Bustos v. Tarrant County, Texas

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DELBERT MARK BUSTOS,

(Tarrant No. 0287555),

Plaintiff,

V. Civil Action No. 4:21-CV-587-P

TARRANT COUNTY, TEXAS, et al.,

Defendants.

OPINION and ORDER GRANTING MOTION TO DISMISS

Now pending is the motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) and incorporated brief filed by remaining defendant Tarrant County, Texas.

Mot. Dismiss, ECF No. 39. Plaintiff Delbert Mark Bustos (“Bustos”) has not filed

any response. After considering the relief sought by Bustos, the record, the briefing

and the applicable law, the Court finds that the motion to dismiss of remaining

defendant Tarrant County, Texas must be GRANTED, and all Plaintiff Bustos’s

remaining claims dismissed.

I. BACKGROUND

Bustos filed this action on April 23, 2021. Compl. 1–12, ECF No. 2. He

alleged that he had been incarcerated in the Tarrant County Jail “since approximately

October 10th of 2020,” and he complained he was “being denied timely MHMR,

dental, and medical treatment.” Id at 4–5. The Court issued an order noting

deficiencies in Bustos’ original complaint, and directed him to file an amended

complaint, which he did. Order, ECF No. 16; Am. Compl. ECF No. 21. Although

the Court had advised Bustos that an amended complaint supersedes and replaces a

complaint, Bustos’s amended complaint was only five pages long with numerous

exhibits. Am. Compl. ECF No. 21. As such, the Court ordered Bustos to answer the

Court’s particular questions in the form of a more definite statement (“MDS”), and

Bustos complied by filing an MDS. MDS, ECF No. 26. Thus, Bustos’s operative

pleadings in this case are his amended complaint and the MDS.

In the amended complaint, Bustos expressly named as defendants Tarrant

County, Texas, the City of Fort Worth, Texas, and Bill E. Waybourn, Sheriff, Tarrant

County, Texas. Am. Compl. ECF No. 21. Bustos contends that he sought and has

been denied or delayed care at the Tarrant County Jail for psychiatric treatment, for

medical care, and for dental treatment in the form of dentures since his last teeth were

removed while in the jail. Id. at 1–5. Bustos seeks an order directing that he be

provided treatment for these medical and dental conditions, and he also seeks

monetary damages. Id. at 3.

In the MDS, Bustos recited several more particular delays in his medical and

dental treatment, and he set forth allegations that those delays resulted from customs

or policies of Tarrant County, Texas. MDS 2–17, ECF No. 26. He also clarified the

basis for his claims against Bill Waybourn. Id. at 15–16. Bustos also expressly

informed the Court that he wished to drop the City of Fort Worth, Texas as a

defendant. Id. at 10.

Plaintiff attached a number of documents to his amended complaint and MDS.

Am. Compl. (Exhibits) 3, 7–16, ECF No. 21; MDS (Exhibits) 5, 7–9, 14, ECF No.

26.

As part of its screening process, the Court issued an Opinion and Order of

Partial Dismissal under 28 U.S.C. § 1915A & 1915(e)(2)(B) and a Rule 54(b)

Judgment, dismissing all claims against Sheriff Waybourn and the City of Fort Worth,

Texas. Op. and Order, 1–5, ECF No. 27. The Court allowed summons to issue as to

Bustos’s claims against Tarrant Countybased on his allegations that “delays in the

provision of medical, mental health, and dental care resulted from customs or policies

of Tarrant County.” Id. at 4.

II. MOTION TO DISMISS

A. Applicable Law

1. Rule 12(b)(6) Standard

A motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is generally viewed with disfavor. Lowrey v. Tex. A & M Univ.

Sys., 117 F.3d 242, 247 (5th Cir.1997). The court must accept all well-pleaded facts

in the complaint as true and view them in the light most favorable to the plaintiff.

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Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (citing True v. Robles,

571 F.3d 412, 417 (5th Cir. 2009)). Rule 12 must be interpreted in conjunction with

Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal

court and calls for “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court cannot look beyond the face

of the pleadings in resolving a Rule 12(b)(6) motion. Doe ex rel. Magee v. Covington

Cnty., Sch. Dist., 649 F.3d 335, 341 (5th Cir. 2011) (explaining that “[w]e examine

only the allegations within the four corners of the complaint”), aff’d on rehearing en

banc, 675 F.3d 849 (5th Cir. 2012). A plaintiff, however, must plead specific facts,

not conclusory allegations, to avoid dismissal. See Schultea v. Wood, 47 F.3d 1427,

1431 (5th Cir. 1995) (en banc); see also Taylor v. Books A Million, Inc., 296 F.3d 376,

378 (5th Cir. 2002) (“[C]onclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to prevent a motion to dismiss.” (citation

omitted)). Rule of Civil Procedure 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

As the United States Supreme Court explained in Bell Atlantic Corp. v.

Twombly, the plaintiff must plead “enough facts to state a claim to relief that is

plausible on its face” and his “factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” 550 U.S. 544, 555 (2007). Then, in

Ashcroft v. Iqbal, the Supreme Court clarified that review of a 12(b)(6) motion is

guided by two principles: (1) a court must apply the presumption of truthfulness only

to factual matters and not to legal conclusions; and (2) only a complaint that states

a plausible claim for relief survives a motion to dismiss. “Determining whether a

complaint states a plausible claim for relief . . . [is] a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 678–80. If the pleadings fail to meet the requirements of Iqbal and

Twombly no viable claim is stated and the pleadings are subject to dismissal.

2. Review of Records Incorporated by Plaintiff

Although all well-pleaded facts are viewed in the light most favorable to the

plaintiff, City of Canton, Ark., v. Pilgrim’s Pride Corp., 623 F.3d 148, 152–53 (5th

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Cir. 2010), “[w]here the allegations in the complaint are contradicted by facts

established by documents attached as exhibits to the complaint, the court may properly

disregard the allegations,” Martinez v. Reno, No. 3:97-cv-813-P, 1997 WL 786250,

at * 2 (N.D. Tex. Dec. 15, 1997) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,

515 F.2d 1200, 1206 (5th Cir. 1975)).

Bustos provided copies of medical and grievance exhibits to his amended

complaint and MDS related to his claims. Am. Compl. (Exhibits) 3, 7–16, ECF No.

21; MDS (Exhibits) 4–5, 7–9, 14, ECF No. 26. Bustos relied upon these records and

thus incorporated them into his pleadings. Defendant Tarrant County has referenced

many of these records in the motion to dismiss and relied upon them in arguing that

Bustos has failed to state claims upon which relief may be granted. “Documents that

a defendant attaches to a motion to dismiss are considered part of the pleadings if they

are referred to in the plaintiff’s complaint and are central to [his] claim.” Causey v.

Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); see also Bosarge

v. Miss. Bureau of Narcotics, 796 F.3d 435, 440–41 (5th Cir. 2015) (recognizing that

“medical records attached to a complaint . . . generally trump contradictory allegations

in the complaint” (citations omitted)). Therefore, the records to which Bustos has

referred in both his amended complaint and MDS have been considered by the Court.

See Causey, 394 F.3d at 288.

3. Municipal (Governmental) Liability

When Bustos filed this action on a prisoner complaint form, he invoked the

Court’s federal question jurisdiction by seeking relief against the defendants under

42 U.S.C. § 1983.1 Section 1983 “provides a federal cause of action for the

deprivation, under color of law, of a citizen’s ‘rights, privileges, or immunities

secured by the Constitution and laws’ of the United States.” Livadas v. Bradshaw,

512 U.S. 107, 132 (1994). To state a § 1983 claim, a plaintiff must allege facts that

show that he has been deprived of a right secured by the Constitution and the laws

of the United States and that the deprivation occurred under color of state law. See

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155–56 (1978); Cornish v. Corr. Servs.

1.“Every person who, under color of [state law] . . . subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper proceeding for

redress.”42 U.S.C. § 1983.

Corp., 402 F.3d 545, 549 (5th Cir. 2005).

Bustos’s remaining claims are against Tarrant County, Texas. Although a

county is a “person” within the meaning of § 1983 a municipal government may not

be held liable “unless action pursuant to official municipal policy of some nature

caused a constitutional tort.” Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978). The Supreme Court in Monell emphasized that a local government entity

cannot be held liable under § 1983 on a respondeat superior basis:

[T]herefore . . . a local government may not be sued under § 1983 for

an injury inflicted solely by its employees or agents. Instead, it is when

execution of a government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government entity

is responsible under § 1983.

Id. at 694. Thus, to the extent Bustos claims that Tarrant County, Texas is responsible

to him due to the actions of individual employees, or based upon the actions of

medical, mental health or dental personnel that are employed by other entities, on a

vicarious liability or respondeat superior basis, such claims are without legal merit.2

Instead of vicarious liability for the actions of government employees, § 1983

liability attaches against a local government entity only “if the governmental body

itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be

subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 59 (2011)

(quoting Monell, 436 U.S. at 692); City of Canton v. Harris, 489 U.S. 378, 385 (1989)

(liability “only where the municipality itself causes the constitutional violation at

issue”) (emphasis in original). An official municipal policy “includes the decisions

2. As noted, Bustos attached several exhibits to his pleadings. Those records show that JPS

(i.e., the Tarrant County Hospital District) provided medical and dental care. See generally

Tarrant Cnty. v. Carter-Jones, No. 02-17-00177-CV, 2018 WL 547588, at *5 n.7 (Tex.

App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.) (“The Tarrant County Hospital District

was created under the authority of the Texas Constitution and chapter 281 of the Texas

Health and Safety Code.” (quoting Tarrant Cnty. Hosp. Dist. v. GE Auto. Servs., 156

S.W.3d 885, 891 (Tex. App.–Fort Worth 2005, no pet.) (citing Tex. Const. art. IX, § 4;

former Tex. Health & Safety CodeAnn. §§ 281.001–.124))). Tarrant County thus notes that

JPS Tarrant County Hospital District has a separate legal existence from Tarrant County.

Mot. Dismiss 15, n. 6, ECF No. 39. The defendant also points out that MHMR of Tarrant

County is a local unit of government, as designated in Texas Health & Safety Code Chapter

534.001, not a state, federal, or county agency. Mot. Dismiss 15, n.7, ECF No. 39. Because

Tarrant County, Texas cannot be liable on a vicarious liability basis, the Court need not

resolve the exact employment status of the medical providers referenced in the record

exhibits attached to Bustos’s pleadings.

of a government’s lawmakers, the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of law.” Prince v. Curry,

423 F. App’x 447, 450 (5th Cir. 2011) (quoting Connick, 563 U.S. at 60).

“Allegations of isolated incidents are not sufficient.” Fraire v. City of

Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). Moreover, “[t]he description of a

policy or custom and its relationship to the underlying constitutional violation . . .

cannot be conclusory; it must contain specific facts.” Spiller v. City of Tex. City, 130

F.3d 162, 167 (5th Cir. 1997) (internal quotations and citation omitted).

4. Pretrial Detainees Claims Reviewed under the Due Process

Clause.

As Bustos filed suit while he was detained in the Tarrant County Jail, it

appears he is a pretrial detainee. Compl. 3, ECF No. 2. The basic human needs of

pretrial detainees are “protected by the Due Process Clause of the Fourteenth

Amendment.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir.

2017) (citing Cupit v. Jones, 835 F.2d 82, 84–85 (5th Cir. 1987)). Due process affords

pre-trial detainees with “protections [that are] ‘at least as great as . . . those available

to a convicted prisoner.’” Price v. Valdez, No. 3:16-CV-3237-D, 2017 WL 3189706,

at *5 (N.D. Tex. July 27, 2017) (quoting Hare, v. City of Corinth, 74 F.3d 633,

638–39 (5th Cir. 1996) (en banc)). Thus, the Fourteenth Amendment requires the state

to provide for the basic human needs of pre-trial detainees, including the right to

adequate medical care. Lacy v. Shaw, 357 F. App’x 607, 609 (5th Cir. 2009) (citing

Hare, 74 F.3d at 639). “The Fourteenth Amendment guarantees pretrial detainees a

right ‘not to have their serious medical needs met with deliberate indifference on the

part of the confining officials.’” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020)

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

v. Gamble, 429 U.S. 97, 103 (1976)).

In order to establish a violation of this constitutional right, a detainee must

show that the defendants acted with deliberate indifference to his serious medical

needs. Lacy, 357 F. App’x at 609. To make a claim of deliberate indifference, a

plaintiff must demonstrate that the defendant official has actual subjective knowledge

of a substantial risk of serious harm, but responds with deliberate indifference to that

risk. Id. (citing Hare, 74 F.3d at 647–48). Such a finding of deliberate indifference,

though, “must rest on facts clearly evincing ‘wanton’ actions on the parts of the

defendants.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Wilson

v. Seiter, 501 U.S. 294, 297 (1991). In the medical care context, a detainee must show

that the defendant “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.” Lacy, 357 F. App’x at 609 (citing Johnson,

759 F.2d at 1238). A delay in providing medical care is not a violation of this

constitutional right unless it results in substantial harm. Mendoza v. Lynaugh, 989

F.2d 191, 195 (5th Cir. 1993).

Illustrative is the decision in Anderson v. United States, where the plaintiff

complained that medical staff mis-diagnosed him, failed to order x-rays and did not

prescribe pain medications. No. 4:18-cv-0871-O, 2021 WL 4990798, at *7 (N.D. Tex.

Oct. 26, 2021). The Court granted the defendant medical personnel’s 12(b) motion

to dismiss because their medical treatment decisions were “a matter for medical

judgment” and, therefore, could not form the basis of a deliberate indifference claim.

Id. (citing Brauner v. Coody, 793 F.3d 493, 499 (5th Cir. 2015) (other citations

omitted) .

B. Analysis

1. Bustos Fails to State Facts of a Constitutional Violation

There can be no municipal liability for Tarrant County, Texas under Monell

in the absence of an underlying constitutional violation. See Albert v. City of Petal,

819 F. App’x 200, 203 (5th Cir. 2020) (noting that because there was no constitutional

violation, there can be no Monell claims); Brown v. Wilkinson Cnty. Sheriff Dep’t,

742 F. App’x 883, 884 (5th Cir. 2018) (holding that because the plaintiff failed to

demonstrate an underlying constitutional violation, the claims against the county and

the officers in their official capacities failed); Harris v. Serpas, 745 F.3d 767, 774 (5th

Cir. 2014) (upholding the district court’s dismissal of the Monell claims because the

plaintiff had not shown there was a constitutional violation). Here, Bustos’s claims

fail to plead an underlying constitutional violation.

In the amended complaint, Bustos complained of :

(1) not being prescribed medications he wanted and being assessed by

Advanced Practice Registered Nurses and not by a psychiatrist;

(2) not having a follow-up x-ray of his right wrist and examination by

physician’s assistant and not by a physician; and

(3) delay in having extraction of 4 of his teeth and not being fitted with

dentures.

Am. Compl. 2-4, ECF No. 21. Further, Bustos specifically alleged the following:

[T]he Jail does not have physicians or psychiatrists on staff. Plaintiff

needs psychiatric treatment by a psychiatrist to receive proper

medication, in proper dosages. A nurse practitioner cannot prescribe

medications nor do they have the psychological field background to

treat a person suffering from mental illness.

Plaintiff needs to be seen by a medical physician. Plaintiff needs

follow-up x-rays on his right wrist. A physician assistant does not

possess the necessary knowledge or experience of a doctor. Nor can

they prescribe medication.

Plaintiff needs to be seen by a dentist to be fitted for dentures. Plaintiff

had his last four teeth extracted on July 15, 2021. Three of those teeth

were broken off at the gum line. Ten months of repeated requested

treatment and waiting to be seen was very painful.

Id. In the MDS, Bustos essentially repeats the claims above regarding care and

treatment for mental health and dental conditions. MDS 3, 6, 10, ECF No. 26.

I. Medical Care.

In response the Court’s questions in the Order for an MDS regarding his

medical claims, Bustos abandoned those claims, answering as follows to Questions

6, 6(A), 6(B), 6(C):

Plaintiff would amend his complaint to drop the “Medical

Department” from his petition. Plaintiff intends to pursue this portion

of his complaint separately at a later date when expert medical

opinions can be obtained. Plaintiff keeps the “Dental Department” and

the “MHMR Department” as primary defendants.

MDS 12, ECF No. 26.

But even were the Court to examine Bustos’s medical care allegations, he has

otherwise failed to state a constitutional claim. First, Bustos did not state or describe

any “serious medical need” or condition as to his wrist. “A serious medical need is

one for which treatment has been recommended or for which the need is so apparent

that even laymen would recognize that care is required.” Gobert, 463 F.3d at 345 n.

12.

Second, Bustos alleged that he needed a physician to order follow up x-rays

on his right wrist. Am. Compl 2, ECF No. 21. He complained about being seen by

a physician assistant and erroneously alleged that physician assistants cannot prescribe

medications. Am. Compl. 2-4, ECF No. 21. This is a complaint about Bustos’s

disagreement with who treated him—not that he was denied medical treatment or that

anyone acted with deliberate indifference. See Anderson, 2021 WL 4990798, at *7.

II. Mental Health Care.

As to the “denied” mental health care claim, Bustos complained about not

seeing a psychiatrist but instead being treated by a nurse practitioner. Am. Compl. 2,

ECF No. 21. Bustos contends that nurse practitioners cannot prescribe medications.

Bustos’s attached exhibits show that Tarrant County Sheriff’s Office (“TCSO”)

provided both timely mental health (and other) care to Bustos. Id. at 3, 8. Also, TCSO

specifically informed Bustos he would be seen quicker by nurse practitioners (mental)

and physician assistants (medical) and his insistence to only be seen by doctors would

delay his care. Id. at 3.

Bustos does not allege a serious mental health care need or deliberate

indifference toward that claimed mental health care need, and his complaints represent

his disagreement about who provided his mental health care (care that Tarrant County

attempted to provide to him with staff through MHMR), not that Bustos was denied

mental health treatment. See Anderson, 2021 WL 4990798, at *7.

III. Dental Care.

With regard to dental care, Bustos complained about the timing of his tooth

extractions and the alleged need to be fitted for dentures after he had four teeth

removed. Am. Compl. 4, ECF No. 21. Bustos attached a document showing that

TCSO told him how to make a request for dental services. Id. at 12. Bustos attached

another document showing that a dentist examined him. MDS (Exhibit) 9, ECF No.

26. Dr. Keon Anderson, DDS noted that four (4) teeth were “painful to percussion

and palpitation with large decay” but did not note urgent medical conditions. Plaintiff

admitted that a dentist extracted four (4) teeth. Id. at 6.

While Bustos complained about the delay in the tooth extractions, he does not

allege that the timing of the tooth extractions went against any medical standard or

that his request for dentures was medically necessary. Am. Compl. 4, ECF No. 21.

Bustos admits that he was reviewed based on his complaint of tooth pain—meaning

that dental professionals took into account his complaints in light of all the other

inmates in the jail to determine what treatment needed to be prioritized. MDS 6, ECF

No. 26.

Again, Bustos does not allege a serious dental need or deliberate indifference

toward that claimed dental need, and his complaints about being examined represent

his disagreement about the dental professional’s judgment about when and whether

tooth extractions/dentures were medically necessary, not that Bustos was denied

dental treatment. See Anderson, 2021 WL 4990798, at *7.

In all three situations, Bustos does not allege that non-medical jail staff or

Tarrant County itself acted with deliberate indifference. Bustos’s pleadings contain

generalized allegations concerning medical, mental health, and dental personnel and

the nature and timing of the treatment each professional provided. Am. Compl., ECF

No. 21; MDS, ECF No. 26. Bustos has not alleged that Tarrant County’s Sheriff, jail

administrators, or jail employees made decisions about what medications to prescribe

inmates and whether and when to perform procedures. Nor did Bustos allege that

Tarrant County’s Sheriff, jail administrators, or jail employees ignored or denied any

medical, mental health, or dental care recommendations.

Rather, Bustos’s complaints concern decisions and professional judgment of

medical personnel. He was seen by at least three (3) Advance Practice Registered

Nurses on several dates and his records were at least reviewed by a physician, D.O.

and a psychiatrist, M.D. Am. Compl. 3, 8, 12, ECF No. 21; MDS 4–5, 7–9, ECF No.

26. Bustos was provided with dental treatment and care, including extractions, by a

licensed dentist. MDS, 9, ECF No. 26. Bustos does not allege that a medical

recommendation was made that he be fitted with dentures or that any recommendation

was ignored or denied by Tarrant County Jail administrators. ECF Nos. 21, 26.

Although Bustos wanted different medications than he was prescribed for his mental

health condition, wanted to be seen by different types of medical/mental health

professionals, and wanted dental treatment sooner than he received, the timing and

nature of treatment that he received are matters within the professional medical

judgment of the persons who provided that care to Bustos.

Bustos’s pleadings and attached documents show that Tarrant County provided

him with access to medical, dental, and mental health care providers, who exercised

their medical judgment in assessing and treating him. ECF Nos. 21, 26. Tarrant

County was entitled to rely on those providers’ professional medical, mental health,

and dental care judgment. As such, after this extensive review, the Court concludes

that Bustos has not pleaded an underlying constitutional violation of deliberate

indifference against Tarrant County.

2. Failure to Sufficiently plead a Monell Municipal Liability

Claim

I. No municipal policy or custom.

Furthermore, and additionally, Bustos has not pleaded sufficient facts to state

a claim of municipal liability under the controlling precedent of Monell: “(1) an

official policy (or custom), of which (2) a policymaker can be charged with actual or

constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is

that policy (or custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002).

Each of these elements is critical to a successful claim. Piotrowski v. City of Hous.,

237 F.3d 567, 578 (5th Cir. 2001). And as noted, a policy or custom and its

relationship to the underlying constitutional violation “ cannot be conclusory; it must

contain specific facts.” Spiller, 130 F.3d at 167 (citation omitted).

The policy or custom prong can be pleaded in two ways. “First, a plaintiff may

point to a policy statement formally announced by an official policymaker.” Zarnow

v. City of Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010) (citing Webster v. City of

Hous., 735 F.2d 838, 841 (5th Cir. 1984) (en banc)). Alternatively, a plaintiff can offer

evidence of a “persistent widespread practice of [county] officials or employees,

which, although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents municipal

policy.” Id. at 169 (quoting Webster, 735 F.3d at 841); see also id. (“A customary

policy consists of actions that have occurred for so long and with such frequency that

the course of conduct demonstrates the governing body’s knowledge and acceptance

of the disputed conduct”) (citing Webster, 735 F.3d at 842). Such “[a] pattern is

tantamount to official policy.” Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th

Cir. 2009).

In the Order for MDS, the Court specifically directed Bustos to state facts

about Tarrant County policies or customs. Order for MDS 2, ECF No. 23. Bustos

failed to point to a policy statement formally announced by an official policymaker

or any widespread practice representing a custom or policy. See Zarnow, 614 F.3d

at 168. Instead, Bustos offered speculative and erroneous statements about who can

prescribe medications and he only made allegations about himself and his own

treatment. MDS 3-10, ECF No.26. Having only pleaded in conclusory fashion,

without alleging any specific facts beyond his own isolated situation, Bustos has not

sufficiently pleaded Monell’s policy/custom element. See Spiller, 130 F.3d at 167

(finding as conclusory and insufficient an allegation that “[the officer] was acting in

compliance with the municipality’s customs, practices or procedures”); see also Ratliff

v. Aransas Cnty., Tex., 948 F.3d 281, 284–85 (5th Cir. 2020) (restating that “Monell

pleadings must contain sufficient factual matter”).

II. No Policymaker.

Bustos also fails to identify a policymaker. First, because Bustos has not

identified a custom or practice, it follows that he has not stated that a policymaker

promulgated an unconstitutional custom or practice. Moreover, Bustos has otherwise

failed to identify a specific policy maker possessing both policy-making authority and

actual or constructive knowledge of the alleged custom.

A sheriff can act as a policymaker with respect to certain law enforcement

functions, such as keeping inmates in a jail. See, e.g., Turner v. Upton Cnty., Tex.,

915 F.2d 133, 136 (5th Cir. 1990); Tex. Loc. Gov’t Code § 351.041(a) (“The sheriff

of each county is the keeper of the county jail.”). In order to impose Monell liability,

Bustos is required to allege facts showing the policymaker’s knowledge of the alleged

custom or policy at issue.

As this Court has previously observed, “[a]lthough the Fifth Circuit has held

courts should not grant motions to dismiss for failing to plead a specific identity, the

Fifth Circuit has also affirmed dismissal of a Monell claim when the allegations

invited no more than speculation that any particular policymaker, be it the chief of

police or the city commission, knew about the alleged custom.” Arreola v. City of Fort

Worth, 4:17-CV-00629-P, 2020 WL 3404120, at *11 (N.D. Tex. June 19, 2020)

(citing Peña v. City of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018)).

When asked about the facts “any action or personal involvement” of Sheriff

Waybourn with the events the basis of this action, Bustos admitted that he “has no

personal knowledge of Sheriff Waybourn being personally involved with any of the

allegations.” MDS 16, ECF No. 26. As a result, the Court dismissed Sheriff

Waybourn as a defendant. Op. and Order 3–4, ECF No. 27. But, Bustos’s admission

also shows that he has not associated Sheriff Waybourn, as a policymaker, with the

alleged custom or policy of which he complains (i.e., the alleged denial/delay in

receiving medical, mental, and dental care in the jail).

As in the Peña and Arreola cases, Bustos failed to plead that Sheriff

Waybourn, or any other alleged policymaker, had knowledge of an alleged custom

specifically pertaining to the provision of medical, mental, and dental care in the jail,

which caused similar damages/injuries to other inmates beyond Bustos. Thus, Bustos

has failed to state facts to identify a policymaker.

III. No Pleading that Policy was “moving force.”

Finally, Bustos has failed to plead that the custom or policy in question was

the moving force behind the underlying constitutional violation. For a municipal

custom to be found as the “moving force” behind a constitutional deprivation, there

first “must be a direct causal link between the municipal policy [or custom] and the

constitutional deprivation.” Piotrowski, 237 F.3d at 580. This causal link between

custom and constitutional violation “must be more than a mere ‘but for’ coupling

between cause and effect.” Fraire, 957 F.2d at 1281. The Fifth Circuit has emphasized

that this requirement “must not be diluted, for where a court fails to adhere to rigorous

requirements of culpability and causation, municipal liability collapses into

respondeat superior liability.” Piotrowski, 237 F.3d at 580 (internal quotations and

citations omitted).

In his amended complaint and MDS, Bustos fails to allege facts to show a

causal link between his alleged injuries and any alleged unconstitutional custom or

policy. See Okla. City v. Tuttle, 471 U.S. 808, 823 (1985) (“[A] direct causal

connection must exist between the policy and the alleged constitutional deprivation.

This connection must be more than a mere ‘but for’ coupling between cause and

effect.”). Instead, Bustos’s pleadings rely on his allegations about his isolated situation

and conclusory insinuations about undescribed customs and policies. MDS 3–10, ECF

No. 26. Such “insinuations do not meet the required standard of alleging a direct

causal relationship at a level surpassing a mere but-for coupling of cause and effect.”

Harmon v. City of Arlington, Tex., 478 F. Supp. 3d 561, 575 (N.D. Tex. 2020) (citing

Fraire, 957 F.2d at 1281).

For all of these reasons, Bustos has failed to sufficiently state a claim upon

which relief may be granted, such that the motion to dismiss under Rule 12(b)(6) of

Tarrant County, Texas must be granted, and Bustos’s remaining claims against Tarrant

County must be dismissed.

Ill. CONCLUSION AND ORDER’

It is therefore ORDERED that the motion to dismiss for failure to state a

claim under Rule 12(b)(6) of defendant Tarrant County, Texas (ECF No. 39) is

GRANTED such that all plaintiff Delbert Mark Bustos’s remaining claims against

tarrant County, Texas are DISMISSED WITH PREJUDICE.

SO ORDERED on this 18th day of October, 2022.

y 4 — *

T

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

3. Also pending are Bustos’s motions for jury trial and for appointment of counsel. ECF Nos.

44, 45. Because all claims have now been dismissed, these motions are DENIED as moot.

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