Pena v. Madrid

UNITED STATES DISTRICT COURT February 20, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

LAREDO DIVISION

CRISTOBAL PENA §

§

VS. § CIVIL ACTION NO. 5:23-CV-48

§

DOMINIC MADRID, et al. §

ORDER

In this case, Plaintiff has sued Zapata County and two of its Sheriff’s deputies

(“Deputy Defendants”) under 42 U.S.C. § 1983 and the Texas Tort Claims Act1

(“TTCA”) for injuries arising out of one of the Deputy Defendants’ alleged assault of

Plaintiff (Dkt. No. 5). The Deputy Defendants and the County have filed separate

motions to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) (Dkt. Nos. 11, 19). The Court has carefully reviewed the arguments, record,

and applicable authorities, and hereby DENIES the deputies’ motion (Dkt. No. 11)

and GRANTS the County’s motion (Dkt. No. 19).

I. BACKGROUND

In reviewing a motion to dismiss, the Court must accept the complaint’s

factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.

See Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581–82 (5th Cir. 2020). Here,

Plaintiff alleges the following.

1 Texas Civil Practice and Remedies Code Annotated § 101.001 et. seq.

On February 18, 2023, Plaintiff Cristobal Pena, a welder, got into an argument

at his residence with his children’s maternal aunt and asked her to leave (Dkt. No. 5

at 6). When she refused, Mr. Pena called the Zapata County Sheriff’s Department to

request that they remove her from his property (id. at 7). Deputies Dominic Madrid

and Carlo Garcia arrived at Mr. Pena’s residence and Mr. Pena informed them that

he was the homeowner and the person who called the police (id.). The deputies

responded that they were detaining Mr. Pena and handcuffed him in front of his

children (id. at 2, 7). Although Mr. Pena asked the officers why he was being

restrained and what charges he faced, neither officer answered him, and instead

placed him in the back of a squad car (id. at 7).

The officers then transferred Mr. Pena to a second squad car in order to

transport him to jail (id.). As they did so, Mr. Pena insulted Deputy Madrid (id.). Mr.

Pena explains that he was frustrated at being arrested on his own property after

calling the police himself, without an explanation of the charges (id.). Deputy Madrid

allegedly became enraged at the insult and assaulted Mr. Pena with his fists and

elbows and slammed his head against the squad car (id.). Deputy Madrid then body

slammed Mr. Pena against the ground headfirst and continued to punch him, while

Deputy Garcia physically restrained Mr. Pena (id. at 7–8). Mr. Pena’s three young

daughters witnessed the entire incident (id. at 8).

After Deputy Madrid stopped assaulting him, Mr. Pena, bleeding, told the

deputies that his hand, still in handcuffs, was severely broken (id.). The deputies then

contacted their supervisor, who told them to seek immediate medical help for Mr.

Pena (id.). However, Deputy Garcia instead drove Mr. Pena to jail, where Sergeant

Luis Martinez refused to accept him in his injured condition (id. at 8–9). Deputy

Garcia then drove Mr. Pena for over an hour to the hospital, using his squad car

instead of an available ambulance (id. at 9).

At the hospital, Deputy Garcia kept Mr. Pena in handcuffs for another hour

while they waited for an emergency room bed to become available (id. at 10). All told,

the deputies kept Mr. Pena in handcuffs for about four hours (id.). They did not file

any charges against Mr. Pena (id.). And while Mr. Pena was at the hospital, Deputy

Madrid had his car towed from his home to an impound lot, even though Mr. Pena

had parked the car on his own property (id. at 11). Because of the injuries to his hand

and elsewhere, Mr. Pena says he has struggled to continue working as a welder (id.).

Mr. Pena has sued both deputies under 42 U.S.C. § 1983 for violating his

Fourth and Fourteenth Amendment rights, bringing counts of (i) false arrest; (ii)

excessive force; (iii) unlawful property seizure; and (iv) denial of medical care (id. at

11–18). Mr. Pena further claims that Zapata County is liable under the TTCA

§ 101.021 for negligent and grossly negligent use of (i) motor-driven vehicles; and (ii)

handcuffs (id. at 19–21). See Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Both

deputies and the County moved to dismiss Mr. Pena’s claims in two separate motions

(Dkt. Nos. 11, 19). Mr. Pena has timely responded to the motions (Dkt. Nos. 13, 20),

and Defendants filed timely replies (Dkt. Nos. 18, 21).

II. LEGAL STANDARDS

A. Dismissal Under Rule 12(b)(6)

To survive a motion to dismiss, a complaint must allege sufficient facts that,

accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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

(2007)). A claim is plausible when the alleged facts allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. In reviewing a motion to dismiss, the court

must accept the complaint’s well-pleaded allegations as true and draw all reasonable

inferences in the plaintiff’s favor. Sewell, 974 F.3d at 582.

B. 42 U.S.C. § 1983 and Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments.” Messerschmidt v. Millender, 565 U.S.

535, 546 (2012) (internal quotations and citations omitted). A court should only deny

immunity if “existing precedent . . . placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).

Further, qualified immunity is “immunity from suit rather than a mere

defense to liability” and should, therefore, be resolved early in the litigation. Harlow,

555 U.S. at 231–32; Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011). Because an

early resolution of qualified immunity protects officials from unwarranted liability

and “costly, time-consuming, and intrusive” pretrial discovery, it may be decided on

a motion to dismiss. Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); Ruelas ex

rel. Est. of Munoz v. Ford, 402 F. Supp. 3d 344, 350 (E.D. Tex. 2019).

“To defeat a claim of qualified-immunity, the plaintiff has the burden to

demonstrate the inapplicability of the defense.” McLin v. Ard, 866 F.3d 682, 689 (5th

Cir. 2017). But this is not a heightened standard: “[A] plaintiff must plead qualified-

immunity facts with the minimal specificity that would satisfy Twombly and Iqbal.”

Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023) (citing Arnold v. Williams, 979 F.3d

262, 267 (5th Cir. 2020)). “Therefore, in determining immunity, we accept the

allegations of plaintiff's complaint as true.” Id. (cleaned up).

To rebut a defendant’s claim of qualified immunity, the plaintiff must show

that the official’s conduct: (1) violated the plaintiff’s statutory or constitutional right,

and (2) was objectively unreasonable in light of clearly established law at the time of

the violation. Id. With respect to the second prong, the constitutional right “must be

sufficiently clear to put a reasonable officer on notice that certain conduct violates

that right.” Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998). “The subjective

intent of the officer is irrelevant, and the officer’s knowledge of the law need not rise

to the level of a ‘constitutional scholar.’” Id. at 467 (citations omitted).

C. Negligence Under the TTCA

A governmental unit2 in Texas is liable for:

(1) property damage, personal injury, and death proximately caused by

the wrongful act or omission or the negligence of an employee acting

within his scope of employment if:

(A) the property damage, personal injury, or death arises from the

operation or use of a motor-driven vehicle or motor-driven

equipment; and

(B) the employee would be personally liable to the claimant

according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible

personal or real property if the governmental unit would, were it a

private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021. While the TTCA waives

governmental immunity for some negligent conduct, it does not waive governmental

immunity for claims arising out of intentional torts. City of Watauga v. Gordon, 434

S.W.3d 586, 594 (Tex. 2014). A plaintiff bears the burden of establishing a waiver of

governmental immunity under the TTCA. Harris Cnty. Flood Control Dist. v.

Halstead, 650 S.W.3d 707, 712 (Tex. App.—Houston [14th Dist.] 2022).

2 Zapata County, as a political subdivision of Texas, is a governmental unit for purposes of the

TTCA. See Harris Cnty. v. Cabazos, 177 S.W.3d 105, 109 (Tex. App.—Houston [1st Dist.] 2005).

III. DISCUSSION

A. False Arrest

Mr. Pena has sufficiently pleaded that the Deputy Defendants arrested him

without probable cause. In doing so, he has also sufficiently alleged that the Deputy

Defendants violated clearly established law and are, therefore, not entitled to

qualified immunity at this juncture.

The Fourth Amendment’s protection against unreasonable seizures includes

seizures of a person. California v. Hodari D., 499 U.S. 621, 624 (1991). An arrest is a

type of Fourth Amendment seizure because it involves “the application of force to the

body of a person with intent to restrain.” Torres v. Madrid, 592 U.S. 306, 311 (2021).

“[B]oth the Supreme Court's and [the Fifth Circuit’s] precedent are abundantly clear

that forceful seizures must be supported by probable cause.” Larpenter v. Vera, No.

22-30572, 2023 WL 5554679, at *5 (5th Cir. Aug. 29, 2023) (citations omitted); Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 191–92, 197, 203 (5th Cir. 2009) (holding that

officers violated the Fourth Amendment during a raid by removing three individuals

from a nightclub without probable cause). In suits alleging false arrest, the plaintiff

must prove the following to overcome qualified immunity: (1) the officer lacked

probable cause to believe that the plaintiff was engaging in criminal activity, and (2)

that the officer was objectively unreasonable in believing that such probable cause

existed. Bey v. Prator, 53 F.4th 854, 858 (5th Cir. 2022) (per curiam).

Mr. Pena alleges that the Deputy Defendants lacked probable cause to arrest

him because they did not see him break any laws, nor did they have reason to suspect

criminal activity (Dkt. No. 5 at 11–13). When the Deputy Defendants arrived at his

home, Mr. Pena let them know that he was the homeowner and had called the police

because he needed help removing the children's aunt from his home (id. at 7). But the

deputies immediately detained him while they spoke with the aunt (id. at 2). At no

point did they explain why he had been restrained or why “a by-then-uninvited guest

should remain on the premises” rather than the homeowner (id. at 7).

The Deputy Defendants respond that the arrest was reasonable based on their

investigative efforts (Dkt. No. 11 at 7). Specifically, they spoke with Mr. Pena and the

children’s aunt before placing Mr. Pena under arrest (id.). At no point, however, do

they state what offense, if any, they believed he had committed (see id. at 6–7). For

an officer to believe that probable cause to arrest exists, they must do more than

merely investigate an incident, they must believe that the plaintiff was engaging in

criminal activity. See Bey, 53 F.4th at 858.

Given the clearly established standards here, no reasonable officer could

conclude that there was probable cause to arrest Mr. Pena. Construing the facts in

Mr. Pena’s favor, the reason why is simple—there is no evidence he committed a

crime. Indeed, Mr. Pena was the person who called for law enforcement to assist him

in the first place. After law enforcement arrived, he did not engage in any disruptive

action that would justify arresting him. Because the Court is bound to take Plaintiff’s

well-pleaded allegations as true, the Deputy Defendants’ motion to dismiss (Dkt. No.

11) is DENIED as to Mr. Pena’s false arrest claim.

B. Excessive Force

Mr. Pena has sufficiently pleaded that the Deputy Defendants used excessive

force twice. First, when Deputy Madrid assaulted and body slammed Mr. Pena as

Deputy Garcia restrained him (id. at 7, 13–14). Second, when the deputies kept Mr.

Pena handcuffed for four hours despite his visible hand injuries (id. at 14–15). In

doing so, Mr. Pena has also sufficiently alleged that the Deputy Defendants violated

clearly established law and are therefore not entitled to qualified immunity. The

Court will address each use of force in turn.

1. First Use of Force – Assault and Restraint

To establish an excessive force claim under the Fourth Amendment, a plaintiff

must show that he “suffer[ed] an injury that results directly and only from a clearly

excessive and objectively unreasonable use of force.” Joseph ex rel. Est. of Joseph v.

Bartlett, 981 F.3d 319, 332 (5th Cir. 2020). “[I]n Graham v. Connor, the Supreme

Court outlined a few considerations that inform the need for force: (1) the severity of

the crime at issue, (2) whether the suspect posed an immediate threat to the safety

of officers or others, and (3) whether the suspect was actively resisting arrest or

attempting to evade arrest by flight.” Id. at 332 (citing 490 U.S. 386, 396 (1989)).

Mr. Pena alleges that Deputy Madrid used excessive force because Mr. Pena

was handcuffed and only verbally resisted his arrest (Dkt. No. 5 at 13–14). Because

Mr. Pena admits noncompliance, Deputy Madrid argues that the use of force was

“necessary to effectuate the arrest” (Dkt. No. 11 at 8–9). “While a suspect's refusal to

comply with instructions may indicate that physical force is justified, officers must

also select the appropriate degree of force.” Bartlett, 981 F.3d at 332 (cleaned up)

(emphasis in original); see also Galvan v. City of San Antonio, 435 F. App’x 309, 311

(5th Cir. 2010) (explaining that the use of force was reasonable when it involved

“measured and ascending responses” to a plaintiff's noncompliance). Because the

amount of force is properly measured against the degree of noncompliance, “force may

be less justified or unjustified when a suspect engages in ‘passive resistance,’ as

opposed to ‘active resistance.’” Bartlett, 981 F.3d at 333.

Deville v. Marcantel is instructive here. 567 F.3d 156 (5th Cir. 2009). Ms.

Deville was pulled over for speeding, and, believing the stop was improper, she

refused to get out of her vehicle and rolled up her window. Id. at 161. When Police

Chief Marcantel arrived on the scene, officers smashed the window, threw her against

the vehicle, and handcuffed her. Id. at 162. The district court found that the officers

were entitled to qualified immunity on Ms. Deville’s excessive force claim. Id. at 167.

Applying the Graham factors, the Fifth Circuit reversed on the grounds that (1) The

plaintiff had been stopped for a traffic violation, meaning “the need for force [was]

substantially lower than if she had been suspected of a serious crime;” (2) “[T]here

was no reason to believe that her actions posed a threat to the officers, herself, or to

her grandchild [in the vehicle];” and (3) There was no indication that the plaintiff

“would flee or use the vehicle as a weapon.” Id.

Here, like in Deville, the Graham factors weigh in favor of Mr. Pena. The

deputies did not assert any suspicion of criminal activity, perceived threat, or

attempted escape on Mr. Pena’s part. Additionally, Deputy Madrid had sufficient

notice that his conduct violated clearly established law. Precedent is clear: “[The Fifth

Circuit has] repeatedly denied qualified immunity in cases in which officers face

verbal resistance but no fleeing suspect.” Beroid v. LaFleur, No. 22-30489, 2023 WL

3034706, at *4 (5th Cir. Apr. 21, 2023) (cleaned up); Bush v. Strain, 513 F.3d 492, 502

(5th Cir. 2008) (holding that it was objectively unreasonable for an officer to slam

plaintiff's face into a nearby vehicle when plaintiff “was not resisting or attempting

to flee”); Massey v. Wharton, 477 F. App’x 256, 263 (5th Cir. 2012) (rejecting qualified

immunity where plaintiff was arrested for disorderly conduct, was not a threat to

officers, and was not attempting to flee).

Given this body of caselaw, no reasonable officer could conclude that body

slamming and punching Mr. Pena when he was not physically resisting or attempting

to flee would pass constitutional muster. Because Mr. Pena has sufficiently alleged

that Deputy Madrid violated clearly established law, Deputy Madrid is not entitled

to qualified immunity on Mr. Pena’s excessive force claim.

Deputy Garcia’s claim of qualified immunity must be analyzed independently.

Mr. Pena alleges that Deputy Garcia restrained him as Deputy Madrid “body-

slammed Mr. Pena to the ground headfirst and continued punching him” (Dkt. No. 5

at 7). As discussed above, it is clearly established that officers cannot resort to force

if they face “verbal resistance but no fleeing suspect.” Tucker v. City of Shreveport,

998 F.3d 165, 175 (5th Cir. 2021); Beroid, 2023 WL 3034706, at *4. Restraining

someone is a use of force. See generally Austin v. City of Pasadena, Tex., 74 F.4th 312,

330 (5th Cir. 2023).

In Austin, the plaintiff suffered an epileptic seizure in his jail cell and three

officers responded by restraining him and using tasers. Id. at 319. A fourth officer

then entered the plaintiff’s cell and “immediately began assisting officers in

restraining [him].” Id. at 331. After the plaintiff died from cardiac arrest, his estate

sued the officers involved for excessive force, but the district court dismissed his suit

on qualified immunity grounds. Id. at 320, 327, 330. The Fifth Circuit reversed the

district court’s dismissal of plaintiff’s excessive force claim against the fourth

restraining officer, reasoning that the restraining officer was not entitled to qualified

immunity because force is not justified “[i]f the suspect lacks any means of evading

custody.” Id. at 330. Thus, even though the other responding officers applied far

greater force, “one could infer” that the fourth officer’s actions in “applying force to,

and doubly restraining” the plaintiff were also unreasonable.3 Id. The same inference

can be drawn against Deputy Garcia here.

2. Second Use of Force – Prolonged Handcuffing

Mr. Pena argues that the Deputy Defendants’ use of handcuffs also constituted

excessive force (Dkt. No. 5 at 14–15). Specifically, Mr. Pena alleges that the deputies

3 Deputy Garcia also had a duty to intervene to prevent Deputy Madrid’s clearly established

unconstitutional conduct. See Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Citing Hale, the Fifth

Circuit in Austin also reversed the district court’s grant of summary judgment for the officer

defendants on the pretrial detainee’s bystander liability claims. 74 F.4th at 330. The plaintiff argued

that the fourth officer who assisted in restraining the plaintiff “should have voiced dissent to the

officers’ use of force, alerted a law enforcement supervisor of the officers’ use of force, or physically

pulled the officers away.” Id. The fourth officer was therefore not entitled to summary judgment on

plaintiff’s bystander liability claim because “[a] jury could determine [the fourth officer] should not

have immediately participated in using force.” Id.

kept him in handcuffs with a broken hand for four hours, and Deputy Garcia refused

to loosen or remove the handcuffs at the hospital (Dkt. No. 5 at 18, 20).

Heitschmidt v. City of Houston is instructive here. 161 F.3d 834 (5th Cir. 1998).

Officers handcuffed Mr. Heitschmidt and seated him on a bar stool for over four hours

while they searched his home. Id. at 836. Complaining of pain, he asked the officers

to loosen his cuffs, which they refused to do (id.). Alleging that the prolonged

handcuffing caused serious and permanent injury to his wrists, Mr. Heitschmidt sued

the officers for excessive force under 42 U.S.C. § 1983. Id. at 836, 839–40. The district

court dismissed the excessive force claim on qualified immunity grounds. Id. at 836.

The Fifth Circuit reversed, holding that Mr. Heitschmidt “at least conceivably stated”

an excessive force claim given that it was the officers who placed him in the painful

restraints to begin with. Id. at 839–40. The officers were not entitled to qualified

immunity because “[o]nce police secured the premises there was no justification for

requiring Heitschmidt to remain painfully restrained.” Id.

Here, as in Heitschmidt, Mr. Pena alleges that the four hours’ handcuffing

seriously injured his hand (Dkt. No. 5 at 20). He avers that the handcuffs exacerbated

the injuries from his broken hand and damaged his hand strength and dexterity (id.

at 5, 20). The Deputy Defendants do not address why it was necessary to keep Mr.

Pena painfully restrained for four hours, including at the hospital. Accordingly, Mr.

Pena has conceivably stated an excessive force claim against the Deputy Defendants

based on their prolonged use of handcuffs.

3. Summary

Mr. Pena has sufficiently stated an excessive force claim based on both Deputy

Defendants body-slamming, assaulting, and restraining him, and applying handcuffs

for four hours in spite of his broken hand. Accordingly, the Deputy Defendants’

motion to dismiss (Dkt. No. 11) is DENIED as to Mr. Pena’s excessive force claim.

C. Unlawful Seizure of Property

Mr. Pena alleges that Defendant Madrid unlawfully seized his car by having it

towed while Mr. Pena was at the hospital (Dkt. No. 5 at 10–11). Defendant Madrid

responds that the car was “presumedly” seized due to Plaintiff’s arrest (Dkt. No. 11

at 10). But the car was not seized pursuant to a warrant, nor does Defendant Madrid

offer any exceptions to the Fourth Amendment’s warrant requirement justifying the

impound (see id. at 9–10).

“Warrantless searches and seizures are per se unreasonable unless they fall

within a few narrowly defined exceptions.” United States v. Kelly, 302 F.3d 291, 293

(5th Cir. 2002) (internal quotation marks omitted). The relevant one here is the

“community caretaking” exception, which covers an officer’s decision to impound a

vehicle. South Dakota v. Opperman, 428 U.S. 364, 368 (1976); United States v.

McKinnon, 681 F.3d 203, 209 (5th Cir. 2012). “In considering whether this exception

applies, [the Fifth Circuit’s] constitutional analysis hinges upon the reasonableness

of the ‘community caretaker’ impound viewed in the context of the facts and

circumstances encountered by the officer.” McKinnon, 681 F.3d at 208. It is

reasonable to impound a vehicle to ensure that “the vehicle was not left on a public

street where it could have become a nuisance, and where it could have been stolen,

or damaged.” Id. at 209.

Here, Mr. Pena’s vehicle was towed from his own home (Dkt. No. 5 at 4).

Further, Defendant Madrid has not presented any facts suggesting that his decision

to impound the vehicle was based on concerns it would become a nuisance, or be stolen

or damaged (see Dkt. No. 11 at 9–10). Under such circumstances, clearly established

law demonstrates that it was objectively unreasonable for Deputy Madrid to impound

Mr. Pena’s vehicle. See McKinnon, 681 F.3d at 209. Therefore, accepting Mr. Pena’s

well-pleaded allegations as true, the Court finds that he has sufficiently stated a

claim for unlawful seizure of his vehicle. The Deputy Defendants’ motion to dismiss

Mr. Pena’s unlawful seizure claim (Dkt. No. 11) is DENIED.

D. Deprivation of Medical Care

Mr. Pena alleges that the Deputy Defendants unconstitutionally denied him

medical care for his serious injuries (Dkt. No. 5 at 16–18).

“The Fourteenth Amendment right of a pretrial detainee to medical care is

violated if an officer acts with deliberate indifference to a substantial risk of serious

medical harm and resulting injuries.” Allen, 65 F.4th at 747 (cleaned up). “[A] serious

medical need is one for which treatment has been recommended or for which the need

is so apparent that even laymen would recognize that care is required.” Sims v.

Griffin, 35 F.4th 945, 949 (5th Cir. 2022) (quotation omitted); Shaw v. TDCJ-CID,

540 F. Supp. 2d 834 (S.D. Tex. 2008) (treating broken hand as a serious injury); To

show deliberate indifference, the plaintiff must show that officers (1) were “aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists,” (2) that they “actually drew the inference,” and (3) that they “disregarded that

risk.” Baldwin v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020). In other words, an officer

acts with deliberate indifference to a detainee's serious medical needs if the officer

“refuse[s] to treat him, ignore[s] his complaints, intentionally treat[s] him incorrectly,

or engage[s] in any similar conduct that would clearly evince a wanton disregard for

any serious medical needs.” Sims, 35 F.4th at 951 (quotation marks and citation

omitted). “The detainee need not die, or be permanently impaired, before an

actionable claim arises for delayed emergency treatment; rather, a plaintiff may

recover for pain suffered during a delay in treatment caused by deliberate

indifference.” Austin, 74 F.4th at 328 (citing Alderson v. Concordia Par. Corr. Facility,

848 F.3d 415, 422–23 (5th Cir. 2017)).

Mr. Pena argues that the Deputy Defendants were deliberately indifferent to

his serious medical needs here because (1) they heard Mr. Pena complain of broken

bones and saw his open wounds, (2) they inferred that there was a serious risk of

harm, as evinced by their call to their supervisor asking how to proceed, and (3) they

disregarded that risk by transporting Mr. Pena to the county jail rather than the

hospital even though their supervisor ordered them to seek immediate medical help

for Mr. Pena (Dkt. No. 5 at 16–18).

The Deputy Defendants respond that Mr. Pena has not sufficiently specified

how the delay in medical treatment substantially harmed or exacerbated his injuries

(Dkt. No. 11 at 11). The Court disagrees—Mr. Pena plausibly alleges that the

handcuffs exacerbated the injuries from his broken hand and damaged his hand

strength and dexterity (id. at 5, 20). Further, “[Fifth Circuit] precedent allows

recovery for pain suffered during a delay in treatment caused by deliberate

indifference.” Murrell v. Zeon, No. CV H-18-2626, 2019 WL 2343398, at *6 (S.D. Tex.

June 3, 2019) (citing Alderson, 848 F.3d at 415). Mr. Pena was handcuffed during the

ride to the jail, and the ride from the jail to the hospital, and alleges that he was in

“excruciating pain and felt his hand getting worse as broken bones shifted during the

ride” (Dkt. No. 5 at 9). The Deputy Defendants do not address why they deliberately,

and against orders, drove Mr. Pena to the jail rather than the hospital. Thus, no

legitimate objective for the delay is alleged or apparent.4

Therefore, taking Mr. Pena’s well-pleaded allegations as true, the Court finds

that he has sufficiently stated a claim for denial of medical care. Additionally, the

Deputy Defendants had sufficient notice that their conduct violated clearly

established law: “At least since 1987, it has been clear that pretrial detainees, a set

that includes arrestees, are entitled to reasonable medical care unless the failure to

supply that care is reasonably related to a legitimate governmental objective.” Nerren

v. Livingston Police Dep't, 86 F.3d 469, 474 (5th Cir. 1996); see also Kelson v. Clark,

1 F.4th 411, 419 (5th Cir. 2021) (holding detainee plausibly pleaded deliberate

4 See Rhyne v. Henderson Cnty., 973 F.2d 386, 391 (5th Cir. 1992) (“Pre-trial detainees . . . must be

provided with reasonable medical care, unless the failure to supply it is reasonably related to a

legitimate government objective.”). Cf. Mace v. City of Palestine, 333 F.3d 621, 626 (5th Cir. 2003)

(rejecting deliberate indifference claim where plaintiff “offer[ed] no evidence indicating that the officer

intentionally delayed driving the ambulance in order to cause harm”); McIntosh v. Smith, 690 F. Supp.

2d 515, 529 (S.D. Tex. 2010) (granting qualified immunity where plaintiff failed to offer any evidence

establishing that defendant “deliberately delayed either the call for medical aid or the arrival of

medical aid”).

indifference where paramedics allegedly noticed his visible injuries and failed to

provide substantive treatment). Accordingly, the Deputy Defendants’ motion to

dismiss (Dkt. No. 11) is DENIED as to this claim.

E. Zapata County’s Motion to Dismiss Under the TTCA

Lastly, Mr. Pena alleges that Defendant Zapata County is responsible under

the TTCA § 101.021 for negligent or grossly negligent use of (i) handcuffs, and (ii)

motor-driven vehicles (Dkt. No. 5 at 19–21). See Tex. Civ. Prac. & Rem. Ann. Code

§ 101.021. The Court will address each claim in turn.

1. Handcuffs

Mr. Pena concedes that when the Deputy Defendants handcuffed him, they

committed an intentional tort which the County cannot be held liable for under the

TTCA § 101.021(2) (Dkt. No. 20 at 4) (citing Gordon, 434 S.W.3d at 594 (“The actions

of a police officer in making an arrest necessarily involve a battery, although the

conduct may not be actionable because of privilege.” (citation omitted))). And the crux

of his claim relates to the injuries he suffered from Deputy Madrid’s alleged assault.

The TTCA excludes any waiver of governmental immunity for claims arising out of

such intentional torts. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(2),

101.057(2); Cabazos, 177 S.W.3d at 111.

However, Mr. Pena argues that after Deputy Madrid assaulted him, it was

unreasonable and negligent for the Deputy Defendants to keep him in handcuffs for

four hours (Dkt. No. 20 at 4). Mr. Pena argues that their failure to remove the

handcuffs exacerbated his injuries5 (Dkt. No. 5 at 20). As already discussed, he also

argues that the Deputy Defendants are individually liable for the prolonged

handcuffing under an excessive force standard, not negligence (id. at 14–15). For that

claim, he alleges that the actions of the deputies were “malicious, willful, or made

with reckless or wanton disregard of Mr. Pena’s constitutional rights” (id. at 15).

The County responds that Mr. Pena’s injuries flow from the deputies’

intentional torts, meaning they are not the result of negligence (Dkt. No. 19 at 4–5).

Because all of the deputies’ actions were intentional—the handcuffing, the alleged

beating, and the transportation—the County argues that Mr. Pena’s injuries were a

consequence of intentional torts, rather than the result of negligence (Dkt. No. 21 at

3–4). The County is correct.

Aguirre v. City of San Antonio is instructive here. 995 F.3d 395 (5th Cir. 2021).

In that case, the plaintiffs asserted that police officers used handcuffs negligently

when they restrained the decedent arrestee, who died from asphyxiation as a result

of his arrest. Id. at 402, 422. The plaintiffs argued that the City was liable under the

TTCA § 101.021(2), contending that because the officers did not intend to kill the

arrestee, their use of the handcuffs was negligent. Id. at 422. But the Fifth Circuit

5 In making this argument, Mr. Pena cites Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex.

2003) and Dallas Cnty. Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998).

These cases do not support his claim. In both cases, the Texas Supreme Court found that governmental

immunity was not waived, and in neither case are the facts analogous to Mr. Pena’s case. See Whitley,

104 S.W.3d at 543–44 (no nexus between use of bus and plaintiff’s injuries where fellow bus passenger

assaulted plaintiff, who suffered from cerebral palsy, after bus driver dropped them both off near each

other when they had an altercation on the bus); see also Bossley, 968 S.W.2d at 343 (unlocked door in

mental health facility did not proximately cause patient’s death when patient escaped through it and

committed suicide half a mile away after being chased by staff).

rejected their claim, because “the intentional tort of battery lies where the offensive

contact is intentional, not the resulting injury.” Id. (emphasis in original).

Here, Mr. Pena concedes that the handcuffing was a battery, but argues that

injuries which later resulted from the failure to remove the handcuffs were the result

of negligence. But because the offensive contact was intentional, any resulting injury

was a battery, and is not subject to a negligence claim. See, e.g., Gordon, 434 S.W.3d

at 592–93 (intentional physical injury is not required for a battery claim, so plaintiff’s

accidental injury resulting from overly tight handcuffing was a consequence of

battery, not negligence); see also City of Garland v. Rivera, 146 S.W.3d 334, 337–38

(Tex. App.—Dallas 2004) (although officers did not intend to kill arrestee, their use

of handcuffs, pepper spray, and a K-9 service dog in making the arrest was intentional

conduct, not negligence, and thus sovereign immunity was not waived under the

TTCA). Therefore, the County’s immunity is not waived for this intentional tort.

2. Vehicles

Mr. Pena argues that Deputy Garcia acted negligently when he drove Mr. Pena

to the hospital in his police car instead of an available ambulance (Dkt. No. 5 at 20–

21). Mr. Pena says that the seat of the police car exacerbated his injuries because his

broken hand pressed against it during the ride to the hospital (id.). The police car, he

argues, had no safety feature as in an ambulance that could be used to restrain his

hand in a medically safe manner (Dkt. No. 20 at 6) (citing Overton Mem’l Hosp. v.

McGuire, 518 S.W.2d 528 (Tex. 1975)).

The County responds that Mr. Pena has simply alleged that he was injured

because his hands were pressed against the backseat, and has not said how the police

car lacked necessary safety equipment (Dkt. No. 21 at 5). The County further argues

that the non-use of an ambulance does not mean that the police car lacked an integral

safety component, and that mere non-use of property does not waive immunity under

§ 101.021(2) (id. at 4–5) (citing Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)). The

County’s arguments prevail.

Mr. Pena has not alleged that the backseat in the squad car was defective in

any way that exacerbated his injuries. Rather, he alleges that the police car lacked

an integral safety component, “namely a bed with guard rails” (Dkt. No. 20 at 7). In

support, he cites a “long line of Texas cases”6 that begins with Overton Memorial

Hospital, in which a patient sued a city-owned hospital for injuries sustained in a fall

from a bed that did not have guard rails (id.). 518 S.W.2d at 529. The Texas Supreme

Court held that the hospital’s immunity under the TTCA was waived, because the

lack of safety rails on the hospital bed was a condition or use of tangible

property which proximately caused the patient’s injuries in his fall. Id.

But here, the squad car seat does not lack a safety feature analogous to a

hospital bed lacking guard rails, and Mr. Pena has not alleged that it was otherwise

6 See Docket Number 20 at 7 (citing Overton Mem’l Hosp., 518 S.W.2d 528, 529 (Tex. 1975) (immunity

waived where patient in city-owned hospital fell from a bed lacking guardrails)); Lowe v. Tex. Tech

Univ., 540 S.W.2d 297, 300 (Tex. 1976) (immunity waived where university failed to provide plaintiff

with protective gear as part of his football uniform); and Robinson v. Cent. Tex. MHMR Ctr., 780

S.W.2d 169, 171 (Tex. 1989) (immunity waived where government employees failed to provide epileptic

patient with a life preserver and he drowned under their supervision). The cited cases in which

immunity was waived involved a provision of items in which a safety feature normally associated with

the items was lacking. See Robinson, 780 S.W.2d at 171 (“A life preserver was just as much a part of

Robinson's swimming attire as the knee brace was part of the uniform in Lowe.”). In contrast, police

cars such as the one used here are not typically equipped with full-length beds for transporting medical

patients. The failure to provide a full-length bed with guard rails in a police car thus does not support

a waiver of immunity under the line of cases Mr. Pena relies on.

defective. To say that a police car is defective because it lacks a bed with guard rails,

a feature of ambulances, not police cars, is a roundabout way of arguing that the

deputies should have used an ambulance to transport Mr. Pena. This argument must

be rejected, because it attempts to sidestep the rule that a municipality’s immunity

is not waived under the TTCA for non-use of property. See Kassen, 887 S.W.2d at 14

(“We have never held that a non-use of property can support a claim under the Texas

Tort Claims Act.”).

Further, for the municipality’s immunity to be waived under the TTCA, an

officer’s use of the property must actually cause the alleged injury, not merely furnish

a condition that made it possible. Meyer v. Coffey, 231 F. Supp. 3d 137, 151 (N.D. Tex.

2017) (citations omitted); see City of Laredo v. Nuno, 94 S.W.3d 786 (Tex. App.—San

Antonio 2002) (to the extent arrestee was injured while being placed in a police car,

the car did no more than furnish the condition that made the injury possible). Here,

the seat was not used in a negligent manner that caused injury, so Zapata County’s

immunity is not waived under TTCA § 101.021. Cf. City of Houston v. Nicolai, 539

S.W.3d 378, 388–390, 392 (Tex. App.—Houston [1st. Dist.] 2017) (governmental

immunity waived under TTCA where officer failed to secure detainee into patrol car

with seatbelt, creating a fact issue as to whether he proximately caused her death

after she was thrown from the car in an accident).

As for Deputy Garcia’s decision to not transport Mr. Pena to the hospital in an

available ambulance, “[t]he Legislature intended governmental units to be liable for

negligently using harmful property, but not for failing to use it.” City of N. Richland

Hills v. Friend, 370 S.W.3d. 369, 373 (Tex. 2012) (citing Kassen, 887 S.W.2d at 14).

Thus, Deputy Garcia’s failure to use the available ambulance cannot be the basis for

a negligence claim against the County.

3. Summary

First, any injury Mr. Pena sustained from the deputies’ continued use of

handcuffs resulted from an intentional tort; second, the seat in Deputy Garcia’s squad

car did no more than furnish a condition that made further injury possible; and third,

Deputy Garcia’s non-use of the ambulance cannot be the basis of a negligence claim

against the County. Because governmental immunity is not waived for such claims,

the County’s motion to dismiss (Dkt. No. 19) is GRANTED.

IV. CONCLUSION

The Deputy Defendants’ motion to dismiss (Dkt. No. 11) is hereby DENIED.

Defendant Zapata County’s motion to dismiss (Dkt. No. 19) is hereby GRANTED.

The Clerk of Court is DIRECTED to TERMINATE Defendant Zapata County from

the case. Mr. Pena’s claims against the Deputy Defendants (Dkt. No. 5 at 11-18)

remain pending.

It is so ORDERED.

SIGNED February 20, 2024.

Matina Garcia Marmolejo

United States District Judge

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