McWilliams v. City of Houston

June 15, 2021

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHARMAINE § CIVIL ACTION NO.

McWILLIAMS, et al, § 4:17-cv-00345

Plaintiffs, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

CITY OF HOUSTON, et al, §

Defendants. §

OPINION AND ORDER

GRANTING MOTIONS TO DISMISS

Robert Stephen Jr died while in custody at the Houston

Central Jail. Charmaine McWilliams is his mother. She and

several other family members sued the City of Houston and a

number of its employees involved in Stephen’s arrest and

detention, asserting claims for state-law negligence and

constitutional violation of his civil rights.

The circumstances of Stephen’s death are quite unfortunate.

But the law doesn’t here place the blame on the individual

Defendants and the City. Their motions to dismiss must be

granted. Dkts 54, 55.

1. Background

The operative pleading is Plaintiffs’ fourth amended

complaint. All allegations in it are accepted as true at this stage.

Walker v Beaumont Independent School District, 938 F3d 724, 735

(5th Cir 2019), citing Campbell v Wells Fargo Bank, 781 F2d 440,

442 (5th Cir 1986).

a. Alleged actions and inaction

The Houston Police Department received a call reporting

suspicious behavior in the early morning hours of December 27,

2015. Defendant Gabrielle Alston is the HPD officer who

responded to the scene. Dkt 53 at ¶¶ 1.10, 4.3. She encountered

Stephen, observed that he was “highly intoxicated,” arrested him

for public intoxication, and took him to the Houston Central Jail

for processing and detention. Id at ¶¶ 4.3–4.4. Plaintiffs allege

that Alston failed to transport Stephen first “to a medical facility

for any detoxification” and failed to inform HCJ personnel of his

“highly visible intoxicated state.” Id at ¶ 4.4.

Defendant Raul Sardinas was the on-duty medical screener

at intake. Id at ¶ 1.7. Defendants Idelbio Perez-Gonzalez,

Lourdes Torres Ahmed, and Ntum Aza Altorshan work at the

HCJ as medical specialists and assisted Sardinas at intake.

Id at ¶¶ 1.6, 1.8, 1.9. These four together are referred to as the

HCJ Defendants. None are alleged to be medical doctors, and

Plaintiffs’ briefing confirms that they weren’t. Dkt 54 at 17.

Sardinas interviewed Stephen, who “complied with the

requests” made “during the screening and evaluation of him.”

Plaintiffs allege that Sardinas failed to have Stephen “treated by

any medical personnel or provided any medication” to detoxify

him before placing him in a holding cell. Dkt 53 at ¶ 4.8.

Perez-Gonzalez, Ahmed, and Altorshan observed that

Stephen was “clearly in an intoxicated and incoherent state” and

“unable to stand up on his own.” After Stephen “passed out” and

fell to the ground, they “made their initial checks on him.” They

then eventually “dragged” Stephen to place him in a holding cell.

Plaintiffs allege that the HCJ Defendants “failed to seek medical

assistance after observing” that Stephen was passed out and failed

to have Stephen treated by medical personnel or provided

medication towards detoxification. Id at ¶ 4.9.

About an hour and fifteen minutes later, Perez-Gonzalez was

sent upon request (without specification by whom) to examine

Stephen and “see why” he was unable to walk. “For unknown

reasons, Perez-Gonzalez was unable to check vital signs or

conduct a full physical examination, as specified in his job

duties.” And so, Plaintiffs allege, Perez-Gonzalez failed to

“provide any medical attention” or have Stephen “treated by any

medical personnel,” and failed to provide any medication towards

detoxification. Id at ¶ 4.10.

Stephen was ultimately placed alone in a holding cell for the

duration of the early morning hours. Id at ¶¶ 4.15, 4.22. An

officer notified Altorshan of “a medical emergency” requiring

attention about seven hours after he was first placed in his cell.

Id at ¶ 4.23. Altorshan and Ahmed found Stephen unresponsive

on the floor of his cell. They checked his vital signs, determined

that he wasn’t breathing and had no pulse, and “proceeded to

conduct CPR and use a defibrillator until the Houston Fire

Department arrived to take over.” Id at ¶¶ 4.23–4.24. These

efforts were unsuccessful, and Stephen was pronounced dead.

Id at ¶ 4.31. Plaintiffs allege in this regard that the HCJ

Defendants failed to render timely aid to Stephen or provide him

with medical treatment after he became nonresponsive. Id at ¶

4.25. They also allege that the HCJ Defendants failed to seek

medical treatment, to timely and appropriately administer CPR,

or to timely request or transport him for “life-saving medical

treatment.” Id at ¶¶ 4.26–30.

The City and the individual Defendants note in their motions

to dismiss that the underlying cause of death was an overdose

from ingesting cocaine. Dkt 54 at 18 n 2; Dkt 55 at 10 n 1.

Plaintiffs confirmed this fact at hearing on the motions.

b. Alleged policies

Allegations as to pertinent HCJ and other municipal policies

are muddled and scattered throughout the complaint. They could

certainly be pleaded with better linkage to allegations of deficient

conduct but can be generally understood. Curiously, some

policies are specified but then paired with indication that the

policy was followed, making it quite unclear what Plaintiffs meant

by such pleading.

For example, Plaintiffs allege that HCJ policy required the

HCJ Defendants to search arrestees on intake for weapons, illicit

drugs, or contraband. Id at ¶ 4.6. But they note that such search

was made of Stephen, and no weapons, illicit drugs, or

contraband were found. Id at ¶ 4.7.

Plaintiffs also allege that HCJ policy required the HCJ

Defendants “to screen and evaluate the health status of persons

placed in custody.” Id at ¶ 4.13. They assert generally that the

HCJ Defendants failed to “conduct the required face-to-face

inspections.” Id at ¶ 4.16 (emphasis original). But as noted above,

Plaintiffs also allege that Sardinas “interviewed” Stephen upon

intake for screening and evaluation, who “complied with the

requests.” Id at ¶ 4.8. Plaintiffs likewise allege that Perez-

Gonzalez, Ahmed, and Altorshan also “made their initial checks”

on Stephen. Id at ¶ 4.9. On the other hand, they allege that Perez-

Gonzalez was unable to check vital signs and thus didn’t conduct

a full physical examination when examining Stephen a bit over an

hour after intake. Id at ¶ 4.10.

Plaintiffs further allege that HCJ policy required the HCJ

Defendants “to physically and visually check on inmates every

thirty (30) minutes.” Id at ¶ 4.15. They squarely assert that the

HCJ Defendants failed to check on Stephen with that frequency.

Id at ¶¶ 4.16, 4.20.

And Plaintiffs allege that the Texas Administrative Code

required the City to have procedures in place for suicide

screening and prevention. Id at ¶ 5.1, citing 37 Tex Admin Code

pt 9 (Texas Commission on Jail Standards). But they allege that

“a suicide assessment was performed” on Stephen in accord with

this policy, without otherwise asserting that he committed or

attempted suicide. Id at ¶ 4.18.

c. Causes of action

Plaintiffs bring twelve causes of action across three

categories of claims. See Dkt 53 at ¶¶ 6.1–7.43. First, they bring a

negligence claim under the Texas Tort Claims Act against each

individual Defendant and against the City. Second, they bring a

constitutional claim under 42 USC § 1983 against each individual

Defendant for alleged violation of Stephen’s right to reasonable

medical care under the Eighth and Fourteenth Amendments.

Third, they bring a claim for municipal liability under 42 USC

§ 1983 against the City for its alleged failure to train the individual

Defendants and its ratification of their actions.

Plaintiffs filed action in February 2017, and the complaint

was originally assigned to Judge Lynn Hughes. Dkt 1. They have

since amended four times. The first amendment was by right

under Rule 15(a). See Dkt 3. The second corrected a mistake

relating to the representative capacity of Charmaine McWilliams.

See Dkts 5, 7. The third added several defendants and pertinent

facts. See Dkt 25. Defendants moved to dismiss that complaint,

asserting there the same arguments sponsored now. See Dkts 31,

35, 36. The action was then transferred to this Court in

October 2019. Dkt 47. Plaintiffs requested and received leave to

meet the then-pending motion to dismiss with “a further and

final amended complaint.” Minute Entry of 02/25/2020.

The operative pleading here is thus Plaintiffs’ fourth

amended complaint. Dkt 53. The individual Defendants and the

City filed motions to dismiss under Rule 12(b)(6). Dkts 54, 55.

2. Legal standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires

a plaintiff’s complaint to provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.”

Rule 12(b)(6) allows the defendant to seek dismissal if the

plaintiff fails “to state a claim upon which relief can be granted.”

Read together, the Supreme Court has held that Rule 8 “does

not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell

Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a

Rule 12(b)(6) motion to dismiss, the complaint “must provide

the plaintiff’s grounds for entitlement to relief—including factual

allegations that when assumed to be true ‘raise a right to relief

above the speculative level.’” Cuvillier v Taylor, 503 F3d 397, 401

(5th Cir 2007), quoting Twombly, 550 US at 555.

A complaint must therefore contain enough facts to state a

claim to relief that is plausible on its face. Twombly, 550 US at 570.

A claim has facial plausibility “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal,

556 US at 678, citing Twombly, 550 US at 556. This standard on

plausibility is “not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 US at 678, quoting Twombly, 550 US at 556.

Review on motion to dismiss under Rule 12(b)(6) is

constrained. The reviewing court must accept all well-pleaded

facts as true and view them in the light most favorable to the

plaintiff. Walker, 938 F3d at 735 (citations omitted). It must also

accept all inferences that plausibly follow from those specific

allegations. Iqbal, 556 US at 678, citing Twombly, 550 US at 556.

And it must generally limit itself to the contents of the complaint

and its attachments. Brand Coupon Network LLC v Catalina

Marketing Corp, 748 F3d 631, 635 (5th Cir 2014), citing Collins v

Morgan Stanley Dean Witter, 224 F3d 496, 498 (5th Cir 2000).

3. Consideration of jailhouse video

Ten segments of digital video exist of the events at different

locations inside the HCJ during Stephen’s processing and

detention. These aren’t specifically referenced in the fourth

amended complaint. Even so, Plaintiffs attached them with a

docket entry following their responses to the subject motions.

See Docket Entry of 06/25/2020. They argued at hearing that

the video should be reviewed on consideration of the motions.

Defendants disagreed.

As just noted, review on motion to dismiss is typically limited

to the complaint and its attachments. But a notable exception

permits consideration of documents or other undisputed

materials “if they are referred to in the plaintiff’s complaint and

are central to her claim.” Collins, 224 F3d at 498–99, quoting

Venture Associates Corp v Zenith Data Systems Corp, 987 F2d 429, 431

(7th Cir 1993). The Fifth Circuit has characterized this as a

“limited exception.” Scanlan v Texas A&M University, 343 F3d

533, 536 (5th Cir 2003), citing Collins, 224 F3d at 498. But it has

expressly recognized that a district court may consider pertinent

video (like that from an officer’s body camera or a jail hallway

camera) if the requirements stated above are satisfied. For

example, see Robles v Ciarletta, 797 F Appx 821, 831–32 (5th Cir

2019, per curiam). This is so because review of such evidence,

where appropriate, can assist the court “in making the elementary

determination of whether a claim has been stated.” Collins,

224 F3d at 499.

It would have been far better practice for the fourth

amended complaint to have simply and specifically cited the

video segments. But several reasons counsel in favor of their

discretionary consideration now. First, the video is quite

obviously central to the asserted claims. Indeed, it without

question is the source of the detailed allegation of relevant events

within the HCJ. Second, there’s no dispute that the City produced

the segments to Plaintiffs in April 2017 after the filing of the

second amended complaint. See Dkt 62. Third, there’s no

contention that the segments are incomplete or anything other

than an accurate depiction of the central events. Compare Taylor v

Hartley, 488 F Supp 3d 517, 526 (SD Tex 2020) (refusing to

consider proffer of select screenshots without submission of

entire videotape). And fourth, dismissal without their

consideration would likely warrant repleading in this regard,

which would serve only to make such citation explicit.

And so the segments have been reviewed. The longest is just

over nine hours and thirty minutes in length (Video 9), being a

camera from outside Stephen’s holding cell that shows his entire

time within it. Another is of similar length (Video 10), being a

related camera that shows the comings and goings of HCJ

personnel in the hallway outside the cell. Another two are

approximately four minutes in length (Videos 3 and 4), being two

cameras at each end of the room for the initial check and

screening of Stephen. The other six segments are relatively brief

(Videos 1, 2, 5, 6, 7, and 8), being cameras that show the

movement of Stephen between locations within the HCJ.

The segments appear to account for the entirety of Stephen’s

time within the HCJ. There’s no audio component. And the

timestamps don’t correspond to actual time of day because each

segment starts at 00:00:00. And so, for instance, timestamp

00:00:00 on Video 3 corresponds to roughly 2:30 am, the time of

Stephen’s processing at intake. And timestamp 00:00:00 on

Videos 9 and 10 corresponds to roughly 2:45 am, the time at

which Stephen was first placed in his cell. For clarity, citation

hereafter is made solely to the timestamp on the videos.

As vividly described in the pleadings, Stephen does appear

extremely unbalanced with difficulty standing, slow to respond,

and (at times) lacking in motor skills. But the video also shows

that he was able to respond and communicate to HCJ personnel

as they processed him, including as he lay on the floor when he

had difficulty standing. See generally Videos 3 and 4. And after

being taken to a holding cell, he was able to communicate with

staff while also sleeping, drinking, and moving about at certain

intervals over the ensuing hours. For example, see Video 9 at

00:19:45, 00:55:23, 01:27:25, 02:03:30, 03:50:20 (talking);

00:04:22, 00:23:45, 01:54:50 (drinking fluids provided); 00:24:05,

01:53:14, 02:39:10, 03:13:30 (sitting upright); 02:47:20, 04:19:27

(drinking at sink).

The segments also generally show that HCJ personnel

viewed Stephen in his cell more than forty times during the six-

and-a-half hours that he was detained there prior to his death. See

Videos 9 (cell) and 10 (hallway). Such views mainly consist of

officers walking by the cell with Stephen plainly visible in it (and

then back by on return). But others consist of them pausing to

talk or interact with him. These conclude with a visual check at

timestamp 06:10:31, about three minutes before he rolled from

his bunk onto the floor. He would have then been observed in

this state in several ensuing walk-bys and checks over a short

period of time. See Video 10 at 06:15:48, 06:34:48, 06:39:25,

06:47:54; see also Video 9 at 06:39:50. Officers then entered the

cell, with robust but ultimately unsuccessful efforts at CPR and

defibrillation ensuing for at least nine minutes. See Video 9

at 06:49:03.

These segments on the whole don’t depict the allegations any

better than the typical standard—being that well-pleaded facts

must be assumed true and viewed in their most favorable light,

including reasonable inferences. Walker, 938 F3d at 735, citing

Campbell, 781 2d at 442. This isn’t surprising because, again, the

description of events comes directly from the video segments.

As such, further reference will be to events as most favorably

described in the fourth amended complaint—subject to one

exception. Any allegation contradicted by a video segment will be

disregarded. A court isn’t required to (and indeed, shouldn’t)

accept as true allegations that are contradicted by the materials

attached to the complaint or otherwise appropriate for judicial

consideration. For example, see Cicalese v University of Texas Medical

Branch, 456 F Supp 3d 859, 872 (SD Tex 2020), citing R2

Investments LDC v Phillips, 401 F3d 638, 642 (5th Cir 2005).

4. Analysis

The motions to dismiss attack all three categories of claims

asserted by Plaintiffs.

a. State-law negligence claims

Plaintiffs bring claims for negligence under the Texas Tort

Claims Act against the individual Defendants and the City.

As to the individual Defendants. Section 101.106(a) of the Texas

Civil Practice and Remedies Code provides that a plaintiff

irrevocably waives further right to pursue tort claims against the

employees of a governmental unit where action is also brought

against the unit itself. See Dkt 54 at 11. Plaintiffs conceded this

point at hearing. As such, these claims against the individual

Defendants must be dismissed. See Sweetin v Texas City, 2020 WL

6130881, *2–3 (SD Tex).

As to the City. The Texas Tort Claims Act states that “a

municipality is liable under this chapter for damages arising from

its governmental functions.” See Tex Civ Prac & Rem Code

§ 101.0215(a). It sets out a nonexhaustive list of defined

governmental functions. Ibid. But it then provides a “limited waiver

of sovereign immunity” for municipalities performing those

functions in three types of circumstances. Texas Department of

Criminal Justice v Miller, 51 SW3d 583, 587 (Tex 2001). These

pertain to torts arising out of the use of motor-driven vehicles or

equipment, the condition or use of personal property, or the

condition or use of real property. Tex Civ Prac & Rem Code

§ 101.021; see also City of Houston v Nicolai, 539 SW3d 378, 386–

88 (Tex App—Houston [1st Dist] 2017, no pet). While that may

not be the most straightforward way to address the topic, Texas

courts have interpreted all of this to mean that a municipality

performing governmental functions is entitled to immunity except as

specifically waived in the Texas Tort Claims Act. For example,

see City of Sugarland v Ballard, 174 SW3d 259, 264 (Tex App—

Houston [1st Dist] 2005, no pet) (citations omitted).

The negligence claims by Plaintiffs target conduct and action

within the provision of police control and the operation of jails.

Those are specifically deemed to be governmental functions. See Tex

Civ Prac & Rem Code § 101.0215(a)(1), (a)(7). Plaintiffs’

allegations don’t concern any of the three circumstances subject

to the waiver of sovereign immunity. This means that the City is

immune from the asserted negligence claims. For example, see

Henderson v Iowa Colony, 2016 WL 2586715, *2 (Tex App—

Houston [1st Dist], no pet); Mitchell v Orange County, 2009 WL

2617582, *3 (Tex App—Beaumont, pet dismd woj), cert denied,

562 US 860 (2010). As such, these claims against the City must

be dismissed.

b. Section 1983 claims, individual Defendants

Plaintiffs bring constitutional claims under 42 USC § 1983

against Alston and the HCJ Defendants. The central concern is

the constitutional right of pretrial detainees to reasonable care for

their serious medical needs. See Dyer v Houston, 964 F3d 374, 380

(5th Cir 2020), citing Thompson v Upshur County, 245 F3d 447, 457

(5th Cir 2001). This right flows from “both the procedural and

substantive due process guarantees of the Fourteenth

Amendment.” Hare v City of Corinth, 74 F3d 633, 639 (5th Cir

1996, en banc), citing Bell v Wolfish, 441 US 520 (1979). Plaintiffs

also assert applicability of the Eighth Amendment. For example,

see Dkt 53 at ¶ 4.35. But those rights pertain only to convicted

prisoners. Hare, 74 F3d at 639, citing Estelle v Gamble, 429 US 97,

104 (1976).

Alston and the HCJ Defendants assert qualified immunity as

a defense. This protects a government official if the conduct

“either did not violate a federal right of the plaintiff or that right

was not clearly established at the time of the relevant events.”

Batyukova v Doege, 994 F3d 717, 724 (5th Cir 2021), citing Dyer,

964 F3d at 380. The Fifth Circuit frames the analysis as follows:

“To evaluate whether a government official is

entitled to qualified immunity, we conduct a

two-prong inquiry: we ask (1) whether the

undisputed facts and the disputed facts,

accepting the plaintiffs’ version of the disputed

facts as true, constitute a violation of a

constitutional right, and (2) whether the

defendant’s conduct was objectively reasonable

in light of clearly established law.” Carroll v

Ellington, 800 F3d 154, 169 (5th Cir 2015),

quoting Thompson, 245 F3d at 457. “We have

discretion to address either prong first without

necessarily addressing the other.” Carroll, 800

F3d at 169.

Harmon v Dallas County, 927 F3d 884, 892 (5th Cir 2019, per curiam)

(citation form altered).

As to the availability of qualified immunity generally, the

Fifth Circuit explains:

The precise question we must answer is

“whether a reasonable officer could have

believed [his conduct] to be lawful, in light of

clearly established law and the information the

officer[ ] possessed.” Keller v Fleming, 952 F3d

216, 225 (5th Cir 2020), quoting Anderson v

Creighton, 483 US 635, 641, (1987) (cleaned up).

“[W]e must frame the [clearly established law

question] with specificity and granularity,”

Morrow v Meachum, 917 F3d 870, 874–75 (5th Cir

2019), for “[t]he dispositive question is whether

the violative nature of particular conduct is

clearly established.” Id, quoting Mullenix v Luna,

577 US 7, 12 (2015, per curiam). The plaintiff

must identify controlling precedent that makes

the unlawfulness of the officer’s conduct

sufficiently clear that a reasonable officer would

have understood his conduct violated that right.

Keller, 952 F3d at 225, citing Reichle v Howards,

566 US 658, 664 (2012).

Brown v Tarrant County, 985 F3d 489, 495 (5th Cir 2021) (citation

form altered).

i. Officer Gabrielle Alston

Plaintiffs allege that Alston’s “acts and/or omissions

constitute deliberate indifference to Decedent’s medical needs,

was unreasonable and violated his rights under the Eighth and

Fourteenth Amendments to the United States Constitution.”

Dkt 53 at ¶¶ 7.4–7.5. They assert two failures on her part—to

transport Stephen first “to a medical facility for any

detoxification,” and to inform HCJ personnel of his “highly

visible intoxicated state.” Id at ¶ 4.4.

Allegation as to the latter is certainly deficient. The complaint

alleges that Alston arrested Stephen, “charging him with public

intoxication.” Id at ¶ 4.3. To be booked on such charge

necessarily means that Stephen’s intoxicated condition was in fact

disclosed at the HCJ. And the repeated allegation throughout the

fourth amended complaint is that Stephen’s state of intoxication

was highly visible and obvious. For example, see id at ¶¶ 4.4, 4.9, 4.10,

6.44, 7.17. Plaintiffs sponsor nothing to establish that a prison

officer has a constitutional obligation to inform her fellow

officers of known or obvious medical conditions. Compare

Hyatt v Thomas, 843 F3d 172, 176–78 (5th Cir 2016) (no

constitutional violation where jail officer informed her shift relief

of plaintiff’s nonobvious conditions). And certainly, nothing

suggests a clearly established right in that regard.

As to the more generalized assertion of deliberate

indifference, it is resolved on the same basis as the HCJ

Defendants, discussed next. That is, Plaintiffs establish neither

any violation of a constitutional right as to a failure to diagnose

or monitor Stephen, nor any violation of a clearly established

right in that regard.

The Section 1983 claim against Alston must be dismissed.

ii. The HCJ Defendants

Plaintiffs assert that “acts and/or omissions” of each of the

HCJ Defendants “constitute deliberate indifference to

Decedent’s medical needs.” Dkt 53 at ¶¶ 6.4 (as to Perez-

Gonzalez), 6.29 (as to Sardinas), 6.54 (as to Ahmed), 6.79 (as to

Altorshan). None of the alleged acts or omissions are specified in

any way in these counts, leaving it to review of the generalized

factual allegations that precede them. And the undifferentiated

mixture presented there makes it difficult to discern connections.

Consideration here starts with several more attenuated

allegations before addressing the central contention that the HCJ

Defendants violated Stephen’s constitutional right as a pretrial

detainee to reasonable care for his serious medical needs.

A. Attenuated allegations

Plaintiffs reference HCJ policies as to searches for weapons

and drugs, initial screening upon intake, and suicide assessment.

Dkt 53 at ¶¶ 4.6, 4.13, 5.1. But they nowhere specify the extent

to which such policies are required to implement federal

guarantees of right. It is also quite unclear whether Plaintiffs even

intend to assert claims on these bases. This is because other

allegations specifically concede compliance with those self-same

policies. Id at ¶¶ 4.7–4.9, 4.18. As such, to the extent asserted,

any such claims must be dismissed.

Plaintiffs also allege that the HCJ Defendants “used

excessive force” on Stephen while he “was alone in his cell,”

“inflicting bruises and abrasions to his head, hand, abdomen and

legs.” Id at ¶ 4.19. They don’t say how this was done, don’t allege

who did it, and don’t return to it when pleading their causes of

action. Such conclusory allegation can’t overcome a defense of

qualified immunity. See Arnold v Williams, 979 F3d 262, 267

(5th Cir 2020), citing Backe v LeBlanc, 691 F3d 645, 648 (5th Cir

2012). And in any event, the video segments submitted by

Plaintiffs for review entirely contradict the assertion. Quite

simply, no such conduct is recorded during Stephen’s time in his

cell or elsewhere in the HCJ. To the extent asserted, any claim in

this regard must also be dismissed.

Another attenuated allegation states that the HCJ

Defendants allowed Stephen to “fall to the ground” and “remain

face down on the floor,” after which they “repulsively and

inhumanely dragged” him across the floor to his cell. See Dkt 53

at ¶ 4.9. Like the above reference to excessive force, Plaintiffs

don’t attempt to connect this in their counts to any stand-alone

assertion of violation of constitutional right. As such, it is best

understood as indicating that the HCJ Defendants were on notice

of Stephen’s acute intoxication, from which Plaintiffs would

deduce deliberate indifference. And in that regard, the video

segments submitted by Plaintiffs do support their assertion that

Stephen was unable to stand, eventually losing his balance and

needing help. See Videos 3 and 4. But beyond this, the more

extreme characterization of the allegation cannot be accepted.

This is because the video segments show that the officers

generally took care to otherwise support Stephen and guard

against injury. That is, they lowered him to the ground without

incident, placed him on his side, searched him, and conversed at

times with him. The videos also show from several angles that

after the officers hauled Stephen across a smooth floor to his cell,

he was placed without incident onto a bunk and provided liquids

to drink. See Videos 5 through 9. And Plaintiffs don’t allege injury

from this conduct alone, with none apparent in the video. To the

extent that they intend this to assert a claim, it must be dismissed.

B. Failure to diagnose, to monitor, and to

render emergency aid

The central allegations by Plaintiffs concern an asserted

failure by the HCJ Defendants to properly diagnose Stephen, to

properly monitor him in his cell, and to render timely and

effective emergency aid once it was determined that he needed it.

These are factually distinct. But the same law addresses them all.

The standard for analyzing an alleged violation of the pretrial

right to medical attention depends upon whether the challenged

conduct involves an “episodic act or omission” or a “condition

of confinement.” Tamez v Manthey, 589 F3d 764, 769 (5th Cir

2009, per curiam), quoting Scott v Moore, 114 F3d 51, 53 (5th Cir

1997, en banc); see also Hare, 74 F3d at 644–45. This is plainly an

episodic-act case, being one where “the complained-of harm is a

particular act or omission of one or more officials.” Tamez,

589 F3d at 769, quoting Scott, 114 F3d at 53. For example, the

Fifth Circuit in Olabisiomotosho v City of Houston found such analysis

applied to an alleged failure by the officer “to take better care of”

an inmate and “to medically screen her and secure her to

treatment.” 185 F3d 521, 526 (5th Cir 1999).

To defeat qualified immunity in an episodic-acts case, the

plaintiff must “prove the official ‘acted or failed to act with

deliberate indifference to the detainee’s needs.’” Brown v Bolin,

500 F Appx 309, 314 (5th Cir 2012), quoting Hare, 74 F3d at 648.

To establish deliberate indifference in this context requires the

plaintiff to “establish that the official knew of and disregarded an

excessive risk of inmate health or safety.” Brown, 500 F Appx

at 314, citing Farmer v Brennan, 511 US 825, 837 (1994). This is an

“extremely high standard.” Domino v Texas Department of Criminal

Justice, 239 F3d 752, 756 (5th Cir 2001), citing Johnson v Treen,

759 F2d 1236, 1238 (5th Cir 1985). The Fifth Circuit holds, “The

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Brown, 500 F Appx at 314,

quoting Farmer, 511 US at 837. It also recently observed in Dyer

that some panels have articulated a further requirement that the

official subjectively intend that harm occur. 964 F3d at 380, 383–

84 (collecting cases). That needn’t be addressed here because the

traditional two-part inquiry disposes of the issue. See ibid.

As to failure to diagnose. Plaintiffs allege that the HCJ

Defendants should have recognized that Stephen needed urgent

medical attention and provided it, but that they failed to do so.

Dkt 53 at ¶¶ 4.10–11. It is well established on this point that a

passive failure to identify a serious medical need doesn’t

constitute deliberate indifference. Trevino v Hinz, 751 F Appx 551,

555 (5th Cir 2018, per curiam). Indeed, the Fifth Circuit is adamant

that this means that “negligence or even grossly negligent

conduct” doesn’t suffice. Id at 554, citing Thompson, 245 F3d at

458–59, in turn citing Hare, 74 F3d at 645, 649. “A gross error is

still only an error, and an error is not an abuse of power. Because

an error by a government official is not unconstitutional, ‘it

follows that gross negligence is not a sufficient basis for liability.”’

Hare, 74 F3d at 645, quoting Salazar v City of Chicago, 940 F2d 233,

238 (7th Cir 1991) (further citation omitted). Instead, only if it’s

shown that the defendants “failed to act when they were either

aware or should have been aware, because it was so obvious, of

an unjustifiably high risk” of serious medical injury can it be said

that they acted with deliberate indifference. Tamez, 589 F3d at

770 (internal quotations omitted); see also Sibley v Lemaire,

184 F3d 481, 489–90 (5th Cir 1999).

Fifth Circuit decisions on starkly similar fact patterns entitle

the HCJ Defendants to qualified immunity on this aspect of

Plaintiffs’ claims. In Tamez v Manthey, police arrested the decedent

for evading arrest following his running a stop sign at high speed.

589 F3d 764, 766 (5th Cir 2009, per curiam). His behavior was

described as aggressive and combative, and the on-duty nurse

observed that his eyes were fully dilated. The medical staff

determined that his condition didn’t present an emergency and

kept him in city jail overnight, checking on him regularly. The

police transferred him to a hospital for further evaluation in the

morning, where he experienced several seizures and died. It was

later determined that he had recently ingested a large amount of

cocaine. Id at 766–68. Even so, the Fifth Circuit found no

constitutional violation. Noticing the pupil dilation and other

symptoms, it said, didn’t mean that the defendants ignored a

substantial risk to the decedent’s health. Rather, the police

expressly determined (albeit incorrectly) that his health didn’t

require immediate attention. Id at 770–72.

Likewise is Estate of Allison v Wansley, 524 F Appx 963 (5th Cir

2013, per curiam). Police there arrested the decedent and placed

her in county jail. They observed that she seemed very intoxicated

because she was unbalanced and slurred her speech. The jail staff

checked on her regularly, and she fell asleep without incident. She

then died of ethanol poisoning later that night. Id at 965–68. The

Fifth Circuit held that the decision to place her in the holding cell

and check on her regularly was objectively reasonable. Id at 972.

Tamez most directly addressed the constitutional-violation

inquiry on qualified immunity. Estate of Allison most directly

addressed the clearly-established inquiry. But the Fifth Circuit has

said that both inform what it means for police conduct to be

objectively reasonable in the context of providing medical care to

detainees. See Trevino, 751 F Appx at 555–56, citing Tamez,

589 F3d at 764, and Estate of Allison, 524 F Appx at 972. It is thus

settled law in the Fifth Circuit that jail personnel don’t act with

deliberate indifference when they place a visibly intoxicated detainee

in a holding cell rather than take him to the hospital—provided

that regular supervision occurs. Estate of Allison, 524 F Appx

at 972–73. The Fifth Circuit flatly holds that, absent clear

“external manifestations of medical distress,” the Fourteenth

Amendment doesn’t mandate that “officers take all criminal

suspects under the influence of drugs or alcohol to hospital

emergency rooms rather than detention centers.” Ibid, quoting

Grayson v Peed, 195 F3d 692, 696 (4th Cir 1999). The conclusion

is the same even where a detainee exhibits ambiguous symptoms.

Estate of Allison, 524 F Appx at 972.

Plaintiffs allege throughout only variations on the allegation

that Stephen appeared to be heavily intoxicated, as he was

incoherent and unable to stand. For example, see Dkt 53

at ¶¶ 4.3, 4.4, 4.9, 4.10, 6.20, 6.21, 7.17, 7.21. Plaintiffs’ counsel

confirmed at hearing that Stephen was ultimately determined to

have died from ingesting large quantities cocaine. See also Dkt 54

at 18 n 2; Dkt 55 at 10 n 1. But there’s no allegation that he

informed anyone of such ingestion, that he was in observable

medical distress because of it, or that the HCJ Defendants were

affirmatively aware that Stephen was at some point suffering

from cocaine toxicity.

Instead, the amended complaint squarely asserts that

Sardinas did in fact conduct an initial medical-screening interview

with which Stephen complied, and that the other HCJ

Defendants also “made their initial checks” on him. Dkt 53

at ¶¶ 4.8, 4.9. Plaintiffs also acknowledge that Perez-Gonzalez

examined him again after he was placed in his cell. Id at ¶ 4.10.

True, they assert that this medical check was somehow

insufficient. Ibid. But that isn’t the legal standard. “Even if those

steps were ‘ineffectual,’ they do not demonstrate deliberate

indifference.” Estate of Allison, 524 F Appx at 971–72, quoting

Southard v Texas Board of Criminal Justice, 114 F3d 539, 554 (5th Cir

1997). And the video segments make clear that this in-person

medical inspection included cooperative conversation, the

provision of fluids, and a check of his pulse and pupils. See

Video 9 at 00:19:33 to 00:26:10; see also id at 00:55:18 to 00:56:20

(further conversation and observation).

At most, Plaintiffs allege a passive failure to identify a serious

medical need. But “negligence or even grossly negligent conduct”

in this regard doesn’t suffice to establish deliberate indifference.

Trevino, 751 F Appx at 554; see also Dyer, 964 F3d at 381. Absent

any clear manifestation of medical distress, it can’t be said that

the HCJ Defendants were deliberately indifferent in their decision to

let Stephen “sleep it off,” provided that they check on him

regularly. Estate of Allison, 524 F Appx at 972. But even were a

violation of constitutional right found, Plaintiffs must still

“identify controlling precedent that makes the unlawfulness of

the officer’s conduct sufficiently clear that a reasonable officer

would have understood his conduct violated that right.” Brown,

985 F3d at 495 (citations omitted). They fail to do this. Indeed,

Tamez and Estate of Allison are settled law to the contrary.

This aspect of the Section 1983 claims against the HCJ

Defendants must be dismissed.

As to failure to monitor. Plaintiffs allege that HCJ policies

required monitoring “to physically and visually check on inmates

every thirty (30) minutes” that (at least in some unquantified

respect) must be “face-to-face inspections.” See id at ¶¶ 4.15,

4.16, 4.20. And they allege that the checks by the HCJ Defendants

weren’t made according to those intervals or with the requisite

in-person proximity. See id ¶¶ 4.16, 4.20. Plaintiffs argue that

Stephen’s condition was so obvious that it required in-person

monitoring and, at least in part, that someone with medical

training do the monitoring. Id at ¶¶ 4.9, 6.21, 7.27. That sort of

monitoring, Plaintiffs also say, would have shown that Stephen

needed urgent medical care. For example, see id at ¶ 4.21.

Fifth Circuit precedent does establish the general

proposition that jail staff must monitor detainees suspected of

being under the influence of drugs or alcohol. For example, see

Trevino, 751 F Appx at 552–53; Estate of Bonilla v Orange County,

982 F3d 298, 308 (5th Cir 2020). That’s because, absent such

checks, it may be said that jail staff “should have been aware” of

any external manifestations of distress that monitoring would

have revealed. Tamez, 589 F3d at 770 (quotation omitted). And

Fifth Circuit precedent likewise confirms that jail officers in

similar circumstances generally must check on detainees every

fifteen to thirty minutes. See Estate of Allison, 524 F Appx at 967,

972 (fifteen- to thirty-minute intervals); Estate of Bonilla, 982 F3d

at 308 (same); Trevino, 751 F Appx at 552–53 (ten- to fifteen-

minute intervals).

But Plaintiffs’ broader contention as to the type and intensity

of required monitoring is unfounded. They provide no citation

indicating that walk-by checks are an impermissible means by

which jail personnel may monitor a detainee thought to be under

the influence of drugs or alcohol. To the contrary, the Fifth

Circuit found no constitutional violation where jail staff

conducted only walk-by checks in Tamez and Estate of Allison. See

Tamez, 589 F3d at 771; Estate of Allison, 524 F Appx at 972. And

the jail staff in those cases were ordinary officers, without even

the specialized medical credentials alleged here as to the HCJ

Defendants. Compare Dkt 53 at ¶¶ 1.6–1.9 (alleging as medical

specialists and medical screeners), with Tamez, 589 F3d at 771

(involving ordinary detectives), and Estate of Allison, 524 F Appx

at 967–68 (involving ordinary jailers). If anything, this means that

the HCJ provided better monitoring practices than that found

sufficient in those decisions. And in that light, it can in no way be

said that it was clearly established under the law that something

more was required.

This leaves Plaintiffs to contend (as they do) that the HCJ

Defendants simply didn’t monitor frequently enough. Dkt 53

at ¶¶ 4.15–4.16, 4.20. For their part, the HCJ Defendants appear

to misconstrue the fourth amended complaint when arguing that

Plaintiffs specifically concede that Stephen was checked at

appropriate intervals. See Dkt 54 at 19, citing Dkt 53 at ¶ 4.15.

The phrasing in the complaint is certainly inartful and at times

elliptical. But Plaintiffs squarely allege elsewhere that the HCJ

Defendants “failed to check on Decedent every fifteen (15)

and/or thirty (30) minutes.” Dkt 53 at ¶ 4.20; see also id at ¶ 4.16.

Even so, the problem with the argument remains its factual

deficiency. Plaintiffs have urged consideration of the video

segments, which recorded events in Stephen’s cell and the

hallway in front of it. See Videos 9 (cell) and 10 (hallway). The

precise number of checks is perhaps difficult to discern because

of the indirect angle of the hallway camera. But even if not exact,

the segments show that HCJ personnel quite regularly checked

on Stephen, viewing his cell at least forty times during the six-

and-a-half hours that he was detained there prior to his death.

Most of these generally consist of officers walking by the cell with

Stephen plainly visible in it (and then back by on return). But

others consist of them pausing to talk or interact with him. These

walk-bys were quite frequent at first, ranging from nine to twelve

per hour. That frequency tapered off through the predawn hours,

while never appearing to fall below two checks per hour.

A court isn’t required to accept as true allegations that are

contradicted by pertinent evidence properly under consideration.

See Cicalese, 456 F Supp 3d at 872, citing R2 Investments, 401 F3d

at 642. Quite simply, Plaintiffs can’t establish a constitutional

violation in this regard for the very reason that the HCJ

Defendants regularly monitored Stephen. This included five

walk-bys or checks in the sixty minutes before CPR began. See

Video 10 at 06:10:31, 06:15:48, 06:34:48, 06:39:25, 06:47:54. This

number of checks itself belies contention that the conduct of

these officers was deliberately indifferent.

This aspect of the Section 1983 claims against the HCJ

Defendants must also be dismissed.

As to failure to render emergency aid. Plaintiffs also allege that,

after discovering Stephen unconscious on the floor of his cell,

the HCJ Defendants failed to seek medical treatment, to timely

and appropriately administer CPR, or to timely request or

transport him for “life-saving medical treatment.” Dkt 53

at ¶¶ 4.26–30. But video footage again contradicts the

contention. It shows that CPR was robustly administered for

nearly nine minutes, including defibrillation. See Video 9 at

06:49:55. And as to transportation to a hospital, Plaintiffs’ other

allegations note that when found, Stephen was “not breathing

and had no pulse.” Dkt 53 at ¶ 4.24; see also Dkt 57 at 11 (noting

Stephen was “found dead in his cell”). This means that

subsequent medical attention elsewhere wasn’t possible or would

have been ineffectual. But even assuming that any violation of

right could be sufficiently pleaded in this regard, Plaintiffs haven’t

shown any clearly established right to something more than

immediate administration of CPR—or that some other action

was required once Stephen was found and pronounced dead. For

comparison, see Arenas v Calhoun, 922 F3d 616, 619–20, 624–26

(5th Cir 2019) (no violation where jail staff performed CPR and

attempted to resuscitate detainee, but detainee had already died).

The real concern here—as with the asserted failures to

diagnose and to monitor—devolves back to the timing of

identification that Stephen needed emergency medical attention.

For example, the most troubling aspect of the video segments

isn’t even one specified in the fourth amended complaint. It

concerns that final hour before CPR began on Stephen. There

was a walk-by of Stephen’s cell as he lay at rest on his bunk. See

Videos 9 and 10 at 06:10:31. He then rolled from his bunk

unconscious onto the floor about three minutes later. He was

observed by officers in this state in several ensuing walk-bys and

checks over a short period of time. See Video 10 at 06:15:48,

06:34:48, 06:39:25, 06:47:54. Only then did officers decide to

enter his cell, after which their vigorous CPR efforts began. See

Video 9 at 06:49:03.

The failure to enter the cell sooner is concerning. But even

assuming that the HCJ Defendants were negligent in this

regard—or even grossly negligent—Fifth Circuit precedent

entitles them to qualified immunity. For example, the detainee in

Estate of Allison fell asleep in her cell after interacting with the jail

staff at intake, with officers conducting visual checks every fifteen

to thirty minutes. 524 F Appx at 967. At some point they noticed

that she “had not changed positions in a while, and [they] could

not tell whether she was breathing by looking into her cell.” Ibid.

The Fifth Circuit found that the delay didn’t amount to deliberate

indifference. “While the result here was tragic, we cannot say that

all, or even most, reasonable officers would not have done the

same, absent an inmate’s additional external manifestations of

medical distress.” Id at 972–73. So, too, in Trevino v Hinz. The

detainee there “vomited, had several shaking episodes, and told

the officers she was sick.” 751 F Appx 551, 556 (5th Cir 2018, per

curiam). She later died of a seizure due to a cocaine overdose. But

the officers had no knowledge of such ingestion, and so they

weren’t on notice to monitor for associated concerns. Ibid. The

Fifth Circuit held that the officers were entitled to qualified

immunity, finding that “an officer’s failure to immediately

recognize ambiguous symptoms as a medical emergency does not

amount to deliberate indifference.” Id at 555.

The Fifth Circuit has held in many other contexts that

conduct that could be second-guessed as negligence or gross

negligence doesn’t overcome an assertion of qualified immunity.

For example, Estate of Henson v Krajca, 440 F Appx 341, 345–47

(5th Cir 2011) (deliberate indifference not shown where jail nurse

may have been grossly negligent in failing to prevent detainee

from dying of chronic obstructive pulmonary disease); Sanchez v

Young County, 866 F3d 274, 280 (5th Cir 2017) (deliberate

indifference not shown where jail employees may have been

negligent or grossly negligent in failing to prevent suicide); Leal v

Wiles, 734 F Appx, 905, 910–11 (5th Cir 2018, per curiam)

(deliberate indifference not shown where jail employees may have

been negligent in failing to protect detainee from being assaulted

by rival gang members); Dyer, 964 F3d at 380–81 (deliberate

indifference not shown where paramedics may have been

negligent in failing to take further steps to treat head injury and

drug-induced behavior of arrestee). And at best, that’s what

Plaintiffs state here—allegations of negligence or gross

negligence. But this doesn’t establish the deliberate indifference

necessary to state a constitutional violation.

The allegations in the fourth amended complaint don’t

overcome the assertion of qualified immunity by the HCJ

Defendants. The claims in this regard must be dismissed.

c. Section 1983 claims, City of Houston

Municipal liability under Section 1983 doesn’t extend merely

on a respondeat superior basis. Monell v Department of Social Services of

City of New York, 436 US 658, 691 (1978). The plaintiff must show

that an official policy promulgated by the municipal policymaker

was the moving force behind the violation of a constitutional

right. Piotrowski v City of Houston, 237 F3d 567, 578 (5th Cir 2001).

“The ‘official policy’ requirement was intended to distinguish acts

of the municipality from acts of employees of the municipality, and

thereby make clear that municipal liability is limited to action for

which the municipality is actually responsible.” Doe v Edgewood

Independent School District, 964 F3d 351, 364–65 (5th Cir 2020)

(emphasis in original), quoting Pembaur v Cincinnati, 475 US 469,

479 (1986).

Plaintiffs bring Monell claims under 42 USC § 1983 against

the City, but without clear connection to the HCJ and municipal

policies described above. And as already noted, their allegations

establish that the HCJ Defendants did in fact comply with

policies as to screening for weapons and drugs and as to

assessment at intake as to physical condition and suicide risk.

What appears to remain are two liability theories. The first is

allegation that the City failed to train its employees to adequately

identify and treat the serious medical conditions of detainees.

Dkt 53 at ¶¶ 5.1–5.4, 7.26–7.31. The other is allegation that the

City ratified the conduct by the individual Defendants after

learning of it. Id at ¶¶ 4.33, 7.27, 8.1.

i. Failure-to-train theory

The Supreme Court observes, “A municipality’s culpability

for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.” Connick v Thompson, 563 US 51, 61

(2011). But a decision by a local government not to train certain

employees about their legal duty to avoid violating citizens’ rights

may in some circumstances rise to the level of an official

government policy for purposes of Section 1983. Id at 61–62,

citing Board of County Commissioners of Bryan County Oklahoma v

Brown, 520 US 397, 407–10 (1997) (citations omitted).

To state such a claim, a plaintiff must plead that the training

procedures of the municipality’s policymaker were inadequate;

the policymaker was deliberately indifferent in adopting the

training policy; and the inadequate training policy directly caused

the plaintiff’s injury. Conner v Travis County, 209 F3d 794, 796

(5th Cir 2000), quoting Baker v Putnal, 75 F3d 190, 200 (5th Cir

1996). Plaintiffs fail to meet any of these elements.

As to adequacy of training procedures. Plaintiffs at base allege that

the City failed to train jail staff to evaluate and treat detainees for

serious medical needs. See Dkt 53 at ¶ 4.11. But municipal

liability doesn’t attach merely because “a particular officer may be

unsatisfactorily trained” or “an otherwise sound program has

occasionally been negligently administered.” City of Canton v

Harris, 489 US 378, 390–91 (1989). To meet the first element, the

Fifth Circuit directs that the focus must be on the adequacy of the

training program in relation to the tasks that the particular officer

must perform. Snyder v Trepagnier, 142 F3d 791, 798 (5th Cir 1998),

quoting City of Canton, 489 US at 390. The plaintiff must allege

with specificity how the training program is defective in this

regard to withstand a motion to dismiss. Roberts v City of Shreveport,

397 F3d 287, 293 (5th Cir 2005) (quotations omitted).

To the contrary, the allegations by Plaintiffs are wholly

conclusory. They neither identify specific facts about the City’s

training protocols nor describe any deficiencies that pertain to the

individual Defendants’ duties. See Snyder, 142 F3d at 798; Taylor,

488 F Supp 3d at 535–36. Instead, they generally allege that the

City “was required to train its jail personnel on the method and

means of evaluating persons placed in custody to keep them safe

from physical or psychological injury, harm or death,” with

conclusory connection that the actions at issue here constitute

“[f]ailing to properly train, supervise, discipline, transfer,

monitor, counsel and otherwise control police officers.” Dkt 53

at ¶¶ 4.11, 7.27. The Fifth Circuit is clear that it’s insufficient to

“present evidence of isolated violations and ascribe those

violations to a failure to train.” Zarnow v City of Wichita Falls,

614 F3d 161, 170 (5th Cir 2010), citing Goodman v Harris County,

571 F3d 388 (5th Cir 2009). In other words, a Plaintiff can’t state

a failure-to-train claim by merely pointing to a municipal policy

and saying that it wasn’t observed. See Roberts v City of Shreveport,

397 F3d 287, 293 (5th Cir 2005).

As to deliberate indifference. In the context of municipal liability,

deliberate indifference is “a stringent standard of fault,” one

“requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” Connick, 563 US at 61,

quoting Board of County Commissioners, 520 US at 409–10. “Thus,

when city policymakers are on actual or constructive notice that

a particular omission in their training program causes city

employees to violate citizens’ constitutional rights, the city may

be deemed deliberately indifferent if the policymakers choose to

retain that program.” Connick, 563 US at 61, citing Board of County

Commissioners, 520 US at 407. To establish the deliberate

indifference of a municipality, it is “ordinarily necessary” for a

plaintiff to allege a pattern of similar constitutional violations by

untrained employees. Connick, 563 US at 62, quoting Board of

County Commissioners, 520 US at 407. A plaintiff must generally

show that, given the duties assigned to specific officers or

employees, “the need for more or different training is obvious,

and the inadequacy is likely to result in the violation of

constitutional rights.” City of Canton, 489 US at 390.

Plaintiffs fail to allege any other similar violation, much less

the pattern that is typically required to establish deliberate

indifference in this context. They say only that the City acted at

“a level of official policy, practice, and custom, with deliberate,

callous, conscious and unreasonable indifference” in failing to

train and supervise the individual Defendants. Dkt 53 at ¶ 7.27.

That is wholly conclusory and deficient.

As to causation. Plaintiffs having failed to allege facts to

establish the first two elements, they necessarily fail to allege facts

showing that any inadequate training caused an underlying

constitutional violation. See Taylor, 488 F Supp 3d at 536.

Plaintiffs fail to sufficiently plead their failure-to-train claim.

It must be dismissed.

ii. Ratification theory

The Supreme Court permits a ratification theory against a

municipality to go forward in certain limited circumstances:

[W]hen a subordinate’s decision is subject to

review by the municipality’s authorized

policymakers, they have retained the authority

to measure the official’s conduct for

conformance with their policies. If the

authorized policymakers approve a

subordinate’s decision and the basis for it, their

ratification would be chargeable to the

municipality because their decision is final.

City of St Louis v Praprotnik, 485 US 112, 127 (1988) (emphasis in

original).

On the pleadings in Covington v City of Madisonville, the Fifth

Circuit found such theory sufficiently alleged to withstand

motion to dismiss. 812 F Appx 219, 228–29 (5th Cir 2020, per

curiam). It specified as follows:

Ratification in this context requires that a

policymaker knowingly approve a subordinate’s

actions and the improper basis for those

actions. Otherwise, unless conduct is

“manifestly indefensible,” a policymaker’s

mistaken defense of a subordinate who is later

found to have broken the law is not ratification

chargeable to the municipality.

Id at 228, citing Praprotnik, 485 US at 127, Beattie v Madison County

School District, 254 F3d 595, 603 n 9 (5th Cir 2001), and Coon v

Ledbetter, 780 F2d 1158, 1161–62 (5th Cir 1986).

Inquiry in this regard requires “identification of officials or

governmental bodies ‘who speak with final policymaking

authority for the local governmental actor concerning the action

alleged to have caused the particular constitutional or statutory

violation at issue.’” Doe v Harris County Precinct Six Constable Sylvia

Trevino, 452 F Supp 3d 548, 559 (SD Tex 2020), quoting Bolton v

City of Dallas, 541 F3d 545, 548 (5th Cir 2008). It isn’t that “the

specific identity of the policymaker” must be alleged in the

complaint. Groden v City of Dallas, 826 F3d 280, 285 (5th Cir 2016),

citing Johnson v City of Shelby, 574 US 10, 11 (2014, per curiam). But

it must still “plead facts that show that the defendant or

defendants acted pursuant to a specific official policy, which was

promulgated or ratified by the legally authorized policymaker.”

Groden, 826 F3d at 282 (emphasis in original).

Plaintiffs’ don’t allege specific facts that support an inference

that any pertinent policymaker knew of unlawful actions and

approved them. They instead simply attribute all action generally

to the City. For example, they allege, “Defendant City of

Houston, as acting at the level of official policy, practice, and

custom, with deliberate, callous, conscious and unreasonable

indifference to Decedent’s constitutional rights, authorized,

tolerated, and institutionalized the practices and ratified the illegal

conduct herein detailed . . . .” Dkt 53 at ¶ 7.27; see also id

at ¶¶ 4.33, 8.1. Such allegations are wholly conclusory and

deficient. Neither a putative policymaker nor any specific action

taken by that person or entity is identified. But that is the

requirement—the pleading of facts sufficient to show that a

policymaker has actual knowledge of the improper basis for the

subordinate’s action and yet approves the action anyway. See

Beattie, 254 F3d at 604; Groden, 826 F3d at 282; see also Taylor,

488 F Supp 3d at 545.

Beyond this, none of the conduct here can be said to be

manifestly indefensible in the sense that a policymaker (if named)

reviewing it would have notice that Stephen’s constitutional

rights were violated. As determined above, the individual

Defendants are entitled to qualified immunity with respect to the

underlying conduct. This necessarily means that the conduct

doesn’t show “an obvious violation of clearly established law.”

Young v Board of Supervisors of Humphreys County, 927 F3d 898, 903

(5th Cir 2019) (quotation omitted).

Plaintiffs fail to sufficiently plead their ratification claim. It

must be dismissed.

d. Request for discovery

Plaintiffs suggest that dismissal is “premature” because there

hasn’t been “adequate time” for discovery. They seek further

information on the events that occurred on the night at issue,

including whether any jail staff was “reprimanded” and details on

the City’s training policies. Dkt 56 at 10–11; Dkt 57 at 11–12. But

Rule 8 “does not unlock the doors of discovery for a plaintiff

armed with nothing more than conclusions.” Iqbal, 556 US

at 678–79. As such, a plaintiff isn’t entitled at the pleading stage

to discovery “broadly to seek information that might impeach the

defendants’ version of events.” Hutcheson v Dallas County, 994 F3d

477, 481 (5th Cir 2021), citing Backe, 691 F3d at 648.

As to the claims asserted against the individual Defendants,

the Fifth Circuit explains that prevention of unnecessary

discovery “is precisely the point of the qualified immunity doctrine:

to protect public officials from expansive, intrusive discovery

until and unless the requisite showing overcoming immunity is

made.” Backe, 691 F3d at 648 (emphasis in original); see also

Hutcheson, 994 F3d at 481; Khansari v City of Houston, 14 F Supp 3d

842, 861 (SD Tex 2014). As to the claims asserted against the

City, discovery is inappropriate where a plaintiff pleads only a

“boilerplate recitation of the grounds for municipal liability.”

Harkless v Brazoria County, 2016 WL 1702595, *5 (SD Tex),

quoting Thomas v City of Galveston, 800 F Supp 2d 826, 844–45

(SD Tex 2011).

Even so, certain discovery was permitted. The original

complaint was filed in February 2017. The docket reflects

discovery that took place when this matter was assigned to Judge

Lynn Hughes. See Dkts 10, 20, 29. This included production of

the ten video segments that appear to account for the entirety of

Stephen’s time within the HCJ, along with related files. See

Dkt 10 (ordering production of all logs, incident reports, pictures,

and video of Stephen at HCJ).

The matter was then reassigned to this Court in

October 2019. Dkt 47. At a status conference, Plaintiffs received

leave to file a further amended complaint to meet then-pending

motions to dismiss. The parties were permitted to exchange

interrogatories and requests for admissions, while being directed

“to confer as to further document production.” They were

admonished to initiate any dispute over document production by

way of discovery letter. See Minute Entry of 02/25/2020. None

was ever submitted.

Given the targeted discovery that was allowed and the related

failure to timely request other discovery in the manner directed,

the request for further discovery is denied.

e. Potential for repleading

A district court “should freely give leave [to amend] when

justice so requires.” FRCP 15(a)(2). The Fifth Circuit holds that

this evinces a bias in favor of granting leave to amend. See

Dussouy v Gulf Coast Investment Corp, 660 F2d 594, 597(5th Cir

1981); Carroll v Fort James Corp, 470 F3d 1171, 1175 (5th Cir 2006).

But whether to grant such leave is within the sound discretion of

the district court. Pervasive Software Inc v Lexware GmbH & Co KG,

688 F3d 214, 232 (5th Cir 2012), quoting Wimm v Jack Eckerd

Corp, 3 F3d 137, 139 (5th Cir 1993). It may be denied “when it

would cause undue delay, be the result of bad faith, represent the

repeated failure to cure previous amendments, create undue

prejudice, or be futile.” Morgan v Chapman, 969 F3d 238, 248

(5th Cir 2020), citing Smith v EMC Corp, 393 F3d 590, 595

(5th Cir 2004).

The operative pleading here is Plaintiffs’ fourth amended

complaint. Dkt 53. Defendants also moved to dismiss the third

amended complaint on the same arguments sponsored now. See

Dkts 31, 35, 36. Plaintiffs received leave to meet those arguments

with “a further and final amended complaint.” Minute Entry of

02/25/2020. Their fourth amended complaint fails to do so.

Further leave to amend is inappropriate. Plaintiffs’ claims will

be dismissed with prejudice.

5. Conclusion

The motion by the individual Defendants to dismiss the

claims brought by Plaintiffs is GRANTED. Dkt 54.

The motion by the City of Houston to dismiss the claims

brought by Plaintiffs is GRANTED. Dkt 55.

All claims in this action are DISMISSED WITH PREJUDICE.

SO ORDERED,

Signed on June 15, 2021, at Houston, Texas.

Che 0 Falcdy

Hon. Charles Eskridge

United States District Judge

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