Pena Arita v. United States of America

UNITED STATES DISTRICT COURT September 11, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

MCALLEN DIVISION

ORLANDA DEL CARMEN PEÑA §

ARITA, individually and as next friend of §

D.M.A. and C.M.A. and as representative of §

the ESTATE OF MARCO ANTONIO §

MUÑOZ, §

§

Plaintiffs, § CIVIL ACTION NO. 7:19-cv-00288

§

VS. §

§

COUNTY OF STARR, TEXAS, §

§

Defendant. §

OPINION AND ORDER

The Court now considers “Defendant Starr County, Texas’ Motion to Dismiss”1 and

Plaintiffs’ response in opposition.2 Defendant filed an untimely3 reply brief eight days after

Plaintiffs’ response without seeking leave of Court or obtaining Plaintiffs’ consent, so

Defendant’s reply brief4 is STRICKEN and will not be considered. After considering the

motion, record, and relevant authorities, the Court GRANTS Defendant’s motion and

DISMISSES this case.

I. BACKGROUND

This is a civil rights lawsuit arising out of Marco Antonio Muñoz’s suicide while jailed in

the custody of Defendant County of Starr, Texas on May 13, 2018.5 This case’s full background

1 Dkt. No. 162.

2 Dkt. No. 164.

3 See LR7.4.E (emphasis added) (“Unless otherwise directed by the presiding judge, a party who has filed an

opposed motion may file a brief within 7 days from the date the response is filed.”).

4 Dkt. No. 168.

5 See Dkt. No. 159 at 15, ¶ 82.

is described in the Court’s earlier order.6 As relevant here, United States Customs and Border

Patrol agents picked up Marco Antonio Muñoz shortly after he crossed the international border

near Granjeno, Texas on May 11, 2018, and transferred him to the custody of Starr County on

May 12th. After Mr. Muñoz displayed erratic behavior such as accusing jailers of plotting to kill

him and ripping up booking documents, Starr County employees placed him in a padded cell. In

that cell, Mr. Muñoz tied his sweater to a floor grate and suffocated himself with the makeshift

noose. Plaintiffs initiated this case on August 18, 2019, bringing multiple claims.7

In a lengthy opinion on June 30, 2020, the Court considered 29 litigant briefs and

supplemental filings and dismissed every one of Plaintiffs’ claims except for the violation of the

Americans with Disabilities Act and Rehabilitation Act claim against Starr County.8 The Court

ordered Plaintiffs to amend their complaint.9 Plaintiffs timely complied, and the Third Amended

Complaint is the live pleading.10 In response to the amended complaint, the last remaining

Defendant, Starr County, moved to dismiss.11 The motion is ripe for consideration.

II. DISCUSSION

a. Legal Standard

The Court uses federal pleading standards to determine the sufficiency of a complaint.12

Under Federal Rule of Civil Procedure 12(b)(6), to avoid dismissal, the complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’”13 The Court reads the complaint as a whole14 and accepts all well-pleaded facts as true

6 Dkt. No. 158 at 3–5.

7 See Dkt. No. 1.

8 Dkt. No. 158.

9 Id. at 63.

10 See Dkt. No. 159.

11 Dkt. No. 162.

12 See Genella v. Renaissance Media, 115 F. App'x 650, 652–53 (5th Cir. 2004) (holding that pleadings must

conform to federal pleading requirements).

13Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

(even if doubtful or suspect15) and views those facts in the light most favorable to the plaintiff

(because a Rule 12(b)(6) motion is viewed with disfavor16), but will not strain to find inferences

favorable to the plaintiff,17 but also will not indulge competing reasonable inferences that favor

the Defendant.18 A plaintiff need not plead evidence19 or even detailed factual allegations,

especially when certain information is peculiarly within the defendant’s possession,20 but must

plead more than “‘naked assertion[s] devoid of ‘further factual enhancement’” or “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements” to survive

a motion to dismiss.21

In evaluating a motion to dismiss, Courts first disregard any conclusory allegations or

legal conclusions22 as not entitled to the assumption of truth,23 and then undertake the “context-

specific” task, drawing on judicial experience and common sense, of determining whether the

remaining well-pled allegations give rise to entitlement to relief.24 “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

14 See Gulf Coast Hotel-Motel Ass'n v. Miss. Gulf Coast Golf Course Ass'n, 658 F.3d 500, 506 (5th Cir. 2011)

(“While the allegations in this complaint that the Golf Association's anticompetitive acts ‘substantially affected

interstate commerce’ are not sufficient on their own, the complaint here read as a whole goes beyond the allegations

rejected in Twombly and Iqbal.”).

15 Twombly, 550 U.S. at 555–56.

16 Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (quoting Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011)

(“This court construes facts in the light most favorable to the nonmoving party, ‘as a motion to dismiss under

12(b)(6) “is viewed with disfavor and is rarely granted.”’”).

17 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).

18 See Lormand v. US Unwired, Inc., 565 F.3d 228, 267 (5th Cir. 2009).

19 Copeland v. State Farm Ins. Co., 657 F. App'x 237, 240–41 (5th Cir. 2016).

20 See Innova Hosp. San Antonio, LP v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018)

(holding that pleading “on information and belief” is acceptable when the inference of culpability is plausible).

21 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also id. at 679 (holding that a complaint that

“do[es] not permit the court to infer more than the mere possibility of misconduct” does not suffice to state a claim).

22 In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quotation omitted) (“We do not

accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).

23 Mustapha v. HSBC Bank USA, NA, No. 4:11-CV-0428, 2011 WL 5509464, at *2 (S.D. Tex. Nov. 10, 2011)

(Hanks, J.) (“[A] court is not required to accept conclusory legal allegations cast in the form of factual allegations if

those conclusions cannot reasonably be drawn from the facts alleged.”).

24 Iqbal, 556 U.S. at 678–79; see also Fernandez-Montez v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)

(“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a

motion to dismiss”).

inference that the defendant is liable for the misconduct alleged.”25 Courts have “jettisoned the

[earlier] minimum notice pleading requirement”26 and the complaint must plead facts that

“nudge” the claims “across the line from conceivable to plausible,”27 because discovery is not a

license to fish for a colorable claim.28 The complaint must plead every material point necessary

to sustain recovery; dismissal is proper if the complaint lacks a requisite allegation.29 However,

the standard is only “to determine whether the plaintiff has stated a legally cognizable claim that

is plausible, not to evaluate the plaintiff’s likelihood of success.”30

The Court is limited to assessing only the complaint, its proper attachments, documents

incorporated into the complaint by reference, and matters of which the Court may take judicial

notice.31 Attachments to the complaint become part of the pleadings for all purposes,32 but the

Court is not required to accept any characterization of them because the exhibit controls over

contradictory assertions,33 except in the case of affidavits.34 Because the focus is on the

pleadings, “if, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56,”35 but not if the material is a matter of public record36 or if a defendant

25 Iqbal, 556 U.S. at 678.

26 St. Germain v. Howard, 556 F.3d 261, 263 n.2 (5th Cir. 2009).

27 Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).

28 Barnes v. Tumlinson, 597 F. App'x 798, 799 (5th Cir. 2015); see Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)

(“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it

does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

29 Rios v. City of Del Rio, 444 F.3d 417, 421 (5th Cir. 2006); accord Campbell v. City of San Antonio, 43 F.3d 973,

975 (5th Cir. 1995).

30 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (quoting Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010))

31 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).

32 Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (citing FED. R. CIV. P. 10(c)).

33 Kamps v. Baylor Univ., 592 F. App'x 282, 284 n.1 (5th Cir. 2014)

34 Bosarge v. Miss. Bureau of Narc., 796 F.3d 435, 440–41 (5th Cir. 2015) (“[W]hile the affidavits may be

considered as an aid to evaluating the pleadings, they should not control to the extent that they conflict with

[plaintiff’s] allegations.”).

35 FED. R. CIV. P. 12(d).

36 Joseph v. Bach & Wasserman, L.L.C., 487 F. App'x 173, 178 n.2 (5th Cir. 2012) (per curiam) (citing Funk v.

Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)).

attaches documents to a motion to dismiss that are “referred to in the plaintiff’s complaint and

are central to her claim.”37

b. Analysis

Defendant argues that Plaintiffs’ claim should be dismissed because Plaintiffs do not

establish that Mr. Muñoz had a disability, that he was discriminated against because of his

alleged disability, that he showed a clear need for disability accommodation, or that alleged

discrimination caused Mr. Muñoz to commit suicide.38 Plaintiffs argue their allegations are

sufficient.39

“Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, like § 504 of

the Rehabilitation Act, 29 U.S.C. § 794(a), provides that individuals with disabilities shall not

‘be denied the benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.’”40 “The RA and the ADA are judged under the same legal

standards, and the same remedies are available under both Acts.”41 Jurisprudence interpreting

either the ADA or RA is applicable to both.42

A plaintiff must first establish a prima facie case of discrimination before relief

under the ADA [or RA] can be considered. To establish a prima facie case of

discrimination under the ADA, a plaintiff must demonstrate: (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.43

37 Causey v. Sewell Cadillac–Chevrolet, 394 F.3d 285, 288 (5th Cir. 2004).

38 Dkt. No. 162, at 9–10 ¶ 13.

39 Dkt. No. 164 at 14, ¶ 17.

40 Frame v. City of Arlington, 657 F.3d 215, 220–21 (5th Cir. 2011) (en banc).

41 Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).

42 Delano-Pyle v. Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002).

43 Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004); accord Hale v. King, 642 F.3d 492,

499 (5th Cir. 2011).

“In addition to their respective prohibitions of disability-based discrimination, both the ADA and

the Rehabilitation Act impose upon public entities an affirmative obligation to make reasonable

accommodations for disabled individuals. For this type of claim, a plaintiff must show that the

entity knew of the disability and its consequential limitations, either because the plaintiff

requested an accommodation or because the nature of the limitation was open and obvious.”44 To

recover damages, Plaintiffs must show intentional discrimination.45 “The Supreme Court has

held that prisons are public entities that may not exclude disabled individuals from participation

in or deny them the benefits of their services, programs, or activities.”46 The Court now turns to

evaluating the various legal standards against Plaintiff’s allegations.

1. Whether Plaintiffs Show that Mr. Muñoz was a Qualified Individual

Plaintiffs allege “Mr. Muñoz had two qualifying disabilities under the ADA and RA: (1)

a trauma-related mental disability and (2) suicidal behavior disorder.”47 Defendant argues that

Mr. Muñoz lacked any “particular mental illness that also substantially limited a major life

activity” and is not a qualified individual under the ADA.48 Plaintiffs respond that the definition

of a disability is broad and Plaintiffs have adequately pled Mr. Muñoz qualifying disability and

status.49 Obviously, whether Mr. Muñoz had a qualifying disability is a threshold issue.

As relevant here, “[t]he term ‘disability’ means, with respect to an individual, a physical

or mental impairment that substantially limits one or more major life activities of such

individual”50 and the term also means being regarded as having a disability “if the individual

establishes that he or she has been subjected to an action prohibited under [the ADA] because of

44 Cadena v. El Paso Cty., 946 F.3d 717, 723–24 (5th Cir. 2020)

45 Delano-Pyle v. Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002).

46 Cadena., 946 F.3d at 723 (citing Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)).

47 Dkt. No. 159 at 19, ¶ 112.

48 Dkt. No. 162 at 10–15, ¶¶ 14–24.

49 Dkt. No. 164 at 14–19, ¶¶ 18–29.

50 42 U.S.C. § 12102(1)(A) (Americans with Disabilities Act); accord 29 U.S.C. § 705(9)(B) (Rehabilitation Act).

an actual or perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity,” unless the impairment has an actual or expected duration

of 6 months or less.51 “The term ‘qualified individual with a disability’ means an individual with

a disability who, with or without reasonable modifications to rules, policies, or practices, the

removal of architectural, communication, or transportation barriers, or the provision of auxiliary

aids and services, meets the essential eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public entity.”52 Defendant Starr County’s

jail wherein Mr. Muñoz committed suicide counts as a public entity.53

“ADA regulations generally require an individualized determination of disability based

on whether the condition ‘substantially limits an individual in a major life activity,” that is,

categorical exclusions do not necessarily exist in the ADA term “disability.”54 The definition of

“disability” is broad and accommodating—an impairment that “substantially limits” a major life

activity need only reduce the disabled person’s ability to perform a major life activity as

compared to the general population.55 “[T]he threshold issue of whether an impairment

‘substantially limits’ a major life activity should not demand extensive analysis,”56 and does not

call for medical, scientific, or expert proof.57

51 42 U.S.C. § 12102(1)(C), (3).

52 42 U.S.C. § 12131(2).

53 See 42 U.S.C. § 12131(1); Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209 (1998) (“[T]he [ADA’s] language

unmistakably includes State prisons and prisoners within its coverage.”).

54 Garrett v. Thaler, 560 F. App'x 375, 383 (5th Cir. 2014); see 29 C.F.R. pt. 1630 app. (“Section 1630.2(j)(1)(iv)

Individualized Assessment Required, But With Lower Standard Than Previously Applied.”).

55 Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590–91 (5th Cir. 2016); accord Williams v. Tarrant

Cty. Coll. Dist., 717 F. App'x 440, 446–47 (5th Cir. 2018).

56 29 C.F.R. § 1630.2(j)(1)(iii).

57 Williams, 717 F. App’x at 446–47 (quoting 29 C.F.R. § 1630.2(j)(1)(v)).

The first question is whether a mental condition manifested by erratic behavior, or

suicidal ideation, suicidal tendencies, or a suicidal behavior disorder,58 can constitute a disability

under the ADA. Defendant argues it cannot.59 Courts have reached differing conclusions on this

question.60 This Court holds that a mental impairment of which erratic behavior and attempted or

completed suicide is a symptom can constitute a disability under the ADA and Rehabilitation

Act. This holding is consistent with the text of the ADA. A qualifying disability is any “mental

impairment that substantially limits one or more major life activities of such individual.”61 A

disability is substantially limiting if it impedes an individual’s ability to care for themselves or

impairs the individual’s neurological or brain functioning.62 Thus, a mental or behavioral

disorder manifesting in erratic behavior including attempted suicide or suicidal tendencies

substantially impairs the ability to care for oneself and indicates an impairment to normal or

healthy brain functioning.63 If there were any lingering doubt, the statute resolves it in favor of

broad coverage under the ADA.64 Furthermore, the ADA directs courts to look to implementing

regulations,65 and the applicable regulations direct broad coverage and instruct that “the

threshold issue of whether an impairment ‘substantially limits’ a major life activity should not

demand extensive analysis” because the central question is whether discrimination has

58 Plaintiffs term Mr. Muñoz’s condition a “trauma-related mental disability” and a “suicidal behavior disorder.”

Dkt. No. 159 at 19, ¶ 112.

59 See Dkt. No. 162 at 14, ¶¶ 20–21.

60 Compare Wade v. Montgomery Cty., No. 4:17-CV-1040, 2017 WL 7058237, at *6 (S.D. Tex. Dec. 6, 2017)

(Milloy, J.) (“[A]llegations of suicidal risk are not sufficient, without more, to show that an impairment is

disabling.”), with Williamson v. Larpenter, No. CV 19-254, 2019 WL 3719761, at *13 (E.D. La. July 15, 2019)

(quotation omitted) (“Depression and other mental illnesses can qualify as disabilities for purposes of the ADA.”),

and McCollum v. Livingston, No. 4:14-cv-3253, 2017 WL 608665, at *34 (S.D. Tex. Feb. 3, 2017) (Ellison, J.)

(holding that a depressive disorder that “blunted” survival instincts qualified as a disability under the ADA).

61 42 U.S.C. § 12102(1)(A).

62 Id. § 12102(2).

63 See 29 C.F.R. § 1630.2(j)(1)(ii) (“An impairment is a disability within the meaning of this section if it

substantially limits the ability of an individual to perform a major life activity as compared to most people in the

general population. An impairment need not prevent, or significantly or severely restrict, the individual from

performing a major life activity in order to be considered substantially limiting.”).

64 See id. § 12102(4)(A)–(B) (the ADA shall be interpreted in favor of broad coverage).

65 42 U.S.C. § 12205a.

occurred.66 Lastly, this holding is consistent with the Second and Sixth Circuits. The Second

Circuit held “[a] mental illness that impels one to suicide can be viewed as a paradigmatic

instance of inability to care for oneself. It therefore constitutes a protected disability under the

Rehabilitation Act.”67 The Sixth Circuit agreed that a mental impairment “of which . . .

attempted suicide was a symptom . . . would ‘substantially limit’ [a person] in the major life

functions of caring for one's self, making reasonable decisions, and exercising sound thought and

judgment.”68 Accordingly, the Court holds that Plaintiffs have sufficiently alleged a qualifying

disability.

Having found that a mental impairment which manifests in attempted or completed

suicide may constitute a disability under the ADA and Rehabilitation Act, the Court must now

determine whether Plaintiffs’ allegations are sufficient to show that Mr. Muñoz was disabled by

such mental health disorder or impairment. Plaintiffs allege that:

Mr. Muñoz’s trauma-related impairment was evinced by statements and actions

that showed intense psychological disturbances: delusions that the government

had killed his family; paranoia that the government would kill him; disorganized

speech and behavior; altered sense of reality; inability to remember basic

information such as his address; violent outbursts; self-injury; hypervigilance;

problems with concentration; and exaggerated startled response.69

Defendant argues that Plaintiffs lack “the training and experience to offer a retroactive diagnosis

based on scant information available.”70 Defendant further argues that all of Plaintiffs’

allegations of disordered behaviors “first appeared at the federal detention center” and that his

paranoid or delusional behaviors, such as saying that law enforcement killed his family and were

66 29 C.F.R. § 1630.2(j)(1)(i)–(iii).

67 Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 168 (2d Cir. 2003).

68 Chandler v. Specialty Tires of Am. (Tenn.), Inc., 134 F. App'x 921, 925–26 (6th Cir. 2005).

69 Dkt. No. 159 at 19, ¶ 113.

70 Dkt. No. 162 at 10, ¶ 15.

going to kill him, does not establish his qualifying disability.71 In response, Plaintiffs point to

numerous specific allegations which they argue evince Mr. Muñoz’s qualifying disability.72

Without the aid of expert evidence, the Court cannot say definitively whether Mr. Muñoz

suffered from a mental impairment, disability, or disorder. At this stage, the Court’s role is to

interpret Plaintiffs’ complaint as a whole and grant Plaintiffs every reasonable inference to

determine whether Plaintiffs state a plausible claim for relief.73 The Court finds Plaintiffs’

allegations plausibly allege that Mr. Muñoz suffered from a disability. Plaintiffs allege that:

Mr. Muñoz [continually showed] disorganized, self-injurious behavior and

repeatedly express[ed] his paranoia and delusions that federal agents had

murdered his family and that he was next. He mumbled incoherently to himself.

Although he was literate, he could write nothing beyond indecipherable scribbles

and the letter X. He could not provide the home address where he had lived for

years.74

He engaged in other erratic behavior like striking a window and ripping up documents.75 One

jailer observed that Mr. Muñoz “was not thinking straight.”76 Read together, these allegations

sufficiently allege that Mr. Muñoz suffered from a qualifying mental disability, particularly

given the inclusiveness that is meant to be accorded to that term and brevity which the Court

should give this question.77

2. Whether Plaintiffs Allege that Defendant Discriminated Against Mr. Muñoz by

Reason of his Disability

Defendant moves to dismiss on the grounds that Plaintiffs allegations do not identify any

specific act of discrimination or a failure to provide medical care because of Mr. Muñoz’s

71 Id. ¶¶ 19, 22.

72 Dkt. No. 164 at 18–19, ¶¶ 28–29.

73 See supra notes 13–18.

74 Dkt. No. 159 at 2, ¶ 3; accord id. at 11, ¶¶ 57, 61.

75 See id. at 11, ¶¶ 57–61.

76 Id. at 10, ¶ 53.

77 See 29 C.F.R. § 1630.2(j)(1).

alleged disability.78 Plaintiffs respond that Defendant has no explanation other than disability

discrimination for its employees’ alleged actions.79

Plaintiffs must show that Mr. Muñoz was “being excluded from participation in, or being

denied benefits of, services, programs, or activities for which the public entity is responsible,

or . . . otherwise being discriminated against by the public entity [and] that such exclusion, denial

of benefits, or discrimination is by reason of his disability.”80 Under the Rehabilitation Act,

Plaintiffs must “establish that disability discrimination was the sole reason for the exclusion or

denial of benefits[,] [w]hile under Title II of the ADA, ‘discrimination need not be the sole

reason.’”81

Plaintiffs first argue that “Defendant failed to provide effective accommodations for [Mr.

Muñoz’s] disabilities. That failure deprived Mr. Muñoz of his rights to safe conditions of

confinement and medical care.” Therefore, Defendant failed in its affirmative obligation to

accommodate Mr. Muñoz’s disabilities.82 However, Plaintiffs’ argument conflates a “disability-

discrimination” claim, with “a failure-to-accommodate claim,”83 which the Court will analyze

later.84 Plaintiffs “can prove their [ADA] Title II claim by showing either that [Mr. Muñoz] was

excluded from participating in some benefit at the [Starr County] Jail or that [he] was otherwise

subjected to discrimination by the Jail.”85 With respect to the disability-discrimination claim

discussed in this subsection, Plaintiffs’ argument of an alleged failure to accommodate has no

relevance.

78 Dkt. No. 162 at 16–17, ¶¶ 26–27.

79 Dkt. No. 164 at 25–26, ¶¶ 48–49.

80 Cadena v. El Paso Cty., 946 F.3d 717, 723 (5th Cir. 2020).

81 Wilson v. City of Southlake, 936 F.3d 326, 330 (5th Cir. 2019) (quoting Bennett-Nelson v. La. Bd. of Regents, 431

F.3d 448, 454 (5th Cir. 2005)).

82 Dkt. No. 164 at 26, ¶ 49.

83 See Smith v. Harris Cty., 956 F.3d 311, 318 (5th Cir. 2020).

84 See infra Section II.b.3.

85 Lee v. Valdez, No. CIV.A.3:07-CV-1298-D, 2009 WL 1406244, at *12 (N.D. Tex. May 20, 2009).

Plaintiffs’ only remaining argument, then, is “[t]here is no indication that Defendant

discriminated against Mr. Muñoz for some reason other than his disabilities.”86 But this

argument is circular: Defendant discriminated against Mr. Muñoz because of his disabilities

because Defendant did not discriminate against Mr. Muñoz for any reason other than his

disabilities. The Court is unpersuaded. The Court agrees with Defendant that “there are no facts

alleged from which the Court could infer that either the cell assignment or the failure to provide

medical care were because of a disability.”87 Plaintiffs’ allegation that jailers put Mr. Muñoz into

a padded cell88 does not demonstrate an act of discrimination. Plaintiffs’ attached exhibit reveals

that jailers put Mr. Muñoz into a padded cell after “Deputy Galvan and Munoz were on the floor

and . . . Munoz was resisting Deputy Galvan.”89 There are no facts alleged that Starr County

jailers placed Mr. Muñoz in the padded cell because Mr. Muñoz was “acting suicidal.”90

Plaintiffs also do not allege in a nonconclusory fashion that Defendant jailers’ failure to provide

medical care was due to Mr. Muñoz’s mental state. Plaintiffs allege that jailers forced Mr.

Muñoz into a padded cell and neglected him there,91 but do not allege that jailers did so by

reason of Mr. Muñoz’s mental disability.92 The Court holds that Plaintiffs’ allegations fail to

state a claim for disability discrimination.

3. Whether Plaintiffs show that Mr. Muñoz was Denied Reasonable

Accommodations

The parties additionally disagree whether Plaintiffs state a claim that Defendant failed to

accommodate Mr. Muñoz. Defendant argues that Plaintiffs cannot make out a failure-to-

86 Dkt. No. 164 at 25, ¶ 48.

87 Dkt. No. 162 at 16, ¶ 26.

88 See Dkt. No. 159 at 21, ¶ 122 (“Starr County jailers’ treatment of Mr. Muñoz—their decision to place him in a

dangerous cell and neglect him, rather than provide him necessary medical care or at the very least adequate

observation—constituted intentional discrimination under the ADA and the RA.”).

89 Dkt. No. 159-1 at 25, ¶¶ 8.31, 8.33; accord id. at 32, ¶¶ 12.16–12.17.

90 See id.

91 Dkt. No. 159 at 12, ¶¶ 62–65.

92 See Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).

accommodate claim because Plaintiffs fail to allege a known or otherwise obvious need for

accommodation that Defendant failed to accommodate for.93 Plaintiffs respond that they have

sufficiently shown that “Mr. Muñoz’s disabilities, resulting limitations, and necessary

accommodations were open, obvious, and apparent.”94

In addition to prohibiting discrimination, the ADA and the Rehabilitation Act . . .

impose upon public entities an affirmative obligation to make reasonable

accommodations for disabled individuals. . . . To succeed on a failure-to-

accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a

disability; (2) the disability and its consequential limitations were known by the

covered entity; and (3) the entity failed to make reasonable accommodations.95

“For this type of claim, a plaintiff must show that the entity knew of the disability and its

consequential limitations, either because the plaintiff requested an accommodation or because

the nature of the limitation was open and obvious.”96 “[T]he ADA requires [public entities] to

reasonably accommodate limitations, not disabilities.”97 Accordingly, a person need not say “I

suffer from a disability—mental illness—and request an accommodation” to be entitled to

appropriate accommodation.98 However, neither do “the accommodation provisions of the ADA

and RA . . . require public entities to ‘guess’ an individual's need for an accommodation.”99

Mental disabilities are ordinarily discreet and rarely open and obvious, so “a disabled [plaintiff]

cannot remain silent and expect [the defendant] to bear the initial burden of identifying the need

93 Dkt. No. 162 at 18, ¶ 30.

94 Dkt. No. 164 at 19, ¶ 30.

95 Smith v. Harris Cty., 956 F.3d 311, 317 (5th Cir. 2020) (quotations omitted).

96 Cadena v. El Paso Cty., 946 F.3d 717, 724 (5th Cir. 2020).

97 Windham v. Harris Cty., 875 F.3d 229, 236 (5th Cir. 2017) (second alteration in original) (quoting Taylor v.

Principal Fin. Grp., 93 F.3d 155, 164 (5th Cir. 1996)).

98 White v. Watson, No. 16-CV-560-JPG-DGW, 2018 WL 2047934, at *14 (S.D. Ill. May 2, 2018); see Cadena, 946

F.3d at 724 (“[T]his court has affirmed a finding of intentional discrimination when a county deputy knew that a

hearing-impaired suspect could not understand him, rendering his chosen method of communication ineffective, and

the deputy made no attempt to adapt.”).

99 McCoy v. Tex. Dep't of Criminal Justice, No. C.A.C 05 370, 2006 WL 2331055, at *7 (S.D. Tex. Aug. 9, 2006)

(Jack, J.) (collecting cases).

for, and suggesting, an appropriate accommodation” in most cases.100 In short, the mental illness

must be open and obvious without guesswork.

Defendant points out that “Mr. Munoz had no history of mental illness or suicide

attempts and specifically denied being suicidal during the book-in process, so there clearly was

no reason for the jailers to conclude it was wrong to put him in that cell or to allow him to keep

his clothes.”101 Plaintiffs point to allegations evincing what this Court previously called “bizarre

and clearly troubled” behavior.102 Specifically, Mr. Muñoz said that Starr County jailers killed

his family and were going to kill him, he drew an X on and ripped up booking documents, he

mumbled or spoke incoherently, and he could not remember basic information like his home

address.103 When Mr. Muñoz arrived at the Starr County Jail, “CBP agents warned . . . that Mr.

Muñoz had suffered a seizure and a panic attack” and one jailer understood that Mr. Muñoz was

acting aggressively and not thinking straight.104 Jailers who worked the night shift of May 12,

2018, informed the morning shift May 13th jailers “about the signs and symptoms of Mr.

Muñoz’s disability, including his self-injurious and delusional behavior,” and a supervisor

reviewed a report for why Mr. Muñoz had been placed in a solitary padded cell.105

The Court holds that Plaintiffs’ allegations do not “sho[w] that the disability, resulting

limitation, and necessary reasonable accommodation were open, obvious, and apparent to the

entity’s relevant agents.”106 The Court finds Windham v. Harris County particularly instructive.

In that case, the plaintiff suffered from cervical stenosis and could not extend his neck or look

100 Taylor, 93 F.3d 165.

101 Dkt. No. 162 at 18, ¶ 30.

102 Peña Arita v. United States, No. 7:19-cv-00288, 2020 WL 3542256, at *18 (S.D. Tex. June 30, 2020) (Alvarez,

J.).

103 Dkt. No. 159 at 11–12, ¶¶ 55–64, cited in Dkt. No. 164 at 21, ¶ 33.

104 Dkt. No. 159 at 10, ¶¶ 51–53.

105 Id. at 13, ¶ 70.

106 Windham v. Harris Cty., 875 F.3d 229, 237 (5th Cir. 2017) (internal quotation marks omitted).

straight ahead without injury.107 After a car crash, responding officers arrived at the scene and

wanted to administer a field sobriety test to the plaintiff.108 One officer administered a gaze

nystagmus test, which “involves waiving a stimulus in front of the subject’s face and tracking his

eye movements” to detect intoxication.109 Before and during the test, the plaintiff complained

that his neck hurt, but “never indicated that he could not complete the test or asked [the officer]

to stop. He also never asked [the officer] to administer the test differently or to use another test

instead.”110 After the field sobriety test, the plaintiff was not arrested but he later sued for injury.

No party disputed that a reasonable jury could find that the plaintiff suffered injury as a result of

the gaze nystagmus test, but this Court still awarded summary judgment to the defendants.111 On

appeal, the Fifth Circuit affirmed summary judgment for the defendants, holding that “a jury

could find that the officers knew or should have known [the plaintiff] suffered from a neck-

related disability. But knowledge of a disability is different from knowledge of the resulting

limitation. And it certainly is different from knowledge of the necessary accommodation. To

prevail, [the plaintiff] must adduce evidence that all three were or should have been obvious. He

fails to make that showing.”112 Even though the plaintiff complained of his neck at the time and

showed the officers a doctor’s note describing some limitations, the Fifth Circuit held that the

plaintiff never made his limitations obvious and apparent to prevail on an ADA claim.113

Although the Windham case was decided at summary judgment and used more scrutinizing

standards, the case stands for the proposition that, when a plaintiff does not specifically request a

disability or limitation accommodation, the plaintiff’s disability must be emphatically obvious

107 Windham, 875 F.3d at 233.

108 Id.

109 Id.

110 Id. at 234.

111 Id.

112 Id. at 238.

113 Id.

and apparent and clearly indicate the limitation and need for accommodation.114 Such obvious

disabilities include “well-understood and outwardly visible disabilities like, say, blindness,

deafness, or being wheelchair-bound.”115 As for mental disabilities, in another case decided at

the motion to dismiss stage, even though the plaintiff informed the defendant of his specific

mental disability diagnosis, the Fifth Circuit found his allegations insufficient because, “when

dealing in the amorphous world of mental disability, it will often be impossible for an employer

to identify an employee's specific disabilities, limitations, and possible accommodations,”116 and

the ADA does not require guessing or clairvoyance as to a plaintiff’s need for accommodation.117

The Court finds these precedents controlling in this case. “[T]here is simply nothing in

[Plaintiffs’] allegations that would have notified [Defendant] of [Mr. Muñoz’s] limitations

requiring accommodation.”118 Plaintiffs would have this Court hold that when jailers are exposed

to bizarre, erratic, belligerent, or troubled behavior by a detainee, but do not foresee that

detainee’s plan or intent to commit suicide, they have therefore failed to accommodate for an

obvious mental disability. The Court cannot stretch the ADA or Rehabilitation Act this far, and

Plaintiffs cite no authority wherein a court has done so, although they point to Hobart v. City of

Stafford.119 Hobart is not such a case and is distinguishable, because the defendant city in that

case was specifically told of the plaintiff’s need for an officer trained in mental health crisis

intervention and told of the plaintiff’s need for medication and to go to the hospital.120 Here, Mr.

Muñoz never requested mental health intervention, medication, or hospitalization, and twice

114 See id. at 237.

115 Id. at 238.

116 Jin Choi v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 633 F. App'x 214, 216 (5th Cir. 2015) (alteration and

internal quotation marks deleted); see Taylor v. Principal Fin. Grp., 93 F.3d 155, 165–66 (5th Cir. 1996) (remarking

that mental disabilities are discreet and uniquely within the knowledge of the disabled person and their healthcare

provider).

117 Windham, 875 F.3d at 236–37.

118 Jin Choi, 633 F. App'x at 216.

119 Dkt. No. 20–21, ¶ 33.

120 784 F. Supp. 2d 732, 758 (S.D. Tex. 2011) (Ellison, J.).

denied that he was suicidal.121 Plaintiffs never allege that Mr. Muñoz remarked on his disability

or requested any accommodation. Plaintiffs also emphasize122 two Fifth Circuit cases, Perez v.

Doctors Hospital at Renaissance, Ltd.,123 and Delano-Pyle v. Victoria County,124 wherein the

Fifth Circuit held that defendants’ ignorance of “clear indications” of disabilities constituted

discrimination under the ADA or Rehabilitation Act, but these cases are also easily

distinguishable from this case because they both involved an admittedly obvious disability,

specifically deafness, that the defendants ignored in spite of clear communication challenges.

The Court holds that Perez and Delano-Pyle are not controlling in this case; Windham is.

Plaintiffs’ strongest allegations of “clear indications” of a mental disability are that

“Jailer Lopez” observed Mr. Muñoz’s self-harming behavior and that unspecified jailers

described Mr. Muñoz’s “self-injurious and delusional behavior” to other unspecified jailers at the

Starr County Jail shift change.125 The self-injuring behavior Plaintiffs point to, however, is

described in Plaintiffs’ own exhibit thusly:

Jailer Lopez said that while he was in the front picket, Munoz struck the detox

window one time and that Jailer Lopez spoke to Munoz through the “dukane”

system, which is similar to a phone system according to Jailer Lopez. Jailer Lopez

said he asked Munoz if he was okay and that Munoz nodded “yes.” Jailer Lopez

said he advised Munoz that they would continue the booking process in a short

time and then Jailer Lopez hung up the phone. Jailer Lopez said he then observed

Munoz kneel down facing the wall with his hands in the air and begin praying.126

121 Dkt. No. 159-1 at 24, ¶ 8.25 (“Jailer Lopez said that he administered the health and suicide screening questions

and that Munoz gave no indication of any health problems or any thoughts of suicide or actions in the past that were

suicidal.”); id. at 31, ¶ 12.12 (“Deputy Galvan said that Jailer Lopez asked Munoz a variety of questions and that

Munoz was not thinking about hurting himself.”).

122 Dkt. No. 159 at 23, 25 ¶¶ 40, 45.

123 624 F. App'x 180, 185 (5th Cir. 2015).

124 302 F.3d 567, 575 (5th Cir. 2002).

125 Dkt. No. 159, ¶¶ 59, 70.

126 Dkt. No. 159-1 at 24, ¶ 8.27.

The Court may consider this exhibit over Plaintiffs’ exaggerated characterization that “Mr.

Muñoz started to harm himself again by striking the window.”127 Plaintiffs also allege that Mr.

Muñoz harmed himself in other ways by kicking at walls and windows,128 but Plaintiffs do not

allege that Defendant or its employees were aware of this specific behavior,129 Plaintiffs’ exhibit

reveals that this behavior was an attempt at escape, not self-harm,130 and Plaintiffs strain

credulity and common sense by attempting to characterize kicking as self-harming behavior,

which this Court cannot indulge upon these allegations.131 Plaintiffs’ other allegations refer to

familiar inmate behavior of aggression or belligerence, common in a carceral milieu,132 which

simply do not make a disability, the resulting limitations of that disability, and the necessary

reasonable accommodations “open, obvious, and apparent to the” jailers133 because such

behavior could have been indicative of any number of causes, including stress, distrust, and

anger. In sum, the Court holds that Plaintiffs’ allegations fail to state a claim to ADA or

127 Compare Dkt. No. 159 at 11, ¶ 59, with supra text accompanying notes 31–33.

128 See Dkt. No. 159, ¶¶ 2, 34, 44, 47, 50.

129 See id. at 10, ¶ 51 (alleging that unspecified “CBP agents” warned unspecified “Starr County jailers” of

unspecified “preceding events”). This allegation is conclusory.

130 Dkt. No. 159-1 at 36, ¶ 15.11 (“Officer Jimenez said that Agent Flores advised Officer Jimenez that Munoz was

resisting transport and had attempted to kick out the rear window of his Border Patrol Vehicle.”); id. at 55, ¶¶ 24.13–

.14 (“Agent Montelongo said that the transport Border Patrol Agents were concerned that Munoz was going to kick

open the door and escape which is why they had put out a call over the radio for assistance. Agent Montelongo said

he asked if Munoz was injured and the transport Border Patrol Agents said no.”); id. at 57, ¶¶ 26.4, 26.6 (“I

discovered that Munoz was at times un-compliant and attempted to escape the processing facility at one point. . . . I

discovered that Munoz was being transported to the Starr County Jail due to his behavior at the processing center

and that while in route, attempted to kick open the door of a Border Patrol unit and later tried to escape out of the

back of the said unit.”).

131 See supra note 17.

132 See Branton v. City of Moss Point, 261 F. App'x 659, 661 (5th Cir. 2008) (“People who are violent to others often

are not violent to themselves. Therefore, unsurprisingly, courts have not considered a detainee fighting with police

officers as evidence that the detainee was suicidal.”); Posey v. Sw. Bell Tel. L.P., 430 F. Supp. 2d 616, 623 (N.D.

Tex. 2006) (“Anger, hostility, and belligerence are not uncommon displays of conduct by pretrial detainees or other

persons held in custody.”).

133 Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996).

Rehabilitation Act relief that is plausible on its face because Plaintiffs do not allege an obvious

or apparent mental disability and resulting limitations that Defendant failed to accommodate.134

4. Whether Plaintiffs Allege Intentional Discrimination

The parties disagree on whether Plaintiffs allege intentional discrimination under the

ADA or Rehabilitation Act.135 This is important because, “[e]ven when plaintiffs successfully

prove a disability-discrimination or a failure-to-accommodate claim, they may only recover

compensatory damages upon a showing of intentional discrimination.”136 Plaintiffs here request

only damages, attorneys’ fees and costs, and any other relief this Court deems proper.137

Intentional discrimination under the ADA or Rehabilitation Act “requires that the

defendant at least have actual notice of a violation” and “something more than deliberate

indifference to show intent.”138 “In the context of a failure-to-accommodate claim, intentional

discrimination requires at least actual knowledge that an accommodation is necessary.”139

“Something more than mere negligence must be shown.”140 “[F]acts creating an inference of

professional bad faith or gross misjudgment are necessary to substantiate a cause of action for

intentional discrimination under [the Rehabilitation Act, 29 U.S.C. § 794] or ADA.”141 “Intent is

usually shown only by inferences. Inferences are for a fact-finder and [a court is] not that.”142

134 Given this holding, and Plaintiffs’ failure to state a claim for disability discrimination, the Court need not

evaluate Plaintiffs’ arguments regarding proximate cause. See Dkt. No. 164 at 26–28, ¶¶ 50–55.

135 Compare Dkt. No. 162 at 21, ¶ 36, with Dkt. No. 164 at 23, ¶ 39.

136 Smith v. Harris Cty., 956 F.3d 311, 318 (5th Cir. 2020) (quotation omitted).

137 Dkt. No. 159 at 21–22, ¶ 126.

138 Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 575 (5th Cir. 2018) (quotation omitted).

139 Smith, 956 F.3d at 319.

140 Estate of A.R. v. Muzyka, 543 F. App'x 363, 365 (5th Cir. 2013).

141 Id. (quotation omitted).

142 Perez v. Doctors Hosp. at Renaissance, Ltd., 624 F. App'x 180, 184 (5th Cir. 2015) (citing Crawford v. Formosa

Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (citation omitted) (“We have often recognized the difficulty in

proving discrimination by direct evidence. Thus, the strength of the circumstantial evidence supporting the plaintiff's

prima facie case and showing the defendant's proferred [sic] reason is false may be enough to create an inference of

discrimination.”)).

Defendant argues Plaintiffs do not allege the Starr County jailers’ actual notice of Mr.

Muñoz’s mental disability.143 In response, Plaintiffs argue that the Starr County jailers became

aware of Mr. Muñoz’s mental disabilities and then intentionally discriminated against him by

failing to provide accommodations for his obvious disabilities.144 Plaintiffs cite two cases

wherein federal district courts found intentional discrimination.145 In the first case, the Texas

Department of Criminal Justice, in concert with the University of Texas Medical Department,

chose to assign prisoner Larry Gene McCollum to the “Hutchins Unit” in an area without air

conditioning in the summer of 2011.146 This Court acknowledged that the defendant Texas

Department and University of Texas were aware of Mr. McCollum’s morbid obesity and regular

taking of medications that increased his vulnerability to heat-related illnesses, and were aware of

a past death resulting from hyperthermia by an individual taking similar medications, but ignored

Mr. McCollum’s requests to move to a bottom bunk to avoid the exertion of climbing, and failed

to provide “wellness checks, access to respite areas, training on extreme temperatures, or cups

issued upon arrival.”147 This Court concluded that “[a]s a result of UTMB and TDCJ's actions

and inactions, McCollum was left to suffer for days, eventually succumbing to the heat and his

medical conditions only seven days after entering Hutchins Unit. A reasonable jury could infer

that both agencies intentionally discriminated against McCollum.”148 In the other case, the

Northern District of Texas refused to dismiss an ADA and Rehabilitation Act claim in which the

TDCJ knew the inmate plaintiff “suffered from severe bipolar disorder and schizophrenia, was

classified by TTUHSC doctors as ‘high risk suicide status,’ and had made serious suicide

143 Dkt. No. 162 at 21, ¶ 36.

144 Dkt. No. 164 at 24–25, ¶¶ 43–45.

145 Id. at 24, ¶ 43.

146 McCollum v. Livingston, No. 4:14-cv-3253, 2017 WL 608665 (S.D. Tex. Feb. 3, 2017) (Ellison, J.).

147 Id. at *40.

148 Id.

attempts in the past, including cutting his own throat at the Allred Unit requiring 43 sutures in

2010,” but the TDCJ nevertheless assigned the inmate to a cell with “dangerous tie-offs.”149 The

court held that Plaintiff sufficiently alleged that defendants failed to “reasonably accommodate

[the inmate’s] mental disability by placing him in a cell appropriate for someone with his well-

known history of suicide attempts [and] violated the ADA and Rehabilitation Act resulting in his

death.”

However, both cases are distinguishable from the instant case because both cases

Plaintiffs cite involved definitive evidence or allegations of the defendants’ knowledge of the

plaintiff’s disabilities or limitations. Here, Plaintiffs only allege that:

Defendant’s employees are not laymen, as Defendant argues. They are Texas

jailers with some training in mental health awareness and suicide prevention.

They were (1) informed of Mr. Muñoz’s history of self-destructive and delusional

behavior; and (2) able to identify that Mr. Muñoz did not seem “okay” or “right in

the head.” They were able to identify that Mr. Muñoz needed special housing and

regular monitoring. The jailers’ actions and statements confirm that Defendant

knew that Mr. Muñoz needed accommodations.150

The Court disagrees with Plaintiffs’ contention. Again, the Court does not find these arguments

and allegations sufficient to put Defendant’s employees on notice that “‘the disability, resulting

limitation, and necessary reasonable accommodation’ were ‘open, obvious, and apparent’ to the

entity’s relevant agents.”151 Plaintiffs’ allegations of Mr. Muñoz’s erratic and distressed

behavior, which the Starr County jailers obviously became aware of while Mr. Muñoz was in

their custody for less than one full day after stressful events, are a far cry from allegations that

defendants were aware of specific, diagnosed medical issues and resulting limitations that they

subsequently ignored. Accordingly, the Court holds that Plaintiffs’ Third Amended Complaint

149 Wright v. Tex. Dep't of Criminal Justice, No. 7:13-CV-0116-O, 2013 WL 6578994, at *1, 4 (N.D. Tex. Dec. 16,

2013).

150 Dkt. No. 164 at 21, ¶ 34 (citation omitted).

151 Windham v. Harris Cty., 875 F.3d 229, 237 (5th Cir. 2017) (quoting Taylor v. Principal Fin. Grp., 93 F.3d 155,

164 (5th Cir. 1996)); see supra text accompanying notes 106–134.

fails to state a claim for intentional discrimination under the ADA or Rehabilitation Act and that

no jury could reasonably draw the inference that Defendant is liable for intentional

discrimination consistent with Plaintiffs’ allegations and exhibits.

II. CONCLUSION AND HOLDING

For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss.’*

Plaintiffs’ claim under the Americans with Disabilities Act and Rehabilitation Act is

DISMISSED WITH PREJUDICE. All of Plaintiff's claims have been dismissed with

prejudice.'*° Accordingly, this case will terminate upon entry of the final judgment.

IT IS SO ORDERED.

DONE at McAllen, Texas, this 11th day of September 2020.

DW Mews

Micae 7 varez

United States District Judge

'? Dkt. No. 162.

See Dkt. No. 158.

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