Edmiston v. Borrego

Case: 22-50102 Document: 00516841270 Page: 1 Date Filed: 08/01/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

August 1, 2023

No. 22-50102 Lyle W. Cayce

____________ Clerk

Shanon Edmiston, Individually; Helen Holman, as dependent

administrator of, and on behalf of, LISA WILLIAMS a/k/a LISA

SCHUBERT, E.S., J.S. #1, J.S. #1; Shanon Edmiston, the

ESTATE OF JOHN ROBERT SCHUBERT, JR., and JOHN

ROBERT SCHUBERT, JR.’s heirs-at-law,

Plaintiffs—Appellees,

versus

Oscar Borrego, Sr.; Oscar E. Carrillo; Peter E.

Melendez,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:21-CV-132

______________________________

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

This opinion is rendered contemporaneously with the opinion for the

appeal in 22-10360, Crandel v. Hall, consolidated on appeal with 22-10361,

Crandel v. Hastings. The two opinions concern the suicides by two pretrial

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detainees in two Texas jails and, inter alia, failure-to-protect claims.

Moreover, the same counsel for plaintiffs appear in each appeal.

At hand is an interlocutory appeal contesting the denial of motions to

dismiss asserting qualified immunity against failure-to-protect claims

concerning the pretrial detainee. Primarily at issue is whether the complaint

plausibly alleges the three appellants possessed subjective knowledge of a

substantial risk of suicide by detainee John Robert Schubert, Jr. This action

under 42 U.S.C. § 1983 arises out of his death while in pretrial detention in

the Culberson County, Texas, Jail. Plaintiffs fail to plausibly allege appellants

possessed the requisite subjective knowledge. VACATED and

RENDERED.

I.

Plaintiffs assert claims in district court under § 1983 against Oscar

Borrego, Sr., Sheriff Oscar E. Carrillo, Deputy Peter E. Melendez, Adelaida

Zambra, and Ernesto Diaz for failing to protect Schubert, claiming violations

of the Eighth and Fourteenth Amendments. They also have claims against

individual defendants under a theory of bystander liability, and a claim

against the Sheriff for supervisory liability. And, against Culberson County,

plaintiffs assert a claim under § 1983 and Monell v. Department of Social

Services of New York City, 436 U.S. 658 (1978), on the basis that its policies

related to jail-suicide prevention caused a violation of Schubert’s

constitutional rights. But, this interlocutory appeal concerns only the failure-

to-protect claims against Borrego, Sheriff Carrillo, and Deputy Melendez

(appellants).

A.

Because denial of a motion to dismiss is at issue, the following

recitation of fact is, unless otherwise noted, based on plaintiffs’ operative 75-

page complaint. As done in the complaint, approximate times are used. And,

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for the statements, including by appellants, obtained on 7 July 2019, and

contained in the Texas Rangers’ report, discussed infra, the district court

relied on the statements in the report as included in the complaint; therefore,

we do not distinguish between the report and the complaint.

On 6 July 2019, in Van Horn, Texas, Borrego, a jailer with the jail,

received a series of calls concerning a male—later identified as Schubert—

needing assistance. In the first call, at 11:05 p.m., the male caller asserted

someone was trying to kill him. In the second call, at 11:09 p.m., an off-duty

trooper stated a man was at his door saying someone was trying to kill him.

And, in the third and final call, at 11:12 p.m., someone at the El Capitan Hotel

in Van Horn said a man told the hotel clerk someone was trying to kill him.

Schubert, who had been wandering around Van Horn, was both the initial

unknown caller and the subject of the second and third calls.

Borrego directed Culberson County Sheriff’s Deputy Melendez to

respond. The Deputy was dispatched initially to a location in Van Horn

regarding Schubert’s knocking on a resident’s door, but Schubert was not

present when the Deputy arrived. After being notified of the third call, the

Deputy located Schubert at 11:15 p.m. at the El Capitan Hotel.

The Deputy spoke with Schubert, later providing in a statement

(included in the complaint) that Schubert “appeared nervous and said that

people were trying to kill [him]”. The Deputy said Schubert: accurately

stated the day of the week, the approximate time, and his location in Van

Horn; provided his name and date of birth; but gave an incorrect year.

The Deputy took Schubert to a Border Patrol Station to obtain

information to identify him correctly. In doing so, the Deputy learned

Schubert had an active warrant for parole violation.

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Based on the warrant, the Deputy arrested Schubert and transported

him to the jail. They arrived at 12:14 a.m. on 7 July, and Schubert was placed

in the booking area.

Culberson County Sheriff Carrillo heard Borrego’s dispatch to

Deputy Melendez and followed up to check on the situation involving

Schubert. After learning that the Deputy arrested Schubert, the Sheriff

“decided to go to the jail and check on [Schubert] and jail personnel”.

Arriving at the jail after 12:59 a.m., the Sheriff was advised Schubert had a

warrant for parole violation.

With Borrego present, Schubert told the Sheriff: “he had hitchhiked

from El Paso and was in a half-way house in Horizon, Texas”; “he had left

the Horizon facility without permission and was not allowed to stay at the

facility once he returned”; and “they were mean to him at the facility,

and . . . he had had enough”. Throughout the interview, Schubert was not

wearing a shirt, because, as he explained, it was wet.

Schubert appeared to be cooperative and truthful in his responses.

Borrego and the Sheriff did not complete a “Screening Form for Suicide and

Medical/Mental/Developmental Impairments”, which plaintiffs allege is

required by the Texas Commission on Jail Standards (TCJS).

After the Sheriff spoke with Schubert, Borrego, at 1:35 a.m., provided

Schubert jail-issued clothing pursuant to the Sheriff’s instruction. Deputy

Melendez and Borrego escorted Schubert to a cell at 1:42 a.m. Schubert

repeated to the Deputy that someone was trying to kill him. Borrego,

pursuant to the Sheriff’s instruction, provided Schubert with a mattress. He

was not placed on suicide watch.

The Sheriff and Borrego left the jail at 1:48 a.m. The Deputy went

back on patrol at about the same time.

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When Borrego went to the dispatch office at 1:48 a.m. to clock out, he

asked Zambra, another jail employee, to run a driver’s-license and criminal-

history check on Schubert. (Zambra, a defendant in this action, is not a party

to this interlocutory appeal on qualified immunity. The district court granted

her motion to dismiss, based on such immunity.)

Zambra printed a copy of Schubert’s driver’s license and criminal

history at 2:17 a.m.; and, at 2:28 a.m., she requested a medical-history report:

a “Continuity of Care Query” (CCQ). It was later noted by the TCJS, in its

8 August 2019 report (a copy of the report summary is included in the body

of the complaint), that the CCQ came back as “no match”.

At 2:42 a.m., Zambra “manually” checked on the jail’s detainees.

When she checked Schubert’s cell, she could see him “half-kneeling with a

white sheet mangled on his neck and tied to a top grey shelf”. She went to

the “catwalk hallway” to get a better view of Schubert and called out to him

through the jail bars, but he did not respond. Next, she “called Deputy

Melendez and Sheriff Carrillo [at 2:44 a.m.] and asked that they come to the

jail as soon as possible”.

The Sheriff, after hearing Zambra’s radio call at 2:47 a.m., arrived first

and removed the sheet from Schubert’s neck, laid him on a bunk, and began

CPR. Upon the Sheriff’s instruction, Zambra called the rescue team at 2:50

a.m. EMTs were dispatched at 2:56 a.m., and arrived at the jail at 2:59 a.m.

Upon their arrival, Schubert was not breathing and did not have a pulse. He

was pronounced dead, with his autopsy report listing his cause of death as

suicide through asphyxia due to hanging.

B.

This action was filed in June 2021. Although additional claims were

added, at issue in this interlocutory appeal, as discussed supra, are only

plaintiffs’ claims under § 1983 against Borrego, Sheriff Carrillo, and Deputy

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Melendez for failure to protect, in violation of the Eighth and Fourteenth

Amendments. All individual defendants filed motions to dismiss, asserting

qualified immunity.

The district court in January 2022 denied in part appellants’ motions,

concluding they were not entitled to qualified immunity against the failure-

to-protect claims. In doing so, the court concluded the complaint plausibly

alleged: each of the appellants possessed the requisite subjective knowledge

of a risk of suicide or serious harm; and, they failed to take action to abate

that risk. The court concluded the “risk was obvious”, based on: Schubert’s

fragile psychological state; his statements regarding an unidentified assailant;

and appellants’ knowledge about the risk of jail suicides. The court further

concluded it is clearly established that, when an official is subjectively aware

of the risk of suicide and responds by giving the detainee loose bedding, an

obvious ligature, he acts with deliberate indifference and is not entitled to

qualified immunity.

Regarding plaintiffs’ other claims, the district court, inter alia,

dismissed the bystander-liability claims against the three appellants and the

supervisory-liability claim against the Sheriff.

II.

This interlocutory appeal by Borrego, the Sheriff, and the Deputy

(again, appellants) followed. Such an appeal from the denial of qualified

immunity is permitted pursuant to the collateral-order doctrine. E.g., Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). Along that line,

our court has jurisdiction to “review a district court’s order denying a motion

to dismiss on the basis of qualified immunity only to the extent that the appeal

concerns the purely legal question of whether the defendants are entitled to

qualified immunity on the facts”. Bevill v. Fletcher, 26 F.4th 270, 274 (5th

Cir. 2022) (alteration omitted) (citation omitted).

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“On interlocutory appeal, we review [de novo the] denial of a qualified-

immunity-based motion to dismiss . . . .” Benfield v. Magee, 945 F.3d 333, 336

(5th Cir. 2019). At this stage, we must “accept all well-pleaded facts as true,

drawing all reasonable inferences in the nonmoving party’s favor”. Id. “We

do not, however, accept as true legal conclusions, conclusory statements, or

naked assertions devoid of further factual enhancement.” Id. at 336–37

(alteration omitted) (citation omitted).

“A plaintiff seeking to overcome a motion to dismiss because of

qualified immunity . . . must plead facts that allow the court to draw the

reasonable inference that the defendant is liable for the harm alleged.” Bevill,

26 F.4th at 274 (citation omitted). That is, “a plaintiff must plead factual

allegations that, if true, ‘raise the right to relief above the speculative level’”,

meaning that the relief is “plausible, not merely possible”. Benfield, 945 F.3d

at 337 (first quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); then

citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Plaintiffs, in response to questioning at oral argument, submitted a

Federal Rule of Appellate Procedure 28(j) letter maintaining that, under

Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010), we may

consider documents attached to a dismissal motion that “are referred to in

the plaintiff’s complaint and are central to the plaintiff’s claim”. This is an

exception to the general rule that, in reviewing a motion to dismiss, the court

may not go outside the complaint and any attachments to it. Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ.

P. 12 (b)(6)). Sullivan relies on our decision in Scanlan v. Texas A&M

University, 343 F.3d 533 (5th Cir. 2003). Scanlan in turn relied on Collins,

which promulgated this “limited exception” for when our court may go

outside the complaint, including attachments to it, in reviewing a motion to

dismiss. Scanlan, 343 F.3d at 536; see Collins, 224 F.3d 496.

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We need not consider this narrow exception’s application vel non,

however, because, as noted supra and explained below, the district court

relied on the statements as included in the complaint. In denying dismissal,

the court stated: “All facts are taken as true from the allegations in Plaintiffs’

Complaint. . . . Defendants Borrego, Zambra, Melendez, Diaz, and Carrillo

attached their sworn statements to their respective Motions. . . . These

statements are effectively identical to those alleged in the Complaint upon

which the Court relies.” (Emphasis added.) Cf. Scanlan, 343 F.3d at 536

(citing Collins, 224 F.3d at 496) (explaining that, in Collins, our court

“approved the district court’s consideration of documents attached to the motion

to dismiss” and “that the plaintiffs did not object to, or appeal, the district

court’s consideration of those documents was central to this Court’s

approval of that practice” (emphasis added)).

“Qualified immunity protects officers from suit unless their conduct

violates a clearly established [statutory or] constitutional right.” Converse v.

City of Kemah, 961 F.3d 771, 774 (5th Cir. 2020) (quoting Mace v. City of

Palestine, 333 F.3d 621, 623 (5th Cir. 2003)). In our court, plaintiffs assert,

solely for the purpose of preserving the issue for further review, that qualified

immunity should be “abolished or modified so that it is inapplicable here”.

For this appeal, we proceed with the qualified-immunity doctrine intact.

When, as in this instance, defendants assert qualified immunity as a

basis for dismissing a complaint, “plaintiff seeking to overcome qualified

immunity must [plead facts allowing us to draw a reasonable inference]: ‘(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’”. Id.

(quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)); Bevill, 26

F.4th at 274. We have discretion to elect which of the two prongs for this

analysis should be addressed first. E.g., Pearson v. Callahan, 555 U.S. 223,

236 (2009).

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For this first prong, in order “[t]o overcome [appellants’] qualified

immunity defense, [p]laintiffs must first demonstrate that each official

violated [Schubert]’s statutory or constitutional right”. Converse, 961 F.3d

at 775. “[T]he Fourteenth Amendment protects pretrial detainees’ right to

medical care and to ‘protection from known suicidal tendencies’”. Baldwin

v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020) (emphasis added) (quoting Garza

v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019)); see also Converse, 961

F.3d at 775 (“We have repeatedly held that pretrial detainees have a

Fourteenth Amendment right to be protected from a known risk of suicide.”

(emphasis added)).

Where the claimed violation of that Fourteenth Amendment right

turns on alleged acts or omissions of an official, as in this action, the question

is whether the “official breached his constitutional duty to tend to the basic

human needs of persons in his charge”. Hare v. City of Corinth, 74 F.3d 633,

645 (5th Cir. 1996) (en banc) (explaining difference in episodic and

conditions-of-confinement claims); see also Cope v. Cogdill, 3 F.4th 198, 206–

07 (5th Cir. 2021), cert. denied, 142 S. Ct. 2573 (2022). Officials breach their

constitutional duty, violating a detainee’s rights, when “they had gained

actual knowledge of the substantial risk of suicide and responded with

deliberate indifference”. Converse, 961 F.3d at 775 (emphasis added)

(quoting Hare, 74 F.3d at 650). It is undisputed that “[d]eliberate

indifference is an extremely high standard to meet”. Domino v. Tex. Dep’t of

Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).

Accordingly, an “official will not be held liable if he merely ‘should

have known’ of a risk”. Converse, 961 F.3d at 775. Rather, to satisfy this high

standard, plaintiff must plausibly allege both that the official was “aware of

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

serious harm exist[ed]” and that he “also [drew] the inference”. Id. at 775–

76 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). An official with

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such knowledge “shows a deliberate indifference to that risk ‘by failing to

take reasonable measures to abate it’”. Id. (quoting Hare, 74 F.3d at 648).

Plaintiffs, however, maintain this court should instead apply the

objective-unreasonableness standard the Court adopted in Kingsley v.

Hendrickson for claims of excessive force (not failure to protect) by officers against

a pretrial detainee. 576 U.S. 389 (2015). But, we are bound by our rule of

orderliness. E.g., Def. Distrib. v. Platkin, 55 F.4th 486, 495 n.10 (5th Cir.

2022) (“The rule of orderliness means that one panel of our court may not

overturn another panel’s decision, absent an intervening change in law, such

as by statutory amendment, or the Supreme Court, or our en banc court.”

(citation omitted)). This rule renders this objective-unreasonableness

assertion meritless. See Cope, 3 F.4th at 207 n.7 (explaining Kingsley “did not

abrogate [this court’s] deliberate-indifference precedent”); Alderson v.

Concordia Par. Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017) (“Because

the Fifth Circuit has continued to rely on Hare and to apply a subjective

standard post-Kingsley, this panel is bound by our rule of orderliness.”).

Regarding the second prong of the qualified-immunity analysis, for a

right to be “clearly established” it must be “sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right”. Est. of Bonilla v. Orange Cnty., 982 F.3d 298, 306 (5th Cir. 2020)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Critically, courts

“must not ‘define clearly established law at a high level of generality’”;

rather, we must undertake the inquiry “in light of the specific context of the

case”. Cope, 3 F.4th at 204 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

Pursuant to our above-discussed discretion to begin our two-prong

qualified-immunity analysis with either prong, we elect to begin with the first.

For the reasons that follow, plaintiffs fail to plausibly allege a violation of a

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statutory or constitutional right. Therefore, we do not reach the second

prong (whether clearly-established).

To overcome appellants’ motions to dismiss based on qualified

immunity, plaintiffs must, as stated supra, have pled facts permitting our

court to draw a reasonable inference that Borrego, Sheriff Carrillo, and

Deputy Melendez “(1) had subjective knowledge of a substantial risk of

serious harm and (2) responded to that risk with deliberate indifference”. Id.

at 210 (citation omitted). In the context of detainee suicide, the requisite

substantial risk of serious harm must be specific; plaintiffs must allege

defendants “were aware of a substantial and significant risk that the detainee

might kill himself”. Id. at 207 (alteration omitted) (citation omitted).

For the reasons that follow, plaintiffs fail to plausibly allege appellants

had the requisite subjective knowledge of a substantial risk of suicide.

Accordingly, whether they responded to that putative risk with deliberate

indifference does not come into play.

A.

We first address plaintiffs’ blanket allegation that appellants “were

aware of the excessive risk of [Schubert’s] health and safety and were aware

of facts from which an inference could be drawn of serious harm, suffering

and death. Moreover, they in fact drew that inference”. As stated supra, we

must carefully discern factual allegations from legal conclusions in plaintiffs’

complaint. This statement about appellants’ state-of-mind merely restates

the standard required to demonstrate the requisite subjective knowledge;

therefore, we do not accept it as a well-pleaded allegation when evaluating

the sufficiency of the complaint. See Doe v. Robertson, 751 F.3d 383, 388 (5th

Cir. 2014) (observing allegation that defendants “exhibited deliberate

indifference” was “merely a legal conclusion”, even if it “might have ‘been

couched as a factual allegation’” (quoting Iqbal, 556 U.S. at 678)).

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Regarding plaintiffs’ well-pleaded allegations concerning the lack of

mental-health screening, plaintiffs allege appellants ignored TCJS’

instructions and put Schubert at risk. These allegations fail. Our court has

acknowledged there is no independent constitutional right to suicide

screening. E.g., Est. of Bonilla, 982 F.3d at 307 (citing Taylor v. Barkes, 575

U.S. 822, 826 (2015)) (“No decision of this Court establishes a right to

proper implementation of adequate suicide prevention protocols. No

decision of this Court even discusses suicide screening or prevention

protocols.”).

The well-pleaded allegations do not give rise to a plausible inference

that Schubert had previously experienced suicidal tendencies, nor that he

acted in a way to alert officials of a substantial risk of suicide. Further,

plaintiffs do not allege he had documented instances of mental illness, as the

earlier-discussed CCQ came back as “no match”. (Therefore, even if

plaintiffs could assert a right to suicide screening, allegations “of inadequate

screening or a violation of facility procedure would not raise an issue of

deliberate indifference” without additional allegations plausibly

demonstrating appellants subjectively knew Schubert was at risk for suicide.

Id. at 305.)

Additionally, plaintiffs allege the following. Culberson County had

been previously cited by the TCJS for violating jail standards relating to the

completion of the screening form and prevention of jail suicides. The TCJS

had also cited the county’s jail for being non-compliant with various

requirements, including requirements to ensure that all jailers were up-to-

date on their licensing, that only jailers with the proper training perform

inmate-classification duties, that jailers make sure to log that they have

searched for whether the inmate has previously received mental-health

treatment, and that jailers attend the required suicide-prevention training.

Plaintiffs further allege a prior suicide at the jail put appellants “on notice”.

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In response to Schubert’s death, the TCJS, in its above-referenced 8 August

2019 report, stated the jail: exhibited two violations of minimum standards;

and was issued a notice of non-compliance.

B.

With these general allegations considered, we turn to specific

allegations regarding appellants’ entitlement vel non to qualified immunity.

When, as here, multiple government actors are defendants and assert

qualified immunity, we “evaluate each officer’s actions separately, to the

extent possible”. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.

2012).

Again, because motions to dismiss are under review, we must consider

the well-pleaded allegations in the complaint. For the reasons that follow, we

hold plaintiffs “have failed to [allege] that [Schubert’s] tendencies were

known to anyone—let alone [appellants]”. Est. of Bonilla, 982 F.3d at 305.

1.

Borrego, a jailer for the Culberson County Jail, received the three 911

calls, one in which a male (later identified as Schubert) stated an unknown

person was trying to kill him and two in which others reported a man was

going around saying that someone was trying to kill him. Borrego also, with

Sheriff Carrillo, witnessed Schubert’s explaining his history of drug abuse

and his leaving a halfway house. Borrego did not complete a mental-health

screening form for Schubert.

Plaintiffs also allege Borrego “formed the opinion . . . that [Schubert]

was mentally ill and needed immediate mental health treatment” and that

“[Schubert] did not need to be jailed”. We do not accept this “conclusory

statement”, however, because it amounts to a “naked assertion[] devoid of

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further factual enhancement”. Benfield, 945 F.3d at 336–37 (citation

omitted).

Accepting the well-pleaded allegations as true and drawing reasonable

inferences in plaintiffs’ favor, we consider whether Borrego “had the

requisite knowledge of a substantial risk”. Farmer, 511 U.S. at 842; Benfield,

945 F.3d at 336. Our court has repeatedly held officials have the requisite

subjective knowledge when circumstantial evidence directs an official to the

specific risk of suicide. E.g., Cope, 3 F.4th at 207–08 (official witnessed

decedent attempt suicide the day before incident in question); Converse, 961

F.3d at 776, 778–79 (official was present when decedent was pulled off bridge

while he attempted to jump and where official heard decedent express that

he should have jumped and would make another attempt to do so when

released); Hyatt v. Thomas, 843 F.3d 172, 178 (5th Cir. 2016) (even though

decedent stated he did not want to kill himself, official knew decedent

suffered from depression, had recently attempted suicide, and his wife

believed him to be suicidal).

Plaintiffs do not plausibly allege Schubert did or said anything to

indicate he was suicidal or otherwise intended to harm himself. The

allegations that Schubert told Borrego he had recently left a half-way house

and may have abused drugs did not automatically impute knowledge to

Borrego of a substantial risk of suicide. E.g., Est. of Bonilla, 982 F.3d at 305

(“[T]he fact of [the decedent’s] intoxication would not indicate that [the

defendant] inferred [he] was a suicide risk”.). Additionally, the allegations

do not plausibly show that Schubert’s prior or active drug use demonstrated

to Borrego that Schubert faced a substantial risk of suicide. E.g., id.

Because plaintiffs fail to allege sufficient facts to plausibly show

Borrego was subjectively aware of the risk of suicide, their allegations do not

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state a failure-to-protect claim against him. Cf. Converse, 961 F.3d at 778–80.

Accordingly, Borrego is entitled to qualified immunity against the claim.

2.

Sheriff Carrillo was monitoring the radio when he heard the dispatch

to Deputy Melendez. The Sheriff learned Schubert had been taken into

custody after three 911 calls, one in which Schubert (again, unidentified at

the time) called to say that an unknown person was trying to kill him and two

others called to report that a man (Schubert) was going around saying that

someone was trying to kill him. After Schubert was transported, the Sheriff

“decided to go to the jail and check on [Schubert] and jail personnel”.

Plaintiffs allege that, while interviewing Schubert, the Sheriff, as did

Borrego, learned Schubert had a history of drug abuse and had recently left a

halfway house. Although plaintiffs allege Schubert was cooperative and

appeared truthful in his responses, plaintiffs also allege: the Sheriff was still

required to conduct a mental-health screening form in accordance with

TCJS; and, because “the form had not been completed”, the Sheriff “had to

operate on the belief that [Schubert] was suicidal” and “was required to put

[Schubert] on suicide watch”.

Our court requires, as stated supra, defendant have “actual knowledge

of the substantial risk of suicide”. Id. at 775. Plaintiffs fail to allege Schubert

did or said anything to indicate he was suicidal.

Because plaintiffs fail to allege sufficient facts to plausibly show the

Sheriff was subjectively aware of the risk of suicide, their allegations do not

state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly,

Sheriff Carrillo is entitled to qualified immunity against the claim.

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3.

The following allegations concern the third and final appellant,

Deputy Melendez. He was dispatched to respond to the 911 calls in which

Schubert was the subject. Borrego directed the Deputy to a location in Van

Horn regarding an individual—unknown at the time—stating someone was

trying to kill him. Upon the Deputy’s locating Schubert at the El Capitan

Hotel at 11:13 p.m., he spoke with Schubert and described him as appearing

nervous. Schubert also reiterated that “there was someone trying to kill

him”. Schubert was oriented regarding time and place. He also “provided

his correct name and a date of birth which was correct other than . . . off by

two years”.

The Deputy took Schubert to a Border Patrol station in order to

identify him. After further investigation, the Deputy was able to identify

Schubert and learned he “allegedly had an active warrant for an alleged

parole violation”. Pursuant to the warrant, the Deputy took Schubert to the

jail.

The Deputy was dispatched to another call shortly after arriving at the

jail with Schubert, but he later returned and assisted Borrego in escorting

Schubert to his cell. During this time, Schubert repeated that someone was

trying to kill him, but did not provide a name or description.

Plaintiffs allege the Deputy “was well aware that [Schubert] was not

in his right mind. He knew that [Schubert] was mentally ill. He likewise

formed the belief that [Schubert] was a danger to himself and/or others”.

Again, these are “naked assertions devoid of further factual enhancement”,

and they do not plausibly allege the requisite subjective knowledge. Benfield,

945 F.3d at 336–37 (citation omitted).

The key distinction between the Deputy and the other two appellants

is plaintiffs’ assertion that the Deputy erred in his means and method of

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No. 22-50102

taking Schubert into custody. Texas Health and Safety Code Chapter 573

permits officers to take an individual into custody without a warrant if, inter

alia, they “ha[ve] reason to believe and do[] believe that the person is a

person with mental illness; and because of that mental illness there is a

substantial risk of serious harm to the person or to others unless the person

is immediately restrained”. TEX. HEALTH & SAFETY CODE § 573.001(a)(1).

Plaintiffs concede that a violation of Chapter 573 is not per se a constitutional

violation; accordingly, they offer any alleged violation as evidence that a

constitutional violation occurred.

In this court, plaintiffs maintain they alleged Schubert was taken into

custody pursuant to this provision. Plaintiffs’ assertion stretches the bounds

of the complaint.

The complaint does not allege Schubert was taken into custody under

this statute; rather, it alleges the Deputy “should have transported [Schubert]

to the nearest-inpatient mental health facility” pursuant to Chapter 573.

(Emphasis added.) Additionally, to the extent plaintiffs allege the Deputy

was required to take Schubert into custody under Chapter 573, that chapter

is permissive, not mandatory. See § 573.001(a) (“A peace officer, without a

warrant, may take a person into custody . . . .” (emphasis added)).

Accordingly, this allegation is without merit.

We next consider whether the allegations about the facts known to the

Deputy at the time plausibly provided the requisite subjective knowledge of

a substantial risk of suicide. In addition to his initial knowledge from the

dispatch, Schubert, while escorted to his cell, reiterated to the Deputy that

someone was trying to kill him. Again, plaintiffs’ assertions do not plausibly

allege the Deputy had actual knowledge that Schubert posed a substantial risk

of suicide. E.g., Converse, 961 F.3d at 775.

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No. 22-50102

Because plaintiffs fail to allege sufficient facts to plausibly show the

Deputy was subjectively aware of the risk of suicide, their allegations do not

state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly,

Deputy Melendez is entitled to qualified immunity against the claim.

III.

For the foregoing reasons, the district court’s denying Borrego,

Sheriff Carrillo, and Deputy Melendez’ motions to dismiss the failure-to-

protect claims is VACATED and judgment is RENDERED for them.

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