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MUNICIPAL LAW UPDATE by Amos D. Pettis, Associate

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United States Supreme Court

1. Nevada Dep't of Human Res. v. Hibbs, 123 S.Ct. 1972 (2003)

State employees may recover money damages under Family and Medical Leave Act.

Plaintiff, an employee of the Nevada Department of Human Resources, requested 12 weeks of unpaid leave to care for his sick wife as contemplated by the Family and Medical Leave Act of 1993, but was terminated when he took the full amount of that leave. Plaintiff sued the Department, a state agency, and 2 Department employees after they claimed he had exhausted his available leave. The trial court granted summary judgment for the Defendants on the basis of immunity, which was reversed by the 9th Circuit. The United States Supreme Court held that the 11th Amendment does not bar claims against state agencies under the Family and Medical Leave Act of 1993, and state employees may recover money damages under that statute.

Texas Supreme Court

2. Gibson v. Tolbert, 102 S.W.3d 710 (Tex. 2003)

Indigent inmate not entitled to court-appointed attorney in medical malpractice suit.

Plaintiff, an indigent inmate, filed a pro se medical malpractice lawsuit against the prison doctor, who moved to dismiss for failure to follow the statutory requirements for expert reports. The trial court denied the Plaintiff's request for the court to appoint him legal counsel at the State's expense. Overruling the Waco Court of Appeals, the Texas Supreme Court affirmed the trial court and held the inmate had no right to free representation. The Supreme Court held that the fact that the suit was against an employee of the prison in which he was incarcerated did not make this an exceptional case requiring appointment of counsel in a civil case, and neither did the fact that it was a medical malpractice case. If the Plaintiff's claims were meritorious, he should have been able to retain counsel on a contingency fee basis.

3. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003)

Transit agency immune from suit for injuries inflicted on one passenger by another passenger.

Plaintiff, a man who had cerebral palsy, was harassed and threatened by a female passenger while riding a DART bus. The female passenger twice had to be restrained from attacking the Plaintiff with a box cutter, and the bus driver stopped the bus after the commotion and told the Plaintiff to get off the bus, saying he would return for him in a few minutes. The driver never returned, but the other passenger exited the bus a few blocks away. She returned with her son and several friends and severely beat the Plaintiff. Plaintiff sued DART for his personal injuries, but the trial court dismissed the case on the basis of sovereign immunity. The Dallas Court of Appeals reversed the trial court, but the Texas Supreme Court affirmed the trial court’s dismissal of the case on the basis of sovereign immunity as DART is a governmental agency. The Court held that the Plaintiff's injuries did not arise from the use of the bus but that the Plaintiff's injuries arose from the bus driver's failure to supervise the public, which is insufficient to waive immunity under the Texas Tort Claims Act. The Act requires more than mere involvement of property; rather, the vehicle's use must have actually caused the injury to waive immunity.

Fifth Circuit Court of Appeals

4. Austin v. Johnson, 328 F.3d 204 (5th Cir. 2003)

Defendants only partially immune from suit for injuries sustained by minor at boot camp.

Plaintiff's minor son was convicted of shoplifting a candy bar and sentenced to probation, a fine, and a one-day military-style boot camp of his choosing. Plaintiff's parents enrolled him in STAR, a boot camp conducted by the Harrison County Juvenile Probation Department. While at the camp, the Sergeant Major in charge made the children perform rigorous physical exercise for the full 12 hours. Plaintiff's son complained of difficulty performing the exercises by noon, began vomiting at 2:00 p.m., and fell out unconscious from heat stroke and related conditions with a body temperature of 107.9 F at 3:00 p.m. The camp officials called for an ambulance at 4:45. Plaintiffs sued the camp, the county, the camp director, and a camp worker for section 1983 violations of their son's 4th and 8th Amendment rights plus numerous state-law claims. The trial court granted summary judgment to Plaintiffs that the individual Defendants did not have qualified immunity or official immunity. The Fifth Circuit partially reversed the trial court, holding that the punishment was not unconstitutionally disproportionate (qualified immunity) and the Defendants were entitled to official immunity on the fraud and breach of fiduciary duty claims, but the Defendant were not entitled to immunity on the claims for denial of medical care, negligence, or gross negligence.

5. Wilkerson v. Stalder, 329 F.3d 431 (5th Cir. 2003)

No immunity for prison officials who kept inmates in solitary confinement for 30 years.

The three Plaintiffs were incarcerated in Louisiana State Penitentiary prior to 1972, and in 1972 all three were placed in "extended lockdown." Extended lockdown involved remaining alone in a single, 6' by 10' cell 23 hours per day, with 1 hour to shower and walk down the tier by his cell each day. Weather permitting, the inmates were allowed to exercise alone in the prison yard 3 times a week during this same hour, and they received additional restrictions on visitation, reading materials, et cetera. Two Plaintiffs remained in extended lockdown at the time of the court's decision, and the third remained locked down until 2001 when his sentence was overturned. The inmates went before the lockdown review board every 90 days, at which times the board members would discuss hunting, fishing, or similar matters, but not their cases. Plaintiffs sued numerous prison officials alleging constitutional violations under section 1983 seeking monetary damages and an injunction. The trial court ruled the officials were not entitled to immunity, which was affirmed by the Fifth Circuit. The Court held that any reasonable officer would be aware that such conduct clearly violated established law.

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If you have any questions about any of these cases or would like copies of specific cases, please contact Amos Pettis (APettis@fhmlaw.com).

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© Fanning, Harper & Martinson, P.C., July 2003.

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