55 (5th Cir. 2005). Accordingly, to “succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered entity; and (3) the Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 38 of 47
39 entity failed to make reasonable accommodations.” Ball v. LeBlanc, 792 F.3d 584, 596 (5th Cir. 2015). However, the “ADA does not set out a standard of care for medical treatment.” Walls v. Texas Dep't of Crim. Just., 270 F. App'x 358, 359 (5th Cir. 2008). Thus, the “ADA is not violated by a prison's simply failing to attend to the medical needs of its disabled prisoners.” Nottingham v. Richardson, 499 F. App'x 368, 377 (5th Cir. 2012) (internal quotation marks omitted). “A plaintiff cannot bring an ADA or RA claim simply by restating a claim of denial of medical care, and a plaintiff's disagreement with medical treatment likewise does not state a claim under the ADA or RA.” Thomas v. Holmes, No. 2:23-CV-00190, 2024 WL 4135511, at *32 (S.D. Tex. Mar. 15, 2024). Here, Wennermark has not merely realleged that his medical care was inadequate, and he has adequately stated a claim for a violation of the ADA and RA based on the County’s failure to provide accommodations for his disability. Under the elements necessary to raise a claim under the ADA or RA, first, the County does not dispute that Wennermark has properly alleged that he is a qualified individual with a disability, namely, diabetes. (See D.E. 32 at 8-9). Second, the County has not disputed that Wennermark has adequately pled that prison medical care is a service that it is responsible for. (Id.). Instead, the County focuses on the third element, causation, by arguing that Wennermark has not adequately alleged that he was treated differently because of his disability. However, Wennermark has alleged that the County failed to reasonably accommodate his disability, which can constitute intentional discrimination under the Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 39 of 47
40 ADA and RA. Borum, 2014 WL 4814541 at *10. Under the test necessary to show a failure-to-accommodate claim, Wennermark has adequately alleged, and the County does not dispute in its motion, that jail staff were aware of his diabetes, the treatment he should have been receiving for it, and the infection on his foot that arose due to the lack of proper diabetes treatment and unsanitary living conditions. (D.E. 23 at 5-7). Specifically, Wennermark alleges that the staff knew of his diabetes because he received insulin (although not in the appropriate amounts), he reported the infection to them and stated that it was caused by his diabetes, he requested the ability to clean his cell and for medical attention but was denied, and the infection and resulting wound were plainly obvious for all staff to see. (Id.). Finally, Wennermark has adequately alleged that the County failed to reasonably accommodate his disability by failing to provide the necessary insulin treatment to control his diabetes, by failing to provide sanitary living conditions or the ability for Wennermark to clean his cell, by failing to provide proper medical treatment for the infection and wound caused by his diabetes, by ignoring medical advice when he finally saw a doctor, and by failing to provide a wheelchair or other assistance to help him obtain medical care at the jail. (Id. at 5-10). As alleged by Wennermark, the lack of accommodation caused him to suffer more pain and punishment than non-disabled prisoners, which would be sufficient to show discrimination. See McCoy, 2006 WL 2331055 at *7. This case is also analogous to Borum, where a county jail failed to provide for the unique medical needs that arose due to an inmate’s disability. Borum, 2014 WL 4814541 Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 40 of 47
41 at *11. In Borum, the inmate suffered from alcoholism, severe depression, and physical deformities resulting from a prior suicide attempt. Id. at *1. Despite exhibiting obvious symptoms requiring medical attention while at the jail, including hallucinations and delirium, the jail provided no medical care to him while he was there. Id. at *1-2. As a result of the lack of treatment, the inmate fell in his cell and hit his head, and he ultimately died due to his injuries. Id. The plaintiffs, who were members of the inmate’s family, raised a claim under the ADA and RA, alleging that the jail failed to provide reasonable accommodations to assist the disabled inmate. Id. at *8. The court concluded that they had adequately alleged that the jail failed to make reasonable accommodations for the inmate’s unique medical needs that arose because of his disability, including failing to provide medical care. Id. at *11. While the plaintiff in Borum suffered from significantly more severe medical problems than Wennermark, and while the ultimate result of the jail’s failure to provide the necessary medical care given his disability was also significantly more severe, the same general legal principles apply. Wennermark has alleged that he had unique medical needs that arose from his diabetes and that the County failed to accommodate these needs by providing necessary medical care or sanitary living conditions. This failure to accommodate his disability led to a serious foot infection, caused and worsened by his diabetes, that had developed into severe gangrene by the time he was released and able to independently seek medical care. (D.E. 23 at 12). This caused him to suffer from greater pain and punishment than non-disabled prisoners during his time at the jail. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 41 of 47
42 In short, Wennermark has not merely alleged that his foot infection was itself a disability and that he failed to receive adequate treatment for it, which would be a bare restatement of his § 1983 claim and insufficient to state a claim under the ADA and RA. Instead, he has alleged that the County knowingly failed to accommodate his underlying diabetes and related complications by failing to provide proper amounts of insulin and failing to offer sanitary living conditions. The failure to provide these accommodations caused and worsened the ensuing foot infection, which caused Wennermark to suffer from greater pain and punishment than non-disabled prisoners during his time at the jail. As in Borum, Wennermark has adequately alleged intentional discrimination under the ADA and RA, and the County’s motion to dismiss should be denied on this claim. e. RA Claim Against SHP In its motion to dismiss, SHP argues that the Fifth Circuit has held that the ADA and RA do not cover claims for mere medical negligence. (D.E. 34 at 11-12). SHP also argues that Wennermark makes a conclusory allegation that SHP receives federal funding, as necessary to be liable under the RA, but does not provide any factual allegations to support this claim. (Id.). Finally, SHP argues that Wennermark cannot seek compensatory damages without alleging intentional discrimination, which he has not done. (Id. at 12- 13). Wennermark responds that SHP did not merely provide treatment below the standard of care, but rather intentionally inflicted pain, suffering, and other harms because of his disability. (D.E. 45 at 24-25). Wennermark contends that SHP denied him medical Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 42 of 47
43 care, access to court, and safe housing by failing to provide him with accommodations for his disability. (Id. at 26-27). He argues that his need for medical care and mobility accommodations were obvious, but Kiening and Stinnett ignored them. (Id. at 27-29). He argues that this caused him substantial pain and suffering not imposed on non-disabled prisoners. (Id. at 29-30). Finally, Wennermark argues that he has adequately alleged that SHP is a recipient of federal funds, even if through the County as an intermediary. (Id. at 30-31). The Medical Defendants reply that Wennermark’s response merely repeats the same conclusory allegations as his complaint, which do not adequately allege that he was treated dissimilarly from non-disabled prisoners. (D.E. 48 at 6). They reiterate that Wennermark’s claim is merely that he did not receive adequate medical care, which does not state a claim under the ADA or RA. (Id. at 6-7). “[T]o state a § 504 claim under the Rehabilitation Act, a plaintiff must allege that the specific program or activity with which he or she was involved receives or directly benefits from federal financial assistance.” Taylor v. City of Shreveport, 798 F.3d 276, 283 (5th Cir. 2015) (internal marks omitted). In Taylor, the Fifth Circuit found sufficient an allegation that “the City receives federal funds for the police department” because the police department was a “program or activity” under the RA. Id. Another District Court in this Circuit has found that allegations that the “Defendant received federal funds and utilized them as part of its operations,” and that defendant was “the City of San Antonio acting by and through its agent, City Public Service Board d/b/a CPS Energy,” were Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 43 of 47
44 sufficient to adequately allege that CPS Energy received federal funds. Mesa v. City of San Antonio, No. CV SA-17-CA-654-XR, 2017 WL 5924263, at *2 (W.D. Tex. Nov. 29, 2017). Here, Wennermark has not adequately alleged that SHP receives federal funding and therefore has not adequately alleged that the RA applies to SHP. In his amended complaint, Wennermark states only that SHP is a “recipient[] of federal funds, and thus [is] covered by the mandate of the Rehabilitation Act.” (D.E. 23 at 23). Although the Fifth Circuit has concluded that allegations of federal funding do not need much detail, Wennermark’s complaint is wholly conclusory on this issue and does not include any factual allegations regarding how SHP receives federal funding. See Taylor, 798 F.3d at 283 (finding allegations sufficient where complaint alleged that city received federal funding for the police department); Mesa, 2017 WL 5924263 at *2 (finding allegations sufficient where complaint alleged that city, acting through its agent, received federal funding and used it for its operations). Although Wennermark argues in his response that SHP would be liable under the RA even if it receives federal funding through the County as an intermediary, his complaint does not include any factual allegation to this effect. (D.E. 23 at 23; D.E. 45 at 30-31). As alleged, Wennermark’s complaint does not provide fair notice of the basis for the allegation that SHP receives federal funding. Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555. However, because Wennermark’s briefing provides additional factual details regarding the basis of the allegation that would be sufficient, it is Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 44 of 47
45 recommended that he be granted leave to amend his complaint to include these additional details. On the merits, for the same reasons as his ADA and RA claim against the County, Wennermark has adequately stated a claim for a violation of the RA based on SHP’s failure to provide accommodations for his disability. Like the County, SHP argues only that Wennermark has failed to show that he was discriminated against because of his disability. (D.E. 34 at 12). It is unnecessary to repeat the entirety of the previous analysis, which applies equally to SHP. In short, Wennermark has not merely alleged that his foot infection was itself a disability and that he failed to receive adequate treatment for it, which would be a bare restatement of his § 1983 claim and insufficient to state a claim under the ADA and RA. Instead, he has alleged that SHP knowingly failed to accommodate his underlying diabetes and related complications by failing to provide proper amounts of insulin. (D.E. 23 at 4-5, 24-25). The failure to provide these accommodations caused and worsened the ensuing foot infection, which caused Wennermark to suffer from greater pain and punishment than non-disabled prisoners during his time at the jail. (Id. at 7, 11, 24-25). As in Borum, Wennermark has adequately alleged intentional discrimination under the ADA and RA, and SHP’s motion to dismiss should be denied on this claim. See Borum, 2014 WL 4814541 at *11. Accordingly, it is recommended that SHP’s motion to dismiss be granted because Wennermark’s allegation that SHP receives federal funding is insufficient under Rule 8, but that Wennermark be granted leave to amend this allegation. Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 45 of 47
46 IV. RECOMMENDATION Accordingly, it is recommended that the County’s motion to dismiss (D.E. 32) be DENIED and the Medical Defendants’ motion to dismiss (D.E. 34) be GRANTED in part and DENIED in part. It is further recommended that Wennermark be granted leave to file an amended complaint. Respectfully submitted on November 6, 2025. ____________________________ Julie K. Hampton United States Magistrate Judge Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 46 of 47
47 NOTICE TO PARTIES The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Case 6:24-cv-00031 Document 66 Filed 11/06/25 in TXSD Page 47 of 47
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