Wennermark v. DeWitt County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
CHRISTOPHER WENNERMARK,
Plaintiff,
VS.
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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
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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
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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
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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
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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
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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).
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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
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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
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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.
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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).
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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
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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
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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.
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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
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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
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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 Ҥ 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,
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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“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
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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).
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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).
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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
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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.
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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
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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
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(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
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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
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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.
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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
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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).
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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).
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