Brannan v. City of Mesquite Texas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PATRICIA BRANNAN and ALYSSA §

SANDERS, individually and as heirs §

of NATALIE SANDERS, §

§

Plaintiffs, §

§

v. § Civil Action No. 3:19-CV-01263-X

§

CITY OF MESQUITE, TEXAS, et al., §

§

Defendants. §

§

MEMORANDUM OPINION AND ORDER

This case arises from the death of Natalie Sanders, who died as a result of a

methamphetamine overdose while in custody at the Mesquite jail. The Court

previously denied a motion to dismiss for a failure to state a claim on qualified

immunity grounds as to Officer Layton Winters and Lieutenant Michael Kelly. The

Court also and granted the motion to dismiss on qualified immunity grounds as to

Paramedic Victor Palasciano, Paramedic Kyle Stone, Officer Peter Velasquez, Officer

Sherry Green, and Officer Marcelet Martin. [Doc. No. 60]. And the Court granted

Mesquite’s motion to dismiss. However, in dismissing the claims against these

parties, the Court gave the plaintiffs an opportunity to amend their complaint as to

these parties.

The plaintiffs did so, and the defendant officers and paramedics moved to

dismiss the amended complaint for failure to state a claim, again asserting qualified

immunity. [Doc. No. 69]. The City of Mesquite separately moved to dismiss for

failure to state a claim. [Doc. No. 68]. Although the plaintiffs repeated their

allegations against Mesquite in their amended complaint, they later explained that

they were not repleading against Mesquite. [Doc. No. 65]. After careful

consideration, and as explained below, the Court GRANTS Mesquite’s motion to

dismiss and GRANTS the individual defendants’ motion to dismiss as to the

Paramedics Victor Palasciano and Kyle Stone. The Court DENIES the individual

defendants’ motion to dismiss with respect to Officer Sherry Green, Officer Marcelet

Martin, and Officer Peter Velasquez.

I. Background

In 2017, Officer Jeremie Wood and Officer Winters arrested Natalie Sanders

on an outstanding warrant. Sanders surrendered a methamphetamine pipe to the

officers. After being placed in the patrol car, Sanders put an object—believed to be

narcotics—into her mouth. When she arrived at the Mesquite police department,

Sanders began to spit into a trash can and make dry heaving movements. Officers

repeatedly urged Sanders to open her mouth, and, after they had observed her

swallow, to tell them what she had swallowed. Sanders refused to say what she had

swallowed.

After entering the jail, Sanders’s condition deteriorated. Sanders told

Lieutenant Kelly, the jail supervisor, that she was addicted to meth. Sanders was

moved to a medical cell to be assessed by paramedics. When the paramedics,

Defendants Stone and Palasciano, arrived, Sanders was curled into a ball and not

fully responsive. Stone and Palasciano checked Sanders’s vitals, but apparently

conducted no further physical examination.

Stone and Palasciano questioned Sanders for approximately five minutes.

They then consulted with some of the officers, explaining that it was the officers’

choice whether to take Sanders to the hospital to have her stomach x-rayed and

receive any further medical treatment. Because Lieutenant Kelly declined to have

Sanders transported to the hospital, the paramedics told the officers to monitor

Sanders closely and to call them immediately if her condition worsened.

After the paramedics left, officers took Sanders to booking, where she struggled

to stand. Because of her poor state, the officers could not complete the booking

process. Despite Sanders’s obvious decline, they did not follow the paramedics’

instructions to call them back.1 Rather, she was brought to a cell where she was

monitored by video until officers discovered she was not breathing and lacked a pulse.

At that point the officers called the paramedics, but Sanders died before they arrived.

Patricia Brannan and Alyssa Sanders, individually and as heirs of Natalie

Sanders, bring this suit against the city of Mesquite, Paramedic Victor Palasciano,

Paramedic Kyle Stone, Officer Layton Winters, Officer Peter Velasquez, Lieutenant

Michael Kelly, Officer Sherry Green, and Officer Marcelet Martin under 42 U.S.C.

§ 1983.

1 The complaint alleges that, after the paramedics left, Sanders became “unable to walk, stand,

communicate, interact, or respond.” Doc. No. 64 at 18.

II. Rule 12(b)(6) Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court evaluates the

pleadings by “accepting all well-pleaded facts as true and viewing those facts in the

light most favorable to the plaintiffs.”2 To survive a motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’”3 A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”4 Although the plausibility standard

does not require probability, “it asks for more than a sheer possibility that a

defendant has acted unlawfully.”5 In other words, the standard requires more than

“an unadorned, the-defendant-unlawfully-harmed-me accusation.”6 “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’”7

III. Analysis

As a threshold matter, the defendants argue that the statute of limitations

bars the plaintiffs’ claims at this point because their latest amended complaint was

filed after the statute of limitations had passed. But because the amended complaint

2 Hutcheson v. Dall. Cnty., 994 F.3d 477, 481–82 (5th Cir. 2021).

3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

4 Iqbal, 556 U.S. at 678.

5 Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right

to relief above the speculative level . . . .”).

6 Iqbal, 556 U.S. at 678.

7 Id. (quoting Twombly, 550 U.S. at 555).

“relates back” to the timely filed original complaint, the statute of limitations does

not bar the plaintiffs’ claims. Although both parties fail to cite it, Federal Rule of

Civil Procedure 15(c) “governs when an amended pleading ‘relates back’ to the date

of a timely filed original pleading and is thus itself timely even though it was filed

outside an applicable statute of limitations.”8 It states that the amendment to a

complaint “relates back” to the date of the original pleading when “the amendment

asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading . . . .”9 Because the

plaintiffs’ amended complaint does exactly that, it “relates back” to the timely filed

original pleading, and there is no statute of limitations issue.

Having disposed of this statute of limitations argument, the Court now turns

to the plaintiffs’ claims. The Court considers the claims against Mesquite and the

claims against the individual defendants separately.

A. Mesquite

As discussed above, the Court dismissed the claims against the City of

Mesquite in the plaintiffs’ previous complaint. The current complaint contains no

new allegations against Mesquite, and the plaintiffs have clarified that they are not

8 Krupski v. Costa Crocier S. p. A., 560 U.S. 538, 541 (2010).

9 FED. R. CIV. P. 15(c)(1)(B).

repleading their claims against Mesquite. Accordingly, the Court GRANTS

Mesquite’s motion to dismiss for failure to state a claim.

B. Individual Defendants

As a threshold matter, the Court considers the plaintiffs’ Fourth and Eighth

Amendment claims. Without any new relevant allegations, the plaintiffs have

repleaded their claims that the individual defendants violated Sanders’s Fourth and

Eighth Amendment rights despite the Court’s prior dismissal of these claims. The

plaintiffs have alleged no facts which would support a claim of unlawful detention or

arrest, nor have they alleged that Sanders was a post-conviction detainee.

Accordingly, the Court finds that the plaintiffs failed to plead facts which would allow

the Court to conclude that the individual defendants violated Sanders’s Fourth and

Eighth Amendment rights. Having disposed of these claims, the Court now turns to

the plaintiffs’ Fourteenth Amendment claims and the corresponding qualified

immunity analysis.

1. Qualified Immunity Legal Standard

Qualified immunity is a two-step analysis.10 Typically, the Court first asks

whether “the official violated a statutory or constitutional right . . . .”11 If there was

a violation, the Court then asks “whether qualified immunity is still appropriate

because the defendant’s actions were objectively reasonable in light of law which was

clearly established at the time of the disputed action.”12 A right is clearly established

10 Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

11 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).

12 Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).

when precedent places “the statutory or constitutional question beyond debate.”13

The conduct of each defendant must be assessed individually, even if they acted in

unison.14 Once a defendant has asserted the defense of qualified immunity, the

plaintiff bears the burden of proving that it does not apply.15

A pretrial detainee has a Fourteenth Amendment right “not to have their

serious medical needs met with deliberate indifference on the part of the confining

officials.”16 To prevail on a deliberate-indifference claim, the plaintiffs must show

that (1) the official was “aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists,” and (2) that the official actually drew that

inference.17 Finally, the plaintiffs must show that the officer ignored “that risk by

failing to take reasonable measures to abate it.”18

As the Court previously explained, this is a stringent standard.19 “[D]eliberate

indifference cannot be inferred merely from a negligent or even a grossly negligent

response to a substantial risk of serious harm.”20 “Rather, the plaintiff must show

13 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

14 See Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007) (“[W]e have consistently

examined the actions of defendants individually in the qualified immunity context.”).

15 Waganfeald v. Gusman, 674 F.3d 475, 483 (5th Cir. 2012).

16 Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001).

17 Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001) (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)). The defendants continue to argue that, because some Fifth Circuit

cases require plaintiffs to also show that the officers intended to cause harm in deliberate indifference

cases, the deliberate indifference standard is not clearly established for qualified immunity purposes.

However, as the Court explained in its prior opinion, the Fifth Circuit rejected this exact argument in

Dyer v. Hous., 964 F.3d 374 (5th Cir. 2020).

18 Farmer, 511 U.S. at 847.

19 See Domino, 239 F.3d at 756.

20 Thompson, 245 F.3d at 459.

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.”21

2. Analysis

Defendant Paramedics. Notwithstanding their contention to the contrary,

the plaintiffs do not appear to have actually added any new allegations against the

Paramedics Palasciano and Stone in their Third Amended Complaint.22 Accordingly,

for the same reasons stated in its previous Memorandum Opinion and Order,23 the

Court GRANTS the motion to dismiss with respect to defendants Palasciano and

Stone.

Officer Green. As explained above, a pretrial detainee has a Fourteenth

Amendment right “not to have their serious medical needs met with deliberate

indifference on the part of the confining officials.”24 The Court finds that the plaintiffs

21 Domino, 239 F.3d at 756 (cleaned up).

22 Plaintiffs claim that they added allegations that the paramedics were aware that protocol

required them to obtain Sanders’s signature to decline treatment and that the paramedics forged

Sanders’s signature. Doc. No. 73 at 4. However, the plaintiffs included these same forgery allegations

in the previous complaint the Court already considered and rejected. Doc. No. 43 at 13–14.

23 Doc. No. 60 at 11–12. While the Court is troubled by the allegation that the defendants

deviated from protocol and forged Sanders’s signature, this protocol does not define the parameters of

adequate medical care under the Fourteenth Amendment. Accordingly, non-compliance with this

protocol—even by fraudulent means—does not on its own constitute deliberate indifference to

Sanders’s serious medical needs.

The decision by the paramedics to instruct the officers to monitor Sanders closely and to call

them immediately if her condition worsened did not approach the “wanton disregard for . . . serious

medical needs” necessary to support a claim of deliberate indifference. Domino, 239 F.3d at 756. After

all, implicit in the plaintiffs’ claims against the police officers is that (1) the officers were fully capable

of following the paramedics’ instructions and (2) had they done so when Sanders’s decline was obvious,

things would have turned out differently. As such, the paramedics’ decision was “a classic example of

a matter for medical judgment, which fails to give rise to a deliberate-indifference claim.” Dyer , 964

F.3d at 381.).

24 Thompson, 245 F.3d at 457.

plead sufficient facts to state a plausible claim that Officer Green acted with

deliberate indifference to Sanders’s serious medical needs. First, the Court considers

whether Officer Green was aware of facts from which the inference could be drawn

that there was a substantial risk of serious harm to Sanders. Before Officer Green

was sent to the sally port to help Officer Winters with Sanders, Officer Martin told

her that Officer Winters believed that Sanders had swallowed drugs. In the sallyport,

Officer Green tried to pry Sanders’s mouth open and repeatedly told Sanders to “open

her mouth.” After Officer Green saw Sanders swallow before she finally opened her

mouth, Officer Green advised Sanders that, whatever illegal substance she had

swallowed, she would not face charges for it if she told them what it was.

After Lieutenant Kelly briefly met with Sanders and filled out a jail screening

form indicating that Sanders was addicted to methamphetamine, Officer Green took

Sanders to the holding cell. There, Officer Green removed some of Sanders’s personal

items. Officer Green was still in the cell when the paramedics entered and asked

Sanders “what did you swallow?” As the paramedics departed, Officer Green was in

the group of officers that the paramedics told to monitor Sanders and to call them if

her condition deteriorated.

After the paramedics left, Officers Green, Martin, Velasquez, and Kelly

attempted to continue with the book in process by removing Sanders’s jewelry.

However, at this point, Sanders was unable to stand. She fell to the floor and curled

into a ball with her forehead touching the ground, and the officers had to pull her up

and hold her to continue removing her jewelry. She was moaning and her breathing

was labored. Officer Martin asked Sanders if she was going to throw up. Officer

Green noted that Sanders was “cold and shaking” and told Sanders to warn them if

she was in fact going to throw up. One of the officers commented that Sanders was

“not really responding.” Because Sanders was so ill, the officers were unable to

continue the booking process, which would have required them to obtain her

fingerprints and mugshot and to have her sign paperwork. Instead, Officer Green

and Officer Martin took Sanders—each holding one of Sanders’s arms—to the cell

where she would soon die.

These facts are sufficient to state a plausible claim that Officer Green was

aware of facts from which the inference could be drawn that Sanders faced a

substantial risk of serious harm. Next, the Court must consider whether Officer

Green actually drew that inference. “A factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.”25 Here the

risk of serious harm from a drug overdose was obvious, and it is clear that Officer

Green was aware of that risk.

From the beginning, Officer Green was told that Sanders was believed to have

swallowed drugs. Officer Green continually tried to get Sanders to open her mouth

or to tell Officer Green what Sanders had swallowed. Officer Green even advised

Sanders that she would not face charges if she told Officer Green what she had

swallowed, indicating that Officer Green believed that Sanders had swallowed an

illegal substance. Green was in the group of officers told by the paramedics to monitor

25 Farmer, 511 U.S. at 842.

Sanders and to contact them if her condition worsened. Despite observing Sanders’s

deteriorating condition, Officer Green did not contact the paramedics as instructed

or do anything at all to abate that risk.26 Accordingly, the plaintiffs have pleaded

sufficient facts to plausibly allege that Officer Green acted with deliberate

indifference to Sanders’s serious medical needs, satisfying the first prong of the

qualified immunity analysis.

As the Court explained previously,27 after demonstrating the plausibility of the

existence of a constitutional violation, the plaintiffs must plead facts which plausibly

show that Officer Green’s actions were objectively unreasonable in light of clearly

established law at the time of the incident. The relevant inquiry in determining

whether a right was clearly established “is . . . whether a reasonable officer could

have believed [his or her conduct] to be lawful, in light of clearly established law and

the information the . . . officers possessed.”28 While the plaintiffs need not identify a

case directly on point, “existing precedent” must “place[] the statutory or

constitutional question beyond debate.”29

In its previous memorandum opinion and order, the Court explained that the

Fifth Circuit’s opinion in Dyer v. Houston30 found that a prior Fifth Circuit opinion,

26 Id. at 847.

27 Doc. No. 60.

28 Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020) (quoting Anderson v. Creighton, 483 U.S.

635, 641 (1987)).

29 Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft, 563 U.S.

at 741).

30 964 F.3d 374 at384.

Thompson v. Upshur County,31 had put the Dyer officers on notice that their actions

were unconstitutional. And the Court held that Officer Winters and Lieutenant

Kelly’s conduct was similar enough to the Dyer officers’ conduct that Thompson had

also sufficiently defined clearly established law to put Officer Winters and Lieutenant

Kelly on notice that their conduct was unconstitutional. 32 For the same reasons, the

Court now finds that Thompson also put Officer Green on notice that her conduct was

unconstitutional.

Dyer arose out of the death of Graham Dyer after he “bash[ed] his head over

40 times against the interior of a patrol car while being transported to jail.”33 Dyer

had swallowed LSD, and he was incoherent and screaming.34 Upon arrival at the jail,

however, the officers did not inform the jail sergeant that Dyer had repeatedly hit his

head against the interior of the car.35 Graham was only transported to the hospital

two hours later when his breathing became labored, and he died soon thereafter from

blunt force trauma and cranial hemorrhaging.36

In Dyer, the Fifth Circuit explained that Thompson put the officers on notice

that their conduct was unconstitutional.37 Thompson arose out of Michael

Thompson’s death from wounds sustained in a seizure brought on by delirium

31 245 F.3d 447 (5th Cir. 2001).

32 Doc. No. 60 at 15–19.

33 Dyer, 964 F.3d at 377.

34 Id. at 379.

35 Id.

36 Id.

37 Id. at 384–86.

tremens.38 Paramedics, who had been summoned by the jailer, encouraged the

conscious Thompson to go to the hospital. Instead, Thompson insisted he would be

fine “if he could consume three beers” and signed a refusal-of-medical-treatment

form.39 Transferred to another jail, Thompson’s condition worsened.40 The officer in

charge of the jail attempted to treat Thompson by dressing his wounds, fitting him in

a straitjacket, and placing mattresses in his cell to protect him from further harm.

But when her shift ended, the officer told her subordinates not to contact paramedics

without her permission and not unless Thompson was “going to bleed to death.”41 The

Fifth Circuit found the officer had acted with deliberate indifference to Thompson’s

serious medical needs.42

Here, as in Dyer and Thompson, Sanders was suffering from a substance-

induced medical emergency. Officer Green was aware that Sanders was believed to

have swallowed narcotics from the moment she was sent to the sally port to assist

with her, and repeatedly urged Sanders to open her mouth and disclose what she had

swallowed. Paramedics were summoned, and Officer Green was among the group

they told to monitor Sanders closely and call them back immediately if her condition

worsened. Despite observing Sanders’s deterioration during the aborted booking

process, Officer Green did not call the paramedics back. Rather, Officer Green, along

38 Thompson, 245 F.3d at 454.

39 Id. at 453.

40 Id.

41 Id. at 454.

42 Id. at 464.

with Officer Martin, simply left Sanders in the cell where she died. As the Court

previously noted,43 the allegations here are arguably worse than in Thompson, where

the officer at least attempted to treat the detainee and protect him from further harm

after he was seen by paramedics.44 Like the officers in Dyer, however, Officer Green

took no action at all to protect Sanders. In sum, Thompson, which the Fifth Circuit

recognized in Dyer as being clearly established law, gave Officer Green “fair warning

that [her] behavior was deliberately indifferent to [Sanders’s] serious medical

needs.”45 Accordingly, the Court DENIES the motion to dismiss Officer Green.

Officer Martin. The Court finds that the plaintiffs plead sufficient facts to

state a plausible claim that Officer Martin acted with deliberate indifference to

Sanders’s serious medical needs. Officer Winters told Officer Martin via radio that

he believed that Sanders had swallowed drugs. Officer Martin conveyed this

information to Officer Green. Officer Martin was summoned to assist with Sanders’s

booking, by which point Sanders was unable to stand and the officers had to hold her

up to remove her jewelry. At this point, Officer Martin asked Sanders if she was

going to throw up. Unable to complete the booking process due to Sanders’s state,

Officer Martin and Officer Green helped Sanders to a cell. Officer Martin was told to

monitor Sanders, and she did so by camera. Apparently because Lieutenant Kelly

43 Doc. No. 60 at 17.

44 Thompson, 245 F.3d at 453–54.

45 Dyer, 964 F.3d at 385 (cleaned up). As the Court explained in its previous opinion, Dyer was

not clearly established law at the time of Sanders’s death. The Court compares the present case with

Dyer because the facts are similar enough that Thompson should have operated as fair notice to Officer

Green, just as the Fifth Circuit ruled it operated as fair notice to the officers in Dyer.

had not ordered a “close watch,” Officer Martin did not physically check on Sanders.

Despite her awareness of a serious risk of harm to Sanders, Officer Martin did not

take reasonable actions to abate that risk. Eventually, evidently believing that

Sanders was having a seizure, Officer Martin asked another officer to physically

check on Sanders, and the officer found that Sanders was not breathing and had no

pulse. The officers then called paramedics, but it was too late.

Just as it did with respect to Officer Green, Thompson defined clearly

established law in sufficient detail to give Officer Martin fair notice that her conduct

was unconstitutional. Like Officer Green, Officer Martin was aware that Sanders

was believed to have swallowed narcotics from the very start. She observed Sanders’s

deteriorating condition during the aborted booking process and escorted Sanders to

her cell. Charged with monitoring Sanders, Officer Martin never physically checked

on Sanders despite her awareness of Sanders’s poor state. Officer Martin did not take

any action at all to abate the obvious risk of harm to Sanders until Sanders appeared

to be having a seizure. But this was too little, too late. As with Officer Green,

Thompson gave Officer Martin notice that her conduct was unconstitutional.

Accordingly, the Court DENIES the motion to dismiss with respect to Officer Martin.

Officer Velasquez. The Court finds that the plaintiffs have plead sufficient

facts to state a plausible claim that Officer Velasquez acted with deliberate

indifference. While the plaintiffs do not state at exactly what point Officer Velasquez

was made aware that Sanders was believed to have swallowed drugs, Officer

Velasquez was in the group of officers that observed the paramedics’ interaction with

Sanders. Officer Velasquez was one of the officers the paramedics told that it would

be “prudent” to take Sanders to the hospital to have her stomach x-rayed and that

they should closely monitor Sanders and call them back immediately if her condition

worsened. As the officer in charge of property inventory for bookings, Officer

Velasquez was also in the group that helped remove Sanders’s jewelry as part of the

aborted booking process. As described above, Sanders’s distress at this point was

obvious. She could not stand up, her breathing was labored and she was moaning,

and she was “cold and shaking.” Two of the officers asked Sanders whether she was

going to throw up, and another commented that Sanders was “not really responding.”

Despite observing Sanders’s declining condition, Officer Velasquez did not follow the

paramedics’ instructions to call them back immediately. Although he was aware of

a serious risk of harm to Sanders, Officer Velasquez took no action whatsoever to

abate that risk. Just as Thompson put Officers Green and Martin on notice that their

conducted violated the Constitution, it put Officer Velasquez on notice that his

conduct violated the Constitution as well. Accordingly, the Court DENIES the

motion to dismiss with respect to Officer Velasquez.

IV. Conclusion

The Court GRANTS Mesquite’s motion to dismiss and GRANTS the

individual defendants’ motion to dismiss with respect to Paramedics Palasciano and

Stone. The plaintiffs’ claims against the foregoing defendants are DISMISSED

WITH PREJUDICE. With respect to Officers Green, Martin, and Velasquez the

Court GRANTS the motion to dismiss the claims against them arising under the

Fourth and Eighth Amendments. These claims are DISMISSED WITH

PREJUDICE. However, the Court DENIES the motion to dismiss the claims

against Officers Green, Martin, and Velasquez arising under the Fourteenth

Amendment.

IT ISSO ORDERED this 5th day of November, 2021.

BRANTLEY TARR

UNITED STATES DISTRICT JUDGE

17