Case: 13-41053      Document: 00512809404         Page: 1    Date Filed: 10/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41053                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 21, 2014
TREY JONES,                                                            Lyle W. Cayce
                                                 Plaintiff - Appellant      Clerk
v.

NUECES COUNTY, TEXAS; CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CV-145


Before CLEMENT, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Trey Jones appeals the dismissal of his claims against defendant
Christus Spohn Health System Corporation (“Spohn”) and defendant Nueces
County. The district court granted Spohn’s motion to dismiss for want of
subject matter jurisdiction and motion for judgment on the pleadings for
failure to state a claim, as well as Nueces County’s motion to dismiss for failure




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 13-41053
to state a claim and motion for summary judgment. For the following reasons,
we AFFIRM.


                            FACTS AND PROCEEDINGS
      On March 18, 2010, Jones, a pretrial detainee in Nueces County Jail,
was beaten by Nicholas Ortega, a jailer employed by Nueces County. 1 Jones
alleges that he suffered a number of injuries, including a broken nose and
thumb and a cut lip. Jones did not receive immediate medical care for these
injuries.
      Based on the beating and the failure to provide immediate medical care,
Jones sued Nueces County, Spohn, 2 the Nueces County Sheriff’s Department
and Sheriff, 3 and Ortega. Jones’s complaint alleged negligence and violations
of his Fourth, Fifth, Eighth, and Fourteenth Amendment rights based on the
use of excessive force, failure to protect, and inadequate provision of medical
care. 4 Spohn filed a motion to dismiss for want of subject matter jurisdiction
and motion for judgment on the pleadings for failure to state a claim. Nueces
County filed a motion to dismiss for failure to state claim as to the excessive
force claim and a motion for summary judgment as to all other claims. The
district court granted Spohn’s and Nueces County’s motions, dismissing all


      1   Nueces County apparently fired Ortega due to this incident.
      2Spohn is the medical care provider for Nueces County Jail due to a contract between
Spohn, Nueces County, and the Nueces County Hospital District.
      3 The district court dismissed the claims against the Nueces County Sheriff’s
Department and Sheriff. The district court did not enter final judgments as to the Nueces
County Sheriff’s Department or Sheriff, so they are not parties to this appeal.
      4 Jones brought his constitutional claims under 42 U.S.C. §1983. Jones also alleged a
claim under 42 U.S.C. §1981, a violation of his First Amendment constitutional rights, and
claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971). The district court dismissed these claim as to Spohn and Nueces County Jail,
and Jones does not appeal the dismissal of these claims.

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                                      No. 13-41053
claims against them. The district court issued partial final judgments as to
both parties, making the orders immediately appealable even though Jones’s
claims against Ortega remain pending.
       As to Spohn, the district court dismissed Jones’s state tort claims
because it found that Spohn was entitled to governmental immunity. 5 The
district court also dismissed Jones’s constitutional claims against Spohn
because Jones did not allege sufficient facts to show that Spohn’s employees
were involved with any of the alleged constitutional violations.
       The district court granted Nueces County’s motion to dismiss the
excessive force claim because Jones had not alleged sufficient facts to show
that a policy or custom of Nueces County caused Ortega’s use of excessive
force. 6 The district court then granted Nueces County’s motion for summary
judgment as to the remaining claims because Jones did not produce sufficient
evidence to raise a fact issue showing that a policy or custom of Nueces County
caused the failure to provide medical care or the failure to protect Jones.


                             STANDARD OF REVIEW
       We review de novo the grant of a motion to dismiss for want of subject
matter jurisdiction. Ramming v. United States, 

, 161 (5th Cir.
2001). We also review de novo the grant of a motion for judgment on the
pleadings, applying the same standard as in a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).                    Guidry v.



       5The district court also determined that Jones’s allegations did not fit within any of
the waivers of governmental immunity provided by the Texas Tort Claims Act (“TTCA”).
Jones has not appealed this portion of the district court’s decision. Instead, Jones contests
that Spohn is entitled to any governmental immunity at all.
       6The district court also granted Nueces County’s motion to dismiss Jones’s negligence
claim based on governmental immunity. Jones has not appealed this portion of the order.

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                                        No. 13-41053
American Public Life Ins. Co., 

, 180 (5th Cir. 2007). Under the
familiar Twombly 7 and Iqbal 8 standards, a complaint is insufficient if it merely
recites the elements of a cause of action. 

. Instead, a
complaint must allege sufficient facts to show that the claims are facially
plausible. 

a grant of summary judgment de novo.” Kariuki v. Tarango,

, 501 (5th Cir. 2013) (internal quotation marks omitted).
“[S]ummary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 

original)
(quoting Celotex Corp. v. Catrett, 

, 322 (1986)).


                                       DISCUSSION
      We consider the claims against Spohn before turning to the claims
against Nueces County.


                                               I.
      Jones first argues that Spohn’s motion for judgment on the pleadings
and motion to dismiss for want of subject matter jurisdiction were untimely
because they were filed after Spohn filed its answer. This argument is clearly
meritless. A party may move for judgment on the pleadings at any time “[a]fter
the pleadings are closed . . . but early enough not to delay trial.” Fed. R. Civ.
P. 12(c). Here, Spohn’s motion for judgment on the pleadings was brought after




      7   Bell Atl. Corp. v. Twombly, 

(2007).
      8   Ashcroft v. Iqbal, 

(2009).

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                                       No. 13-41053
the pleadings were closed but long before trial. 9 “[A] factual attack under Rule
12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the
burden of proof that jurisdiction does in fact exist.” Arena v. Graybar Elec. Co.,

, 223 (5th Cir. 2012) (alteration in original) (quoting Menchaca v.
Chrysler Credit Corp., 

, 511 (5th Cir. 1980) (citations omitted)).
Spohn’s motion for judgment on the pleadings and motion for dismissal for lack
of subject matter jurisdiction were therefore timely.
       Jones next argues that Spohn was a governmental entity and therefore
was subject to suit under 42 U.S.C. § 1983. But the district court’s dismissal
of Jones’s § 1983 claim was not based on whether Spohn was a governmental
entity subject to suit under § 1983. Instead, the district court found that Jones
failed to plead sufficient facts to show that Spohn’s employees were involved
with refusing medical care to Jones, using excessive force, or committing any
other violation of Jones’s constitutional rights. Jones does not provide any
response to the actual basis for the district court’s dismissal of the
constitutional claims, and therefore he waives his ability to contest this
dismissal. See Adams v. Unione Mediterranea Di Sicurta, 

, 653
(5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal are
waived.”).
       Jones appears to argue that Spohn is not entitled to governmental
immunity under Texas law. 10 If that is the case, Jones’s state law negligence
claim against Spohn could proceed. Spohn, a nonprofit corporation, attached
its contract with the Nueces County Hospital District to its motion to dismiss


       9 Spohn filed its motion for judgment on the pleadings on August 27, 2012, and the
parties agreed to a scheduling order that set a trial date of July 22, 2013.
       10 Jones alludes to this issue in his Appellant’s Brief, and Spohn deals with it
extensively in its Appellee’s Brief. We will therefore consider the issue, despite Jones’s vague
briefing of it.

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                                  No. 13-41053
for want of subject matter jurisdiction. 11 In the contract, Spohn agreed to
provide inmate health care and services, and the Nueces County Hospital
District agreed to pay Spohn. Based on this contract and the fact that Spohn
is a nonprofit corporation, Spohn is undisputedly a “hospital district
management contractor,” which is defined as “a nonprofit corporation,
partnership, or sole proprietorship that manages or operates a hospital or
provides services under contract with a hospital district that was created by
general or special law.” Tex. Health & Safety Code § 285.071. Texas statute
further provides that:
      A hospital district management contractor in its management or
      operation of a hospital under a contract with a hospital district is
      considered a governmental unit for purposes of Chapters 101, 102,
      and 108, Civil Practice and Remedies Code, and any employee of
      the contractor is, while performing services under the contract for
      the benefit of the hospital, an employee of the hospital district for
      the purposes of Chapters 101, 102, and 108, Civil Practice and
      Remedies Code.

(emphases added).
      The district court pointed out that the text of Section 285.072 implies
that a hospital district management contractor is treated as a governmental
unit (and therefore acquires governmental immunity) only when it is
managing or operating a hospital. Here, Spohn was providing medical services
at a jail, not operating a hospital. Jones therefore argues that Spohn should
not be treated as a governmental unit. The district court held that there is no
conceivable reason to treat hospital district management contractors
differently depending upon whether they operate hospitals or whether they




      11  Jones apparently never contested Spohn’s reliance upon the contract or the
contract’s authenticity.

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                                       No. 13-41053
perform services for a hospital district, and therefore the statute should not be
read to create such a disparity. We agree.
       Moreover, reading Section 285.072 to create this disparity would render
superfluous the second definition of a hospital district management contractor
in Section 285.071, which refers to “a nonprofit corporation . . . . that . . .
provides services under contract with a hospital district.”                For a hospital
district management contractor like Spohn that does not manage or provide
services to a hospital, Jones’s suggested reading of Section 285.072 would not
protect either the hospital district management contractor or its employees
(because they are not performing services “for the benefit of the hospital”). The
only law relating to hospital district management contractors is Section
285.072, so reading that section to protect only hospital district management
contractors that manage or serve hospitals would render half of the definition
provided in Section 285.071 meaningless. We refuse to read the statute that
way. See City of Amarillo v. Martin, 

, 430 (Tex. 1998) (“Of
course, we will give effect to all the words of a statute and not treat any
statutory language as surplusage if possible.”).              Instead, we read Section
285.072 as protecting all hospital district management companies. Spohn is
therefore a governmental unit with governmental immunity, and the district
court properly dismissed Jones’s tort claims against Spohn. 12
       Jones also argues that he should have been granted discovery so that he
could prove his claims against Spohn.               The district court, however, has
discretion as to whether to allow discovery in deciding Rule 12(b)(1) motions
and there was no basis for doing so here because the undisputed terms of
Spohn’s contract with the Hospital District show “that the requested discovery



        Again, Jones has not appealed the district court’s finding that Jones’s claims against
       12

Spohn do not fall within any of the waivers of governmental immunity provided by the TTCA.

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                                      No. 13-41053
is not likely to produce the facts needed to withstand a Rule 12(b)(1) motion.”
Freeman v. United States, 

, 342 (5th Cir. 2009) (explaining that
the reasons for denying jurisdictional discovery are stronger when “the party
seeking discovery is attempting to disprove the applicability of an immunity-
derived bar to suit because immunity is intended to shield the defendant from
the burdens of defending the suit, including the burdens of discovery.”). To the
extent that Jones’s requested discovery regarded his constitutional claims, he
was not entitled to it because the district court held that the claims were
inadequately pleaded. See 

(“Because respondent’s
complaint is deficient under Rule 8, he is not entitled to discovery, cabined or
otherwise.”).
                                             II.
       Jones appeals the dismissal of his excessive force, 13 inadequate provision
of medical care, and failure to protect 14 claims against Nueces County. The
district court dismissed Jones’s excessive force claim against Nueces County at
the motion to dismiss phase, finding that Jones did not adequately plead the
existence of a policy or custom in Nueces County that caused the use of
excessive force. See Pineda v. City of Houston, 

, 328 (5th Cir. 2002)
(stating that municipal liability attaches only where the municipality’s policy
or custom is the “moving force” of the constitutional violation).                   Jones’s
appellate briefs do not respond to this reasoning. That is, he does not argue
that he adequately pled the existence of such a policy or custom. By not


       13 Nueces County argues that Jones has not appealed the dismissal of his excessive
force claim, but his brief repeatedly complains about that dismissal. Jones erred by not
including the order dismissing his excessive force claim in his appendix of record excerpts,
but we will still consider this issue on the merits because Jones rather clearly attempted to
raise it.
        It is not entirely clear that Jones appeals the dismissal of his failure-to-protect
       14

claim. Nevertheless, we will assume that he is attempting to appeal this dismissal.

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                                 No. 13-41053
attacking the basis of the district court’s ruling, Jones has again waived the
dismissal of his excessive force claim against Nueces County. See 

.
      The district court dismissed Jones’s claims against Nueces County for
inadequate provision of medical care and failure to protect at the summary
judgment stage based on Jones’s inability to produce evidence that Nueces
County had a policy or custom that caused the alleged constitutional violations.
See 

. Jones argues that he presented some evidence of
a policy or custom that caused the constitutional violations. First, he argues
that Nueces County provided inadequate policies and training about how to
approach confrontational situations and that Ortega himself received
inadequate training for handling confrontational situations. This argument
primarily relates to Jones’s excessive force claim, which was dismissed on the
pleadings, not at summary judgment. Thus, this evidence cannot resurrect
Jones’s excessive force claim.
      As to the failure to protect claim, Jones cannot demonstrate that Nueces
County had a policy or custom that caused the failure to protect Jones. As
Jones admits, Nueces County has a general policy on the use of force, and a
training supervisor observed Ortega for fifteen days and observed his
responses to stressful situations three times and interactions with high risk
prisoners six times.   Jones argues that Nueces County should have gone
further in both implementing policies and observing and training Ortega, but,
at most, such an argument suggests that Nueces County could have better
policies and training, not that its current policies and training caused the
failure to protect Jones. See City of Canton v. Harris, 

, 391 (1989)
(holding that it does not “suffice to prove that an injury or accident could have
been avoided if an officer had had better or more training, sufficient to equip
him to avoid the particular injury-causing conduct”).
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                                No. 13-41053
      Jones next argues that Nueces County provided inadequate policies
regarding the identification and treatment of detainees’ obvious medical
injuries. He admits that Nueces County has “a detailed screening process at
intake and booking,” but he argues that “its policies are devoid of any
procedure, process or guidance identifying and reporting medical conditions or
injuries that clearly occurred during incarceration.” This argument completely
ignores evidence presented by Nueces County about its medical policies. For
example, Nueces County policy provides that inmates are to be “supplied with
an ample supply of sick call request forms” and, on weekdays, inmates are to
be seen within 24 hours of making such requests. The policies also provide
that “[a]ll Medical or Dental Emergencies will be taken to Christus Spohn
Hospital Memorial.” Jones is simply wrong that Nueces County had no policies
for providing medical care to inmates injured during incarceration.
      Finally, Jones argues that a number of other incidents indicate that
Nueces County has used excessive force and failed to provide medical care in
the past, showing a custom of such violations. Again, the excessive force claim
was dismissed at the motion to dismiss rather than summary judgment stage,
so the evidence of excessive force can only be used to support Jones’s failure-
to-protect claim. Jones points out that Nueces County Internal Affairs reports
indicate that there were 49 reported incidents of excessive use of force and/or
inadequate provision of medical care between 2001 and 2004.            But the
complaints were found to be unsubstantiated in most of those cases, often
based on video evidence. Jones also points out that Nueces County was sued
six times between 1994 and 2001 and 19 times between 2004 and 2012. Jones
goes on to list these 25 lawsuits. But he does not show that Nueces County
was ever found liable in any of these lawsuits. The mere filing of a lawsuit
does not demonstrate that a defendant has broken the law, and so this evidence
is not enough to show the existence of a policy or custom that caused the
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                                    No. 13-41053
constitutional violations. Cf. 

(“Eleven incidents each
ultimately offering equivocal evidence of [a constitutional violation] cannot
support a pattern of illegality in one of the Nation’s largest cities and police
forces.”)
         We hold that Jones has failed to raise a fact issue as to the existence of
a policy or custom that caused the alleged constitutional violations. The claims
against Nueces County were properly dismissed.


                                  CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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