Tellez v. The GEO Group In.c et al, No. 5:2015cv00465 - Document 86 (W.D. Tex. 2017)
Court Description: MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (rf)
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Telezv.TheGEOGroupIn.cetal Doc.86 FILED IJNITEI) STATES DISTRICT CO1.JRI FOR TH.E WESTERN DISTRICT OF TEXAS AUG 0 1 2017 CLERK, U.S. DISTRICT CLERK WESTERN D!.TRcT OF TEXAS BY RAYMONI) TELLEZ, DEPUTY Plaint 1ff, Case No: 5:iS-ev.-465-RCL V. TUE GEO GROUP INC., Defendant. MEMORANDUM OPINION Plaintiff R)'mond Tellez. fbrmcrl\' an inmate at (he ('crttral Texas Detention Facility, brings this negligence action against defendant The OFO Group. inc. ç'GI;iO"), ' which operates the Central Texas Detention Facility, in connection with a stabbing assault perpetrated by other inmates that he sulTh.red while an inmate at the Central l'cxas Detention Facility. Mr. Tellcz originally brought claims for negligent supei'visioii (of inmates), lack ol supervision or training (guards), and negligent implcnie.ntat.ion ot security policies or procedUreS. On February 9, 2016, Magistrate Judge Prirnomo recommended that summary udgrnent be granted in favor ofdekndant as to Mr. Tcllez's negligent training and supervision claims ECF No, 30j. J Ic recommended that summary judgment be denied, however, with respect to Mr. I'e1lcz's claims regarding fiilure to implement security policies or procedures. On August 15. 2016, Judge !3iery adopted this Report and Recommendation and granted. summary judgment in favor lIinthi1 aciiui. pro se, originally brought suit against 'the (il() (houp. 1)etcntinn Facility. As noted at trial, the appropriate dckndant s of dcftmdant as to Mr. Tcilez's Inc., UFO, (iEO Group Facility, the Gh() Group, inc. and Central Dockets.Justia.com negligent training and supervision claims and denied summary judgment as to Mr. Tellez's claim concerning negligent implementation of a policy/regulation [ECF No. 461. This case was tried to the Court on January 4, 2017. The Court has considered the evidence presented at tiial, the parties' proffered facts, the arguments of counsci, and the controlling legal authority. The Court has also ascertained the credibility of each witness and evaluated the probative value of all relevant evidence admitted at trial. Based upon the h)regOing, the Court makes the following findings of fact and conclusions of law, It concludes that defendant The GEO Group was negligent in failing to implement several policies and is therefbre liable to Mr. '.l'ellez. The Court will award damages totaling $25,000. .1. FLNDINGS OF FACT Defendant the GEO Group, Inc. operates the Central Texas Detention Facility. Mr. Tellez is an inmate who, in October 2013, was incarcerated at awaiting sentencing. the Central Texas Detention Facility while He had been arrested and charged with intent to distribute a controlled substance (cocaine) and possession of a firearm by a convicted felon on May 17, 2013. Several months later, his drug charge was changed from cocaine to methamphetamine and he was charged under a superseding indictment. On. June 1, 2016, he was charged in a one count information with participating in a racketeer influenced and corrupt organization ("RlCO') conspiracy. The pattern of racketeering activity included thur murders, extortion, and the distribution of narcotics. Mr. Tellez agreed to plead guilty to these charges, but has not yet been scntcnced. Prior to his incarceration, Mr. Tellez was a 'general" in the Texas Mexican Mafia. As such, he was the highest ranking member in San Antonio, with approximately 4,000 individuals under his command. While incarcerated, Mr. Teliez began cooperating with the government, becoming a confidential infbrmant against the Mafia. He has testified against several members of 2 the Mafia, resulting in their incarceration, and, at the time of trial, was expected to testify against two more. The Mafla's penalty frw this cooperation S death. Titus, all 4,()O() of the Mafia memberS previously under Mr. Tcilcz 's command were essentially mstriictcd to kill him. This placed him at a higher risk of being assaulted by other inmates. As a result, he was kept in protective custody, with instructions to keep him away from aH other inmates. Mr. TelIez was thus held in a cell on the first floor in the medical .iepartment, The medical department consists generally of three areas: 1) the main medical area/waiting area; 2) medical left; and 3) medical right Medical area. Medical right leftthe female side...... consists ol eight cells, a guard's desk, and a shower the male sideconsists of three cells and a shower area. The main medical area/waiting area contains a. guard's desk, ] he three areas are oriented as fillows: if' one eateN the medical department, they will he standing in the main medical area/waiting area, theing the guards desk in the center. The entrance to medical left is to the left entrance to medical right is to the of the guard's desk. The right of the guard's desk. t3oth are along the same wall behind the guard's desk. Medical left and medical right locked doors. Mr. i'ellei was held in Cell 2 in arc separated from the main medical area by medical right. The shower area was located across from him. On October 24, 201 3, two other inmates ....... Roland Contreras and Randy Gonzaleswere transported to the medical area, inmates Contreras and Gonzales arc members of the Mexican Mafia, who, like other members of the Mexican Mafia, sought to 1)LInisll Mr. TcIlez ihr his cooperation. Dne to this affiliation, they were housed in administrative segregation from the general population -and were considered threats as imummies to separate other inmates. Because of their stat us housed in administrative segregatIon, according to GE() policy at the time oithc assault, imitates Contreras and Gonzales were supposed to be strip searched helhre being transported out of their cells, 0130 Officer Victoriono Chavarria was responsible for conducting the strip search. They were not strip searched on October 24, 2013. They were also supposed to be pat searched upon arrivin.g at the medical department. Officer Dianne Corona was responsible for conducting the pat search. They were not pat searched on October 24, 201 3. Once in the medical area, iiimatc Contreras' restraints were partially removed by Nurse Mary Garcia for a foot soak treatment, so that at least one hand was free and uncuffed. This was contrary to GEO policy, under which inmates Contreras and Gonzales were supposed to have been restrained by leg and hand restraints. Nurse Garcia had been instructed on previuus occasions that restraints were not to he removed from inmates kept in administrative segregationsuch as inmates Co.ntreras and Gonzales without a doctor's order and authorization from the duty warden. On the evening of October 24, 2013, GEO Officer Candace Lundquist was on duty in the medical department She was responsible for the main medical area, medical left, and medical right. During and around the time of the assault at issue, she was moving amongst the three areas, sometimes leaving the guard's desk in the main medical area unattended. Around 6:30 p.m., sometime afier inmate Conireras' restraints were removed, and while Officer Lundquistwas in medical left and therefore was absent from the main medical area where inmates Contreras and Gonzales were locatedinmates Centreras and Gonzales got up, and walked through the door separating the main medical area from medical right, where Mr. Tcllez was being housed, According to (1130 policy, these doors were supposed to be kept locked. On the evening of October 24, 2013, however, they were not locked. This fact was known to GEO employees. At the time, Mr. Tellez was in the shower. He was attacked by inmates Contreras and Gonzales. Inmate Contreras stabbed Mr. Tdllez with a sharpened object, i.e., a shank, while inmate Goralcs acted as a lookout. Mr. Teller, was stabbed several times and sutThred several stab woundS and abrasions. lie sufThred from puncture wounds to the right chest, right armpit, ipht rib cage, right front leg. right lumbar, and rent right leg. He suffered abrasions to the top of his head, neck, right lumbar, and rear right leg. Afier the assault, Mr. Teller, was placed in hi ecU where an initial assessment was conducted by Nurse Garcia. Forty-five minutes later, he was taken to an assessment room for evaluation, Mr. Tcllez was able to walk to these locations. His wounds were checked and cleaned, but he was not given any pain medication. Dr. Samuel Morgan, the facility physician, recommended that due the nature of Mr. Teller's injuries and the lack of ability to assess the extent and Severity of his injuries, Mr. Teller be transferred off site for further assessment, but that there was no need fr an ambulance because Mr. l'ellct's injuries were not life threatening. Mr. Tcllcz was transported to the hospital by facility vehicle around :0O p.m. He waited for approximately one hour at the hospital before receiving treatment. Three of' his stah wounds were closed with staples and he was placed on pain medicine tor five days. Mi'. Teller was transported hack to the jail and arrived at approximately 3:30 n.m. on October 25. 'I'lie same day Mr. 'Feller arrived back at (lEo from the hospitalOctober 25, 2013, the day afler the attack ........he was transferred to Guadalupe County Jail, where lie was housed in the medical department fir two weeks. After conducting an investigation, GIiO issued a report finding that Officers Chavarria and Lundquist committed acts of gross negligence in not ftlowing facility procedure. Chavartia and Lundquist and Nurse Garcia were terinianted as a result of this incident. Officers IL CONCLUSIONS OF LAW A. Legal Standards The elements of a negligence claim are 3) proximate cause, and 4) damages. 1) the existence of a duty. 2) a breach of that duty, IllS (Jedars Treaimcnt Ctr. of/)eSoio, lexas. Inc. V. Mason. 143 S.W,3d 794, 798 (Tex. 2004). As a general rule, "there is no duty to control the conduct third parties Salaar Gollins, 255 S .W3d 191, 19% of (Tex, App. 2008). An exception applies, however, "when a special relationship exists between an actor and another that imposes a duty on the actor to contrnl the other's conduct." Id. At least cite Texas Court of Appeals has determined that prisons and jails have a special relationship with inmates in their custody which imposes on them a duly to protect inmates from other inmates in ecilain circumstances. See Id. at 198-203. Specifically, prisons "owe a duty of reasonable care to prolect inmates from harm [at the hands of other inmates] when that harm is reasonably foreseeable." Id, at 2O3 sec also Minneci v. Pollard, 565 U.S. 118, 128 (2012) (citing Salazar as "specific authority indicating that state law imposes general tort. duties of reasonable care (including medical care) on prison employees in every one of the eight States where privately managed secure fldeial titcilitics arc currently located"); Doe v. The Geo Grp., Inc., No. SA...16CV-173-XR, 2017 WL $35209, at *5 (WD. Tex, Mar. 2, 2017) (citing Salazar and stating "Texas law might impose a duty of care on p... 1801) staff'). The clement of proximate causation has two subelements: cause in fact and foresceability. 1115 Lcdars Teatnicni Cir.. 143 S.W.3d at 79$ tn fact is established when the act or emission was a substantial factor in bringing about the injuries, and without It, the harm would not have occurred." Id. at 799. "Foresceabilitv exists when the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates Inc. v. Hove, 92 S.W3d 450, 454 (Tcx. 2002). 6 ftr others." Houston, Analysis B. The Court finds that Mr. Tcllcz has demonstrated all of the elements of a negligence claim. 1. Duly First, GEO owed Mr. Tellcz a duty to protect him from attack in these circumstances. GEO knew that as a government cooperator working against the Mexican Mafia, Mr. Teliez was in danger of being attacked. Mr. Tcllez wasthus to be kept in protective custody away from all other inmates. The inmates who attacked Mr. Tellez were members of the Mexican Mafia who were considered to be threats to other inmates. As such, they were kept in administrative segregation. Based on these facts, the Court concludes that under Salazar, harm to Mr. Tellez was reasonably foreseeable. 2. Breach The Court next finds that GEO breached that duty. GEO policy states the following with respect to strip searches of inmates in administrative segregation: Upon arriving at the designated cell [the officer] will direct: the detainee to stand arid remove his/her clothing for a strip search. The detainee will hand his/her clothing though his/her cell to [the officer], which [the officer will physically inspect ftr contraband. [The officer] will hand the clothing back to the detainee and watch the detainee get dressed. [The officer will] [n]cver take [his/her] eyes off of the detainee during this process because the detainee inside the cell may secure a weapon or other contraband while [the officer] avert[s] [his/her] supervision, There will be no multiple clothing or double/triple layers of clothing on the detainee when released from his/her cell. [The officer will] [h]ave the detainee follow proper strip search procedures before returning the clothing or applying restraints. Pl,'s Trial Ex. I ¶ 5. GEO Warden Barry testified that inmates Contreras and Gonzales should have been strip searched before they reached the area where Mr. Tellez was being housed. GEO policy states the following with respect to pat searches: Detainees be pat searched before entering into or departing from the Medical area.. All detainees are to he pat searched when entering or leaving the Medical Department. NO EXCEPTIONS! Although the Housing Unit Officer may have searched the detainee, you are responsible fbr searching detainees entering or leaving the Medical Department. 7 PL's Trial Lx. 2 at I 8. Warden Barry esti1ied thai inmates Conireras and Gonzales should have been pat searched hefbrc they reached the area where Mr. idle,. was being housed. GEC) policy states the following with respect to restraints lbr inmates in administrative segregaiion: When the detainee is dressed. [the officer] will have the detainee turn aroUnd with [his/her) back to you, place the waist chain on him/her. After placing the waist chain on the detainee, [the otlIcerJ will apply the handeufis to them in the front of their body. [The officer] will then have the detainee turn around again and place the leg-irons on them. AU restraints will be locked prior to the detainee coming out of the cell. PL's Trial Lx. 1 ¶ 6. Warden Barry testified that inmates Contreras and Gonzales should have been restrained by both leg restraints and hand restraints at the time of the attack. Etc also testified that Nurse Garcia had been instructed cm previous occasions that restraints were not to be removed from inmates in administrative segregation such as inmates Contrcras and Gonzaleswithout a doctor's oider and authorization from the duty warden. GE() policy stales the following with respect to the locking of the medical doors: 'At times, the Medical stall shall, out of necessity, leave a room. At such time, they have been directed to lock that space by locking the door. You are directed to vorit that they have done so" Pl.'s Trial Lx. 2 at 2. Warden Barry testified that the doors to medical right........ where Mr. Tellez was being housedwere supposed to have been locked at the time of the attack, On. the day of the attack, none of these policies were lillowcd. Inmates Contreras and Gonzales were not strip searched. They were not put searched. liunate Coiitieras restraints were partially removed. The doors to medical iight were left unlocked while Officer Lundquist left the main medical area and entered medical left, Such failure to implement policies was a breach of GEO's duty to prevent harm to Mr. Tehiez. 3, Mr. l'dllcz Damages suffered damages. The Court will quantify his monetary damages in Part IlL infra. but it is sufficient to state here that he suffered from several stab wounds, three of whIch needed to be closed by staples. as well as several abrasions. 4. 'aiisaIion GEO's breach was the proximate cause of Mr Teflez's injuries. Even tiough inmate Contreras actuniiy iffihicted the injuries on Mr. Tellez GEO's thilure to implement the above described policies was the cause in {ict of Mr. TeIlez's injuries because these failures were substantial factors in bringing about the injuries. Inmates Contreras and Gonzales were not strip searched bcfbre leaving their cells. If they had been, guards would have found the shank tucked into the waistband of inmate Contreras. They were not pat searched upon ardvin at th medical department. Again, if they had been, guards would have thund the shank. inmate Contreras' shackles were partially removed by Nurse Garcia. If he had remained shackled as required by GEO polic:, ho would not have been able to retrieve the shank from his waistband and use it to stab Mr. Tellcz. Finally, thc doors to medical right were unlocked. This allowed inmates Contieras and Gonzales to enter the area containing Mr. 'l'ellez, even though he was supposed to be kept away from all other inmates. If any one of these policies had been followed, the attack would not have occurred as ii did. Warden. Barry even testiled that the assault was a result of a failure by the GE() Group to strip search or pat search inmates Contreras and Gonzales, properly restrain them, monitor them, and lock the doors to Mr. Tellez's cell area. The element of Ibresceability is also present. Inmates Contreras and Gonzales were known to he dangerous inmates, Mr. Tellez was knoWn to be at risk of harm at the hands ot other inmates. GEt.) should have anticipated that not searching and unshackling a dangerous 9 inmatewho was a member of the same organization that Mr. Tcllez was actively testifying againstin the area where Mr. Tellez was being held, and then leaving the only door separating Mr. Tellez from said dangerous inmate unlocked, could lead to hann to Mr. Tellez. Thus, having demonstrated all the elements of a negligence cause of action, the Court concludes that judgment shall be entered in favor of Mr. Tellez. GEO is liable for any damages that Mr. Tellez suffered, which are addressed in the following section. lii. DAMAGES Mr. Tellez seeks the following in damages: $75,000 for physical pain sustained in the past; $50,000 for physical pain which in reasonable probability he will sustain in the future; $100,000 for mental anguish sustained in the past; $50,000 for mental pain which in reasonable probability he will sustain in the future; $50,000 for physical impairment sustained in the past; $50,OOO for physical impairment which in reasonable probability he will sustain in the future; $50,000 for past disfigurement; and $50000 for future disfigurement. The Court takes each in turn. A. Physical Pain Plaintiffs may recover economic or noneconomic damages. Noneconomic damages include "damages awarded for the purpose of compensating a claimant for physical pain and suffering." Tex. Civ. Prac. & Rem. Code Ann, § 41.001(12). As described above, Mr. TelIez suffered from several stab wounds and abrasions, which he described as painful. Mr. Tellez testified that at the time of the attack, his pain level was a 10 on a scale of 1 to 10. The worst pain was the result of the stab wounds to his upper right shoulder and to his right thigh. Mr. Teilez was evaluated by CiEO staff following the attack, who found that he suffered from superficial stab wounds, but no intrathoracie traumatic injuries, no acute traumatic injuries to the abdomen or pelvis, no acute cardiopulmonary abnormalities, and no significant 10 abnormalities in the chest wall. Mr. Tellez was observed as oriented and was in no apparent distress. Mr. Te1le testi lied that there was no discussion of physical pain while he was at GEO before he was transported to the hospital. After Mr. iellcz arrived at the hospital, he rated his pain as a 3 out of I 0.2 Mc was described as alert, oriented, and in no apparent distress. He was able to take deep breaths without pain. Mr. Tellez was given pain medication shortly afier midnight. He was treated with staples to three of the stab wounds, was given prescriptions thr ibuprofen and hydrocodonc, and was discharged as stable. Dr. Morgan, the 0130 facility physician, ordered that the hydrocodonc prescrtption be discontinued as narcotics arc typically not prescribed by the theility doctor and he determined that the ibuprofen prescription would be sufficient for pain. Mi. Tcllez was kept on pain medication for five days, but he testified that the medication did not help his pain. Warden I3arry visited Mr. Teilez the morning after the attack. Warden Barry testified that Mr. Tcllez did not appear to he in distress or pain, and that he spoke in a normal tone of voice. Mr. Tcllcz testified that lie experienced pain in the months following the attack, He rated this later pain as a 5 or 6 on a scale oil to 10. lie did not, however, visit the medical department to complain about pain or impaIrment associated with the injuries sustained in the attack. He (lid, however, complain about or request to visit the medical department on the Ihilowing dates fbr the specified reasons: 1) June 1, 2014 regarding blood work 2) July 24, 2014 regarding blood work; 3) August 30, 2014 regarding a bite; 4) October 29, 2014 regarding a spider bite; 5) November 2, 2014 regarding a bite; 6) November 30, 2014 regarding a staph inlèction; 7) February 6, 2015 1 regarding pain in his ankles; 8) March 3, 2015 regarding a staph infection; 9) Aigust 26, 2015 Mr Tcllcz testitird that at the time he gave this rating. he as undc the influence of medicatkii, because if he was not, he would not have rated his pain as only 3 on a calo of I iluough 10. 1 lowevcr. this rating was given after Mr. Teltcz an-wed at the hospital and during his intake, which occurred sometime shortly aler 5:00 P.M. According to uncoutradicted testimony, Mr. i'clle was ilot given paul medication until midnight regarding shoe inserts; 10) September and October 20! 5 and March 2016 regarding tbot pain/inserts for his shoes; and ii) March 7, 2016 regarding a filling in his tooth. Mr. Tellez testified that he still experiences pain in his right shoulder and right armand that he suffers from cramps, that his arm falls asleep, and that he has difficulty lifting heavy objectsbut that he does not need pain medication at this point. He also testified that the area where he was stabbed in the ribs bothered him and continues to at times bother him when he rotates his body in a twisting motion. Mr. Tellez's wife testified that he still has sharp pains in his shoulder, although not as frequently as he did after the attack. The Court does not doubt that being stabbed isa painful experience. It does not, however, find credible all of Mr. Tellez's descriptions of his pain following the attack and in the time that has since passed. The stab wounds that Mr. TeIlez received were superficial, and only needed to be closed by staples. No surgery was necessary. According to multiple observations from different parties, Mr. TeIlez was not in apparent distress either immediately after the attack or in the morning thereafter. He described his pain as a 3 out of 10 before receiving pain medicine, in the time that has passed since the attack, Mr. Tellez has not complained of or visited the medical department for issues related to injuries sustained i.n the attack, despite having visited the medical department many other times far issues such as spider bites, staph infections, and foot pain. Mr. Tellez admitted that he no longer needs pain medication. Considering all of this, the Court finds that $75,000 for past physical pain and $50000 for future physical pain are not warranted. The Court will award $15,000 for past physical pain and $5,000 for future physical pain. B. Mental Anguish Mental anguish is another category of noneconomic damages. Tex. Civ. Prac. & Rein. Code Ann.§ 41.001(12). "To recover damages for mental anguish, a plaintiff must introduce 12 'direct evidence of the nature, duration, and severity of [his or her] mental anguish, thus establishing a substantial disruption in [his or hen daily routine' or evidence of 'a high degree o:f mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.'" Pendergraft v. (2arrillo, 273 S.W.3d 362, Wóodruff 901. (Tex, App. 2008) (quoting Parkway co. v. S.W.2d 434, 444 (Tex. 1995)). When asked how he felt mentally and emotionally during the attack, Mr. Tcllcz testified that he was mad and angry because he felt that he should been the one to inflict damage on inmate Contreras, as opposed to the other way around, but that inmate Contreras was not shackled and Mr. Tellez was. He also testified that the attack was frightening, and that he believes he will always have fear. He testified that he had trouble sleeping after the attack--and still has dffiCUlt off and onand that he experienced nightmares and paranoia. Mr. Tellez also testified that he has experienced fatigue, headaches, loss of appetite, nausea, dizziness, vomiting, hypervigilance, and anxiety. He testified that he thinks about the assault all the time and has had flashbacks. Mr. Tellez's wife testified that when she saw Mr. Tellez in the days after the attack, he was distraught and very upset, that he was crying and having difficulty expressing himself, and that he was having trouble sleeping. She also testified that now, years after the attack, Mr. Tellez is sleeping better, but that she believes he is still scared. Again, however, the Court does not find Mr. Tellez's descriptions of the mental anguish he has allegedly suffered to be wholly credible. When asked about the attack, Mr. Tellez's initial response was that it made him angry that it was not a fair fight and that he did not win. It was only after a question from his attorney did Mr. Tcllez state that it was frightening. Fuxihennore, Mr. TelIez testified that henow lives in fear because of the attack perpetrated by two members of the Mexican Mafia as retaliation for his cooperation with the government, but isnot scared about the 13 other approximately 3,998 members of the Mexican Mafia who also would like to see him dead. Finally. if Mr. Feltez is suffering from menial anguish, it may he attributable, at least in other sources. He testified that his involvement in four murders ftr part., to which he is awaiting sentencinghas caused him some mental distress. He also testified thai he lives in fear for the safety of his wife because the Mafia could potentially harm her in retaliation for his own actions, and he had no ability to help her, a fact that weighs heavily on him. The Couri finds that damages for mental anguish are not warranted here. Mr. Tellez has not introduced evidence showing that he suffered from or currently suffers from such a degree ol mental anguish that it substantially disrupts his daily routine. And, although he and his vife testified that the attack was frightening and caused Mr. 1'elki. to suffer issues such as nightmares, paanoia. and anxiety, the Court finds that this testimony is severely discredited by other testimony prcseiited. Most importantly, first, the testimony from Mr. Tellez indicating that his initial emotional reaction to the attack was not fear or anxiety, but rather anger because he was at a disadvantagedue to his shackles--in a tight he was supposed to win. Second, Mr. Tclkzs testimony that he lives in fear due to this attack perpetrated by two members of the Mexican Mafia seeking revenge for his cooperation with the government, hut is not at all worried about the other several thousand Mafia members with similar goals. Thcrethre, considering all ol the eVidenCe presented, the Court finds that Mr. Tellcz has not demonstrated "a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or auger.' l'endergrafi, 273 S.W3d at 3(7. Thus, the Court will award no damages or the futureS 14 br menial anguish, either in the past C. Physical lmpairrnent Physical impairment "encompasses the lOSS of the injured party's lifestyle, the effect of which must be substantial and extend beyond any pain, sufirim. mental anguish, lost wagc, or diminished earning capacity." Pcndergrafl, 273 S.W.3d at 367, Mr. Tellcz's wile testified that, shortly after the. attack:, Mr. Telkz's ability to move his hand was jmpaired, that he was limping, he was unsteady on his feet, and that he had difficulty remaining seated. She also testified that now, years after the attack, Mr. TeIlez is walking helter, but still has difficuhy holding the telephone due to cramping in his hand and arm. Mr. Tellez testified that he has suffered impairment to his right arm, which falls asleep when he tries to write letters. lie also has difficulty lifting heavy objects. After the attack, Mr. Tellez walked with a limp due to the staples in his leg, but no longer suffers from a limp. He also testified that the area where he was stabbed in the ribs bothered him and continues to at times bother him when he rotates his body in a twisting motion. Mr. Tellez does not think lie needs any physical rehabilitation. The Court also finds that damacs are not warranted for physical impairment. Based on the above described testimony of Mr. Tellez and his beyond painfbr which Mr. wile, he is already receiving damagcs Telle's impairment does not go and is not so substantial that it affects Mr. Tellcz's lifestyle. When asked whether he was impaired from perthiming his daily routine, Mr. Tellez responded that he may at some point be transfelTed to a prison where he will no longer be segregated from the rest of population, but admitted that he had no way of knowing whether he wouki ever he population. transferred to such a prison which allows exgang members to be in the general. Furthermore, Mr. Teflez admitted that he does not need any sort of physical rehabilitation. The current impairment ofto Mr. Teflez's arm 11 cramping, filling asleep, difficulty lifting heavy objectsand the former impairment of a limp while he had staples in his leg did not and do not have a substantial effect on his lifestyle to warrant damages for physical impairment. I). Disfigurement Damages are available for disfigurement. Disfigurement is "anything that 'impairs the appearance of a person, or that which renders unsightly, misshapen or imperfect, or de!hrms in some manner.'" Diamond 0//shore Sen, Ltd. v. Williams, 510 S.W3d 57, 76 (Tex, App. 2015). Disfigurement damages are available for scarring, even when the scar is located on a part of the body that is usually covered by clothing. Sec Id. Damages may he available for future disfigurement, and plaintiffi need not show proof of additional scarring or deformation. Hopkins dy. Hosp. Dist. v. Allen, 760 S.W.2d 341, 344 (Tex. App. 1988). Rather, "recovery for future disfigurement includes recovery for the future embarrassment caused by the disfigurement. Plaintiffs who feel ugly, who hide their disfigurement under clothes and gloves, and who avoid shaking hands, are embarrassed by their scars and may recover future disfigurement damages." Id. Mr. Tellez has three scars as a result of the attack. The first is located on his upper right shoulder and is approximately one half inch long. The second is located on the right side of his ribs and is approximately the size of a thumbnaU. The third is located on his right thigh and is approximately one inch long. Because Mr. Tellez has suffered some scarring, he may recover damages for disfigurement. The Court finds, however, that the scarring he suffered does not warrant past disfigurement damages of $50,000. The scars are relatively small and Mr. Tcllez has not testified that they are unusually unsightly in color, texture, shape, or otherwise. Therefure, the Court finds that damages of $5,000 are appropriate for past disfigurement. The Court further finds that damages for future disfigurement are not warranted. Mr. Tellcz has not testified that he is 16 embarrassed by the scars, nor has he testified thai he fiels ugly or icls the need to hide the scars under clothing. Thus, Mr. Tcllezs total damages award tbr disfiguration shall total S5,000. IV. ('()NCLUSION In accordance with the foregoing, the Court finds that negligent in lading to dctndant The GEO Group was implement policies and procedures, and is therefore liable to Mr. Tellcz. Mr Tcllcz is entitled to $20,000 in damages for physical pain and $5.00() Ir disfigurement, for a total of $25,000, A separate Order accompanies this Memorandum Opinion. Datc 3L20t7 Rn cc C I am berth United States District Judge 17
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