Debra Waller as Personal Representative of the Estate of Rodney Howard v. Terry County, Texas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

DEBRA WALLER,

as personal representative of the estate of

Rodney Howard,

Plaintiff,

v. No. 5:21-CV-189-H

TERRY COUNTY, TEXAS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Rodney Howard committed suicide in the Terry County jail. His estate, through

Debra Waller, brings this suit against the County and its officers, alleging that they failed to

protect Howard and failed to supervise one another. Terry County Sheriff Timothy Click

moves to dismiss the suit against him, arguing that the doctrine of qualified immunity

shields him from liability.

To be liable, Click must have been aware of Howard’s situation. Waller alleges that

Click would have been informed of Howard’s mental state on September 12, the day that

Howard was served with a second indictment that caused the mental distress culminating in

his suicide later that day. But County policy requiring notice to the Sheriff is triggered by a

suicide attempt—not mental distress alone. And Waller makes no allegation that Click was

otherwise aware of Howard’s mental state on September 12. Indeed, Waller alleges no facts

that would show Click had a reason to fear for Howard’s safety after an MHMR

representative cleared him in late August. Because she fails to allege facts that would show

Click was deliberately indifferent to Howard’s needs, Click’s motion is granted. But,

because it would not be futile, the Court grants Waller leave to amend her complaint.

1. Factual and Procedural History

When evaluating a motion to dismiss, all of the plaintiff’s well-pleaded allegations

must be taken as true. See Lovick v. Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004). As a

result, the Court draws its recitation of the facts from the complaint, noting disagreements

between the parties along the way.

A. Howard is arrested and held at the Terry County jail.

Rodney Howard was booked into the Terry County Jail on August 2, 2019. ¶ 26.*

Defendant Dominique Dominguez completed a medical screening and suicide evaluation at

that time. ¶ 27. In response to Dominguez’s questions, Howard indicated that he heard

noises and voices that other people don’t hear. ¶ 28. His responses to other questions

suggested that he suffered from depression (¶ 29), PTSD (¶ 30), and anxiety (¶ 31). He

indicated that he had previously received mental-health treatment. ¶ 32. And he reported

that he had been diagnosed with schizophrenia, depression, and PTSD. ¶ 33. As the

defendants admit, the Suicide Screening Form indicates that a “Yes” in response to

questions “1a–1d” should result in the inmate being placed on suicide watch. ¶ 34. It is

unclear from the record what questions 1a–1d are, though the Court draws the reasonable

inference that at least one of the affirmative responses Howard gave was in response to one

of those questions. ¶ 34; Dkt. No. 7 ¶ 27. And the defendants concede that they need not

wait to speak to an MHMR (Mental Health/Mental Retardation) representative before

placing the defendant on suicide watch. ¶ 36; Dkt. No. 7 ¶ 29. Howard was not placed on

suicide watch but was housed in cell S-4. ¶¶ 38–40.

* Citations in this section are to the Complaint, Dkt. No. 1, unless otherwise stated.

i. Howard attempts suicide.

The next day, Howard attempted to hang himself. ¶¶ 45–49. The defendants deny

this, but they admit that they went to his cell to assess Howard after he tied his bedsheet into

a knotted loop. Dkt. No. 7 ¶¶ 38–42, 43, 45–48. Officers intervened and summoned

MHMR for an assessment. ¶ 53. That assessment was conducted in a different cell—cell H-

1. ¶ 56. During that assessment, Howard began slamming the door to his food slot on his

fingers. ¶ 63. The MHMR representative reported that Howard needed to be kept on

suicide watch. ¶ 64. The form completed to summarize the MHMR representative’s

interaction noted that she would be placing “Robles” on a 24-hour suicide watch and would

conduct a face-to-face interview with “Robles.” ¶ 66. It is reasonable to assume that

“Robles” is a typo, but it is unclear what effect this typo has on Waller’s claims. Regardless,

Terry County had a policy at the time requiring that the Sheriff and jail administrator be

notified of a suicide attempt. ¶ 68.

ii. Howard attempts suicide again.

On August 18, 2019, Howard was housed in cell S-4, the same cell in which he first

attempted to hang himself. ¶¶ 72–75. The cell features bed sheets and various tie-off points.

¶ 74. The inmate in neighboring cell S-3 informed officers that Howard was going to kill

himself. ¶ 72. Howard partially covered the camera that officers used to monitor his

behavior. ¶ 77. He then attempted to insert a pencil down his throat and attempted to

swallow a foreign object. ¶ 84. Officers responded to S-4 and escorted Howard to cell H-1,

which is a suicide-watch cell. ¶ 81.

After an evaluation by MHMR, Howard was transported to the Brownfield Regional

Medical Center and later to the UMC Health System in Lubbock. ¶ 87. There, doctors

discovered that Howard had swallowed a number of pills and a razor blade and had

attempted to swallow a sharpened pencil. ¶¶ 91–92. Sheriff Click and Jail Administrator

Johnson were informed of this incident. ¶ 98.

iii. Howard is removed from suicide watch.

Upon return from the hospital following his August 19 incident, Howard was placed

on suicide watch. ¶ 101. Another MHMR representative visited with Howard on August

21. ¶ 100. That individual—defendant Liz McGinnis—ordered an officer to remove

Howard from suicide watch despite having access to the file reflecting Howard’s two prior

suicide attempts. ¶¶ 103–104. That file also, according to Waller, reflected that Howard

had been prescribed a number of medications that may have increased Howard’s suicidal

ideation. ¶¶ 106–18. Howard was returned to a standard segregation cell like that in which

he was originally housed. ¶ 121. On September 10, Howard slammed a door on his hand,

injuring it. ¶ 127.

iv. Howard commits suicide.

On September 12, Howard was served with an indictment that added another charge

against him. ¶ 134. This upset Howard. Howard and Jail Administrator Johnson discussed

the charges, and Johnson knew that Howard was “mad about the second charge being

filed.” ¶ 136. At the time, Howard was housed in cell S-11, which is not a suicide-watch

cell. ¶¶ 151–52. It contained bed sheets and various tie-off points similar to the cell in

which he was housed when he first attempted to hang himself in early August. ¶ 152–54; see

¶ 74.

Somehow, Howard was able to fashion a rope from mop strings. ¶ 163. Using his

shower handle as a cleat, the metal grate covering the lightbulb in his shower as a gallows,

and a plastic bag to restrain his hands, Howard hanged himself. ¶¶ 175– 85. Brain dead

when he was discovered, he was taken off of life support a few days later. ¶ 188. According

to one jailer, defendant Corina Trevino, there was “[n]o telling how long he’s been like

that.” ¶ 189. A phone call between Jail Administrator Johnson and Coleman County

Sheriff Les Cogdill took place after Howard’s death. ¶ 140. The Sheriff told Johnson that

Howard’s mother “kind of figured he would do something because he has been to prison

and this would be his third time.” Id. Johnson responded, “yeah that’s the truth, he didn’t

want to go back—sure didn’t.” Id.

B. Howard’s estate files suit.

Howard’s executrix, Debra Waller, filed this suit under 42 U.S.C. § 1983 against

Terry County, Sheriff Timothy Click, Jail Administrator Wayne Johnson, and a number of

officers and MHMR employees. ¶¶ 2–10. The suit alleges four causes of action: failure to

protect against all of the individual defendants; failure to supervise against Click and

Johnson; a Monell claim for a pattern and practice of deliberate indifference against the

County; and a wrongful-death claim against all defendants. ¶¶ 217–354. The Court

previously dismissed Count Four—the wrongful-death claim—brought by Howard’s

mother, Sheila Harrington. Dkt. No. 26. She passed away, and the claim was personal to

her, so there is no plaintiff to pursue it. Id. at 1. The Court also dismissed Timothy Wauson

from this suit based on the plaintiff’s concession that she could not prevail against him. Id.

C. Sheriff Click moves to dismiss on the basis of qualified immunity.

Timothy Click, Sheriff of Terry County, moves to dismiss the two remaining claims

against him, arguing that the complaint fails to state a claim against him and that he is

protected by the doctrine of qualified immunity. Dkt. No. 8. Waller has responded in

opposition, arguing that Click was aware of sufficient facts from which he could draw the

inference that Howard posed a risk to himself, that Click actually drew that inference, and

that clearly established law protected Howard from omissions like Click’s. Dkt. Nos. 15;

16. Click has replied, so his motion is ripe. Dkt. No. 19.

2. Governing Law

Section 1983 “provides a claim against anyone who ‘under color of any statute,

ordinance, regulation, custom, or usage, of any State’ violates another’s constitutional

rights.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). “A plaintiff makes out a

[Section] 1983 claim if he ‘shows a violation of the Constitution or of federal law, and then

shows that the violation was committed by someone acting under color of state law.’” Rich

v. Palko, 920 F.3d 288, 293–94 (5th Cir. 2019) (quoting Brown v. Miller, 519 F.3d 23, 236 (5th

Cir. 2008)).

But even if a defendant can be shown to have violated another’s constitutional rights,

the defendant may not be liable under Section 1983. Defendants who perform discretionary

duties—such as police officers and jailers, see, e.g., id.—are entitled to invoke the judicially

created doctrine of qualified immunity in response to a plaintiff’s Section 1983 suit. Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). “The Supreme Court has characterized the doctrine

as protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”

Cozzo v. Tangipahoa Par. Council, 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)). And, despite its name, when qualified immunity applies, it is

absolute. Id. So unless a defendant violates rights that are “clearly established,” the plaintiff

cannot recover under Section 1983. Id.

Qualified immunity applies “when an official’s conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577 U.S. 7,

11 (2015)). The first step in determining whether the doctrine applies requires the Court to

“decide whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations

omitted). But only if the violation is of a right that was “clearly established” at the time can

the plaintiff defeat the defendant’s invocation of qualified immunity. Morrow v. Meachum,

917 F.3d 870, 874 (5th Cir. 2019)

“To be clearly established, a right must be sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Reichle v. Howards,

566 U.S. 658, 664 (2012) (cleaned up). “There are two ways to demonstrate clearly

established law.” Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021). In the typical case,

the plaintiff “identif[ies] a case or body of relevant case law in which an officer acting under

similar circumstances . . . was held to have violated the [Constitution].” Id. (quotation

marks and citations omitted). This approach “do[es] not require a case directly on point,

but existing precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S.731, 741 (2011). In rare cases, however, “the

unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent

does not address similar circumstances.” District of Columbia v. Wesby, 138 S. Ct. 577, 590

(2018); cf. Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (“Confronted with the particularly

egregious facts of this case, any reasonable officer should have realized that [the plaintiff’s]

conditions of confinement offended the Constitution.”).

The Supreme Court has repeatedly instructed lower courts “not to define clearly

established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(internal quotation marks and citation omitted). Likewise, the Supreme Court has stated

that the purpose of the doctrine is to “give[ ] government officials breathing room to make

reasonable but mistaken judgments.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (citation

omitted). “Accordingly, ‘qualified immunity represents the norm,’ and courts should deny

a defendant immunity only in rare circumstances.” Angulo v. Brown, 978 F.3d 942, 949 (5th

Cir. 2020) (quoting Harlow, 457 U.S. at 807).

“Where public officials assert qualified immunity in a motion to dismiss, a district

court must rule on the immunity question at that stage. It cannot defer that question until

summary judgment. Nor can it permit discovery against the immunity-asserting defendants

before it rules on their defense.” Carswell v. Camp, 37 F.4th 1062, 1066 (5th Cir. 2022),

petition for rehearing en banc filed July 15, 2022. A motion to dismiss based on qualified

immunity is evaluated under the same pleading standards as a traditional motion to dismiss.

Terwilliger v. Reyna, 4 F.4th 270, 279–80 (5th Cir. 2021).

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the plaintiff’s

allegations, which must “contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when

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

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). (“Factual allegations must be enough to raise a right to

relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged—but

it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting

Fed. R. Civ. P. 8(a)(2)) (alteration omitted). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citation

omitted).

The ultimate inquiry is “whether the complaint pleads facts that, if true, would

permit the inference that [the defendant is liable] under [Section] 1983 . . . and would

overcome [his] qualified immunity defense.” Terwilliger, 4 F.4th at 280 (quoting Hinojosa v.

Livingston, 807 F.3d 657, 664 (5th Cir. 2015)).

3. Analysis

Under the Fourteenth Amendment, “a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520,

535 (1979). The constitutional rights Waller seeks to vindicate (on Howard’s behalf) thus

“flow from both the procedural and substantive due process guarantees of the Fourteenth

Amendment.” Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc). “A state

may detain defendants for trial; its ‘exercise of its power to hold detainees and prisoners,

however, brings with it a responsibility under the U.S. Constitution to tend to essentials of

their well-being.’” Cope v. Cogdill, 3 F.4th 198, 206 (5th Cir. 2021) (quoting Hare, 74 F.3d at

638–39). “Suicide is an objectively serious harm implicating the state’s duty to provide

adequate medical care.” Arenas v. Calhoun, 922 F.3d 616, 621 (5th Cir. 2019). Thus, “the

Fourteenth Amendment protects pretrial detainees’ right to medical care and to ‘protection

from known suicidal tendencies.’” Est. of Bonilla ex rel. Bonilla v. Orange Cnty., 982 F.3d 298,

304 (5th Cir. 2020) (citation omitted).

When, as in this case, “a pretrial detainee’s claim is based on a jail official’s episodic

acts or omissions . . . the proper inquiry is whether the official had a culpable state of mind

in acting or failing to act.” Hare, 74 F.3d at 643. An official “violates a pretrial detainee’s

constitutional right to be secure in his basic human needs only when the official had

subjective knowledge of a substantial risk of serious harm to the detainee and responded to

that risk with deliberate indifference.” Estate of Henson v. Wichita Cnty., 795 F.3d 456, 464

(5th Cir. 2015) (internal quotation marks and citation omitted).

In other words, “[t]o succeed on a deliberate-indifference claim, 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) the official actually drew that inference.”

Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (quoting Domino v. Tex. Dep’t of Crim. Just.,

239 F.3d 752, 755 (5th Cir. 2020)). “Whether a prison official had the requisite knowledge

of a substantial risk is a question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence . . . and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that the risk was obvious.”

Farmer v. Brennan, 511 U.S. 825, 842 (1994). “Negligence or even gross negligence is not

enough: the officials must have had actual knowledge of the substantial risk.” Aguirre v. City

of San Antonio, 995 F.3d 395, 420 (5th Cir. 2021) (citing Hare, 74 F.3d at 650). Thus, “an

official’s failure to alleviate a significant risk that he should have perceived but did not”

cannot amount to deliberate indifference. Farmer, 511 U.S. at 838. But, under exceptional

circumstances, an “official’s knowledge of a substantial risk of harm may be inferred by the

obviousness of a substantial risk.” Bias v. Woods, 288 F. App’x 158, 162 (5th Cir. 2008)

(citing Farmer, 511 U.S. at 842 & n.8).

“In the context of inmate suicide, ‘to defeat qualified immunity, the plaintiffs must

establish that the officers . . . were aware of a substantial and significant risk that the

detainee might kill himself, but effectively disregarded it.’” Cope, 3 F.4th at 207 (quoting

Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 395 (5th Cir. 2000)) (cleaned up). Waller

must therefore plead more than “gross negligence in treating [the inmate’s] mental health

problems.” Young v. McCain, 760 F. App’x 251, 256 (5th Cir. 2019). “Allegations of

unsuccessful medical treatment, negligence, neglect, medical malpractice, or a mistaken

judgment do not amount to deliberate indifference.” Id. (citing Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991)). Because “suicide is inherently difficult to predict,

particularly in the depressing prison setting . . . an incorrect diagnosis regarding the

genuineness of a suicide threat does not amount to deliberate indifference.” Id. (internal

citation and quotation marks omitted). Nor does the failure to properly implement

“adequate suicide prevention protocols.” Taylor v. Barkes, 575 U.S. 822, 826 (2015); see also

Young, 760 F. App’x at 257 (noting that “disagreement with a diagnostic measure” does not

allege deliberate indifference). “[W]hile . . the law is clearly established that jailers must

take measures to prevent inmate suicides once they know of the suicide risk, we cannot say

that the law is established with any clarity as to what those measures must be.” Hyatt v.

Thomas, 843 F.3d 172, 177–78 (5th Cir. 2016) (quoting Hare v. City of Corinth, 135 F.3d 320,

328–29 (5th Cir. 1998)).

It is well-established that “[p]ersonal involvement is an essential element of a civil

rights cause of action” under Section 1983. Hinojosa v. Livingston, 807 F.3d 657, 668 (5th

Cir. 2015) (citing Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)); see Doe v. Taylor

Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc). Officials are not liable for the

conduct of other officials. See Hinojosa, 807 F.3d at 668. Instead, each official’s liability

depends upon his or her “own actions.” Id.; see also Iqbal, 556 U.S. at 677 (Under Section

1983, “each Government official, his or her title notwithstanding, is only liable for his or her

own misconduct.”).

“A supervisory official may be held liable . . . only if (1) he affirmatively participates

in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional

policies that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446

(5th Cir. 2011) (quoting Gates v. Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 435

(5th Cir. 2008)). Courts routinely dismiss Section 1983 claims against officials when the

complaint fails to allege that the official was personally involved in the claimed

constitutional violation. See, e.g., Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)

(dismissing claims because plaintiff failed to allege defendants, as supervisory corrections

officers, had any direct responsibility for the delivery of a mailgram); Carr v. Collier, No.

6:18-CV-00351-TH, 2019 WL 3422939, at *3–4 (E.D. Tex. May 16, 2019) (recommending

the dismissal of claims because the complaint failed to allege defendants, as supervisory

prison officials, were personally involved in any alleged harassment perpetrated against the

plaintiff).

A. Failure to Protect

Waller alleges that Click failed to protect Howard from a known risk of suicide. Dkt.

No. 1 ¶¶ 229–34. In support, she alleges various facts: that Terry County had a policy

requiring that Click be notified of suicide attempts (Id. at ¶ 68); that the policy had been

followed in response to at least one of Howard’s suicide attempts (the August 18 attempt)

(Id. at ¶ 98; Dkt. No. 7 at ¶ 73); and that Johnson was aware of Howard’s unbalanced state

on September 12, the day he killed himself (Dkt. No. 1 at ¶ 134–36). Click disputes none of

those facts. The thrust of Click’s motion to dismiss is that it is an unwarranted inference

that he was actually informed of Howard’s suicide attempts. Dkt. No. 8 at 11–14. The

Court disagrees. At the motion to dismiss stage, the Court is permitted to draw reasonable

inferences from the well-pleaded facts. Iqbal, 556 U.S. at 678. Here, those facts are that

Click was informed, in accordance with official policy, of one suicide attempt. Dkt. No. 1

at ¶ 98; Dkt. No. 7 at ¶ 73. It is not unreasonable to infer that he would be informed of

another.

Click responds by noting that Howard’s behavior on the morning of September 12

(in response to the second indictment) does not amount to a suicide attempt that would

trigger a reporting requirement under the Policy. Dkt. No. 19 at 7–8. Here, the Court

agrees. As presently alleged by Waller, the events before Howard ultimately hanged himself

do not amount to a “suicide attempt,” as the policy requires. Dkt. No. 1 at ¶ 68. It is clear

from the undisputed facts that Jail Administrator Johnson was concerned about Howard’s

mental state after receiving the second indictment. Dkt. No. 1 ¶¶ 136–41. Johnson

proceeded to monitor Howard for the remainder of the day and acknowledged that Howard

was angry and did not want to go back to prison. Id. Paragraph 202 of the complaint

contains an accurate statement (based on the defendants’ Answer) of what jailers are

required to do if they believe a patient is mentally disturbed or suicidal: they must make a

note and inform their shift replacements. See Dkt. No. 7 at 16. Contrast that policy with

that governing actual suicide attempts, which requires that the Jail Administrator and

Sheriff be made aware of such an attempt, and the problem for Waller becomes apparent.

While Johnson may have had reason to be concerned about Howard’s welfare, an inmate’s

actions—not a jailer’s concerns—are the trigger for the Policy’s reporting requirement. Dkt.

No. 1 ¶ 202. And Waller has not alleged that Howard’s behavior in the morning and

afternoon of September 12 amounted to a suicide attempt. As a result, Waller has not

adequately pleaded that Click was aware of a risk to Howard’s welfare on the night of

September 12. Without that, her failure-to-protect claim against him cannot proceed.

Waller argues that, regardless of any notification, the risk of suicide was sufficiently

obvious that a notification under the policy is unnecessary to establish that Click knew of a

substantial risk to Howard’s welfare. Dkt. No. 16 at 12–13. But the complaint makes clear

that, following the August 18 suicide attempt, an MHMR professional cleared Howard to

leave suicide watch. Dkt. No. 1 ¶ 104. That evaluation and recommendation by a mental-

health professional must be credited. And, again, Waller alleges no facts that Johnson

actually notified Click of Howard’s mental state on September 10 (when he hurt his hand)

or 12 (when he was served with the second indictment), so the last that Click would have

heard, on Waller’s telling, is that Howard attempted suicide but was removed from suicide

watch in late August. See Dkt. No. 1 at ¶¶ 68, 99–104. The passage of nearly three weeks

between Howard’s suicide attempt and his hand injury—the next possible date on which

Click might have learned of Howard’s mental state—and the involvement of MHMR

attenuates any knowledge Click might have had about Howard’s condition.

In short, because Waller’s complaint, on the most generous reading, fails to allege

facts sufficient to demonstrate that Click violated Howard’s constitutional rights, the

complaint fails to pass the first hurdle of the qualified-immunity analysis. Because that

failure alone is enough to warrant dismissal, the Court need not address the clearly

established prong.

B. Failure to Supervise

To prevail on a failure-to-supervise claim, Waller must show that “(1) the supervisor

either failed to supervise or train the subordinate official; (2) a causal link exists between the

failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure to

train or supervise amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d 908,

911-12 (Sth Cir. 1998). As explained above, Waller fails to adequately allege facts that

could support subjective awareness on Click’s part. Therefore, she cannot establish the

deliberate indifference required to prevail on her failure-to-supervise claim. Like the failure-

to-protect claim, it must be dismissed because it fails the first prong of the qualified-

immunity analysis.

4. Conclusion

At this preliminary stage, the Court asks not whether the plaintiff has succeeded or

will succeed in her suit—only whether she could recover in the best-case scenario. Even

with that gloss, Waller’s complaint shows no path to recovery against Click. If Johnson and

Click discussed Howard on September 12, the story may be different. Since leave should be

freely granted where an amendment may not be futile, the Court will permit Waller to

amend her complaint. Click’s motion to dismiss (Dkt. No. 8) is granted. Waller is granted

21 days from the date of this order to amend her complaint.

So ordered on August 11, 2022.

/JAMES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

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