# Rangel v. WellPath, LLC

> District Court, N.D. Texas · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10671762

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10671762

## How later opinions describe it (automated extraction)

- noting that the district court should have examined a claim pled as a conditions-of-confinement claim as an episodic-acts-or-omissions claim
- concluding in the conditions-of-confinement context that evidence of “inadequate treatment [the plaintiff] received in a series of interactions with the jail’s medical system,” in part due to understaffing, supported the existence of a condition

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

LEONORA RANGEL, individually and on
behalf of the Estate of Tony Martinez,
Plaintiff,
v. No. 5:23-CV-128-H
WELLPATH, LLC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This case stems from the tragic suicide of Tony Martinez while he was a pretrial
detainee in the Lubbock County Jail. His mother, Leonora Rangel, brought suit
individually and on behalf of Martinez’s estate against Wellpath, LLC, the private medical
provider at the jail, two Wellpath employees, and Lubbock County (the County). She
asserts claims under 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA).
The County moved to dismiss the claims, arguing that the Section 1983 and ADA
claims are deficient. The Court agrees as to all but one claim. First, the Court finds that the
plaintiff has failed to allege facts sufficient to state a claim under Section 1983. She has
failed to allege that two purported policies were official County policies and that the third
policy was the moving force of the alleged constitutional violation. Second, the Court finds
that one of the plaintiff’s ADA claims alleging a denial of services is sufficient, but the other
fails because she has not plausibly alleged that the denial was due to Martinez’s disability.
Third, because the plaintiff’s Section 1983 claims fail, the Court dismisses her wrongful-
death and survival-action claims. Finally, the Court grants the plaintiff leave to amend her
complaint if she wants to attempt to remedy the deficiencies.
1. Factual and Procedural Background1
On January 9, 2021, Tony Martinez was booked into the Lubbock County Jail. Dkt.
No. 1 ¶ 25. That day, he told “security staff2 that he wanted to hurt himself and was
suicidal,” and he “slamm[ed] his head repeatedly on the concrete floor.” Id. ¶ 26 (footnote
added). He was then placed on suicide watch, moved to a violent cell,3 issued a suicide-

prevention gown, and placed on 15-minute observations. Id. Martinez also reported past
suicide attempts. Id. ¶ 27. A screening was conducted and revealed that he had “multiple
documented mental health diagnos[e]s.” Id. ¶ 29. Specifically, Martinez “had been
diagnosed with schizoaffective disorder: depressive type, which presents the person with an
increased risk of suicide.” Id. ¶ 59. The County contracted with Wellpath, LLC, a private
medical provider, to provide mental health care to inmates. Id. ¶ 10. Martinez was referred
to Wellpath to receive mental health services in jail. Id. ¶ 28.

1 When considering a motion to dismiss, the Court “must accept as true the well-pled factual
allegations in the complaint, and construe them in the light most favorable to the plaintiff.”
Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (cleaned up) (quoting Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
2 The Court takes the term “security staff” to refer to Lubbock County Jail staff. See Dkt. No. 1
¶¶ 418–21.
3 Neither the complaint nor the briefing describe the “violent cells.” However, based on the context
of the complaint and arguments, it appears that the violent cells did not contain any tie-off points
or ligatures. The plaintiff alleges that:
[Martinez] was moved from the violent cell he had been in on suicide watch
to cell 102 in pod 3A. This cell had a shower with [a] shower head sticking
out from the wall a few inches from the ceiling of the shower. [Martinez] was
provided a blanket that could easily be torn into strips. On June 19, 2021, . . .
[Martinez] killed himself. [Martinez] tore the blanket into strips, tied them to
the shower head, and hung himself. The shower head was an obvious tie off
point. The blanket was an obvious ligature.
Dkt. No. 1 ¶¶ 410–16; see also id. ¶¶ 572–73. Thus, the reasonable inference is that Martinez was
moved from a violent cell without a tie-off point and ligature to a cell with a tie-off point and
ligature, which the plaintiff alleges was the cause of his suicide. See id. ¶¶ 553–55. Comments by
Wellpath and jail staff also indicate that violent cells were used “to ensure inmate safety” or keep
watch on an inmate. See id. ¶¶ 194, 203.
On January 10, Martinez reported feeling hopeless and a sense of being a burden to
others. Id. ¶ 30. Two days later, on January 12, Wellpath employee Kimm Hastey, the
mental-health coordinator at the jail, conducted a Columbia-Suicide Severity Rating Scale
(C-SSRS) assessment on Martinez, marked that he denied having suicidal ideations, and

discontinued his suicide watch and violent-cell restriction. See id. ¶¶ 13, 16, 31–32, 37.
However, Wellpath employees allegedly had a practice and custom of incorrectly
conducting the C-SSRS so they could find that the patient did not have suicidal ideations.
Id. ¶¶ 33–40. That same day, Martinez self-harmed by stabbing himself in the head with a
spork and ingesting two cups of cleaning solution. Id. ¶¶ 44–45. Security staff placed him
back on suicide watch, issued him a suicide-prevention gown, and placed him on 15-minute
observations. Id. ¶¶ 43, 46. Two days later, Hastey conducted another C-SSRS assessment,
marked that Martinez denied having suicidal ideations, and discontinued his suicide watch
and violent-cell restriction. Id. ¶¶ 47–48, 53.

This cycle of events repeated multiple times throughout Martinez’s detention.
Martinez would harm himself or make self-harming statements, security staff would place
him on suicide watch, and Wellpath employees would later remove the restrictions. On
February 1, Martinez stabbed himself in the head with a pencil until he was bleeding. Id.
¶ 64. On February 10, Martinez stated “he felt like he needed to stab himself in the head
and was tired of everything.” Id. ¶ 78. On February 18, he stabbed himself in the head and
arm until he was bloody. Id. ¶¶ 91–92. The next day, he also “put in a request for mental
health services” to speak with mental-health staff about medications. Id. ¶ 94. On March
28, Martinez put in another request for mental health services to speak with a Wellpath

employee about medications. Id. ¶¶ 135–36. On April 16, Martinez made self-harming
statements and began hitting his head on the cell door window. Id. ¶¶ 143–46. On May 2,
Martinez began striking his head on a brick wall. Id. ¶ 173. On May 6, he swallowed a
bottle cap and choked, and he later made statements that he would get security officers to
kill him. Id. ¶¶ 193, 199–200, 215. Martinez swallowed another bottle cap on May 10. Id.

¶ 248. And on May 23, he swallowed a spork, stated “I’m trying to kill myself,” and had to
be transported to the emergency room at a hospital. Id. ¶¶ 263–66.
After each self-harming act or statement indicating a risk of self-harm or suicide,
security staff placed Martinez on suicide watch. See id. ¶¶ 64–65, 78–79, 91–93, 143–46,
173–74, 203. For several of these suicide watches, security staff moved Martinez into a
violent cell. See id. ¶¶ 143–46, 173–75, 203. After Martinez swallowed the spork, a
lieutenant at the jail “put in place security measures stating that [Martinez] was ‘allowed
only a mattress, towel, mattress cover and bible’” and was allowed “NO eating utencil
[sic].” Id. ¶ 274. However, each time, the complaint alleges that Wellpath mental-health

employees Kimm Hastey or Gemma Volpato incorrectly conducted the C-SSRS assessment,
marked that Martinez denied having suicidal ideations, and discontinued his suicide watch
and any violent-cell restrictions a few days later. See id. ¶¶ 66, 71, 80, 85, 124, 129, 158, 163,
175, 180, 217, 222. They often did so despite noting risk factors for suicide. See id. ¶¶ 41,
57–59, 76, 80, 133, 184–85, 226–29. Wellpath medical staff and mental-health staff also
noted on several occasions that Martinez was not taking one of his medications, and they
observed multiple signs of depression in Martinez. Id. ¶¶ 140–42, 150, 154, 172, 277–78.
However, Martinez was never transferred to a mental-health facility or hospital to receive
an elevated level of mental health care and treatment. Id. ¶¶ 437–38.
In addition, Wellpath and the County allegedly had a policy that trained and
licensed mental-health personnel were not at the jail after hours or on weekends. Id. ¶ 100.
Thus, on weekends, suicide-watch checks were performed by Wellpath employees who
were not trained or licensed in providing mental health care, rather than mental-health

personnel like Hastey or Volpato. Id. ¶¶ 97–103, 147–49, 151–53, 300–03. The form used
by one such employee for a weekend suicide-watch check states, “This form is used for
after-hours/weekend checks by Nursing when Mental Health is not on site.” Id. ¶ 98. In
addition, on several occasions after Martinez was discharged from suicide watch, follow-ups
with mental-health personnel were delayed because the originally scheduled date fell on a
weekend. Id. ¶¶ 233–52, 382–84.
On June 4, Martinez told security officers over the intercom in his cell, “I am feeling
suicidal and I want to hurt myself.” Id. ¶ 283. He also banged his head on the door. Id.
¶¶ 286–87. Over the weekend of June 5 and 6, Martinez exhibited signs of serious mental-

health decline and a serious risk of suicide, but no mental-health professionals were at the
jail to observe them. Id. ¶¶ 297–303. On June 9, Martinez stated that he had intentions of
harming himself, heard voices telling him to harm himself, and was going to bang his head
on the walls. Id. ¶¶ 317–19. And on June 10, Martinez tied a piece of torn blanket around
his neck. Id. ¶ 340. Security staff placed Martinez on suicide watch and in an observation
cell or cell in the booking area after each self-harming act or statement. See id. ¶¶ 283–84,
317–21, 340. However, Volpato continued incorrectly conducting the C-SSRS assessment,
indicating that Martinez denied having suicidal ideations, and discontinuing the suicide
watch and violent-cell or observation-cell restrictions, despite noting risk factors. See id.

¶¶ 304, 309, 313–15, 321, 326, 330, 345–46, 348, 353, 358–63. When he was discharged
from suicide watch on June 14, mental-health staff noted that Martinez had reported
“anxiety & depression and au/vh [auditory and visual hallucinations] telling him to hang
himself and hurt himself bad.” Id. ¶ 368 (alteration in original) (emphasis omitted). The
next day, Martinez was still experiencing hallucinations and complained about his inability

to sleep. Id. ¶¶ 375–77.
On June 16, Martinez pressed the intercom button and stated, “I can’t do it
anymore, I’m feeling suicidal.” Id. ¶ 385. He was placed on suicide watch in a violent cell.
Id. ¶ 387. Volpato arrived at the cell to speak with him, and she noted that he “admitted to
active suicide ideations” and “scaled a 9 on intent with 1 being he’s not going to harm
himself and 10 being he’s going to kill himself today.” Id. ¶¶ 386, 388 (emphasis omitted).
However, the next day, June 17, Volpato met with Martinez again and discontinued his
suicide watch and violent-cell restriction after incorrectly conducting the C-SSRS
assessment. Id. ¶¶ 392, 397–99. Volpato indicated that Martinez’s mood was depressed, his

affect blunted, and his behavior withdrawn, and that he had risk factors of “[h]opelessness
[and] feeling of guilt or worthlessness.” Id. ¶ 401. However, she also indicated that he had
“[n]o suicidal ideation,” the date of his last self-harming incident was “unknown,” he had
“no plan reported,” and “scaled 2 on intent.” Id. (emphasis omitted). She also noted that
Martinez was refused medical housing. Id. ¶ 402.
June 17 was a Thursday, and per Wellpath and County policy, no mental-health
professionals would be at the jail over the weekend, on June 19 or June 20. Id. ¶¶ 408–09.
Martinez “was moved from the violent cell he had been in on suicide watch” to a cell with a
shower head sticking out from the wall near the ceiling and was provided a blanket that

could easily be torn into strips. Id. ¶¶ 410–12. Two days later, on June 19, 2021, Martinez
committed suicide by tearing the blanket into strips, tying them to the shower head, and
hanging himself. Id. ¶¶ 413–14.
Leonora Rangel, Martinez’s mother, brought this suit individually and on behalf of
Martinez’s estate in June 2023. Dkt. No. 1. She asserts Section 1983 claims against

Volpato, Hastey, Wellpath, and Lubbock County under various theories, arguing that they
violated Martinez’s Fourteenth Amendment right to be protected from a known risk of
suicide. See id. ¶¶ 439, 451–64, 466–76, 478–85, 494, 527–41, 545, 547, 551–59. She also
argues that Wellpath is vicariously liable for Volpato’s and Hastey’s actions and inactions
under a theory of respondeat superior. Id. ¶ 564. The plaintiff also asserts a claim under the
Americans with Disabilities Act (ADA) against the County. Id. ¶¶ 569–86. Finally, she
asserts a wrongful-death claim and a survival-action claim against all defendants. Id.
¶¶ 588–606.
The County moved to dismiss the claims against it under Federal Rule of Civil

Procedure 12(b)(6), arguing that the plaintiff has failed to state claims under Section 1983 or
the ADA. Dkt. No. 7. The motion included an appendix containing an interlocal
agreement between the County and the Lubbock County Hospital District (LCHD) and a
contract between LCHD and Wellpath. Dkt. No. 8. The plaintiff responded to the motion
(Dkt. No. 16), and the defendant replied (Dkt. No. 20). The motion to dismiss is now ripe
for consideration by the Court.
2. Standard of Review
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter which, when taken as true, states ‘a claim to relief that is plausible on its
face.’” Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d
719, 726 (5th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, the plaintiff must plead facts “that allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “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. If a
complaint pleads facts that are “‘merely consistent with’ a defendant’s liability, it ‘stops
short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557).
In resolving a motion to dismiss, a court must “accept all well-pleaded facts as true
and view those facts in the light most favorable to the plaintiff.” Richardson v. Axion Logistics,
L.L.C., 780 F.3d 304, 306 (5th Cir. 2015) (cleaned up) (quoting Bustos v. Martini Club, Inc.,
599 F.3d 458, 461 (5th Cir. 2010)). But a court should not “accept as true conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Gentilello v. Rege, 627

F.3d 540, 544 (5th Cir. 2010) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.
2005)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” for purposes of stating a plausible claim to relief.
Iqbal, 556 U.S. at 678. “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Id. at 679.
In considering a Rule 12(b)(6) motion, “a district court must limit itself to the
contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000). If a court is presented with and does not exclude

matters outside the pleadings, it must convert the motion to a motion for summary
judgment under Rule 56. Fed. R. Civ. P. 12(d). However, a district court may consider
certain information outside of the pleadings without converting the motion “if that evidence
is either (a) a document attached to the Rule 12(b)(6) motion, referred to in the complaint,
and central to the plaintiff's claim; or (b) a matter subject to judicial notice under Federal

Rule of Evidence 201.” George v. SI Grp., Inc., 36 F.4th 611, 619 (5th Cir. 2022).
3. Analysis
The Court finds that the plaintiff has failed to plead facts sufficient to state a Section
1983 claim under either a Monell, conditions-of-confinement, or episodic-acts-or-omissions
theory. The Court also finds that the plaintiff has failed to state a claim under the ADA
with regard to the alleged denial of medical and mental health care, but she has stated a
claim with regard to the alleged denial of medical housing. The plaintiff’s failure to assert a
Section 1983 claim merits the dismissal of her wrongful-death and survival-action theories
as well. However, the Court grants the plaintiff leave to amend her complaint to attempt to
cure these deficiencies.

A. The Court does not consider the agreements proffered by the defendant in
deciding the motion to dismiss.
As an initial matter, the Court declines to consider the interlocal agreement between
Lubbock County and LCHD and the contract between LCHD and Wellpath. The County
asserts in its motion to dismiss that the County did not in fact contract with Wellpath—
instead, the County is party to an interlocal agreement with LCHD, and LCHD then
contracted with Wellpath. Dkt. No. 7 at 11–12. The County attached the interlocal
agreement between it and LCHD and the contract between LCHD and Wellpath to its
motion to dismiss, arguing that the Court should consider the agreements as documents
referred to in the complaint and central to the plaintiff’s claim. See Dkt. Nos. 7 at 11; 8.
The plaintiff’s response does not address whether the Court should consider the agreements,
but she argues that the County may still be held liable for the alleged policies if it contracts
out its duty to provide medical care. Dkt. No. 16 at 9–11.
The Court may consider the agreements without converting the motion to dismiss to

a motion for summary judgment if they are “referred to in the complaint[] and central to the
plaintiff’s claim.” George, 36 F.4th at 619. The Fifth Circuit “has not articulated a test for
determining when a document is central to a plaintiff’s claims,” but “the case law suggests
that documents are central when they are necessary to establish an element of one of the
plaintiff’s claims.” RKCJ, LLC v. Farmers & Merchs. Bank, No. 3:21-CV-2597-BN, 2022 WL
1050313, at *2 (N.D. Tex. Apr. 7, 2022) (quoting Kaye v. Lone Star Fund V (U.S.), L.P., 453
B.R. 645, 662 (N.D. Tex. 2011)). For example, “when a plaintiff’s claim is based on the
terms of a contract, the documents constituting the contract are central to the plaintiff’s
claim.” Id. (quoting Kaye, 453 B.R. at 662). “However, if a document referenced in the

plaintiff’s complaint is merely evidence of an element of the plaintiff’s claim, then the court
may not incorporate it into the complaint.” Id. (quoting Kaye, 453 B.R. at 662). Thus, if a
document is “much more central to [the defendant’s] defenses,” and “[t]he plaintiffs rely on
substantial, other evidence to support their claims,” a district court should decline to
consider the document. See Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537 (5th Cir. 2003).
Here, the Court will not consider the Lubbock County–LCHD and LCHD–Wellpath
agreements in deciding the motion to dismiss because they are not central to the plaintiff’s
claims. The defendant argues that the contracts are central because “[t]his alleged contract
between Lubbock County and Wellpath and the resulting allegations of . . . joint policies are

referenced 16 times within the [p]laintiff’s [c]omplaint.” Dkt. No. 7 at 11. However, the
policy that the County failed to house Martinez in a suicide-prevention cell is alleged to be
solely a County policy, not a Wellpath policy. Compare Dkt. No. 1 ¶¶ 16, 558, with id. ¶¶ 17,
553. Thus, any alleged contract with Wellpath is not necessary to prove that claim. And
although the policies of not transporting inmates to another facility and not staffing mental-

health personnel after hours and on weekends are alleged against both the County and
Wellpath, see id., these claims are not dependent on the contract. Instead, the plaintiff
alleges that the Lubbock County Sheriff himself “promulgated, adopted, approved, and/or
ratified the policies.” Id. ¶ 537. This allegation would make them Lubbock County policies
even without any contract between the County and Wellpath. See infra Section 3.B.i.b.
Such a contract would merely be evidence of the plaintiff’s claims regarding how the
policies were promulgated. See RKCJ, LLC, 2022 WL 1050313, at *2. Ultimately, the
contracts proffered by the County are much more central to its defenses. See Scanlan, 343
F.3d at 537. Thus, the Court concludes that the contracts are not central to the plaintiff’s

claim and declines to consider them at the motion-to-dismiss stage.
B. The plaintiff has failed to plausibly allege a Section 1983 claim.
The Court finds that the plaintiff has failed to state a Section 1983 claim under either
a Monell, conditions-of-confinement, or episodic-acts-or-omissions theory. Section 1983
provides a cause of action for plaintiffs when their constitutional or federal statutory rights
are deprived by any person acting “under color of any statute, ordinance, regulation,
custom, or usage” of the State. 42 U.S.C. § 1983. “A [S]ection 1983 complaint must plead
specific facts and allege a cognizable constitutional violation in order to avoid dismissal for
failure to state a claim.” Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988).
“Section 1983 is not itself a source of substantive rights; it merely provides a method for
vindicating already conferred federal rights.” Bauer v. Texas, 341 F.3d 352, 357 (5th Cir.
2003). To establish liability under Section 1983, a plaintiff must satisfy two elements: (1) a
deprivation of a federal right, and (2) the person who deprived the plaintiff of that right
acted under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

The scope of “person” under Section 1983 includes “municipalities and other local
governmental units.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Therefore, a
municipality can be sued directly and held liable for a Section 1983 violation. Id. at 690–91.
However, “a municipality cannot be held liable solely because it employs a tortfeasor” or,
put another way, solely on a respondeat-superior theory. Id. at 691 (emphasis omitted).
Here, the plaintiff alleges that the County violated Martinez’s Fourteenth
Amendment right to be protected against a known risk of suicide. Dkt. No. 1 at 2; see also
Sanchez v. Young County, 956 F.3d 785, 791 (5th Cir. 2020). She refers to her Section 1983
claim both as a Monell claim and as a conditions-of-confinement claim. See Dkt. Nos. 1

¶¶ 495–555; 16 at 6. To state a municipal liability claim under Monell, a plaintiff “must
plead facts that plausibly establish that ‘(1) an official policy (2) promulgated by the
municipal policymaker (3) was the moving force behind the violation of a constitutional
right.’” St. Maron Props., L.L.C. v. City of Houston, 78 F.4th 754, 760 (5th Cir. 2023) (quoting
Peña v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018)). To state a conditions-of-
confinement claim, a plaintiff must plead facts that plausibly establish “(1) a condition—a
rule, a restriction, an identifiable intended condition or practice, or sufficiently extended or
pervasive acts or omissions of jail officials—(2) that is not reasonably related to a legitimate
government objective and (3) that caused the constitutional violation.” Sanchez, 956 F.3d at

791 (cleaned up) (quoting Duvall v. Dallas County, 631 F.3d 203, 207 (5th Cir. 2011)).
The elements of these two theories are mostly identical. The Fifth Circuit has
observed that “[it] see[s] no meaningful difference between the[] showings” of a policy
under a Monell theory and a condition under a conditions-of-confinement theory. Est. of
Bonilla ex rel. Bonilla v. Orange County, 982 F.3d 298, 308 (5th Cir. 2020) (quoting Duvall, 631

F.3d at 208). Similarly, the “moving force” standard of causation, which requires a “direct
causal link” and “more than . . . mere ‘but for’” causation, “appears to be the same” for
Monell and conditions-of-confinement claims. See id. at 308, 311–12. The key difference is
that a Monell claim requires the plaintiff to show that the “municipal decision reflects
deliberate indifference to the risk that a violation of a particular constitutional or statutory
right will follow the decision.” Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010)
(quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997)). In contrast, a conditions-
of-confinement claim does not require the plaintiff to show that the municipality was
deliberately indifferent in promulgating the condition. Duvall, 631 F.3d at 207.

It is unclear whether the plaintiff is proceeding under a Monell claim, a conditions-of-
confinement claim, or both. Thus, the Court addresses both claims to adequately address
the complaint’s allegations and the parties’ arguments regarding the County’s policymaker
and deliberate indifference. See Dkt. Nos. 1 ¶¶ 537–41, 551–52; 7 at 19–21; 16 at 15–24.
However, the Court finds that the plaintiff’s claims ultimately fail on the elements common
to both claims.
The plaintiff alleges that three policies or conditions led to Martinez’s death:
(1) failing to transport inmates like Martinez to a mental-health facility or hospital to receive
mental health treatment when the County understood that it and Wellpath could not

provide adequate treatment (the failure to transport); (2) “[f]ailing to house [Martinez] in a
cell without obvious tie off points like the shower head and ligatures like the blanket”4 (the
failure to house); and (3) “failing to ensure mental health personnel are working at the jail
after hours and on the weekends . . . to provide mental healthcare to individuals like
[Martinez] who suffer from a mental health disability” (the failure to staff). Dkt. No. 1

¶ 553. However, the plaintiff has not sufficiently alleged that the failure to transport or the
failure to house are official policies or conditions at the jail, and she has not sufficiently
alleged that the failure to staff was the cause of the alleged constitutional violation. In
addition, even construed as an episodic-acts-or-omissions claim, the plaintiff has not
sufficiently alleged that Lubbock County officials were deliberately indifferent to a
substantial risk of serious harm.
i. The plaintiff has failed to plausibly allege a Monell claim.
The plaintiff has failed to state a claim under Monell because she has not sufficiently
alleged that two policies at issue are official County policies or that the third policy was the
cause of Martinez’s suicide. Again, a Monell claim requires the plaintiff to plead that “(1) an

official policy (2) promulgated by the municipal policymaker (3) was the moving force
behind the violation of a constitutional right.” St. Maron Props., L.L.C., 78 F.4th at 760
(quoting Peña, 879 F.3d at 621). To survive a motion to dismiss, a complaint’s “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, Police Dep’t,
130 F.3d 162, 167 (5th Cir. 1997). The Court analyzes each element in turn.

4 The Court refers to a “cell without tie-off points and ligatures” as a “suicide-prevention cell.”
a. The plaintiff has not sufficiently alleged that the failure to
transport or the failure to house are official policies, but she
has sufficiently alleged that the failure to staff is a policy.
The Court finds that the plaintiff has not sufficiently alleged facts showing that that
the County had policies of failing to transport inmates or failing to house Martinez in a
suicide-prevention cell. However, she has sufficiently alleged facts showing a policy of
failing to staff mental-health personnel after hours and on weekends.
A municipality’s official policy can be established in three ways. First, a plaintiff can
identify “written policy statements, ordinances, or regulations.” St. Maron Props., L.L.C., 78
F.4th at 760. Second, a plaintiff may allege “a widespread practice that is so common and
well-settled as to constitute a custom that fairly represents municipal policy.” Id. Third, “a
single decision may constitute municipal policies in rare circumstances, when the official or
entity possessing final policymaking authority for an action performed the specific act that
forms the basis of the [Section] 1983 claim.” Id.
A pattern of prior incidents can establish a practice or custom if the incidents “have

occurred for so long or so frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is the expected, accepted
practice of city employees.” Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)
(quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). The
plaintiff thus must allege “a pattern of abuses that transcends the error made in a single
case.” Id. at 850–51 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001)).
The pattern must demonstrate “similarity and specificity,” or “point to the specific violation
in question.” Id. at 851 (quoting Est. of Davis ex rel. McCully v. City of North Richland Hills, 406
F.3d 375, 383 (5th Cir. 2005)). And the pattern “requires ‘sufficiently numerous prior
incidents,’ as opposed to ‘isolated instances.’” Id. (quoting McConney v. City of Houston, 863
F.2d 1180, 1184 (5th Cir. 1989)).
The plaintiff has not pointed to any formal, written policies regarding the failure to
transport or failure to house. See Dkt. No. 1 ¶¶ 17, 23, 410, 434–38, 553. There is also no

allegation that the final policymaker—the Lubbock County Sheriff—made the specific
decisions to not transport Martinez to a mental-health facility and to place him in a cell with
a tie-off point and ligature before his successful suicide attempt. See id. ¶¶ 392–412, 434–38,
536, 554. Thus, to show that the failure to transport and house were official County
policies, the plaintiff must show a widespread practice or pattern of prior incidents.
First, the plaintiff’s allegations regarding the failure to transport fail to plausibly
allege a policy under Monell. The plaintiff alleges that “[b]oth Wellpath and Lubbock
County were aware that the course of action they had been following was not good enough
to protect [Martinez]” and “were aware of mental health facilities and hospitals where

[Martinez] could be transferred where he would receive an elevated level of care and
treatment,” but they “chose not to transfer [Martinez] to a facility or hospital.” Id.
¶¶ 435–38. However, these are the only allegations regarding the County’s alleged failure to
transport Martinez to a different facility. See generally Dkt. No. 1. There are no allegations
about any specific instances when the County should have known that the course of
treatment was insufficient. There are no allegations of specific instances when the County
refused to transport Martinez to a different facility. And, most damningly for a policy
allegation, there are no allegations that the County failed to transport other inmates to
mental-health facilities or hospitals when necessary. These allegations about the failure to

transport are not sufficient to allege a “pattern of abuses” or “sufficiently numerous prior
incidents” and thus fail to plausibly allege an official policy. See Peterson, 588 F.3d at
850–51.
Next, the Court finds that the plaintiff’s allegations do not support a reasonable
inference that the County had a policy of not housing Martinez in suicide-prevention cells.

The plaintiff asserts that the County had a policy of “[f]ailing to house Tony [Martinez] in a
cell without obvious tie off points like the shower head and ligatures like the blanket he
easily ripped and used as a ligature in this case.” Dkt. No. 1 ¶ 553. However, this claim is
undermined by the other facts alleged in the complaint. As alleged, Lubbock County jail
staff placed Martinez in a “violent cell” six times over the course of his detention when he
exhibited suicidal behavior. See Dkt. No. 1 ¶¶ 26, 43–48, 145, 173–75, 203, 387. Jail staff
placed Martinez in an observation cell or a cell in the booking area an additional three
times. See id. ¶¶ 284, 317–21, 340. On another occasion, a lieutenant at the jail placed
restrictions on Martinez, allowing him “only a mattress, towel, mattress cover and bible”

and “NO eating utencil [sic],” after a suicide attempt. Id. ¶ 274. The violent-cell restrictions
were only removed after a Wellpath employee indicated that Martinez denied having
suicidal ideations. See id. ¶¶ 32, 48, 158, 175, 217, 304, 321, 348, 392. Simply put, the
plaintiff has not plausibly alleged a widespread practice or policy of not putting Martinez in
a suicide-prevention cell because the County did put him in such cells, multiple times.
The plaintiff may contend that the County erred in moving Martinez out of the
violent cells after Wellpath employees discontinued the restrictions. But any such
allegations are undermined by the fact that Martinez was placed in a violent cell again by
jail staff when he exhibited suicidal behavior again—sometimes on the same day that the

suicide watch was discontinued. See, e.g., id. ¶¶ 32, 43–46, 321, 340–41. Thus, it is not
reasonable to infer that the County had a policy of failing to house Martinez in suicide-
prevention cells.
These facts also are fatal to the plaintiff’s alternative argument for an official policy.
The plaintiff alleges that the Sheriff had constructive knowledge of the policies and

violations of rights alleged in the complaint but failed to take remedial action after each
prior suicide attempt by Martinez and by other inmates. Id. ¶¶ 538–41. She argues that this
is sufficient to establish an official policy because “when the official policymaker knows
about misconduct yet allegedly fails to take remedial action, this inaction arguably shows
acquiescence to the misconduct such that a jury could conclude it represents official policy.”
Dkt. No. 16 at 22 (citing Sanchez, 956 F.3d at 793); see also Dkt. No. 1 ¶ 541. However, in
Sanchez, the parties did not dispute that the county sheriff had actual knowledge about
reports of prior violations and the details of the decedent’s death. 956 F.3d at 793. Here,
the plaintiff has only alleged that the Sheriff had “constructive knowledge of the customs,

practices, and de facto policies outlined in this lawsuit, as he would have known of the
violations if he would have properly exercised his responsibilities[] following each of the
suicide attempts made by [Martinez] and by other inmates . . . prior to June of 2021.” Dkt.
No. 1 ¶ 539 (citing Hicks-Field v. Harris County, 860 F.3d 803, 808–09 (5th Cir. 2017)). The
Court concludes that the plaintiff has not alleged sufficient facts to create a plausible
inference that the Sheriff had such constructive knowledge.
A policymaker’s constructive knowledge of misconduct and subsequent failure to act
can be used to establish a municipal policy. Robinson v. Midland County, 80 F.4th 704, 710
(5th Cir. 2023). But for a policymaker to have such constructive knowledge, the plaintiff

must “point[] to similar incidents that are ‘sufficiently numerous’” and that have occurred
for a long time or frequently. See id. In other words, the practice must be “[p]ervasive.” See
id. (quoting Sanchez, 956 F.3d at 791). Hicks-Field similarly states that constructive
knowledge may be inferred if the policymaker “would have known of the violations if [he]
had properly exercised [his] responsibilities, as, for example, where the violations were so

persistent and widespread that they were the subject of prolonged public discussion or a
high degree of publicity.” 860 F.3d at 808–09 (quoting Bennett v. City of Slidell, 728 F.2d 762,
768 (5th Cir. 1984)). However, as discussed above, the plaintiff has not alleged a pervasive
practice of County jail staff failing to house Martinez in suicide-prevention cells. To the
contrary, the allegations indicate that had the Sheriff “properly exercised his
responsibilities[] following each of the suicide attempts made by [Martinez],” Dkt. No. 1
¶ 539, he would have discovered that County staff had placed Martinez in violent cells—not
that Martinez’s rights were violated. See id. ¶¶ 26, 43–48, 145, 173–75, 203, 387.
The Court also concludes that the three prior suicides alleged by the plaintiff are not

sufficient to establish the Sheriff’s constructive knowledge. For one, the plaintiff asserts that
the County’s policy was failing to house Martinez specifically in a suicide-prevention cell.
See Dkt. Nos. 1 ¶¶ 17, 553; 16 at 17–18. Thus, only prior incidents involving Martinez are
directly relevant to whether the Sheriff had constructive knowledge of the alleged policy.
Nevertheless, the plaintiff has also alleged three prior incidences of suicide by hanging in the
Lubbock County Jail over the course of about a year, the last of which occurred a year
before Martinez’s suicide. Dkt. No. 1 ¶¶ 422–29. In deciding whether prior incidents would
give the policymaker constructive notice of a policy, “courts need to determine the size of
the governmental entity at issue and the number of people potentially subject to the alleged

misconduct.” Alexander v. S. Health Partners, Inc., No. 3:22-CV-0395-X, 2023 WL 3961704,
at *5 (N.D. Tex. June 12, 2023) (citing Peterson, 588 F.3d at 851). This includes information
like how many inmates a jail houses and how many inmates passed through the jail in the
period indicated by the plaintiff. Id. However, the plaintiff has provided no such
information. See generally Dkt. No. 1. Without this context, the Court cannot determine

whether three incidents are sufficiently numerous to attribute constructive knowledge of the
failure to house to the Sheriff. See Alexander, 2023 WL 3961704, at *5.
There are also factual differences between Martinez’s suicide and the prior suicides.
A pattern that gives rise to constructive notice requires “similarity and specificity.” See
Peterson, 588 F.3d at 850–51. But two inmates committed suicide using jail clothing as a
ligature, Dkt. No. 1 ¶¶ 423, 425, and the other used an oxygen machine cord, id. ¶ 428,
while Martinez used a blanket, id. ¶ 414. And the two inmates who used jail clothing are
also only alleged to have “exhibited mental health problems in the jail prior to [their]
suicide[s].” Id. ¶¶ 424, 427. However, courts are “reluctan[t] to hold that generalized

evidence of an inmate’s mental illness invariably indicates a substantial risk of self-harm.”
Est. of Bonilla, 982 F.3d at 306. The differences between the prior suicides and Martinez’s
suicide make it less plausible that the prior incidents gave the Sheriff constructive notice of
any policy. In particular, these suicides were not evidence of a policy of putting suicidal
inmates in non-suicide-prevention cells because these prior inmates were not obviously
suicidal. Thus, the Court finds that the plaintiff has not plausibly alleged that the Sheriff
had notice of the failure to house, and she cannot establish that it was an official County
policy.
In contrast, the plaintiff has pled sufficient facts to allege that the failure to staff was

an official policy. The plaintiff asserts that the County had a policy of “failing to ensure
mental health personnel are working at the jail after hours and on the weekends . . . to
provide mental healthcare to individuals like [Martinez] who suffer from a mental health
disability.” Dkt. No. 1 ¶ 553. She alleges that on weekends, suicide-watch checks were
performed by Wellpath employees who were not trained or licensed in providing mental

health care, instead of by mental-health personnel like Hastey or Volpato. Id. ¶¶ 97–103,
147–49, 151–53, 300–03. The form used by one such employee for a weekend suicide-watch
check states, “This form is used for after-hours/weekend checks by Nursing when Mental
Health is not on site.” Id. ¶ 98. The plaintiff also alleges that on several occasions after
Martinez was discharged from suicide watch, follow-ups with mental-health personnel were
delayed because the originally scheduled date fell on a weekend. Id. ¶¶ 233–52, 382–84.
Finally, the plaintiff asserts that Martinez did not have access to mental-health personnel
over the weekends. Id. ¶¶ 295–99, 342–45, 413.
The form’s written acknowledgement that “after-hours/weekend checks” are

performed “by Nursing when Mental Health is not on site,” id. ¶ 98, makes it plausible that
there is a formal, written policy indicating that mental-health personnel are not at the jail at
those times. Admittedly, the plaintiff does not make any specific allegations about prior
incidents where the absence of mental-health personnel affected other inmates. But her
allegations do point to a pattern of mental-health personnel not being available at the jail on
several weekends over the course of Martinez’s detention. Such a “pattern of failures” over
the course of an inmate’s detention may be sufficient to draw the reasonable inference of an
unwritten policy or widespread practice. See Balle v. Nueces County, 952 F.3d 552, 559–60
(5th Cir. 2017); cf. Shepherd v. Dallas County, 591 F.3d 445, 453 (5th Cir. 2009) (concluding in

the conditions-of-confinement context that evidence of “inadequate treatment [the plaintiff]
received in a series of interactions with the jail’s medical system,” in part due to
understaffing, supported the existence of a condition). The plaintiff also alleges that the
failure to staff meant that care was not provided to “individuals like [Martinez] who suffer
from a mental health disability.” Id. ¶ 553. The Court finds that these allegations are

sufficient to create a reasonable inference that the alleged failure to staff was an official
County policy that affected other inmates.
In sum, the plaintiff has not alleged a pattern of prior incidents showing that the
failure to transport Martinez to a mental-health facility or hospital or the failure to house
Martinez in a suicide-prevention cell were official policies. The County thus cannot be held
liable for those policies under Monell. However, the plaintiff has sufficiently alleged an
official policy of failing to staff mental-health personnel at the jail after hours and on
weekends. Accordingly, the Court analyzes the remaining Monell elements as to the failure
to staff only.

b. The plaintiff has sufficiently alleged that the municipal
policymaker promulgated the staffing policy.
The Court finds that the plaintiff has plausibly alleged that the Lubbock County
Sheriff promulgated the staffing policy. For the second element of a Monell claim, a plaintiff
must allege that the policy in question was promulgated by the municipal policymaker. St.
Maron Props., L.L.C., 78 F.4th at 760. A policymaker is “the governing body of the
municipality or . . . an official to whom that body has delegated policy-making authority,”
and the policymaker must have “[a]ctual or constructive knowledge of [the] custom” or
policy. Valle, 613 F.3d at 542 (second alteration in original) (quoting Webster, 735 F.2d at
842). Whether an official is a policymaker for purposes of municipal liability is a question
of state and local law. Id. “Under Texas law, sheriffs are ‘final policymakers’ in the area of
law enforcement for the purposes of holding a county liable under [Section] 1983.” James v.
Harris County, 577 F.3d 612, 617 (5th Cir. 2009).
The plaintiff alleges that “Kelly Rowe is the sheriff of Lubbock County and was the
sheriff of Lubbock County at all times relevant to this lawsuit” and that “[u]pon information

and belief, discovery into information within the knowledge of the County will show that
Sheriff Rowe promulgated, adopted, approved, and/or ratified the policies and practices
discussed in this lawsuit.” Dkt. No. 1 ¶¶ 535, 537. The plaintiff has alleged enough facts to
make this a reasonable inference. Under Texas law, “[t]he sheriff of each county is the
keeper of the county jail” and “shall safely keep all prisoners committed to the jail by a
lawful authority.” Tex. Loc. Gov’t Code Ann. § 351.041(a). “The sheriff may appoint a
jailer to operate the jail and meet the needs of the prisoners, but the sheriff shall continue to
exercise supervision and control over the jail.” Id. § 351.041(b). The plaintiff asserts that
Lubbock County operated the jail and “contracted with Wellpath . . . to provide mental
health care to people incarcerated in the Lubbock County Jail.”5 Dkt. No. 1 ¶¶ 9–10. Here,

it is reasonable to infer that, as part of his statutory duties in supervising and controlling the
jail, the Sheriff would have actual knowledge of staffing policies. The plaintiff has also
pointed to numerous instances where mental-health personnel were not at the jail on
weekends, which could provide the Sheriff with constructive knowledge of such a policy.
See Robinson, 80 F.4th at 710.
The underlying argument in the defendant’s motion to dismiss is that this policy is
not a Lubbock County policy due to the contractual relationships between the County and

5 Because the Court declines to consider the contract between LCHD and Wellpath, see supra Section
3.A, the Court takes the plaintiff’s allegations that the County contracted with Wellpath as true.
See Richardson, 780 F.3d at 306.
Wellpath. See Dkt. No. 7 at 12–14. And the plaintiff does allege that the County “delegated
policymaking authority to Wellpath regarding the medical policies, practices, and
procedures in the Lubbock County Jail, including mental health care.” Dkt. No. 1 ¶ 11.
However, the County may still be held liable under Section 1983 for said policies. See

Rodriguez v. S. Health Partners, Inc., No. 3:20-CV-0045-D, 2020 WL 7056336, at *13 (N.D.
Tex. Dec. 2, 2020) (Fitzwater, J.). The Supreme Court has indicated that “there will be
cases in which policymaking responsibility is shared among more than one official or
body.” City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988). And if “a city’s lawful
policymakers could insulate the government from liability simply by delegating their
policymaking authority to others, [Section] 1983 could not serve its intended purpose.” Id.
Thus, courts in this district have concluded that a county’s delegation of policymaking
authority to a private healthcare provider does not necessarily preclude the county from
liability under Section 1983. Rodriguez, 2020 WL 7056336, at *13.

At the very least, the plaintiff’s allegations provide “enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence” that the Sheriff had actual or
constructive knowledge of the mental-health personnel staffing policies. See In re S. Scrap
Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556). Thus,
the Court concludes that the plaintiff has sufficiently alleged that the municipal policymaker
promulgated and had actual or constructive knowledge of the staffing policy.
c. The plaintiff has not sufficiently alleged that the failure to
staff was the moving force behind the constitutional
violation.
Despite the above conclusions, the plaintiff’s Monell claim fails on the final element
because she has not plausibly alleged that the staffing policy was promulgated with
deliberate indifference and was the actual cause of the failure to protect Martinez. Monell
liability requires that the challenged policy be the “moving force” behind the alleged
constitutional violation. St. Maron Props., L.L.C., 78 F.4th at 760. Ultimately, “a plaintiff
must show that the municipal action was taken with the requisite degree of culpability and

must demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.” Valle, 613 F.3d at 542 (quoting Brown, 520 U.S. at 404).
The culpability element requires the plaintiff to sufficiently allege “either that the
policy itself was unconstitutional or that it was adopted with deliberate indifference to the
‘known or obvious fact that such constitutional violations would result.’” Webb v. Town of
Saint Joseph, 925 F.3d 209, 219 (5th Cir. 2019) (footnote omitted) (quoting Shumpert v. City of
Tupelo, 905 F.3d 310, 316–17 (5th Cir. 2018)). Deliberate indifference can be shown by
demonstrating “a pattern of similar violations” arising from a policy “that is so clearly
inadequate as to be ‘obviously likely to result in a constitutional violation.’” Burge v. St.

Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003) (quoting Thompson v. Upshur County, 245
F.3d 447, 459 (5th Cir. 2001)). A single incident may also show deliberate indifference,
under a “narrow” exception to the requirement of a pattern, if “the facts giving rise to the
violation are such that it should have been apparent to the policymaker that a constitutional
violation was the highly predictable consequence of a particular policy.” Id. at 373. “[A]
showing of simple or even heightened negligence will not suffice.” Valle, 613 F.3d at 542
(quoting Piotrowski, 237 F.3d at 579).
The Court finds that the plaintiff has not sufficiently alleged municipal deliberate
indifference with regard to the failure to staff. Although the plaintiff has alleged three prior

suicides by hanging in the jail, there is no allegation that the failure to have mental-health
personnel at the jail after hours or on weekends contributed to those past incidents at all.
See Dkt. No. 1 ¶¶ 422–31. Indeed, as the defendant notes, none of the past suicides occurred
on a weekend. Dkt. No. 7 at 22. In other words, the plaintiff has not shown that the
alleged past constitutional violations arose from this policy, so those deaths do not indicate

that the County was deliberately indifferent in adopting this policy. See Burge, 336 F.3d at
370.
Nor does the single-incident exception apply here. Martinez’s successful suicide
attempt was not the “highly predictable consequence” of not having mental-health
personnel on site over the weekend. The plaintiff alleges that Volpato indicated that
Martinez “scaled 2 on intent” and had “[n]o suicidal ideation,” no behaviors of concern,
and “no plan reported.” Dkt. No. 1 ¶ 401 (emphasis omitted). Volpato made the choice to
discontinue Martinez’s suicide watch and violent-cell restriction. Id. ¶ 392. And there are
no allegations as to any facts between Martinez’s removal from suicide watch and his

successful suicide attempt that would have made his attempt obvious. See id. ¶¶ 407–17.
Under these facts, it was not highly predictable or obvious to the Sheriff that not having
mental-health staff available to Martinez that weekend would result in a failure to protect
him from his suicidal tendencies.
Lastly, the plaintiff has not sufficiently alleged that the failure to staff was the actual
cause of the alleged failure to protect Martinez from a known risk of suicide. The second
component of the moving-force element requires the plaintiff to “establish a ‘direct causal
link’ between the municipal policy and the constitutional injury.” Valle, 613 F.3d at 546
(quoting Brown, 520 U.S. at 404). “[T]he connection must be more than a mere ‘but for’

coupling between cause and effect”—the policy “must be the actual cause of the
constitutional violation.” Id. (quoting Thompson v. Connick, 578 F.3d 293, 300 (5th Cir.
2009), rev’d on other grounds, 563 U.S. 51 (2011)); see also Est. of Bonilla, 982 F.3d at 309,
311–12. However, the plaintiff has failed to plead facts establishing such causation.
The plaintiff argues that “[Martinez] committed suicide on the date that he did—on

June 19, 2021, a weekend” in part because of “the lack of mental health providers at the jail
on the weekend who[m] he could have spoken to instead of committing suicide.” Dkt. No.
16 at 24. However, the Court finds that this is insufficient to plausibly allege that the failure
to staff was a moving force. The plaintiff has not shown that the County’s failure to staff
was the but-for cause of the failure to protect Martinez from a known risk of suicide, much
less a more-than-but-for cause. There are no allegations that Martinez requested mental
health care before his successful suicide attempt but did not receive it due to it being a
weekend. See Dkt. No. 1 ¶¶ 407–17; cf. Bonilla, 982 F.3d at 311 (finding no causation in part
because the decedent had not asked for the medication that was allegedly wrongfully

withheld). There are also no allegations that Martinez exhibited any behavior prior to his
suicide that would have alerted mental-health personnel that he needed care or additional
protection had personnel been at the jail. See Dkt. No. 1 ¶¶ 407–17. Thus, even if mental-
health personnel had been staffed at the jail that weekend, the plaintiff has not demonstrated
that they would have adequately protected Martinez from his suicide attempt. In fact, the
plaintiff has repeatedly alleged that the mental-health staff had been deficient in treating
Martinez and had “deliberately ignored . . . obvious facts indicating [Martinez] was a
suicide risk . . . the entire time [they were] responsible for his mental health care.” See, e.g.,
id. ¶¶ 16, 276, 403–04. As a result, there is no reasonable inference that the lack of mental-

health personnel actually caused the alleged constitutional violation.
In addition, the mere possibility that Martinez “could have spoken to” mental-health
personnel, see Dkt. No. 16 at 24, is speculative and does not elevate the failure to staff to a
moving force. Martinez did request mental health services on two occasions during his
detention, on February 19 and March 28. Dkt. No. 1 ¶¶ 94, 135–36. Thus, he could have

requested services again between June 17 and June 19. But without any factual allegations
that he did in fact request services, there is no “direct causal link” between the failure to staff
and the alleged failure to protect Martinez on those days. The speculation that the presence
of mental-health professionals at the jail might have prevented Martinez’s suicide does not
provide a basis to plausibly find that their absence was the actual cause of his suicide.
Thus, although the plaintiff has sufficiently alleged that the County had a policy of
not staffing mental-health personnel after hours and on weekends and that the Sheriff had
actual or constructive knowledge of the policy, she has not sufficiently alleged that the
policy was the moving force behind the failure to protect Martinez. Thus, her Monell claim

against the County is dismissed.
ii. The plaintiff has failed to plausibly allege a conditions-of-
confinement claim.
For the same reasons the plaintiff’s Monell claim fails, her conditions-of-confinement
claim falls short. A conditions-of-confinement claim challenges the “general conditions,
practices, rules, or restrictions of pretrial confinement.” Sanchez, 956 F.3d at 791 (quoting
Hare v. City of Corinth, 74 F.3d 633, 644 (5th Cir. 1996) (en banc)). “The issue is whether the
conditions ‘amount to punishment’” before conviction. Id. (quoting Bell v. Wolfish, 441 U.S.
520, 535 (1979)). To state such a claim, a plaintiff must plead facts that plausibly establish
that (1) a condition (2) that is not reasonably related to a legitimate government objective
(3) caused the constitutional violation. Id. In particular, the Fifth Circuit has stated that
“isolated examples of illness, injury, or even death, standing alone, cannot prove that
conditions of confinement are constitutionally inadequate.” Shepherd, 591 F.3d at 454. A
plaintiff challenging jail conditions must allege “a pervasive pattern of serious deficiencies in
providing for [the detainee’s] basic human needs; any lesser showing cannot prove

punishment in violation of the detainee’s Due Process rights.” Id.
Because the Fifth Circuit has observed that the conditions-of-confinement elements
of a condition and causation are nearly identical to the Monell elements of a policy and a
moving force, the deficiencies in the plaintiff’s Monell claim are also fatal to her conditions-
of-confinement theory. See Est. of Bonilla, 982 F.3d at 308, 311–12. The plaintiff has not
sufficiently alleged that the failure to transport or failure to house were conditions of
confinement because she has not shown that that they were “sufficiently extended or
pervasive acts or omissions of jail officials.” See supra Section 3.B.i.a; Sanchez, 956 F.3d at
791 (cleaned up) (quoting Duvall, 631 F.3d at 207). And she has not plausibly alleged a

pervasive pattern of the County failing to provide for Martinez’s basic human needs. To the
contrary, she has alleged that Lubbock County jail staff moved Martinez into a violent cell
and issued restrictions for his safety on multiple occasions. See supra Section 3.B.i.a. The
plaintiff has also failed to allege facts showing that the failure to staff was a more-than-but-
for cause of the alleged failure to protect Martinez from a known risk of suicide. See supra
Section 3.B.i.c; Est. of Bonilla, 982 F.3d at 308, 311–12. As a result, the Court finds that the
plaintiff has not sufficiently alleged a conditions-of-confinement claim.
The Court also notes that the plaintiff has not alleged or argued that any of the
identified policies are not reasonably related to a legitimate government objective. See

generally Dkt. No. 1 ¶¶ 495–555. This is especially problematic for the failure to staff, since
such a policy does not seem to be “arbitrary or purposeless.” Cf. Shepherd, 591 F.3d at 452
(quoting Bell, 441 U.S. at 539). Thus, the plaintiff has also failed to meet the second
element of a conditions-of-confinement claim.
In short, the plaintiff has failed to state a conditions-of-confinement claim. She has

not alleged facts showing that the failure to transport or failure to house were conditions in
the Lubbock County jail. She also has not alleged facts showing that the failure to staff was
not reasonably related to a legitimate government interest and was the cause of the alleged
constitutional violation. Accordingly, the plaintiff’s conditions-of-confinement claim
against the County is dismissed.
iii. The plaintiff has failed to plausibly allege an episodic-acts-or-
omissions claim.
Finally, even if the Court were to construe the plaintiff’s allegations as an episodic-
acts-or-omissions claim against the County for the acts of its officials,6 that claim is also
deficient. Under an episodic-acts-or-omissions theory, “a plaintiff must show ‘(1) that the
municipal employee violated [the pretrial detainee’s] clearly established constitutional rights
with subjective deliberate indifference; and (2) that this violation resulted from a municipal
policy or custom adopted and maintained with objective deliberate indifference.’” Cadena v.
El Paso County, 946 F.3d 717, 727 (5th Cir. 2020) (alteration in original) (quoting Brumfield v.

6 One paragraph of the complaint states, “Plaintiff invokes two alternative theories of liability
against Victoria County [sic] for the death of Zachariah [sic]: the ‘episodic acts and omissions’ of
County jailers, and the unconstitutional ‘conditions of confinement’ at the County jail.” Dkt. No.
1 ¶ 480. However, the following sections of the complaint allege “Episodic Acts or Omissions
Claim against Defendant Wellpath, LLC” and “Conditions of Confinement Claims Against
Defendants Lubbock County and Wellpath.” Id. at 66, 68. The episodic-acts-or-omissions section
solely discusses the actions of Wellpath’s employees and Wellpath’s policies. Id. ¶¶ 486–94.
However, out of an abundance of caution, the Court also analyzes a potential episodic-acts-or-
omissions theory. See Sanchez, 956 F.3d at 792 (noting that the district court should have examined
a claim pled as a conditions-of-confinement claim as an episodic-acts-or-omissions claim).
Hollins, 551 F.3d 322, 331 (5th Cir. 2008)). The jail official must have “had ‘subjective
knowledge of a substantial risk of serious harm’ to the detainee and responded to that risk
with deliberate indifference.” Est. of Henson v. Wichita County, 795 F.3d 456, 464 (5th Cir.
2015) (quoting Hare, 74 F.3d at 650). Subjective knowledge requires that the official be

“aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists” and then actually “draw the inference.” Id. (quoting Est. of Henson v. Krajca,
440 F. App’x 341, 343 (5th Cir. 2011)).
Here, the plaintiff has alleged that County jail staff were aware of facts giving rise to
an inference of a substantial risk of serious harm. She argues that “[t]he Lubbock County
Jail was on notice that [Martinez] had previously tied a ligature around his neck
necessitating suicide watch as security staff are the ones that found him and placed him on
suicide watch” and that staff “were aware of [Martinez’s] suicidal behavior as he ha[d] been
attempting suicide in their jail since January 9, 2021.” Dkt. No. 1 ¶¶ 418, 421.

However, the plaintiff does not allege that the particular Lubbock County officers
who failed to transport Martinez and housed him in a non-suicide-prevention cell actually
drew the inference that there was a substantial risk of serious harm to him. See id.
¶¶ 410–33, 551–55. And several facts in the complaint make it implausible that they did so.
For one, a mental-health professional discontinued Martinez’s suicide watch and violent-
cell restriction after indicating that he “scaled 2 on intent” and had “[n]o suicidal ideation,”
no behaviors of concern, and “no plan reported.” Id. ¶¶ 392, 401 (emphasis omitted).
Although the plaintiff argues that this decision was in error, she does not allege that the
County officers knew it was improper, making it implausible that the officers were actually

aware of a substantial risk of suicide at that time. And again, there are no allegations of any
conduct between Martinez’s removal from suicide watch and his successful suicide attempt
that would have made those officers actually draw the inference of a substantial risk of
serious harm. See id. ¶¶ 407–17. Thus, there is not a plausible allegation that Lubbock
County officers actually drew the inference of a substantial risk of suicide and then were

deliberately indifferent to it. As a result, insofar as the plaintiff’s Section 1983 claim against
the County relies on an episodic-acts-or-omission theory, the claim is dismissed.
C. The plaintiff has sufficiently alleged an ADA claim based on the denial of
medical housing, but she has not alleged a claim based on the denial of
medical or mental health care.
Next, the Court finds that the plaintiff has sufficiently alleged a claim under the
Americans with Disabilities Act (ADA) on one of her theories, but not the other. Title II of
the ADA provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Such public entities include local governments and their
instrumentalities, such as county jails. Id. § 12131(1)(A)–(B); Smith v. Harris County, 956
F.3d 311, 317 (5th Cir. 2020). To state a claim under the ADA, a plaintiff must show:
(1) that he is a qualified individual within the meaning of the ADA;
(2) that he is being excluded from participation in, or being denied
benefits of, services, programs, or activities for which the public entity
is responsible, or is otherwise being discriminated against by the public
entity; and (3) that such exclusion, denial of benefits, or discrimination
is by reason of his disability.
Smith, 956 F.3d at 317 (quoting Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th
Cir. 2004)).
The plaintiff alleges that Martinez was a qualified individual because “he suffered
from debilitating schizoaffective disorder: depressive type and he was substantially limited
in neurological function and other major life activities.” Dkt. No. 1 ¶ 569. The County
does not seek dismissal of the claim based on this element. See Dkt. No. 7 at 29. Next, the
plaintiff alleges that Martinez was denied the benefit of services in two ways: (1) he was
denied medical housing after he was taken off of suicide watch; and (2) he “was denied

access to the medical/mental health care he needed after hours and on the weekend,” and
“he needed mental healthcare on June 19, 2021[,] as a result of his disability and
[d]efendant Lubbock County refuses to provide mental healthcare to ‘qualifying individuals’
like [Martinez] during that time.” Dkt. No. 1 ¶¶ 570–73, 575, 579. Then, the plaintiff
asserts that these denials were by reason of Martinez’s disability because (1) “[u]pon
information and belief [Martinez] was denied medical housing because his schizoaffective
disorder caused him to self-harm and attempt suicide which the medical housing unit did
not want to be responsible for at that time”; and (2) County “policy specifically limits
mental health providers from being at the jail after hours and on the weekends—[as]
opposed to all medical care providers.” Id. ¶¶ 580, 582.7

As to the denial of medical housing, the County argues that the plaintiff’s allegation
that the denial was by reason of Martinez’s disability is “too conclusory to properly state a
causal analysis.” Dkt. No. 7 at 29. The Court disagrees. Pleadings based on information
and belief “are generally deemed permissible under the Federal Rules, especially in cases in
which the information is more accessible to the defendant.” Johnson v. Johnson, 385 F.3d
503, 531 n.19 (5th Cir. 2004). Often, “permitting allegations on information and belief is a

7 Although the plaintiff cites the proposition that the ADA also requires public entities to provide
reasonable accommodations for qualified individuals with disabilities, see Dkt. No. 1 ¶ 567, she
does not plead or argue that the County failed to reasonably accommodate Martinez—only that it
denied him the benefits of services, see id. ¶¶ 568–86.
practical necessity” and should be allowed “when matters that are necessary to complete the
statement of a claim are not within the knowledge of the plaintiff but [she] has sufficient
data to justify interposing an allegation on the subject.” 5 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1224 (4th ed. Apr. 2023 update). Accordingly, “the

Twombly plausibility standard does not prevent a plaintiff from pleading facts alleged upon
information and belief where the facts are peculiarly within the possession and control of the
defendant or where the belief is based on factual information that makes the inference of
culpability probable.” Innova Hosp., 892 F.3d at 730 (cleaned up) (quoting Arista Records,
LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)).
Here, the plaintiff has alleged that Martinez requested medical housing but was
denied it. Dkt. No. 1 ¶¶ 402, 581. She has also alleged that, upon information and belief,
Martinez was denied medical housing because the medical housing unit did not want to be
responsible for his self-harm or suicide attempts and that an inmate not exhibiting those

behaviors would have been granted a medical housing cell if in need. Id. ¶¶ 582–83. Her
other factual allegations also give rise to the reasonable inference that the refusal of medical
housing occurred around the same time Martinez’s mental-health problems were worsening.
The refusal was noted by Volpato on June 17, see id. ¶¶ 392, 402, and Martinez had been
hearing voices and tied a piece of blanket around his neck earlier that month, see id. ¶¶ 318,
340, 368, 375–76. The reasons behind the denial of medical housing are “peculiarly within
the possession and control of the defendant,” see Innova Hosp., 892 F.3d at 730 (quoting
Arista Records, LLC, 604 F.3d at 120), and these allegations “raise a reasonable expectation
that discovery will reveal evidence” about the reasons for the refusal, see In re S. Scrap

Material Co., 541 F.3d at 587 (quoting Twombly, 550 U.S. at 556). Thus, the plaintiff’s
allegation that the denial of medical housing was by reason of Martinez’s disability is not
conclusory, and the Court must accept it as true in resolving the current motion. As a
result, the plaintiff has sufficiently stated an ADA claim as to the refusal of medical housing.
As to the denial of medical and mental health care, the Court finds that the plaintiff

has not sufficiently alleged that Martinez was denied care “by reason of” his disability. The
plaintiff has established the lack of mental health care after hours and on weekends. See
supra Section 3.B.i.a. But as alleged by the plaintiff herself, the lack of access to medical and
mental health care after hours and on the weekends was “[a]s a result” of the “policy” that
“the Lubbock County Jail did not employ mental health personnel to work at the Jail . . .
after hours and on the weekends.” See Dkt. No. 1 ¶¶ 574–75, 580. In other words,
Martinez was not denied mental health care on the weekends because of his disability—he
was denied care from a mental-health professional on the weekends because no one in the
jail received mental health care on the weekends. Even if he were not disabled, he would

not have been able to see a mental-health professional on the weekend. In addition,
Martinez did receive medical attention on the weekends from the Wellpath medical staff
who performed suicide-watch checks. See id. ¶¶ 97, 101, 147, 151, 301. As a result, the
plaintiff has not stated an ADA claim as to the denial of medical and mental health care.
The Court finds that the plaintiff has sufficiently pled an ADA claim regarding the
refusal of medical housing. However, the plaintiff has not sufficiently pled that the failure to
provide medical or mental health care after hours and on the weekends violated the ADA,
and that claim is dismissed.
D. The plaintiff has not sufficiently alleged claims for wrongful-death or
survival-action damages under Section 1983.
Finally, the Court construes the plaintiff’s wrongful-death and survival-action claims
as theories for damages under Section 1983 and finds that those theories must fail. The
complaint discusses the legal standard “[t]o recover on a wrongful death claim under 42
U.S.C. § 1983,” and it does not cite any state law provisions for the wrongful-death and
survival-action claims. See id. ¶¶ 587–606. In addition, the County did not treat these
claims as separate causes of action in its motion to dismiss all claims against it, and the
plaintiff did not contest that characterization in its response. See Dkt. Nos. 7; 16.8
In the Fifth Circuit, Sections 1983 and 1988 incorporate state wrongful-death and

survival statutes “to provide full remedies for violations of constitutional rights.” Rhyne v.
Henderson County, 973 F.2d 386, 390–91 (5th Cir. 1992). Thus, “civil rights plaintiffs in
Texas may recover for their own injuries and the injuries of a deceased person resulting
from the constitutional violations of government actors if the plaintiffs are the surviving
spouse, children, parents, heirs, legal representatives, or estate of the deceased.” De Paz v.
Duane, 858 F. App’x 734, 737–38 (5th Cir. 2021). However, a plaintiff still must establish a
county’s liability to recover against the county under Sections 1983 and 1988. See Rhyne,
973 F.3d at 391–92. Thus, because the plaintiff has not successfully pled her Section 1983

8 To the extent that the plaintiff did intend to assert these as state-law claims, the Court notes that
Lubbock County is a governmental unit shielded by sovereign immunity. See Duffie v. Wichita
County, 990 F. Supp. 2d 695, 717 (N.D. Tex. 2013). The Texas Tort Claims Act only waives
sovereign immunity for the clearly defined areas enumerated in the Act. Id. And the Fifth Circuit
has recognized that the Texas wrongful-death statute does not waive governmental immunity for
units of Texas government. See Saenz v. City of McAllen, 396 F. App’x 173, 179 (5th Cir. 2010)
(citing Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001–.002). The plaintiff does not argue that
sovereign immunity has been waived in any other way.
claims against Lubbock County, see supra Section 3.B, she cannot recover wrongful-death or
survival-action damages under Section 1983.
E. The Court grants the plaintiff leave to amend her complaint.
Although the Court finds that the plaintiff’s Section 1983 claims and one of her ADA
claims should be dismissed, there is a strong policy in favor of granting leave to amend. See

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
Thus, district courts often allow plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case. Id. The plaintiff has not previously been given an
opportunity to amend. And she has requested leave to amend should the Court find there
are deficiencies in her complaint. Dkt. No. 16 at 29. Accordingly, the Court dismisses the
aforementioned claims without prejudice and grants the plaintiff 14 days from the date of
this Order to file a first amended complaint should she choose to do so.
4. Conclusion
In sum, the plaintiff has failed to plead her Section 1983 claims. Her claims under

both Monell and conditions-of-confinement theories fail because she has not sufficiently
alleged a policy or condition as to two of her theories and has not sufficiently alleged that
the third was the moving force behind the alleged constitutional violation. And even
construed under an episodic-acts-or-omissions theory, the plaintiff has not alleged that
County officials were deliberately indifferent. As a result, her wrongful-death and survival-
action theories also fail. The plaintiff also has failed to state an ADA claim as to the denial
of medical or mental health care because she has not shown that the denial was by reason of
Martinez’s disability. However, she has sufficiently pled her ADA claim based on the
denial of medical housing.
Thus, the Court grants in part and denies in part Lubbock County’s motion to
dismiss (Dkt. No. 7). All claims against Lubbock County except the medical-housing ADA
claim are dismissed without prejudice. Because of the strong policy in favor of granting
leave to amend at least once, the Court grants the plaintiff leave to amend her complaint
within 14 days from the date of this Order.
So ordered on March 18, 2024.

AAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671762. Public record. Not legal advice.