Niter et al v. Brown et al

Filing 33

MEMORANDUM OPINION AND ORDER denying 19 Renewed Motion to Dismiss; granting 21 , 22 , 24 Motions to Dismiss. The Court DISMISSES Counts I to III and VII to XV of the First Amended Complaint [ECF No. 17 ]. The only remaining claims are agains t an indeterminate number of John/Jane Doe officers, as sued in their individual and official capacities. If Plaintiffs seek to identify and serve any individual officers, they must do so by 10/15/2024. Finally, Plaintiffs must seek leave to file an amended complaint by 10/7/2024. If a motion for leave to file, with the proposed amended complaint attached, is not filed by this date. Plaintiffs' claims will be dismissed with prejudice. (Ordered by Judge Karen Gren Scholer on 9/25/2024) (axm)

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS

DIVISION

MYISHA NITER, on Behalf of Minor
Children CHANCE WIELIAMS,
CHRISTINA WILLIAMS, and
CHRISTIAN WILLIAMS, the Children of

§
§
§

CHRISTOPHER

§
§
§

DARNELL

WILLIAMS

(DECEDENT), and GEORGE

WILLIAMS, Individually as Father of
CHRISTOPHER

DARNELL

§

WILLIAMS

(DECEDENT)
V .

MARIAN BROWN, In Her Individual and

Of cial Capacity as Sheriff of Dallas
County, TEXAS DEPARTMENT OF
PUBLIC SAFETY, DOES In Their

Individual and Of cial Capacity as
Agents/Employees of Dallas County
Sheriffs Of ce, and DALLAS COUNTY
MEMORANDUM

§
§
§
§
§
§
§
§
§
§
OPINION

C I V I L A C T I O N N O . 3 : 2 3 - C V- 1 6 2 1 - S

AND

ORDER

Before the Court are Defendant Texas Department of Public Safety’s (“DPS”) Renewed
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(5) (“DPS Service Motion”)
[ECF No. 19], Defendant Dallas County’s Motion to Dismiss (“County Motion”) [ECF No. 21],
Defendant Dallas County Sheriff Marian Brown’s Rule 12(b)(6) Motion to Dismiss (“Brown
Motion”) [ECF No. 22], and DPS’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(1) (“DPS Immunity Motion”) [ECF No. 24]. The Court has reviewed the Motions, Plaintiffs’

Response to the County Motion (“County Response”) [ECF No. 25], Plaintiffs’ Response to the
Brown Motion (“Brown Response”) [ECF No. 26], Dallas County’s Reply to the County Response

fi

fi

fi

[ECF No. 29], Brown’s Reply to the Brown Response [ECF No. 30], and the applicable law. For

the following reasons, the Court DENIES the DPS Service Motion and GRANTS the County
Motion, Brown Motion, and DPS Immunity Motion.
I.

BACKGROUND

Christopher Williams (“Decedent”) was arrested by the Dallas Police Department on or
about July 14, 2021. First Am. Compl. (“Amended Complaint”) [ECF No. 17] ^1. Plaintiffs
Myisha Niter on Behalf of Minor Children Chance Williams, Christina Williams, and Christian
Williams, the Children of Decedent, and George Williams, Individually as Father of Decedent
(“Plaintiffs”) allege that Decedent was booked into the Dallas County Jail and placed on suicide
watch in the West Tower, amental behavior observation unit. Id.1 - 2 . D e c e d e n t w a s t h e n m o v e d

to the North Tower, which is ageneral population unit, on July 18, 2021, where he was attacked
by inmates on July 20. Id. 3, 4, 17. Plaintiffs allege that after being attacked. Decedent was
placed alone in aholding cell to await anew holding unit. Id. 5, 7. According to Plaintiffs,
Decedent was not observed by jail staff at least every thirty minutes in his holding cell as is
required by state regulations. Id. |'[| 12-13, 28, 35. Plaintiffs allege that on July 20, Decedent was
discovered in his holding cell hanging by ablanket. Id. Tf 6. Decedent was transported to Parkland
Memorial Hospital where he was pronounced dead on or about July 22, 2021. Id. 8, 10.
Based on the foregoing. Plaintiffs assert fteen causes of action against Brown, “Does'
(“Doe Defendants”), Dallas County, and DPS. Id. at 2-3. Brown, Dallas County, and DPS move
to dismiss each claim against them.
II.

LEGAL

S TA N D A R D S

A. Rule 12(b)(1)

’Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” La. Real Est. Appraisers Bd. v. Fed. Trade Comm ’n.
917 F.3d 389, 391 (5th Cir. 2019) (quoting Texas v. Travis County, 910 F.3d 809, 811 (5th Cir.

fi

2

2018)). Courts “must presume that asuit lies outside this limited jurisdiction, and the burden of
establishing federal Jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994)). When adefendant has sovereign immunity under the Eleventh Amendment
for aclaim, federal courts lack subject-matter jurisdiction over that claim. Bryant v. Tex. Dep ’t of
Aging &Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (citation omitted).
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, aparty may challenge the
subject matter jurisdiction of the district court to hear acase. The district court may dismiss for
lack of subject matter jurisdiction based on the complaint alone. Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th
Cir. 1996)). The court must accept all factual allegations in the complaint as true. Den Norske Stats
Oljeselskap As v. HeereMac Vof 241 F.3d 420, 424 (5th Cir. 2001) (citing Williamson v. Tucker,
645 F.2d 404, 412 (5th Cir. 1981)). If the court determines that it lacks subject matter jurisdiction,
it must dismiss the action. Fed. R. CiV. P. 12(h)(3). If the court dismisses claims over which it has

original jurisdiction, it has the discretion to dismiss any remaining state claims by declining to
exercise supplemental jurisdiction. St. Germain v. Howard, 556 F.3d 261, 263-64 (5th Cir. 2009)
(citing 28 U.S.C. §1367(c)).
B. Rule 12(b)(5)

In the absence of proper service of process, acourt cannot exercise personal jurisdiction
over adefendant. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)
(citations omitted); Mortis v. Causey, 869 F.3d 360, 368 (5th Cir. 2017) (citation omitted). Federal
Rule of Civil Procedure 12(b)(5) provides that aparty may le amotion to dismiss for insuf cient
service of process. Once such amotion has been led, the party serving process has the burden of

fi

fi

fi

3

establishing its validity. See Quinn v. Miller, 470 F. App’x 321, 323 (5th Cir. 2012) (citing Carimi
V. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).
CRule 12(b)(6)
To defeat amotion to dismiss

led under Federal Rule of Civil Procedure 12(b)(6), a

plaintiff must plead “enough facts to state aclaim to relief that is plausible on its face.” Bell Atl.
Corp. V. Twombly, 550 U.S. 554, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738,
742 (5th Cir. 2008). To meet this “facial plausibility” standard, aplaintiff must plead “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). Plausibility does not require
probability, but aplaintiff must establish “more than asheer possibility that adefendant has acted
unlawfully.” Id. The court must accept well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007).
The ultimate question is whether the complaint states avalid claim when viewed in the
light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter &Co.,
313 F.3d 305, 312 (5th Cir. 2002). At the motion to dismiss stage, the court does not evaluate the
plaintiffs likelihood of success. It only determines whether the plaintiff has stated aclaim upon
which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).
III.

A N A LY S I S

DPS seeks dismissal for insuf cient service and sovereign immunity imder Federal Rules
of Civil Procedure 12(b)(5) and 12(b)(1), respectively. Dallas County and Brown request that the
Court dismiss Plaintiffs’ survival claims due to Niter lacking capacity to sue, and the remaining
claims for failure to state aclaim upon which relief can be granted under Rule 12(b)(6). Because
the legal basis for Plaintiffs’ claims is unclear, the Court begins by identifying the legal basis for
Plaintiffs’ claims before turning to Defendants’ arguments.

fi

fi

4

A. Plaintiffs' Claims

As to Brown, Plaintiffs bring a42 U.S.C. §1983 claim, asur\aval claim under Section
1983 and Texas Civil Practice and Remedies Code §71.021, and awrongful death claim under
Section 1983 and Texas Civil Practice and Remedies Code §71.002-004 for asurvival action and

wrongful death action, respectively (Counts I, II, III).' Am. Compl. 44-70. Plaintiffs raise the
same three claims against the Doe Defendants individually and as agents and/or employees of
Dallas County (Counts IV, V, VI). Id. 71-107. Next, Plaintiffs bring survival and wrongful
death claims against Dallas County based on “[ijnstitutional [IJiability,” as well as survival and
wrongful death claims based on vicarious liability for Brown’s and the Doe Defendants’ actions
(Counts VII, VIII, IX, X). Id. HI 108-75. Again, Plaintiffs cite both Section 1983 and the Texas
Civil Practice and Remedies Code. Id. Against DPS, Plaintiffs bring assert the same four claims
as against Dallas County (Counts XI, XII, XIII, XIV). Id. 176-217. Plaintiffs also bring aclaim
against DPS^ under The Sandra Bland Act, Texas Code of Criminal Procedure art. 16.22 (Count
XV). M111218-28.
The Court interprets all of Plaintiffs’ claims as federal claims arising under Section 1983
for two reasons. First, each count cites to Section 1983. “Whether aclaim arises under federal law

is aquestion determined by reference to the plaintiffs ‘well-pleaded complaint.’” PCI Transp.,
Inc. V. Fort Worth &W. R.R. Co., 418 F.3d 535, 543 (5th Cir. 2005) (citation omitted). All fteen
counts allege that the respective Defendant’s action deprived Decedent of his “rights, privileges.
and immunities secured by the U.S. Constitution and 42 U.S.C. §1983.” Am. Compl. 11 51, 56,

‘Count III mistakenly cites to Section 71.021. See Am. Compl. 170.
^Count XV does not reference DPS in its header. Compare Am. Compl. 46 with id. at 38, 40, 41, 43.
However, Count XV clari es that it is directed at DPS. See id. 1227 (“As adirect and proximate result of

the foregoing conduct, [DPS deprived Decedent] of his rights and privileges as acitizen of the United
States ....”). Also, the Amended Complaint mistakenly lists Count XV as Count XIV. See id. at 46.

fi

fi

5

64, 72, 85, 97, 110, 127, 144, 161, 178, 189, 198, 209, 220. Indeed, this interpretation is

corroborated by Plaintiffs’ own Responses, where they maintain that “Plaintiffs have properly
brought constitutional claim[s] pursuant to §1983 on behalf of themselves and Decedent’s heirs.
County Resp. 5; Brown Resp. 5.
Second, the remedies Plaintiffs seek through their survival and wrongful death claims are
incorporated into their Section 1983 claims. “The Fifth Circuit has held that 42 U.S.C. §1988
incorporates state law wrongful death and survival remedies under §1983, thus allowing the
surviving relatives of an individual killed as aresult of a§1983 violation to recover for their own
injuries arising out of the wrongful death.” Borum v. Swisher County, No. 2:14-CV-127-J, 2014
WL 4814541, at *11 (N.D. Tex. Sept. 29,2014) (citing Rhyne v. Henderson County, 973 F.2d 386,
390-91 (5th Cir.1992)); see also Rodgers v. Lancaster Police &Fire Dep Y, 819 F.3d 205, 208-09
&n.lO (5th Cir. 2016) (explaining that Section 1988 incorporates Texas’s wrongful death and
survival statues (citations omitted)). Therefore, Plaintiffs’ “wrongful death and survival remedies
arise from §1983 rather than from state law.” Borum, 2014 WL 4814541, at *11 (citation omitted).
The Court thus interprets all of Plaintiffs’ claims as federal claims arising under Section 1983.
B. DPS’s Motions

DPS asserts two bases for dismissal. First, the DPS Service Motion requests dismissal for
insuf cient service of process. Second, the DPS Immunity Motion contends that DPS has
sovereign immunity from Plaintiffs’ suit.
i. Insuf cient Service
DPS asks the Court to dismiss the claims against it under Rule 12(b)(5) because of
insuf cient service of process. DPS Serv. Mot. 2-3. DPS argues that Plaintiffs “requested that
summons be sent to the ‘Of ce of the Inspector General’ rather than to DPS’s only authorized

fi

fi

fi

fi

6

agent, Director McCraw.” Id. at 3. DPS acknowledges that serving the Of ce of General Counsel
would have been appropriate. Id. at 2. While Plaintiffs did not le aresponse to the DPS Service
Motion, they subsequently

led an Af davit of Service showing that DPS was served on

November 3,2023, through aDPS Assistant General Counsel. See Aff. of Service [ECF No. 23] 1.
DPS later acknowledged that “DPS was properly served on November 3, 2023.” DPS Immunity
Mot. 2. Considering Plaintiffs’ Af davit of Service and DPS’s acknowledgment of proper service,
the DPS Service Motion is denied.

a. Sovereign Immunity

DPS contends that as astate agency, it is shielded from suits for money damages by the
Eleventh Amendment. DPS Immunity Mot. 2-3. Plaintiffs did not respond to the DPS Immunity
Motion.^ Based on areview of the Amended Complaint and the applicable law, the Court nds
that DPS is entitled to sovereign immunity.
Eleventh Amendment sovereign immunity bars private suits against nonconsenting states
in federal court’ in most cases.” Richardson v. Texas, No. 23-40526, 2024 WE 913380, at *3 (5th

Cir. Mar. 4, 2024) (quoting City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019)), cert.
denied, 144 S. Ct. 2689 (2024). This protection extends to suits against state of cials or agencies
that are “effectively suits against the state.” Id. (citing City of Austin, 943 F.3d at 997). State
agencies enjoy sovereign immunity unless Congress abrogates it or the state waives it. Id. (citation
omitted). An exception to sovereign immunity exists where astate of eial violates federal law.
Raj V. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing Ex parte Young, 209 U.S. 123,
155-56 (1908)). The Ex parte Young exception applies only where the suit seeks injunctive or
declaratory relief against individual state of cials. Id. (citing Ex parte Young, 209 U.S. at 155-56).

^Afailure to brief an issue is not dispositive as “Rule 12 does not by its terms require an opposition.
Walker v. Stroman, No. 20-50602, 2022 WL 2073834, at *3 (5th Cir. June 9, 2022) (citation omitted).

fi

fi

fi

fi

fi

fi

fi

fi

fi

7

Texas, and by extension DPS, has not waived sovereign immunity. See Cleveland v. Liberty
Cnty. Sheriff’s Dep’t, 626 F. App’x 540, 542 (5th Cir. 2015) (“The Texas Department of Public
Safety is an agency or department of Texas, and Texas has not waived its sovereign immunity.
Thus, the Eleventh Amendment shields the department from suit in federal court.” (citation
omitted)). “Nor has Congress expressly waived sovereign immunity for §1983 suits.” Lewis v.
Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625,630 (5th Cir. 2011) (citing Quern v. Jordan,
440 U.S. 332,340-45 (1979)).

Because sovereign immunity has not been waived, for Plaintiffs’ claims to survive the Ex
parte Young exception must apply. For two reasons, it does not. First, Ex parte Young requires a
plaintiff to “name individual state of cials as defendants in their of cial capacities.” Raj, 724 F.3d
at 328 (citing Kentucky v. Graham, 473 U.S. 159, 169 n.l8 (1985)). Plaintiffs’ claims against DPS
impermissibly target the organization itself. See id. (explaining that the plaintiff could not
overcome sovereign immunity because he had named the organizations as the defendants).
Second, the Ex parte Young exception is reserved for “ongoing violations of federal law'
that can be addressed through injunctive or declaratory relief Cleveland, 626 F. App’x at 542
(citations omitted). “To the extent that money damages are sought, however. Ex parte Young is
inapplicable and the Eleventh Amendment constitutes abar to suit.” Darlak v. Bobear, 814 F.2d
1055,1061 n.7 (5th Cir. 1987). Here, the violations Plaintiffs base their claims upon each happened
in the past, either before or on the day Decedent was found hanging in his cell. See Am. Compl.
11-43,176-228. Ex parte Young “does not permit judgments against state of cers declaring that
they violated federal law in the past.” Calhoun v. Collier, 78 F.4th 846, 851 (5th Cir. 2023)
(quoting P.i?. Aqueduct &Sewer Auth. v. Metcalf &Eddy, Inc., 506 U.S. 139,146 (1993)). Further,
Plaintiffs seek only monetary damages and do not request injunctive or declaratory relief. See Am.

fi

fi

fi

8

Compl. 48-50 (asking for “[c]ompensatory, special, and punitive damages” as ’well as attorney’s
fees and interest).
In sum, DPS is entitled to sovereign immunity. Because Plaintiffs seek only monetary
damages and do not seek injunctive or declaratory relief related to an ongoing violation of federal
law, there is no exception to DPS’s sovereign immunity. Therefore, the Court dismisses Counts XI,
XII, XIII, XIV, and XV. No claims remain against DPS.
CDallas County’s Motion

Dallas County raises three grounds in favor of dismissal. First, Niter lacks the capacity to
bring survival-based claims. Second, Plaintiffs have not suf ciently pleaded municipal liability.

Third, Dallas County is immune from vicarious liability.'^
i. Capacity

Dallas County argues that Counts VII, and IX should be dismissed because Niter—who is
the sole Plaintiff raising those claims in arepresentative capacity. Am. Compl. 62, 124, 158
lacks the capacity to make survival claims. See County Mot. 3-6. Plaintiffs respond that Decedent’s
children are within the class of people Texas recognizes as entitled to recover survival claims.

Brown Resp. 8-9.^ The Court nds that Niter has capacity to advance the survival claims.
Aparty to alawsuit must have the capacity to sue or be sued. See Fed. R. CiV. P. 17(b).
[W]hen an individual is acting in arepresentative capacity, their capacity to sue shall be
determined by the law of the state in which the district court is held.” Rice ex rel. CIR v.
Cornerstone Hosp. ofW. Monroe, L.L. C., 589 F. App’x 688, 690 (5th Cir. 2014) (citation omitted);

In the alternative, Dallas County moves to dismiss Plaintiffs’ state law claims under Rule 12(b)(1) and/or
Rule 12(b)(6). See County Mot. 19-23. Because the Court nds in Dallas County’s favor on its principal
bases for dismissal, it does not address these alternative grounds.

^Plaintiffs only respond to the capacity argument in the Brown Response. Therefore, for the sake of
thoroughness, the Court analyzes that response in connection with Dallas County’s arguments.

fi

fi

fi

9

see also Fed. R. Civ. P. 17(b)(3). In Texas, “a party has capacity when it has the legal authority to
act, regardless of whether it has ajusticiable interest in the controversy.” Austin Nursing Ctr., Inc.
V. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005) (citation omitted). Texas considers minors.
incompetents, and estates as lacking the legal authority to sue, and thus another party must have
the capacity to sue on their behalf. Id. at 849 (citations omitted). If the party who initiates the suit
lacks capacity, dismissal is warranted under Rule 12(b)(6) “given that acourt cannot grant relief
to aparty lacking capacity to sue.” Texas v. Ysleta del Sur Pueblo, 79 F. Supp. 2d 708, 712 (W.D.
Tex. 1999), aff’d sub nom. State v. Ysleta del Sur, 237 F.3d 631 (5th Cir. 2000) (citation omitted).
The Court begins by clarifying the bases upon which Niter brings the survival-based
claims. The Amended Complaint alleges that:
The claims and causes of action for injuries to the health, reputation, and person
sustained by the Decedent are brought in this action by MYISHA NITER as
mother of Decedent’s minor children CHANCE WILLIAMS, CHRISTINA

WILLIAMS, and CHRISTIAN WILLIAMS, and personal representative of
Decedent’s estate, pursuant to the Survival Act, Texas Civil Practice and
Remedies Code section 71.021.

Am. Compl. Hlf 62, 124, 158. Dallas County only challenges Niter’s capacity as personal
representative of Decedent’s estate. See County Mot. 3-5. As to Niter suing as the mother of
Decedent’s minor children, Dallas County states that the allegation is “far from clear.” Id. at 6.
The Court disagrees.
In Texas, survival claims may be brought by heirs, legal representatives, or the estate of
the deceased. Tex. Civ. Prac. &Rem. Code Ann. §71.021(b). The Texas Estates Code de nes
heir as “a person who is entitled under the statutes of descent and distribution to apart of the estate
of adecedent who dies intestate.” Tex. Est. Code §22.015. When aperson dies intestate and .■
without aspouse, their living children are their heirs. Dukes v. Strand, No. 3:15-CV-3600-BT,
2019 WL 2567687, at *3 (N.D. Tex. June 21, 2019) (citing Tex. Est. Code Ann. §201.001(a)-

fi

10

children. Am. Compl. 2. Drawing all reasonable inferences in Plaintiffs’ favor as it must, the Court
nds that Niter alleges two bases for the survival claims—as mother of Decedent’s heirs and as a
representative of Decedent’s estate—each of which are permitted by Section 71.021. Next, the
Court considers whether Niter has adequately alleged that she has capacity to sue in either role.
Niter lacks capacity to assert survival claims as arepresentative of Decedent’s estate. “In
general, only the estate’s personal representative has the capacity to bring asurvival claim.” Austin
Nursing Ctr., 171 S.W.Sd at 850 (citation omitted). An estate’s personal representative include
executors, administrators, and successors to executors or administrators. Tex. Est. Code Ann.

§22.031(a). Plaintiffs do not allege any facts showing that Niter is an executor, administrator, or
successor of Decedent’s estate, and the conclusory statement that she is apersonal representative
is insuf cient. See Sims v. Dali. Indep. Sch. DAf, No. 3:23-CV-00010-N, 2024 WL 495259, at *4
(N.D. Tex. Feb. 7, 2024) (“Conclusory allegations, without facts to support them, are not accepted
as true for the purposes of deciding amotion to dismiss.” (citing Ferrer v. Chevron Corp., 484
F.3d 116,180 (5th Cir. 2007))). However, “under certain circumstanees heirs may be entitled to
sue on behalf of the decedent’s estate.” Austin Nursing Ctr., 171 S.W.3d at 850 (citation omitted).
One such circumstance is where “there is no administration upon the estate ... and the facts show
that none is necessary or desired by those interested in [the] estate ...and the heirs are in
possession of [the decedent’s] property.” Lovato v. Austin Nursing Ctr., Inc., 113 S.W.3d 45, 52
(Tex. App.—Austin 2003, pet. granted) (alterations in original) (citation omitted), aff’d, 171
S.W.3d 845 (Tex. 2005). While Plaintiffs allege that Decedent died “intestate without the necessity
of an administration,” Am. Compl. 2., there are no factual allegations regarding the possession of

11

fi

fi

(b)). Plaintiffs allege that Decedent died intestate and unmarried and was survived by his minor

Decedent’s property. Therefore, Plaintiffs do not suf ciently allege that Niter or her children have
the capacity to bring suit as representatives of Decedent’s estate.
Niter does have the capacity to raise the survival claims as the mother of Decedent’s
children, however. Section 71.021 expressly permits heirs to litigate asurvival claim. The

question, then, is whether Niter has the capacity to sue on the children’s behalf She does. Plaintiffs
allege that Niter is the children’s mother. Am. Compl. 2. “Under Texas law, amother is an
appropriate legal representative for her child.” Adkison v. Polaris Indus., Inc., No. 3; 18-CV-02014M, 2020 WL 137226, at *3 (N.D. Tex. Jan. 13, 2020) (citing Tex. Fam. Code Ak'N.
§151.001(a)(7)); see also In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 572 n.9
(Tex. 2015) (“Under Texas law, aparent has the right to represent his child in legal proceedings[.]

(citing Tex. Fam. Code Ann. §151.001 (a)(4), (7))). Therefore, Niter has the capacity to bring the
survival claims as the representative of Decedent’s heirs.
a. Municipal Liability
Dallas County next argues that Counts VII and VIII—^regarding Dallas County’s municipal

liability for Decedent’s death—should be dismissed under Rule 12(b)(6) because Plaintiffs have
not suf ciently pleaded the elements outlined in Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978). County Mot. 6-17. Plaintiffs respond that their allegations meet
the plausibility threshold. County Resp. 4-8. The Court nds that Plaintiffs have not suf ciently
pleaded municipal liability.
Section 1983 provides afederal cause of action for the deprivation, under color of law, of

acitizen’s ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United
States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (citation omitted). To state aclaim under

Section 1983, aplaintiff must allege facts showing (1) adeprivation of aright secured by the

fi

fi

fi

fi

12

Constitution and the laws of the United States; and (2) that the deprivation occurred under color
of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs.
Corp., 402 F.3d 545, 549 (5th Cir. 2005) (citation omitted). “Claims under §1983 may be brought
against persons in their individual or of cial capacity, or against agovernmental entity.” Goodman
V. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (citation omitted).
[I]solated unconstitutional actions by municipal employees will almost never trigger
[municipal] liability.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citation
omitted). As such, “a local government may not be sued under §1983 for an injury in icted solely
by its employee or agents. Instead, it is when execution of agovernment’s policy or custom ...
in icts the injury that the government as an entity is responsible under §1983.” Monell, 436 U.S.
at 694. “The Fifth Circuit interprets Monell as requiring aplaintiff to identify ‘(1) of cial policy
(or custom), of which (2) apolicy maker can be charged with actual or constructive knowledge.
and (3) aconstitutional violation whose ‘moving force’ is that policy (or custom).”’ Allen v. Hays,
65 F.4th 736, 749 (5th Cir. 2023) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.
2002)). To survive amotion to dismiss, the plaintiff must “plead facts that plausibly support each
element of §1983 municipal liability.” Covington v. City ofMadisonville, 812 F. App’x 219, 224
(5th Cir. 2020) (citation omitted). The Court takes each element in turn.
a. Of cial Policy or Custom
Aplaintiff may establish an of cial policy in one of three ways. First, aplaintiff may allege
the existence of “a policy statement, ordinance, regulation, or decision that is of cially adopted
and promulgated by ... an of cial to whom the lawmakers have designated policy-making
authority.” Allen, 65 F.4th at 749 (alteration in original) (citation omitted). Second, aplaintiff may
allege a“persistent, widespread practice.” Id. (citation omitted). Last, in “rare circumstances” a

fi

fl

fi

fi

fi

fi

fi

fl

13

single, unconstitutional act may be suf cient if “undertaken by the municipal of cial or entity
possessing ‘ nal policymaking authority’ for the action in question.” Howell v. Town of Ball, 827
F.3d 515, 527 (5th Cir. 2016) (citation omitted). The plaintiff must speci cally identify “each and
any policy which allegedly caused constitutional violations.” Piotrowski, 237 F.3d at 579. The
pleadings must also contain speci c facts describing the policy or custom and its relationship to
the underlying constitutional violation. York v. Welch, No. 20-40580, 2024 WL 775179, at *3
(5th Cir. Feb. 26, 2024) (citation omitted).

Plaintiffs do not allege facts to support the rst two types of of cial policies.^ Plaintiffs do
not identify an overt policy that led to Decedent’s death. Plaintiffs cite to Texas Administrative
Code Title 37, Part 9, to identify the policies regarding inmates with mental health concerns that
Dallas County did not follow. See Am. Compl. 11-16, 19, 28. Flowever, these policies cannot
form the basis of municipal liability because Plaintiffs’ position is that Defendants did not follow
these policies, not that following the policies led to Decedent’s death. See Howell, 827 F.3d at 527
(“Under Monell, municipal liability for constitutional torts arises when the execution of an of cial
policy causes the plaintiffs injury.” (emphasis added) (citing Monell, 436 U.S. at 694)). Nor do
Plaintiffs allege apersistent, widespread practice. Plaintiffs’ allegations focus on the acts and
omissions of of cials on or about July 14, 2021, to July 20, 2021, in relation to asingle inmate.
See Am. Compl. 11-22, 112-20, 129-37. There are no allegations of this practice happening
with respect to other inmates or with respect to Decedent over aprolonged period. In other words.
Plaintiffs do not allege any speci c facts regarding a“persistent, widespread practice of [Dallas
County], which, although not authorized by of cially adopted and promulgated policy, is so
common and well-settled as to constitute acustom that fairly represents municipal policy.

*Plaintiffs’ wholly conclusory allegations that Defendants made of cial acts, policies, or plans, see, e.g..
Am. Compl. 25, 40, are insuf cient. See Sims, 2024 WL 495259, at *4.

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

14

Pioirowski, 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.
1984)).

Plaintiffs, then, must rely on the rare circumstance where asingle act constitutes an of cial
policy. For an act to constitute of cial policy, it must be done by adecisionmaker who has “ nal
authority to establish municipal policy with respect to the action ordered.” Pemhaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986). Plaintiffs allege that Dallas County was aware of state
regulations on the proper management of inmates with mental health concerns and deliberately did
not follow them. Am. Compl 29, 35,112-14,129-31. The decision to move an inmate on suicide
watch to general population and then failing to monitor him after his assault, according to
Plaintiffs, constituted an of cial policy because it was made by “the supervisor and staff’ of the

Dallas County Jail, who, according to Plaintiffs, are “the authorized decision makers.”’ County
Resp. 6. However, adecision from an authorized decision maker is not suf cient to qualify as an
of cial policy under this standard; the decision must come from a nal policymaker. “[I]n Texas,
the sheriff is without question the county’s nal policymaker in the area of law enforcement.
Jackson v. Ford, 544 F. App’x 268,272 (5th Cir. 2013) (cleaned up) (citations omitted); Tex. Loc.
Gov’tCode Ann. §351.041 (“The sheriff of each county is the keeper of the county jail... [and]
shall continue to exercise supervision and control over the jail.”). Therefore, for this single decision
not to follow state regulations to qualify as an of cial policy, the sheriff. Brown, must have made
the decision.

’Plaintiffs also reference inadequate training. See Am. Compl. THl 112, 129. To the extent that Plaintiffs are
raising failure to train claims, they cannot succeed under the rst two types of of cial policies because they
have no non-conclusory allegations regarding an of cial training policy or widespread custom, and they
cannot succeed under the single-incident exception because Plaintiffs do not allege that there was “:n o
training whatsoever.” Hutcheson v. Dallas County, 994 F.3d 477, 483 (5th Cir. 2021) (citation omitted).

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

15

regulations as to Decedent’s handling in jail. See Pembaur, 475 U.S. at 483-84 (requiring that the
nal policymaker make a“deliberate choice to follow acourse of action”). Plaintiffs blame both
the Doe Defendants and unnamed “persormel, agents, and employees of Dallas County and Dallas
County Jail” for the decision to deliberately ignore state policy. Am. Compl. ]|T| 28-30, 32; see also
County. Resp. 6. Plaintiffs’ decision to place the decision making at the feet of of cials other than
the nal policymaker is dispositive.
In sum, Plaintiffs have not suf ciently pleaded the existence of an of cial policy because
they do not allege the existence of an express policy, awidespread practice or custom, or any
speci c facts demonstrating that Brown—the person with

nal policymaking authority as to

Decedent’s care while in jail—^performed asingle act constituting of cial policy.^ “Because there
is no of cial policy, there can be no liability.” Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d
338, 347 (5th Cir. 2017).
b. Policymaker
For the second element. Plaintiffs must “identify amunicipal policymaker who could be
held responsible, through actual or constructive knowledge, for enforcing [the] policy that caused
[Decedent’s] injuries.” Piotrowski, 237 F.3d at 578-79. As discussed above, the relevant munieipal
policymaker is Brown. Yet Plaintiffs do not allege that she had actual or constructive knowledge
of the decisions being made regarding Decedent. According to Plaintiffs, it was the actions of the
personnel and of cers at Dallas County Jail between July 14 and July 20, 2021, that led to
Decedent’s death. See Am. Compl. ^'[[ 12-22,29,32. Plaintiffs do not allege that during those seven
days Brown had any knowledge of what prison staff were doing with Decedent, let alone that she

*Asubordinates’ act may become of cial policy if rati ed by the nal policymaker. Howell, 827 F.3d at
528. However, Plaintiffs allege no speci c facts to support arati cation claim.

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

16

fi

fi

Plaintiffs do not allege speci c facts showing that Brown decided to violate state

issued any directives related to Decedent. Therefore, Plaintiffs do not suf ciently plead the identity
of amunicipal policymaker with actual or constructive knowledge.
c. Moving Force of the Violation
The last element under Monell is that the of cial policy is the moving force behind the
alleged constitutional violation. To satisfy this element, Plaintiffs must allege both acausal link
between the policy and the alleged violation and Dallas County’s deliberate indifference to
Decedent’s rights. Piotrowski, 237 F.3d at 580 (citations omitted). Plaintiffs did not brief the
causation issue. The Court determines that Plaintiffs pleadings are insuf cient to satisfy the third
element.

To begin, for there to be amoving force behind aconstitutional violation, there must rst
be aconstitutional violation. Yet the constitutional basis for each Section 1983 claim Plaintiffs

raise is not clearly alleged. “Litigants must allege constitutional violations with ‘factual detail and
particularity.’” Silver cr eek Mgmt., Inc. v. Banc of Am. Sec., LLC, 534 F.3d 469,473 (5th Cir. 2008)
(citation omitted). In the facts common to all counts, Plaintiffs allege that each Defendant deprived
Decedent of his constitutional right under the Fourth Amendment “to be free from excessive and
unreasonable force.” Am. Compl. 126. However, this excessive foree claim is never mentioned
again. Inherent in any excessive force claim under the Fourth Amendment is arequirement that
the plaintiffs injury “resulted directly and only from ause of force.” Stephenson v. McClelland,
632 F. App’x 177, 184 (5th Cir. 2015) (citation omitted). Here, Plaintiffs do not allege any facts
showing that ause of force by Dallas County or its employees caused Decedent’s death. Instead,
Plaintiffs argue that it was alack of force—not giving Decedent the attention and care he neededthat led to his death.

fi

fi

fi

fi

17

The facts under each count do not clarify the alleged constitutional violations either. In
Count I, Plaintiffs appear to allege aviolation of the Fourteenth Amendment right to due process

and equal protection. Id. 45. Beyond this lone conclusory claim, claims of due process and equal
protection do not appear again in the Amended Complaint. In Counts IV through X, Plaintiffs
allege aviolation of the Fourth Amendment due to a“conscious disregard for [Decedent’s] medical
and psychological needs.” Id. 80, 93, 105, 121, 138, 155, 172. As explained above, aFourth
Amendment excessive force claim requires an allegation of force, not the omission of it. No other

counts reference aparticular constitutional amendment being violated. Taken as awhole, the Court
cannot parse the precise constitutional violations being alleged given the lack of relevant factual
allegations.
Even assuming Plaintiffs had clearly identi ed aconstitutional basis for their claims, they

do not plausibly allege causation or deliberate indifference. As to causation. Plaintiffs must
establish adirect causal cormection between the of cial policy and the resulting constitutional
violation. Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992). This connection must
be “more than amere ‘but for’ coupling between cause and effect.” Id. (citing City of Canton v.
Harris, 489 U.S. 378, 387-90 (1989)). Here, Plaintiffs’ allegation that Decedent suffered his

injuries because of Brown and the Doe Defendants ignoring prison regulations amounts to little
more than acoupling of cause and effect. See Am. Compl. 28-41. This is insuf cient to plead
causation.

As to deliberate indifference. Plaintiffs must allege facts showing that “1) the of cial was
aware of facts from which an inference of substantial risk of serious harm could be drawn; 2) the

of cial actually drew that inference; and 3) the of cial’s response indicates the of cial
subjectively intended that harm occur.” Hartzog v. Hackett, 711 F. App’x 235, 235-36 (5th Cir.

fi

fi

fi

fi

fi

fi

fi

18

2018) (citation omitted). This standard is “extremely high.” Id. at 235. Even accepting Plaintiffs’
inference that being aware of state regulations means that breaking them creates arisk of harm, it
is insuf cient to allege deliberate indifference. Plaintiffs do not allege that any of cial drew this
inference or that their response indicates they subjectively intended the harm to occur. Rather, the
allegations raise the opposite inference. Plaintiffs do not allege that Dallas County did not monitor
Decedent, but rather that the monitoring was not “adequate []” because it was not as often as
regulations dictate. Am. Compl. 35, 113-16, 132-33. Plaintiffs also allege that Decedent was
provided medical treatment after the incident. Id. 21. The fact that Dallas County monitored
Decedent in his cell and provided him with medical care does not support the inference that Dallas
County “subjectively intended that harm [to Decedent] occur.” Hartzog, 711 F. App’x at 236
(citation omitted).

Because Plaintiffs have not suf ciently pleaded that Dallas County had an of cial policy
from an identi able policymaker with knowledge that was the moving force behind Decedent’s
death. Plaintiffs’ municipal liability claims against Dallas County fail.
Hi. Vicarious Liability

Last, Dallas County contends that Counts IX and X—which claim that Dallas County is
vicariously liable for the actions of Brown and the Doe Defendants—are foreclosed because a
governmental entity may not be held liable under atheory of vicarious liability. County Mot. 1719. The Court agrees. “While municipalities can be sued directly under §1983, Monell establishes
that they ‘cannot be found liable on atheory of vicarious liability or respondeat superior.’” Webb
V. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019) (quoting Davidson v. City of Stafford,
848 F.3d 384, 395 (5th Cir. 2017)). Instead, the liability “must be directly attributable to the
municipality through some sort of of cial act or imprimatur.” Id. (quoting Piotrowski, 237 F.3d at

fi

fi

fi

fi

fi

fi

19

act or imprimatur, there is no basis for vicarious liability.

For the reasons set forth above, the Court nds that Plaintiffs have not suf ciently pleaded
municipal liability against Dallas County and that Dallas County is not subject to vicarious
liability. Accordingly, the Court dismisses Counts VII, VIII, IX, and X. No claims remain against
Dallas County.
D. Brown VMotion

Brown raises three arguments in favor of dismissal. First, Niter lacks the capacity to assert
survival-based claims. Second, Plaintiffs’ claims against Brown in her of cial capacity are
duplicative of Plaintiffs’ claims against Dallas County. Third, Brown has quali ed immunity for
claims against her in her individual capacity. For the reasons explained above, the Court nds that
Niter has the capacity to bring survival-based claims. As such, the Court declines Brown’s request

to dismiss Coimt II for lack of capacity. The Court focuses on Brown’s remaining arguments.®
i. Of cial Capacity Claims
Plaintiffs sue Brown in both her individual and of eial capacity as Sheriff of Dallas
County. See Am. Compl. 1. Brown contends that any claims against her in her of eial capacity
should be dismissed because suits against persons in their of cial capacity are treated as suits
against the entity for which they work. Brown Mot. 6-7. Plaintiffs respond that there is no legal
precedent for dismissing claims only because they are duplicative. Brown Resp. 10. The Court
nds that any claims against Brown in her of cial capacity must be treated as claims against Dallas

®In the alternative. Brown moves to dismiss Plaintiffs’ state law claims pursuant to Rule 12(b)(1) and/or
Rule 12(b)(6). See Brown Mot. 15-19. Because the Court nds in Brown’s favor on its principal bases for
dismissal, it does not address these alternative grounds.

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

20

fi

fi

578). Because the Court has already held that Dallas County is not liable on the basis of an of cial

County. And because, for the reasons articulated above, Plaintiffs have failed to adequately plead
their claims against Dallas County, the of cial capacity claims against Brown must also be
dismissed.

Asuit against acounty of cial in his of cial capacity is equivalent to asuit against the
county; the of cial is only distinct when sued in his individual capacity.” Salazar v. Kleberg
County, No. 2:1 l-CV-00150, 2012 WL 1610542, at *4 (S.D. Tex. May 8, 2012) (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991); Graham, 473 U.S. at 165-66; Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989)). Because the suit against Brown in her of cial capacity is, “in essence, a
suit against the municipality,” the Court’s analysis as to Dallas County “applies equally to [Brown]
sued in [her] of cial capacity[y].” Brum eld v. Hollins, 551 F.3d 322, 331 n.9 (5th Cir. 2008)
(citation omitted). Having already dismissed Plaintiffs’ claims against Dallas County, the Court
also dismisses any claims against Brown in her of cial capacity.

10

a. Quali ed Immunity
■Quali ed immunity protects of cers from suit unless their conduct violates aclearly
established statutory or constitutional right.” Edmiston v. Borrego, 75 F.4th 551, 558 (5th Cir.
2023) (cleaned up), cert, denied sub nom. Crandel v. Hall, 144 S. Ct. 1002 (2024). When an of cial
asserts quali ed immunity, the burden is on the plaintiff to demonstrate that the defendant is not
entitled to quali ed immunity. Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023) (citation
omitted). The plaintiff must plead facts suf cient to create the reasonable inference “(1) that the
of cial violated astatutory or constitutional right, and (2) that the right was clearly established at
the time of the challenged conduct.” Edmiston, 75 F.4th at 558 (citation omitted).

10

The Court notes that it is not dismissing Plaintiffs’ claims against Brown in her of cial capacity because

they are duplicative, but rather because they are treated the same as the claims against Dallas County that
the Court has already found to be de cient.

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

21

Brown contends that the claims against her in her individual capacity should be dismissed
because she is entitled to quali ed immunity. Speci cally, Brown claims that Plaintiffs have not
suf ciently pleaded that Brown was aware of facts supporting the inference that asubstantial risk
of harm existed and that she drew the inference, Brown Mot. 7-13, or that Brown was personally
involved in the constitutional deprivation, id. at 13-15. Plaintiffs do not respond to the merits of
Brown’s arguments, instead noting that state jail regulations were not followed with regard to
Decedent. Brown Resp. 11-12. The Court nds that Brown is entitled to quali ed immunity.
Plaintiffs do not plausibly allege either element needed to overcome quali ed immunity.
As discussed above. Plaintiffs do not clearly allege that Decedent’s constitutional rights were
violated to satisfy the rst element. Plaintiffs do not allege ause of force by Brown to support a
Fourth Amendment claim. Nor do Plaintiffs plausibly plead adue process or equal protection claim
against Brown. Plaintiffs allege that Brown violated Decedent’s substantive due proeess under the
Fourteenth Amendment due to punitive con nement. Am. Compl. ^45. “[T]he Fourteenth
Amendment prohibits the imposition of conditions of con nement on pretrial detainees that
constitute punishment.” Ruiz v. El Paso Processing Ctr., 299 F. App’x 369, 371 (5th Cir. 2008)
(alteration in original) (citation omitted). Flowever, it is not suf cient to simply allege that a
con nement is punitive. Aplaintiff must allege facts showing that the detainee’s conditions “are
not reasonably related to alegitimate governmental purpose” or that the detainee’s con nement
has created “more than de minimis inconveniences.” Id. (citations omitted). Plaintiffs allege no
facts on either point. Therefore, they do not plausibly allege adue process claim against Brown.
Neither do Plaintiffs suf ciently plead facts to meet the second element. To meet the
second element, it must be “suf eiently clear that every reasonable of cial would have understood
that what he is doing violates [the alleged constitutional] right.” Edmiston, 75 F.4th at 559 (citation

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

22

omitted). The allegation underpinning each of Plaintiffs’ claims is that Defendants did not follow
procedures meant to protect individuals “exhibit[ing] unusual mental health behavior” and with a
'high risk of suicide.” Am. Compl. T| 31. However, the Fifth Circuit “has acknowledged there is
no independent constitutional right to suicide screening” and that “[n]o decision of [the Fifth
Circuit] establishes aright to proper implementation of adequate suicide prevention protocols.
Edmiston, 75 F.4th at 560 (quoting Est. of Bonilla by &through Bonilla v. Orange County, 982
F.3d 298, 307 (5th Cir. 2020)). Plaintiffs’ allegations that Decedent was harmed by Brown and
Dallas County not adhering to the state jail regulations designed to prevent suicide, then, do not
relate to aclearly established constitutional right. Because there was no clearly established right.
Brown could not have been on notice of it, and thus Plaintiffs do not meet their burden.
To the extent that Plaintiffs seek to hold Brown liable for the actions of her subordinates.

those claims also fail. “Supervisory of cials cannot be held liable under Section 1983 for the
actions of subordinates on any theory of vicarious or respondeat superior liability.” Macias v.
Salazar, No. 21-51127, 2022 WL 3044654, at *2 (5th Cir. Aug. 2, 2022) (cleaned up). Brown can

only be held liable in her individual capacity for her own participation in the alleged wrongdoing.
See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to ... §1983 suits, a
plaintiff must plead that each Government-of cial defendant, through the of cial’s own individual
actions, has violated the Constitution.”). Plaintiffs make no allegations that Brown was at the jail
when Decedent was there or that she was personally involved in decisions regarding his
con nement. Brown cannot be held vicariously liable in her individual capacity under
Section 1983 for the alleged actions of jail personnel and the Doe Defendants.

fi

fi

fi

fi

23

For the foregoing reasons, the Court nds that Plaintiffs have not pleaded suf cient facts
to overcome quali ed immunity and dismisses Counts I, II, and III. No claims remain against
Brown.
I V.

CONCLUSION

For all the reasons stated above, the Court DENIES Defendant Texas Department of Public
Safety’s Renewed Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(5) [ECF
No. 19] and GRANTS Defendant Dallas County’s Motion to Dismiss [ECF No. 21], Defendant
Dallas County Sheriff Marian Brown’s Rule 12(b)(6) Motion to Dismiss [ECF No. 22], and
Defendant Texas Department of Public Safety’s Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure 12(b)(1) [ECF No. 24].
The Court also DISMISSES Counts Ito III and VII to XV of the First Amended Complaint
[ECF No. 17]. The only remaining claims are against an indeterminate number of John/Jane Doe
of cers, as sued in their individual and of cial capacities. Plaintiffs have neither identi ed nor
served the Doe Defendants with process since this suit was commenced on July 20, 2023. If
Plaintiffs seek to identify and serve any individual of cers, they must do so by October 15,2024.
Finally, Plaintiffs must seek leave to le an amended complaint by October 7, 2024. If a
motion for leave to le, with the proposed amended complaint attached, is not led by this date.
Plaintiffs’ claims will be dismissed with prejudice.
SO

ORDERED.

SIGNED September 25, 2024.

I^REN GREN SCHOLER
UNITED

S TAT E S

DISTRICT

fi

fi

fi

fi

fi

fi

fi

fi

fi

fi

24

JUDGE