Atkinson v. Pustilnik

UNITED STATES DISTRICT COURT May 02, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

YVETTE S. ATKINSON, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 4:22-cv-04315

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STEPHEN PUSTILNIK, et al., §

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Defendants. §

OPINION AND ORDER

This case arises out of the tragic death of Simon J. Atkinson (“Mr.

Atkinson”). His widow, Plaintiff Yvette S. Atkinson (“Ms. Atkinson”), alleges that

Fort Bend County Medical Examiner Stephen Pustilnik, M.D. (“Dr. Pustilnik”)

improperly delayed issuing her husband’s final death certificate and then, in

retaliation for Ms. Atkinson’s filing of this lawsuit, falsely classified Mr. Atkinson’s

death as a homicide. Ms. Atkinson brings claims against Dr. Pustilnik in his

individual capacity under 42 U.S.C. § 1983 for First Amendment retaliation;

violation of her equal protection rights; violation of her substantive due process

rights; and violation of her Fourth Amendment right to be free from unreasonable

seizure. Ms. Atkinson also alleges that Fort Bend County, Fort Bend County Judge

KP George1 (“Judge George”), and Fort Bend County Commissioners Vincent

Morales (“Morales”), Grady Prestage (“Prestage”), W.A. “Andy” Meyers

(“Meyers”), Dexter L. McCoy (“McCoy”), and Kenneth R. DeMerchant

(“DeMerchant”) (collectively “the Fort Bend Defendants”) “are liable because they

ratified [Dr.] Pustilnik’s actions or were deliberately indifferent to his misconduct.”

Dkt. 21 at 17. Judge George, Morales, Prestage, Meyers, McCoy, and DeMerchant

(collectively “the Individual Fort Bend Defendants”) are sued in their individual

1 KP George has been incorrectly named by Ms. Atkinson as “J.P. George.”

capacities.2 Ms. Atkinson seeks actual damages, exemplary damages, costs,

attorney’s fees, and injunctive relief.

Pending before me are two motions to dismiss—one filed by Dr. Pustilnik,

and the other filed by the Fort Bend Defendants. See Dkts. 27–28. Having reviewed

the briefing and applicable law, I GRANT IN PART and DENY IN PART Dr.

Pustilnik’s motion to dismiss (Dkt. 27), and GRANT the Fort Bend Defendants’

motion to dismiss (Dkt. 28).

BACKGROUND3

On June 5, 2020, Mr. Atkinson died of a gunshot wound in Sugar Land,

Texas. Forensic pathologist, Dr. William McClain (“Dr. McClain”), “performed an

autopsy within days [of Mr. Atkinson’s death] and found no evidence of foul play.”

Dkt. 21 at 3. The Sugar Land Police Department (“SLPD”) investigated Mr.

Atkinson’s death and concluded Mr. Atkinson died by suicide. The SLPD’s

investigation included a firearms test using the gun found near Mr. Atkinson’s

body and the ammunition found in Mr. Atkinson’s pocket. SLPD determined that

“(1) that the gun found near Mr. Atkinson’s body was the gun that he used to kill

himself and (2) that the ammunition in his pocket matched the fatal bullet.” Id. at

3. Mr. Atkinson’s body was released to his family and cremated.

2 Ms. Atkinson specifies that each of the Individual Fort Bend Defendants, with the

exception of McCoy, is sued in his individual capacity. The Second Amended Complaint,

the live pleading in this case, does not indicate whether McCoy is sued in his individual

capacity, official capacity, or both. To be safe, I will assume McCoy is sued in both his

individual and official capacities. See Flagg v. Gusman, No. CIV.A. 13-258, 2014 WL

4629206, at *2 (E.D. La. Sept. 15, 2014) (“The complaint is silent, however, as to whether

Defendants are sued in their individual or official capacities. Accordingly, given this

Court’s duty to construe the complaint liberally, the Court will assume that Plaintiff sues

Defendants in both capacities.”). Even so, the official capacity suit against McCoy is

redundant, given that Fort Bend County is a named defendant who is appearing in this

litigation. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government

entity receives notice and an opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against the entity.”).

3 This section recounts the allegations set forth in the Second Amended Complaint. See

Dkt. 21.

For Ms. Atkinson, obtaining a final death certificate was important because

she stood to receive $1 million in life insurance benefits. Delayed issuance of Mr.

Atkinson’s final death certificate would, Ms. Atkinson claims, delay her recovery of

insurance proceeds.

Approximately a week after the autopsy, no death certificate had been

issued. Ms. Atkinson’s brother, Steven Sanchez (“Sanchez”), called Dr. Pustilnik to

inquire why a death certificate had yet to be issued (the “Sanchez Call”). The

conversation allegedly became a “heated argument.” Id. at 4.

A few days later, on June 16, 2020, an initial death certificate for Mr.

Atkinson was released, signed by Dr. McClain. The death certificate stated that

both Mr. Atkinson’s cause and manner of death4 were “Pending Investigation,” and

that autopsy findings were not available to complete the cause of death. Dkt. 27-1

at 4. Ms. Atkinson claims Dr. Pustilnik, upset by his phone conversation with

Sanchez, “retaliated by refusing to list a cause of death on Mr. Atkinson’s death

certificate.” Dkt. 21 at 4. A few months later, Sanchez contacted Judge George on

behalf of Ms. Atkinson. Judge George told Sanchez that he could not do anything

because of an ongoing investigation into Mr. Atkinson’s death.

More than one year after Mr. Atkinson died, Dr. Pustilnik convened an

inquest into Mr. Atkinson’s death more than one year after he died. Ms. Atkinson

alleges that Dr. Pustilnik “ordered [her] to produce all ammunition in the Atkinson

household that had been purchased for the firearm that Mr. Atkinson used to kill

himself, purportedly so [Dr.] Pustilnik could conduct his own firearms test” on the

gun that allegedly killed Mr. Atkinson. Id. Although Ms. Atkinson contends Dr.

Pustilnik did not need the ammunition in the house—which ultimately amounted

4 It is important not to confuse cause of death with manner of death. The possible causes

of death are as innumerable as the diseases and conditions that confront humanity. In

contrast, there are only four manners of death: natural, accidental, suicide, and homicide.

See, e.g., Reliastar Life Ins. Co. v. Thompson, No. M-07-cv-140, 2008 WL 4327259, at *3

(S.D. Tex. Sept. 16, 2008); see also Dkt. 27-1 at 4.

to 75 rounds of ammunition—a local justice of the peace ordered its production.

Ms. Atkinson ultimately produced the ammunition on June 1, 2022.

After the inquest, months passed without any word from Dr. Pustilnik on the

cause and manner of Mr. Atkinson’s death. In October 2022, Ms. Atkinson’s

counsel sent several communications to Fort Bend County officials, complaining

about the delay and threatening litigation. Fort Bend County officials promised

that Dr. Pustilnik would soon be issuing an amended death certificate listing the

cause and manner of death.

On December 13, 2022, still awaiting Mr. Atkinson’s final death certificate,

Ms. Atkinson filed this lawsuit. On January 19, 2023, Dr. Pustilnik finally issued

an amended death certificate. Depending what measure of time is used, it took 958

days; or 2 years, 7 months, 14 days; or 31 months, 14 days for Dr. Pustilnik to

determine Mr. Atkinson’s cause and manner of death. The amended death

certificate lists Mr. Atkinson’s cause of death as a gunshot wound of the head, and

his manner of death as homicide.

Ms. Atkinson claims Dr. Pustilnik falsely classified Mr. Atkinson’s manner

of death as homicide “in retaliation for Mr. Sanchez’s comments as well as the filing

of this lawsuit.” Id. at 17. According to Ms. Atkinson, she “now knows that she had

better not make any complaint to or about [Dr.] Pustilnik lest he retaliate again.”

Id.

Dr. Pustilnik moves to dismiss, arguing he is entitled to qualified immunity.

Dr. Pustilnik insists he has not violated a statutory or constitutional right and, even

if he did, such a right was not clearly established at the time he issued Mr.

Atkinson’s death certificate. The Fort Bend Defendants have also moved to

dismiss. The Fort Bend Defendants, as a whole, argue Ms. Atkinson has failed to

state claim for ratification or supervisor liability. The Individual Fort Bend

Defendants assert that qualified immunity protects them as well.

LEGAL STANDARDS

A. RULE 12(b)(6)

To avoid early dismissal of a lawsuit, a plaintiff must file a complaint that

provides “a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. CIV. P. 8(a)(2). If the plaintiff fails “to state a claim upon

which relief can be granted,” dismissal is appropriate. FED. R. CIV. P. 12(b)(6).

Overcoming this initial hurdle requires the plaintiff to plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

This standard is lower than “a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,

550 U.S. at 556). At this stage, I accept “all well-pled facts as true, construing all

reasonable inferences in the complaint in the light most favorable to the plaintiff.”

White v. U.S. Corr., L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021). Thus, a Rule

12(b)(6) motion to dismiss “is viewed with disfavor and is rarely granted.” Turner

v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quotation omitted).

“In ruling on a Rule 12(b)(6) motion, a court generally limits its review to

the face of the pleadings, accepting as true all well-pleaded facts and viewing them

in the light most favorable to the plaintiff.” Tex. Health & Human Servs. Comm’n

v. United States, 193 F. Supp. 3d 733, 738 (N.D. Tex. 2016). “A written document

that is attached to a complaint as an exhibit is considered part of the complaint and

may be considered in a 12(b)(6) dismissal proceeding.” Ferrer v. Chevron Corp.,

484 F.3d 776, 780 (5th Cir. 2007). There are also certain limited categories of

documents outside of the pleadings that I may consider. First, I am permitted “to

rely on documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d

333, 338 (5th Cir. 2008) (quotation omitted). Second, I may consider “documents

attached to a motion to dismiss that are referred to in the plaintiff’s complaint and

are central to the plaintiff’s claim.” Sullivan v. Leor Energy, LLC, 600 F.3d 542,

546 (5th Cir. 2010) (quotation omitted). Finally, I “may permissibly refer to

matters of public record” without converting a motion to dismiss into a motion for

summary judgment. Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994).

B. 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . , subjects, or causes to be subjected,

any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere conferred.”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotation omitted).

“To state a claim under § 1983, a plaintiff must (1) allege a violation of a right

secured by the Constitution or laws of the United States and (2) demonstrate that

the alleged deprivation was committed by a person acting under color of state law.”

Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). Local

governing bodies are not liable under § 1983 based merely on the actions of their

employees. See Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010). A

plaintiff may sue a local governmental body under § 1983 only where “the action

that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers.” Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690

(1978). Direct municipal liability under § 1983 requires a plaintiff to identify:

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

actual or constructive knowledge, and (3) a constitutional violation whose moving

force is that policy or custom.” Valle, 613 F.3d at 541–42 (quotation omitted).

C. QUALIFIED IMMUNITY

Government officials sued in their individual capacity under § 1983 are

entitled to qualified immunity, which is “an immunity from suit rather than a mere

defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “Qualified

immunity protects government officials from civil liability in their individual

capacity to the extent that their conduct does not violate clearly established

statutory or constitutional rights.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th

Cir. 2016). It is a judicially created doctrine designed to avoid “the expenses of

litigation, the diversion of official energy from pressing public issues, and the

deterrence of able citizens from acceptance of public office.” Harlow v. Fitzgerald,

457 U.S. 800, 814 (1982). The doctrine arises from “the danger that fear of being

sued will dampen the ardor of all but the most resolute, or the most irresponsible

public officials, in the unflinching discharge of their duties.” Id. (cleaned up).

To overcome qualified immunity, a plaintiff must allege facts showing:

“(1) that the official violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). “These steps

may be considered in either order.” Shumpert v. City of Tupelo, 905 F.3d 310, 320

(5th Cir. 2018).

The first prong of the qualified immunity inquiry asks whether the facts

alleged “show the officer’s conduct violated a constitutional right.” Saucier v. Katz,

533 U.S. 194, 201 (2001). If a plaintiff’s allegations, viewed favorably, do not

establish a constitutional violation, no further inquiry is necessary. See id. “To

surmount this barrier at the motion to dismiss stage, the plaintiffs must plead

specific facts that both allow the court to draw the reasonable inference that the

defendant is liable for the harm they have alleged and that defeat a qualified

immunity defense with equal specificity.” Torns v. City of Jackson, 622 F. App’x

414, 416 (5th Cir. 2015) (cleaned up).

“The second prong of the qualified-immunity analysis asks whether the right

in question was clearly established at the time of the violation.” Tolan v. Cotton,

572 U.S. 650, 656 (2014) (quotation omitted). Governmental actors are “shielded

from liability for civil damages if their actions did not violate clearly established

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

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). “[T]he salient

question . . . is whether the state of the law” at the time of an incident provided

“fair warning” to the defendants “that their alleged [conduct] was

unconstitutional.” Id. at 741. A plaintiff bears a heavy burden on this prong because

a right is clearly established only if relevant precedent “ha[s] placed

the . . . constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

DR. PUSTILNIK’S MOTION TO DISMISS

Because Dr. Pustilnik maintains that he is entitled to qualified immunity, I

must conduct the qualified immunity analysis described above.

A. FIRST AMENDMENT RETALIATION

Ms. Atkinson asserts First Amendment retaliation against Dr. Pustilnik.

“[T]he First Amendment prohibits not only direct limitations on speech but also

adverse government action against an individual because of her exercise of First

Amendment freedoms.” Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999). To

state a claim for First Amendment retaliation, Ms. Atkinson must plead that

“(1) [she] engaged in constitutionally protected activity, (2) the defendants’ actions

caused [her] to suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the defendants’ adverse actions were

substantially motivated against [her] exercise of constitutionally protected

conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). The second

element “requires some showing that [Ms. Atkinson’s] exercise of free speech has

been curtailed.” Id. at 259.

Ms. Atkinson points to two distinct acts of retaliation: (1) the delayed

issuance of Mr. Atkinson’s final death certificate; and (2) the allegedly false

designation of Mr. Atkinson’s manner of death as homicide on the final death

certificate. I will address each event separately.

1. Delayed Issuance of Final Death Certificate

Dr. Pustilnik argues that qualified immunity bars Ms. Atkinson’s First

Amendment retaliation claim for the delayed issuance of Mr. Atkinson’s final death

certificate because (1) there is no constitutional violation; and (2) even if there was

a constitutional violation, the constitutional right in question was not clearly

established at the time of the violation. Dr. Pustilnik advances three separate

reasons there is no constitutional violation: (1) he took no adverse action against

Ms. Atkinson; (2) Ms. Atkinson did not participate in the Sanchez Call; and (3) Ms.

Atkinson’s speech was not curtailed. I need only address the second issue as to why

there is no constitutional violation.

Dr. Pustilnik contends that because Ms. Atkinson did not participate in the

Sanchez Call, she is unable to satisfy the first element of such a claim: that she

“engaged in constitutionally protected activity.” Keenan, 290 F.3d at 258. Ms.

Atkinson readily acknowledges that she did not participate in the Sanchez Call. Yet,

she contends Dr. Pustilnik “may be held liable” because he retaliated against her

“based on the constitutionally-protected actions of [her] agent or close affiliate”—

her brother, Sanchez. Dkt. 33 at 6. In reply, Dr. Pustilnik frames the question as

one of third-party standing, arguing that Ms. Atkinson lacks standing to assert

claims on Sanchez’s behalf. See Dkt. 35 at 5.

To the extent Dr. Pustilnik challenges Ms. Atkinson’s standing, he is

incorrect. Standing turns on whether the plaintiff has “suffered an injury in fact.”

Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011). “[S]tanding does not depend upon

ultimate success on the merits.” Id. Thus, an Article III injury for purposes of

constitutional standing is different from the adverse action or chilling injury

required to state a First Amendment retaliation claim. Inasmuch as the parents in

Adar stated an Article III injury by alleging that the state denied them a revised

birth certificate, Ms. Atkinson states an Article III injury by alleging that Dr.

Pustilnik denied her a final death certificate for the 958 days that he refused to

certify Mr. Atkinson’s cause and manner of death.

Dr. Pustilnik is correct, however, that Ms. Atkinson’s lack of participation in

the Sanchez Call is fatal to her First Amendment retaliation claim based on the

delayed death certificate. To start, Dr. Pustilnik rightfully notes that the Sanchez

Call is the only constitutionally protected activity that is plausibly related to the

delay. The correspondence Ms. Atkinson’s counsel sent to the County

Commissioners on her behalf is constitutionally protected activity, but it is not

plausibly related to Dr. Pustilnik’s delay in issuing the final death certificate

because there is no allegation that Dr. Pustilnik even knew about these

communications. This lawsuit is also constitutionally protected activity, but the

delay of which Ms. Atkinson complains occurred before this lawsuit was filed. Dr.

Pustilnik issued the final death certificate a mere five weeks after this lawsuit was

filed, and there is no allegation that a five-week delay is an adverse action. Thus,

insofar as Ms. Atkinson asserts First Amendment retaliation in the form of delay,

the only constitutionally protected activity that matters is the Sanchez Call.

In her response to Dr. Pustilnik’s motion to dismiss, Ms. Atkinson cites a

case in which a court found that a plaintiff’s attempt to serve officers through a

process server—his agent—was constitutionally protected activity. See Dkt. 33 at 6

(citing Mills v. City of Bogalusa, 112 F. Supp. 3d 512, 517 (E.D. La. 2015)). Ms.

Atkinson has clearly alleged that Sanchez was acting on her behalf—that Sanchez’s

words were her speech. Thus, Ms. Atkinson contends that, based on Mills,

Sanchez’s speech constituted her constitutionally protected activity. But not all

speech made on another’s behalf is protected under the law. The court in Mills only

recognized the process server’s actions as the plaintiff’s speech because “access to

the courts is protected by the First Amendment.” 112 F. Supp. 3d at 516. Relatedly,

“[a]n individual’s personal First Amendment interest in his or her lawyer’s speech

on his or her behalf is a natural corollary of the First Amendment right to retain

counsel.” Eng v. Cooley, 552 F.3d 1062, 1076 (9th Cir. 2009).

At least one circuit court has observed that “a [family member]’s claim that

adverse action was taken solely against that [family member] in retaliation for

conduct of the other [family member] should be analyzed as a claimed violation of

a First Amendment right of intimate association.” Adler v. Pataki, 185 F.3d 35, 44

(2d Cir. 1999). The “intimate human relationships [the Supreme Court has

recognized] include marriage, the begetting and bearing of children, child rearing

and education, and cohabitation with relatives.” Caleb v. Grier, 598 F. App’x 227,

237 (5th Cir. 2015) (citing Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537, 545 (1987)). “An intimate, loving relationship by itself, however, is

not sufficient to create a familial expectation that our society and Constitution are

prepared to recognize.” Wooley v. City of Baton Rouge, 211 F.3d 913, 922 (5th Cir.

2000). The right is “limited to relationships ‘that presuppose deep attachments

and commitments to the necessarily few other individuals with whom one shares

not only a special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life.’” Wallace v. Tex. Tech Univ., 80 F.3d

1042, 1051–52 (5th Cir. 1996) (quoting Rotary, 481 U.S. at 545). Ms. Atkinson has

not alleged any facts—e.g., whether she and Sanchez cohabitate, the roles they play

in each other’s lives, etc.—showing that her relationship with Sanchez falls within

this ambit. Even if she had, Ms. Atkinson has not alleged that Dr. Pustilnik had any

reason to know that Sanchez was her brother. Nor has Ms. Atkinson pointed to any

authority showing that a sister’s right to be free from retaliation for her brother’s

speech is clearly established in this circuit. See Wooley, 211 F.3d at 923 (declining

to “definitively resolve” whether “the emotional ties between a minor and an

unrelated adult care giver” were constitutionally protected because, even if they

were, the right was not clearly established, meaning qualified immunity was

warranted).

* * *

For all these reasons, Dr. Pustilnik is entitled to qualified immunity on Ms.

Atkinson’s First Amendment retaliation claim for the delayed issuance of Mr.

Atkinson’s final death certificate. The same is not true, however, of Ms. Atkinson’s

First Amendment retaliation claim based on Dr. Pustilnik’s allegedly false

designation of Mr. Atkinson’s manner of death.

2. Furnishing a False Manner of Death

Ms. Atkinson alleges Dr. Pustilnik retaliated against her when, a few weeks

after she filed this lawsuit, Dr. Pustilnik issued a final death certificate designating

Mr. Atkinson’s manner of death as homicide. Dr. Pustilnik does not distinguish

between the two separate adverse actions—the delay of the death certificate and its

subsequent falsification—that Ms. Atkinson alleges were retaliatory. Because Ms.

Atkinson clearly engaged in a constitutionally protected activity—the filing of this

lawsuit5—prior to Dr. Pustilnik’s allegedly false designation of Mr. Atkinson’s

manner of death, Ms. Atkinson’s participation (or lack thereof) in the Sanchez Call

is irrelevant to the false-manner-of-death retaliation claim. Thus, Dr. Pustilnik

advances two arguments for why Ms. Atkinson’s First Amendment retaliation

claim for the delayed issuance of Mr. Atkinson’s final death certificate fails to state

a constitutional violation: (1) he took no adverse action against Ms. Atkinson; and

(2) Ms. Atkinson’s speech was not curtailed. Dr. Pustilnik further argues that, even

if there was a constitutional violation, he is entitled to qualified immunity because

the constitutional right in question was not clearly established.

a. Constitutional Violation

(1) Adverse Action

Dr. Pustilnik argues he “did not take any action against [Ms.] Atkinson—

much less action that is actionable under the First Amendment.” Dkt. 27 at 16. In

support of this argument, Dr. Pustilnik cites two inapposite cases. See Colson, 174

F.3d 498; Pierce v. Tex. Dep’t of Crim. Just., Inst. Div., 37 F.3d 1146 (5th Cir. 1994).

Both cases “held that false accusations, verbal reprimands, and investigations were

5 No one disputes that filing a lawsuit is a constitutionally protected activity. See Wilson

v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979) (“It is by now well established that

access to the courts is protected by the First Amendment right to petition for redress of

grievances.”).

not actionable adverse employment actions.” Colson, 174 F.3d at 511 (emphasis

added). But these cases have nothing to say about whether an official’s falsification

of a vital record constitutes an adverse action.

Dr. Pustilnik’s response suggests that Ms. Atkinson was not entitled to Mr.

Atkinson’s death certificate. See Dkt. 27 at 17 (“Pustilnik did not deny [Ms.]

Atkinson any license, benefit, or permit she was otherwise entitled to receive. . . .

[Ms.] Atkinson only claims that [Dr.] Pustilnik . . . made a false manner of death

designation on[] Mr. Atkinson’s death certificate.”). By emphasizing Mr.

Atkinson’s name, I assume Dr. Pustilnik is implying that only the dead are entitled

to accurate death certificates. That is nonsensical. It also flies in the face of Texas

law, which recognizes that a “spouse” like Ms. Atkinson is an “immediate family

member” and thus a “[p]roperly qualified applicant” entitled to such a vital record.

25 TEX. ADMIN. CODE § 181.1(13), (21). Texas law also criminalizes the falsification

of a vital record. See TEX. HEALTH & SAFETY CODE § 195.004(a).

Dr. Pustilnik makes too much of his lack of connection to Ms. Atkinson’s

insurance company and the status of her insurance claim for Mr. Atkinson’s death.

The insurance company’s refusal to pay death benefits is not the adverse action.

The adverse action for which Ms. Atkinson seeks to hold Dr. Pustilnik responsible

is the allegedly false designation of her husband’s manner of death. If true, this

criminal act is undoubtedly an adverse action.

(2) Curtailment of Speech

As for curtailment, Dr. Pustilnik oversells the requirement that Ms.

Atkinson’s speech be curtailed. To satisfy this pleading requirement, Ms. Atkinson

must allege that she “reduced or changed [her] exercise of free speech in any way”

after the lawsuit was filed. McLin v. Ard, 866 F.3d 682, 697 (5th Cir. 2017).

Because “there is no justification for harassing people for exercising their

constitutional rights,” the “effect on freedom of speech . . . need not be great in

order to be actionable.” Id.

I agree with Dr. Pustilnik that Ms. Atkinson’s allegation that she would have

curtailed her speech—by insisting that her brother refrain from contacting Dr.

Pustilnik—is insufficient to state that her speech has been curtailed. See Dkt. 27 at

20. But Ms. Atkinson has otherwise alleged curtailment. Ms. Atkinson has stated

that “if another family member dies in Fort Bend County (God forbid), [she] now

knows that she had better not make any complaint to or about [Dr.] Pustilnik lest

he retaliate again.” Dkt. 21 at 17. Construing this poorly worded allegation in the

light most favorable to Ms. Atkinson, she has alleged that she will not criticize or

contact Dr. Pustilnik in connection with any other family members’ deaths. This is

more than the conclusory allegation of “great personal damage” found insufficient

in McLin. See 866 F.3d at 697.

Dr. Pustilnik argues that speculation about future curtailment is insufficient.

But the “threat of specific future harm” is sufficient to allege a chilling effect. Laird

v. Tatum, 408 U.S. 1, 14 (1972). Notwithstanding Ms. Atkinson’s use of the words

“if” and “God forbid,” death is a certainty. See Bel v. United States, 452 F.2d 683,

688 (5th Cir. 1971) (“[T]he only certainties in life might be death and taxes.”). Dr.

Pustilnik’s continued employment as the Fort Bend County Medical Examiner may

be less certain than death, but I am unwilling to hold that a plaintiff cannot allege

curtailment based on future events that are likely (if not certain) to occur. Part of

the curtailment the Fifth Circuit found sufficient in Keenan was the plaintiff’s

statement that “he was afraid to travel in Precinct 5.” 290 F.3d at 260. Ms.

Atkinson’s curtailment is no less substantive—the circumstances in which her

speech is curtailed simply arise less frequently than traveling through a specific

geographic area.6

6 Keenan also alleged that “he backed off from direct involvement in helping expose

unlawful practices in the constable’s office.” Id. (quotation omitted). But he later stated

“that he videotaped one instance of suspected unlawful activity and filed a complaint with

a state agency against Constable Tejeda.” Id. Thus, his allegation of backing off from direct

involvement was either not as important to the Fifth Circuit as his restricting his travel,

or the Fifth Circuit chose to credit this allegation because it was not conclusory, despite it

being implausible. Either way, Ms. Atkinson has plausibly alleged the threat of specific

* * *

For all these reasons, Ms. Atkinson states a First Amendment retaliation

claim for Dr. Pustilnik’s refusal to finalize her husband’s cause of death, and thus

satisfies the first prong of the qualified immunity inquiry. All that remains is the

question of whether Dr. Pustilnik violated a clearly established right.

b. Violation of a Clearly Established Right

The second prong of the qualified immunity inquiry requires me to

determine if the “right at issue was clearly established at the time of the defendant’s

alleged misconduct.” Jennings v. Patton, 644 F.3d 297, 300 (5th Cir. 2011)

(quotation omitted). Dr. Pustilnik argues that even if his actions violated a

constitutional right, he is entitled to qualified immunity, as there was no clearly

established authority which stands for the proposition that “making a false manner

of death designation on[] a spouse’s death certificate, is actionable under the First

Amendment.” Dkt. 27 at 21. That is simply not true.

Dr. Pustilnik’s argument evidences a fundamental misunderstanding of the

qualified immunity doctrine. Ms. Atkinson need not point to a case with precisely

identical facts. “The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to [Dr. Pustilnik] that his conduct

was unlawful in the situation he confronted.” Lytle v. Bexar Cnty., 560 F.3d 404,

410 (5th Cir. 2009) (quotation omitted). “Answering in the affirmative requires the

court to be able to point to controlling authority—or a robust consensus of

persuasive authority—that defines the contours of the right in question with a high

degree of particularity.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013)

(cleaned up). “The central concept is that of ‘fair warning’: The law can be clearly

established despite notable factual distinctions between the precedents relied on

and the cases then before the Court, so long as the prior decisions gave reasonable

future harm to her free speech rights by stating that she will not criticize Dr. Pustilnik if

another of her family members dies in Fort Bend County.

warning that the conduct then at issue violated constitutional rights.” Newman v.

Guedry, 703 F.3d 757, 763 (5th Cir. 2012) (cleaned up).

It is clearly established that public officials cannot retaliate against citizens

for their speech. See Colson, 174 F.3d at 508 (“[T]he First Amendment prohibits

. . . adverse government action against an individual because of her exercise of

First Amendment freedoms.”). Moreover, a person commits a Class C

misdemeanor under Texas law if “the person refuses or fails to furnish correctly

any information in the person’s possession affecting a certificate or record,” or

“fails, neglects, or refuses to fill out a . . . death certificate.” TEX. HEALTH & SAFETY

CODE § 195.004(a)–(b). Thus, no reasonable official would think it constitutional

to furnish a false manner of death on a vital record in retaliation for a lawsuit filed

against the official. Accordingly, Dr. Pustilnik is not entitled to qualified immunity

for Ms. Atkinson’s claim that he retaliated against her by falsely designating the

manner of her husband’s death as homicide. This claim will survive Dr. Pustilnik’s

motion to dismiss.

B. VIOLATION OF EQUAL PROTECTION RIGHTS

Ms. Atkinson next brings a “class of one” equal protection claim against Dr.

Pustilnik. Ms. Atkinson alleges that Dr. Pustilnik “singled [her] out” and “treated

her far differently from similarly[]situated individuals” because he was

“[m]otivated by his desire to retaliate” against her. Dkt. 21 at 18.

“The Equal Protection Clause [of the Fourteenth Amendment] directs that

persons similarly situated should be treated alike.” Williams v. Bramer, 180 F.3d

699, 705 (5th Cir. 1999). In Village of Willowbrook v. Olech, the Supreme Court

reiterated that equal protection claims based on a “class of one” are cognizable.

528 U.S. 562, 564 (2000). To state such a claim, the plaintiff must sufficiently

allege that “(1) he or she was treated differently from others similarly situated and

(2) there was no rational basis for the disparate treatment.” Stotter v. Univ. of Tex.

at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007).

Ms. Atkinson has failed to sufficiently allege that she was treated differently

than other similarly situated individuals. The Fifth Circuit has explained that this

inquiry is highly fact-specific.

The legal requirement that a class-of-one plaintiff’s

comparators be similarly situated is not a requirement susceptible to

rigid, mechanical application—there is no precise formula to

determine whether an individual is similarly situated to comparators.

Several of our sister circuits, confronting this issue, have stated that,

in order to be similarly situated, comparators must be prima facie

identical in all relevant aspects. But this statement simply raises new

questions. What aspects of a particular case are relevant? What is

relevant in one case might not be relevant in another, for example, and

the degree to which others are viewed as similarly situated necessarily

will depend substantially on the facts and context of the case. In short,

the inquiry is case-specific and requires us to consider the full variety

of factors than an objectively reasonable decisionmaker would have

found relevant in making the challenged decision.

Lindquist v. City of Pasadena, 669 F.3d 225, 233–34 (5th Cir. 2012) (cleaned up).

Although her live “complaint generally alleges that other similarly situated

individuals were treated differently, [Ms. Atkinson] points to no specific person or

persons and provides no specifics as to their” particular situation. Rountree v.

Dyson, 892 F.3d 681, 685 (5th Cir. 2018); see also Smith v. Kimbhal, 421 F. App’x

377, 379 (5th Cir. 2011) (affirming dismissal of an equal protection “class of one”

claim because the plaintiff “provided insufficient information from which this or

any other court could ascertain whether he is ‘similarly situated’”). This pleading

deficiency dooms her claim. Dr. Pustilnik is entitled to qualified immunity on this

claim.

C. VIOLATION OF SUBSTANTIVE DUE PROCESS RIGHTS

Ms. Atkinson also brings a claim against Dr. Pustilnik for violations of her

substantive due process rights. She alleges that, “[m]otivated by his desire to

retaliate” against her, Dr. Pustilnik “refused to perform a ministerial duty, i.e.,

issuance of a death certificate.” Dkt. 21 at 18.

The Fourteenth Amendment provides that no state shall deprive any person

of “life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV,

§ 1. A substantive due process claim “bars certain arbitrary, wrongful government

actions ‘regardless of the fairness of the procedures used to implement them.’”

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)). Because the Due Process Clause of the Fourteenth

Amendment “protects persons against deprivations of life, liberty, or property,”

individuals like Ms. Atkinson “who seek to invoke its procedural protection must

establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209,

221 (2005); see also Conroe Creosoting Co. v. Montgomery Cnty., 249 F.3d 337,

341 (5th Cir. 2001) (requiring plaintiff bringing substantive due process claim to

“first establish the existence of a property interest protected by the Fourteenth

Amendment”).

Ms. Atkinson contends that she has properly alleged that Dr. Pustilnik

deprived her of both a liberty and property interest. I completely disagree.

To start, I will explore the liberty interest issue. “A liberty interest may arise

from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’

or it may arise from an expectation or interest created by state laws or policies.”

Wilkinson, 545 U.S. at 221 (cleaned up). Tellingly, the word “liberty” does not

appear in Ms. Atkinson’s live complaint, and it is hard to fathom how a liberty

interest is implicated by the allegations contained in the lawsuit. In opposing the

motion to dismiss, Ms. Atkinson claims that she was deprived of a protected liberty

interest by virtue of Dr. Pustilnik’s alleged violations of the “First, Fourth, and

Fourteenth Amendment[s].” Dkt. 33 at 14. This argument, however, blissfully

ignores the Supreme Court’s express instruction “not to apply the Fourteenth

Amendment’s substantive-due-process catchall when another, more specific

constitutional provision applies.” Pinkston v. Kuiper, 67 F.4th 237, 241 (5th Cir.

2023). “[I]f a constitutional claim is covered by a specific constitutional provision,

such as the Fourth or Eighth Amendment, the claim must be analyzed under the

standard appropriate to that specific provision, not under the rubric of substantive

due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); Albright, 510

U.S. at 273 (1994) (“Where a particular Amendment ‘provides an explicit textual

source of constitutional protection’ against a particular sort of government

behavior, ‘that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims.” (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989))). For this reason, Ms. Atkinson has not

sufficiently alleged a protected liberty interest.

I now turn to the property interest inquiry. “[F]or a person to have a property

interest within the ambit of the Fourteenth Amendment, he ‘must have more than

an abstract need or desire for it. He must have more than a unilateral expectation

of it. He must, instead, have a legitimate claim of entitlement to it.’” Blackburn v.

City of Marshall, 42 F.3d 925, 936 (5th Cir. 1995) (quoting Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972)). “Property interests are not created by the

Constitution; rather, they stem from independent sources such as state statutes,

local ordinances, existing rules, contractual provisions, or mutually explicit

understandings.” Blackburn, 42 F.3d at 936–37. In her response to Dr. Pustilnik’s

motion to dismiss, Ms. Atkinson argues that the “$1 million worth of insurance

proceeds” constitute a property interest to which she was deprived. Dkt. 33 at 15.

Setting aside that this allegation is raised in Ms. Atkinson’s response and not

the live complaint, it is unavailing. Ms. Atkinson points to Connecticut v. Doehr

for the proposition that “even the temporary or partial impairments to property

rights that attachments, liens, and similar encumbrances entail are sufficient to

merit due process protection.” 501 U.S. 1, 12 (1991). That case, however, is

inapposite for two reasons: (1) it is a procedural, not a substantive, due process

case; and (2) it pertains to encumbrances on real property—not life insurance

policy proceeds, as is the case here. Ample case law holds that there is no property

interest to insurance proceeds—even from policies issued by local governmental

bodies. See, e.g., Loc. 342, Long Island Pub. Serv. Emps., UMB, ILA, AFL-CIO v.

Town Bd. of Town of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994) (“In view of

our conclusion that the Union possessed no protectible property interest in the

insurance payments, it would appear obvious that the Town’s termination of those

payments in no way violated the substantive due process rights of Local 342.”).

Accordingly, Ms. Atkinson does not have a property interest in the insurance

proceeds.

* * *

Ms. Atkinson has not identified a liberty or property interest of which she

has been deprived. As a result, Dr. Pustilnik is entitled to qualified immunity, and

Ms. Atkinson’s substantive due process claim fails at the motion to dismiss stage.

D. VIOLATION OF THE FOURTH AMENDMENT RIGHT TO BE FREE FROM

UNREASONABLE SEIZURES

The Fourth Amendment prohibits unreasonable seizures. See U.S. CONST.

amend. IV. In order to state a claim under § 1983 for an unreasonable seizure, Ms.

Atkinson must allege that (1) she was seized within the meaning of the Fourth

Amendment; and (2) the seizure was unreasonable. See Brower v. Cnty. of Inyo,

489 U.S. 593, 599 (1989). Ms. Atkinson’s Fourth Amendment claim fails on both

counts.

Ms. Atkinson alleges she was seized when Dr. “Pustilnik convened an

inquest and ordered [her] to appear and testify at that inquest even though he had

no legal authority to act in such a way.” Dkt. 21 at 18. The fundamental flaw with

Ms. Atkinson’s claim is that she agreed to appear at the inquest. It is undisputed

that a Fort Bend County justice of the peace—not Dr. Pustilnik—ordered Ms.

Atkinson to appear at the inquest and produce all ammunition in her home that

could have been used from the gun that caused Mr. Atkinson’s death. After

originally moving to quash the subpoena, Ms. Atkinson ultimately agreed to

appear at the inquest and agreed to produce the ammunition. This voluntary

cooperation tanks Ms. Atkinson’s Fourth Amendment claim. See Dkt. 33-4 at 32.

In the Fourth Amendment context, “a seizure occurs when, under the totality

of the circumstances, a reasonable person would have thought he was not free to

leave.” Keller v. Fleming, 952 F.3d 216, 222 (5th Cir. 2020). “Physical force is not

required to effect a seizure; however, absent physical force, ‘submission to the

assertion of authority’ is necessary.” McLin, 866 F.3d at 691 (quoting California v.

Hodari D., 499 U.S. 621, 626 (1991)). “The Fourth Amendment proscribes

unreasonable searches and seizures; it does not proscribe voluntary cooperation.”

Florida v. Bostick, 501 U.S. 429, 439 (1991). Because Ms. Atkinson voluntarily

appeared at the inquest, no seizure took place. Her Fourth Amendment claim falls

short.

Even if Ms. Atkinson properly alleged that a seizure occurred, her Fourth

Amendment claim would still fail because she has not sufficiently alleged that any

seizure was unreasonable. Only unreasonable searches and seizures violate the

Fourth Amendment. See Ohio v. Robinette, 519 U.S. 33, 39 (1996) (“[T]he

touchstone of the Fourth Amendment is reasonableness.” (quotation omitted)).

“Reasonableness, in turn, is measured in objective terms by examining the totality

of the circumstances.” Id. As the Chief Medical Examiner, Dr. Pustilnik

unquestionably possessed the right to convene an inquest to determine the cause

and manner of Mr. Atkinson’s death.7 See TEX. CODE CRIM. PROC. art. 49.25 § 6(a).

“All that the [F]ourth [A]mendment requires is that the administrative subpoena

be relevant, definite, and within the bounds of statutory authority.” McClendon v.

Jackson Television, Inc., 603 F.2d 1174, 1177 (5th Cir. 1979). Speaking to the

spouse of the deceased is relevant and within Dr. Pustilnik’s statutory authority.

7 Ms. Atkinson complains that Dr. Pustilnik did not have the legal authority to conduct an

inquest because he never took an oath of office or executed a bribery statement. She is

mistaken. Texas law is clear that county medical examiners need not take an oath of office

or execute a bribery statement. See Arredondo v. State, 406 S.W.3d 300, 304 (Tex. App—

San Antonio 2013, pet. ref’d) (finding that county medical examiners are not “public

officers” under the Texas Constitution).

This provides an independent reason why Ms. Atkinson’s Fourth Amendment

claim should be dismissed at the pleading stage.

Overall, the facts, as alleged by Ms. Atkinson, are insufficient to make out a

violation of the Fourth Amendment. As such, Dr. Pustilnik is entitled to qualified

immunity on this claim.

THE FORT BEND DEFENDANTS’ MOTION TO DISMISS

Ms. Atkinson acknowledges that the Fort Bend Defendants did not directly

participate in any alleged constitutional violation. Instead, she claims the Fort

Bend Defendants are liable under theories of ratification and failure to supervise.

Because I have found Ms. Atkinson has not sufficiently stated a claim for

violation of her equal protection rights, substantive due process rights, or the right

to be free from unreasonable seizures,8 any claim for supervisory liability against

the Fort Bend Defendants based on those alleged constitutional violations must be

dismissed. See Pena v. Givens, 637 F. App’x 775, 785 (5th Cir. 2015) (“Supervisory

liability requires a constitutional violation by a subordinate.”). Ms. Atkinson’s

claim for supervisory liability based on Dr. Pustilnik’s alleged First Amendment

retaliation must also be dismissed insofar as the delayed issuance of the death

certificate is concerned because, as discussed above, Ms. Atkinson fails to state

such a claim. “Further, because there is no underlying constitutional violation,

[Fort Bend Defendants] also cannot be held liable under a ratification theory.”

Mazoch v. Carrizales, 733 F. App’x 179, 184 (5th Cir. 2018).

With respect to the Fort Bend Defendants, the sole question I must address

is whether Ms. Atkinson has sufficiently stated a claim for ratification or

supervisory liability related to her First Amendment retaliation claim based on Dr.

Pustilnik’s allegedly false designation of Mr. Atkinson’s manner of death. As

8 The Individual Fort Bend Defendants are also entitled to qualified immunity on these

claims because I have determined that Ms. Atkinson has not sufficiently alleged a

constitutional violation.

explained below, Ms. Atkinson’s claims for ratification and supervisory liability

both fall well short of what is required.

A. RATIFICATION

On February 17, 2023, after Dr. Pustilnik allegedly falsified Mr. Atkinson’s

manner of death, Ms. Atkinson’s counsel sent a letter to the Fort Bend Defendants

informing them that SLPD had “performed firearms tests long before [Dr.]

Pustilnik claimed that he needed to conduct firearms tests.” Dkt. 21 at 13. He also

reminded the Fort Bend Defendants of an October 3, 2022 letter asking them “to

intervene and exercise supervisory authority over [Dr.] Pustilnik.” Id. Because the

Fort Bend Defendants “were informed in writing about [Dr.] Pustilnik’s ongoing

constitutional violations (as well as their potential liability)” and “took no action to

reign him in,” Ms. Atkinson contends the Fort Bend Defendants have ratified Dr.

Pustilnik’s conduct. Dkt. 34 at 4.

The ratification theory of municipal liability can be traced to the Supreme

Court case of City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). In Praprotnik, a

plurality of the Supreme Court recognized “a scenario in which a municipality

could be held liable for a single episode of conduct initiated by a non-policymaker

employee.” Milam v. City of San Antonio, 113 F. App’x 622, 626 (5th Cir. 2004).

The Supreme Court explained:

[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.

Praprotnik, 485 U.S. at 127. The Fifth Circuit has held that the ratification theory

is an appropriate basis for imposing municipal liability only in “extreme factual

situations.” Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017)

(quotation omitted). “Therefore, unless the subordinate’s actions are sufficiently

extreme—for instance, an obvious violation of clearly established law—a

policymaker’s ratification or defense of his subordinate’s actions is insufficient to

establish an official policy or custom.” World Wide Street Preachers Fellowship v.

Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009).

Although the scope of the ratification theory is not always clearly defined,

there is no question that “policymakers who simply go along with a subordinate’s

decision do not thereby vest final policymaking authority in the subordinate, nor

does a mere failure to investigate the basis of a subordinate’s discretionary

decisions amount to such a delegation.” Milam, 113 F. App’x at 627 (cleaned up).

Similarly, “a policymaker who defends conduct that is later shown to be unlawful

does not necessarily incur liability on behalf of the municipality.” Peterson v. City

of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009). These limitations on municipal

liability are vital to prevent the ratification theory from becoming a theory of

respondeat superior, a concept the Supreme Court has expressly rejected. See Bd.

of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (a local

governmental entity is not vicariously liable under § 1983 for its employees’

conduct); Praprotnik, 485 U.S. at 126 (“If the mere exercise of discretion by an

employee could give rise to a constitutional violation, the result would be

indistinguishable from respondeat superior liability.”).

In this case, Ms. Atkinson’s counsel claims he sent several communications

to the Fort Bend Defendants complaining about Dr. Pustilnik. The Fort Bend

Defendants reportedly took no action in response. Even if true, these allegations

are insufficient to support a viable ratification theory against the Fort Bend

Defendants. I am unaware of any case law suggesting that a municipality

automatically ratifies the conduct of its officials when it fails to take disciplinary

action in response to public complaints. To the contrary, the Fifth Circuit has

routinely held that allegations that a municipality declined to punish an officer’s

conduct do not, taken alone, establish unconstitutional ratification. See Fraire v.

City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (“[Plaintiffs] merely argue

that the city ratified Lowery’s actions because it refused to discipline him, and

because it allegedly knew that Lowery’s version of the incident was untrue. Such

allegations are wholly insufficient.”). Simply stated, a municipality cannot be liable

under the ratification theory unless its policymaker ratified what it knew at the

time to be unconstitutional conduct. See Praprotnik, 485 U.S. at 127–30. There

are no such allegations in the instant lawsuit.

A passage I wrote in another ratification case is equally applicable here:

In [Ms. Atkinson’s] view, [Fort Bend] County should face liability in

this case because it accepted [Dr. Pustilnik’s] version of events and

refused to discipline him for something he claimed he did not do. [Ms.

Atkinson’s] theory of liability in this case attempts to turn Section

1983 liability on its head by imposing liability on a governmental

entity anytime it accepts [its] employee’s account of an incident. That

is not, and has never been, the law. [Fort Bend] County is entitled to

believe [Dr. Pustilnik’s] version of events without automatically

subjecting itself to liability if he is incorrect. See Diamond-Brooks v.

City of Webster, No. 12-CV-3482, 2014 WL 527910, at *8 (S.D. Tex.

Feb. 6, 2014) (“the policymaker does not ratify unconstitutional

behavior simply because he believes the officer's version of

events . . . even if that version is subsequently proven to be wrong.”)

(internal quotation marks and citations omitted).

Jennings v. Brazoria Cnty., No. 3:17-cv-00243, 2018 WL 7625012, at *5 (S.D.

Tex. Dec. 12, 2018).

The same analysis applies to the individual capacity ratification claims. See

Barker on Behalf of Barker v. City of Plaquemine, No. 17-340, 2019 WL 4580047,

at *6 (M.D. La. Sept. 20, 2019) (dismissing an individual capacity ratification claim

because “the failure . . . to discipline an officer for allegedly unconstitutional

conduct, without more, does not constitute ratification or endorsement of the

officer’s behavior”).

As such, Ms. Atkinson’s ratification theory cannot pass muster at the

pleading stage.

B. FAILURE TO SUPERVISE

Ms. Atkinson’s allegation that the Fort Bend Defendants were “deliberately

indifferent” to Dr. Pustilnik’s misconduct is a § 1983 claim for failure to supervise.

See Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003). The Supreme Court has

expressly rejected the notion that government officials may be held liable merely

because they had knowledge of their subordinate’s misconduct. See Iqbal, 556 U.S.

at 677 (“In a §1983 suit . . . the term ‘supervisory liability’ is a misnomer. Absent

vicarious liability, each Government official, his or her title notwithstanding, is

only liable for his or her own misconduct.”). In accordance with this guidance, the

Fifth Circuit has held that a supervisor may only be liable when he “affirmatively

participates in the acts that cause the constitutional deprivation, or [he]

implements unconstitutional policies that causally result in the constitutional

injury.” Pena v. City of Rio Grande City, 879 F.3d 613, 620 (5th Cir. 2018).

There are no such allegations here. Ms. Atkinson simply claims that her

attorneys sent the Fort Bend Defendants emails and letters that outlined her

complaints against Dr. Pustilnik. Absent any factual allegations concerning

personal involvement on the part of the Individual Fort Bend Defendants, there is

no valid basis to hold them liable in their individual capacities merely because they

held county-wide positions. See Thompson v. Crnkovich, No. 1:16-cv-055, 2017

WL 5514519, at *2 (N.D. Tex. Nov. 16, 2017) (“Without personal involvement or

participation in an alleged constitutional violation, or implementation of a

deficient policy, the individual should be dismissed as a defendant.”). Dismissal of

the supervisory liability claim against Fort Bend County is also appropriate, as

there is no factual basis for which Fort Bend County can be held liable.

CONCLUSION

For the reasons identified above, Dr. Pustilnik’s motion to dismiss (Dkt. 27)

is GRANTED IN PART and DENIED IN PART. All claims against Dr. Pustilnik

are dismissed except for the First Amendment retaliation claim based on Dr.

Pustilnik’s allegedly false designation of Mr. Atkinson’s manner of death. The Fort

Bend Defendants’ motion to dismiss (Dkt. 28) is GRANTED, and this case is

dismissed against the Fort Bend Defendants.

SIGNED this 2nd day of May 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE