McWilliams et al v. Does 1-10 et al

Filing 64

OPINION AND ORDER GRANTING MOTIONS TO DISMISS re: Granting 54 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , Granting 55 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . All claims in this action are dismissed with prejudice. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

United States District Court
Southern District of Texas

ENTERED
June 15, 2021
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARMAINE
McWILLIAMS, et al,
Plaintiffs,
vs.
CITY OF HOUSTON, et al,
Defendants.

§ CIVIL ACTION NO.
§ 4:17-cv-00345
§
§
§
§ JUDGE CHARLES ESKRIDGE
§
§
§
§

OPINION AND ORDER
GRANTING MOTIONS TO DISMISS
Robert Stephen Jr died while in custody at the Houston
Central Jail. Charmaine McWilliams is his mother. She and
several other family members sued the City of Houston and a
number of its employees involved in Stephen’s arrest and
detention, asserting claims for state-law negligence and
constitutional violation of his civil rights.
The circumstances of Stephen’s death are quite unfortunate.
But the law doesn’t here place the blame on the individual
Defendants and the City. Their motions to dismiss must be
granted. Dkts 54, 55.
1. Background
The operative pleading is Plaintiffs’ fourth amended
complaint. All allegations in it are accepted as true at this stage.
Walker v Beaumont Independent School District, 938 F3d 724, 735
(5th Cir 2019), citing Campbell v Wells Fargo Bank, 781 F2d 440,
442 (5th Cir 1986).
a. Alleged actions and inaction
The Houston Police Department received a call reporting
suspicious behavior in the early morning hours of December 27,
2015. Defendant Gabrielle Alston is the HPD officer who

responded to the scene. Dkt 53 at ¶¶ 1.10, 4.3. She encountered
Stephen, observed that he was “highly intoxicated,” arrested him
for public intoxication, and took him to the Houston Central Jail
for processing and detention. Id at ¶¶ 4.3–4.4. Plaintiffs allege
that Alston failed to transport Stephen first “to a medical facility
for any detoxification” and failed to inform HCJ personnel of his
“highly visible intoxicated state.” Id at ¶ 4.4.
Defendant Raul Sardinas was the on-duty medical screener
at intake. Id at ¶ 1.7. Defendants Idelbio Perez-Gonzalez,
Lourdes Torres Ahmed, and Ntum Aza Altorshan work at the
HCJ as medical specialists and assisted Sardinas at intake.
Id at ¶¶ 1.6, 1.8, 1.9. These four together are referred to as the
HCJ Defendants. None are alleged to be medical doctors, and
Plaintiffs’ briefing confirms that they weren’t. Dkt 54 at 17.
Sardinas interviewed Stephen, who “complied with the
requests” made “during the screening and evaluation of him.”
Plaintiffs allege that Sardinas failed to have Stephen “treated by
any medical personnel or provided any medication” to detoxify
him before placing him in a holding cell. Dkt 53 at ¶ 4.8.
Perez-Gonzalez, Ahmed, and Altorshan observed that
Stephen was “clearly in an intoxicated and incoherent state” and
“unable to stand up on his own.” After Stephen “passed out” and
fell to the ground, they “made their initial checks on him.” They
then eventually “dragged” Stephen to place him in a holding cell.
Plaintiffs allege that the HCJ Defendants “failed to seek medical
assistance after observing” that Stephen was passed out and failed
to have Stephen treated by medical personnel or provided
medication towards detoxification. Id at ¶ 4.9.
About an hour and fifteen minutes later, Perez-Gonzalez was
sent upon request (without specification by whom) to examine
Stephen and “see why” he was unable to walk. “For unknown
reasons, Perez-Gonzalez was unable to check vital signs or
conduct a full physical examination, as specified in his job
duties.” And so, Plaintiffs allege, Perez-Gonzalez failed to
“provide any medical attention” or have Stephen “treated by any
medical personnel,” and failed to provide any medication towards
detoxification. Id at ¶ 4.10.

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Stephen was ultimately placed alone in a holding cell for the
duration of the early morning hours. Id at ¶¶ 4.15, 4.22. An
officer notified Altorshan of “a medical emergency” requiring
attention about seven hours after he was first placed in his cell.
Id at ¶ 4.23. Altorshan and Ahmed found Stephen unresponsive
on the floor of his cell. They checked his vital signs, determined
that he wasn’t breathing and had no pulse, and “proceeded to
conduct CPR and use a defibrillator until the Houston Fire
Department arrived to take over.” Id at ¶¶ 4.23–4.24. These
efforts were unsuccessful, and Stephen was pronounced dead.
Id at ¶ 4.31. Plaintiffs allege in this regard that the HCJ
Defendants failed to render timely aid to Stephen or provide him
with medical treatment after he became nonresponsive. Id at ¶
4.25. They also allege that the HCJ Defendants failed to seek
medical treatment, to timely and appropriately administer CPR,
or to timely request or transport him for “life-saving medical
treatment.” Id at ¶¶ 4.26–30.
The City and the individual Defendants note in their motions
to dismiss that the underlying cause of death was an overdose
from ingesting cocaine. Dkt 54 at 18 n 2; Dkt 55 at 10 n 1.
Plaintiffs confirmed this fact at hearing on the motions.
b. Alleged policies
Allegations as to pertinent HCJ and other municipal policies
are muddled and scattered throughout the complaint. They could
certainly be pleaded with better linkage to allegations of deficient
conduct but can be generally understood. Curiously, some
policies are specified but then paired with indication that the
policy was followed, making it quite unclear what Plaintiffs meant
by such pleading.
For example, Plaintiffs allege that HCJ policy required the
HCJ Defendants to search arrestees on intake for weapons, illicit
drugs, or contraband. Id at ¶ 4.6. But they note that such search
was made of Stephen, and no weapons, illicit drugs, or
contraband were found. Id at ¶ 4.7.
Plaintiffs also allege that HCJ policy required the HCJ
Defendants “to screen and evaluate the health status of persons
placed in custody.” Id at ¶ 4.13. They assert generally that the
HCJ Defendants failed to “conduct the required face-to-face

3

inspections.” Id at ¶ 4.16 (emphasis original). But as noted above,
Plaintiffs also allege that Sardinas “interviewed” Stephen upon
intake for screening and evaluation, who “complied with the
requests.” Id at ¶ 4.8. Plaintiffs likewise allege that PerezGonzalez, Ahmed, and Altorshan also “made their initial checks”
on Stephen. Id at ¶ 4.9. On the other hand, they allege that PerezGonzalez was unable to check vital signs and thus didn’t conduct
a full physical examination when examining Stephen a bit over an
hour after intake. Id at ¶ 4.10.
Plaintiffs further allege that HCJ policy required the HCJ
Defendants “to physically and visually check on inmates every
thirty (30) minutes.” Id at ¶ 4.15. They squarely assert that the
HCJ Defendants failed to check on Stephen with that frequency.
Id at ¶¶ 4.16, 4.20.
And Plaintiffs allege that the Texas Administrative Code
required the City to have procedures in place for suicide
screening and prevention. Id at ¶ 5.1, citing 37 Tex Admin Code
pt 9 (Texas Commission on Jail Standards). But they allege that
“a suicide assessment was performed” on Stephen in accord with
this policy, without otherwise asserting that he committed or
attempted suicide. Id at ¶ 4.18.
c. Causes of action
Plaintiffs bring twelve causes of action across three
categories of claims. See Dkt 53 at ¶¶ 6.1–7.43. First, they bring a
negligence claim under the Texas Tort Claims Act against each
individual Defendant and against the City. Second, they bring a
constitutional claim under 42 USC § 1983 against each individual
Defendant for alleged violation of Stephen’s right to reasonable
medical care under the Eighth and Fourteenth Amendments.
Third, they bring a claim for municipal liability under 42 USC
§ 1983 against the City for its alleged failure to train the individual
Defendants and its ratification of their actions.
Plaintiffs filed action in February 2017, and the complaint
was originally assigned to Judge Lynn Hughes. Dkt 1. They have
since amended four times. The first amendment was by right
under Rule 15(a). See Dkt 3. The second corrected a mistake
relating to the representative capacity of Charmaine McWilliams.
See Dkts 5, 7. The third added several defendants and pertinent

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facts. See Dkt 25. Defendants moved to dismiss that complaint,
asserting there the same arguments sponsored now. See Dkts 31,
35, 36. The action was then transferred to this Court in
October 2019. Dkt 47. Plaintiffs requested and received leave to
meet the then-pending motion to dismiss with “a further and
final amended complaint.” Minute Entry of 02/25/2020.
The operative pleading here is thus Plaintiffs’ fourth
amended complaint. Dkt 53. The individual Defendants and the
City filed motions to dismiss under Rule 12(b)(6). Dkts 54, 55.
2. Legal standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
a plaintiff’s complaint to provide “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Rule 12(b)(6) allows the defendant to seek dismissal if the
plaintiff fails “to state a claim upon which relief can be granted.”
Read together, the Supreme Court has held that Rule 8 “does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell
Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a
Rule 12(b)(6) motion to dismiss, the complaint “must provide
the plaintiff’s grounds for entitlement to relief—including factual
allegations that when assumed to be true ‘raise a right to relief
above the speculative level.’” Cuvillier v Taylor, 503 F3d 397, 401
(5th Cir 2007), quoting Twombly, 550 US at 555.
A complaint must therefore contain enough facts to state a
claim to relief that is plausible on its face. Twombly, 550 US at 570.
A claim has facial plausibility “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 US at 678, citing Twombly, 550 US at 556. This standard on
plausibility is “not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 US at 678, quoting Twombly, 550 US at 556.
Review on motion to dismiss under Rule 12(b)(6) is
constrained. The reviewing court must accept all well-pleaded
facts as true and view them in the light most favorable to the
plaintiff. Walker, 938 F3d at 735 (citations omitted). It must also

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accept all inferences that plausibly follow from those specific
allegations. Iqbal, 556 US at 678, citing Twombly, 550 US at 556.
And it must generally limit itself to the contents of the complaint
and its attachments. Brand Coupon Network LLC v Catalina
Marketing Corp, 748 F3d 631, 635 (5th Cir 2014), citing Collins v
Morgan Stanley Dean Witter, 224 F3d 496, 498 (5th Cir 2000).
3. Consideration of jailhouse video
Ten segments of digital video exist of the events at different
locations inside the HCJ during Stephen’s processing and
detention. These aren’t specifically referenced in the fourth
amended complaint. Even so, Plaintiffs attached them with a
docket entry following their responses to the subject motions.
See Docket Entry of 06/25/2020. They argued at hearing that
the video should be reviewed on consideration of the motions.
Defendants disagreed.
As just noted, review on motion to dismiss is typically limited
to the complaint and its attachments. But a notable exception
permits consideration of documents or other undisputed
materials “if they are referred to in the plaintiff’s complaint and
are central to her claim.” Collins, 224 F3d at 498–99, quoting
Venture Associates Corp v Zenith Data Systems Corp, 987 F2d 429, 431
(7th Cir 1993). The Fifth Circuit has characterized this as a
“limited exception.” Scanlan v Texas A&M University, 343 F3d
533, 536 (5th Cir 2003), citing Collins, 224 F3d at 498. But it has
expressly recognized that a district court may consider pertinent
video (like that from an officer’s body camera or a jail hallway
camera) if the requirements stated above are satisfied. For
example, see Robles v Ciarletta, 797 F Appx 821, 831–32 (5th Cir
2019, per curiam). This is so because review of such evidence,
where appropriate, can assist the court “in making the elementary
determination of whether a claim has been stated.” Collins,
224 F3d at 499.
It would have been far better practice for the fourth
amended complaint to have simply and specifically cited the
video segments. But several reasons counsel in favor of their
discretionary consideration now. First, the video is quite
obviously central to the asserted claims. Indeed, it without
question is the source of the detailed allegation of relevant events

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within the HCJ. Second, there’s no dispute that the City produced
the segments to Plaintiffs in April 2017 after the filing of the
second amended complaint. See Dkt 62. Third, there’s no
contention that the segments are incomplete or anything other
than an accurate depiction of the central events. Compare Taylor v
Hartley, 488 F Supp 3d 517, 526 (SD Tex 2020) (refusing to
consider proffer of select screenshots without submission of
entire videotape). And fourth, dismissal without their
consideration would likely warrant repleading in this regard,
which would serve only to make such citation explicit.
And so the segments have been reviewed. The longest is just
over nine hours and thirty minutes in length (Video 9), being a
camera from outside Stephen’s holding cell that shows his entire
time within it. Another is of similar length (Video 10), being a
related camera that shows the comings and goings of HCJ
personnel in the hallway outside the cell. Another two are
approximately four minutes in length (Videos 3 and 4), being two
cameras at each end of the room for the initial check and
screening of Stephen. The other six segments are relatively brief
(Videos 1, 2, 5, 6, 7, and 8), being cameras that show the
movement of Stephen between locations within the HCJ.
The segments appear to account for the entirety of Stephen’s
time within the HCJ. There’s no audio component. And the
timestamps don’t correspond to actual time of day because each
segment starts at 00:00:00. And so, for instance, timestamp
00:00:00 on Video 3 corresponds to roughly 2:30 am, the time of
Stephen’s processing at intake. And timestamp 00:00:00 on
Videos 9 and 10 corresponds to roughly 2:45 am, the time at
which Stephen was first placed in his cell. For clarity, citation
hereafter is made solely to the timestamp on the videos.
As vividly described in the pleadings, Stephen does appear
extremely unbalanced with difficulty standing, slow to respond,
and (at times) lacking in motor skills. But the video also shows
that he was able to respond and communicate to HCJ personnel
as they processed him, including as he lay on the floor when he
had difficulty standing. See generally Videos 3 and 4. And after
being taken to a holding cell, he was able to communicate with
staff while also sleeping, drinking, and moving about at certain

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intervals over the ensuing hours. For example, see Video 9 at
00:19:45, 00:55:23, 01:27:25, 02:03:30, 03:50:20 (talking);
00:04:22, 00:23:45, 01:54:50 (drinking fluids provided); 00:24:05,
01:53:14, 02:39:10, 03:13:30 (sitting upright); 02:47:20, 04:19:27
(drinking at sink).
The segments also generally show that HCJ personnel
viewed Stephen in his cell more than forty times during the sixand-a-half hours that he was detained there prior to his death. See
Videos 9 (cell) and 10 (hallway). Such views mainly consist of
officers walking by the cell with Stephen plainly visible in it (and
then back by on return). But others consist of them pausing to
talk or interact with him. These conclude with a visual check at
timestamp 06:10:31, about three minutes before he rolled from
his bunk onto the floor. He would have then been observed in
this state in several ensuing walk-bys and checks over a short
period of time. See Video 10 at 06:15:48, 06:34:48, 06:39:25,
06:47:54; see also Video 9 at 06:39:50. Officers then entered the
cell, with robust but ultimately unsuccessful efforts at CPR and
defibrillation ensuing for at least nine minutes. See Video 9
at 06:49:03.
These segments on the whole don’t depict the allegations any
better than the typical standard—being that well-pleaded facts
must be assumed true and viewed in their most favorable light,
including reasonable inferences. Walker, 938 F3d at 735, citing
Campbell, 781 2d at 442. This isn’t surprising because, again, the
description of events comes directly from the video segments.
As such, further reference will be to events as most favorably
described in the fourth amended complaint—subject to one
exception. Any allegation contradicted by a video segment will be
disregarded. A court isn’t required to (and indeed, shouldn’t)
accept as true allegations that are contradicted by the materials
attached to the complaint or otherwise appropriate for judicial
consideration. For example, see Cicalese v University of Texas Medical
Branch, 456 F Supp 3d 859, 872 (SD Tex 2020), citing R2
Investments LDC v Phillips, 401 F3d 638, 642 (5th Cir 2005).
4. Analysis
The motions to dismiss attack all three categories of claims
asserted by Plaintiffs.

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a. State-law negligence claims
Plaintiffs bring claims for negligence under the Texas Tort
Claims Act against the individual Defendants and the City.
As to the individual Defendants. Section 101.106(a) of the Texas
Civil Practice and Remedies Code provides that a plaintiff
irrevocably waives further right to pursue tort claims against the
employees of a governmental unit where action is also brought
against the unit itself. See Dkt 54 at 11. Plaintiffs conceded this
point at hearing. As such, these claims against the individual
Defendants must be dismissed. See Sweetin v Texas City, 2020 WL
6130881, *2–3 (SD Tex).
As to the City. The Texas Tort Claims Act states that “a
municipality is liable under this chapter for damages arising from
its governmental functions.” See Tex Civ Prac & Rem Code
§ 101.0215(a). It sets out a nonexhaustive list of defined
governmental functions. Ibid. But it then provides a “limited waiver
of sovereign immunity” for municipalities performing those
functions in three types of circumstances. Texas Department of
Criminal Justice v Miller, 51 SW3d 583, 587 (Tex 2001). These
pertain to torts arising out of the use of motor-driven vehicles or
equipment, the condition or use of personal property, or the
condition or use of real property. Tex Civ Prac & Rem Code
§ 101.021; see also City of Houston v Nicolai, 539 SW3d 378, 386–
88 (Tex App—Houston [1st Dist] 2017, no pet). While that may
not be the most straightforward way to address the topic, Texas
courts have interpreted all of this to mean that a municipality
performing governmental functions is entitled to immunity except as
specifically waived in the Texas Tort Claims Act. For example,
see City of Sugarland v Ballard, 174 SW3d 259, 264 (Tex App—
Houston [1st Dist] 2005, no pet) (citations omitted).
The negligence claims by Plaintiffs target conduct and action
within the provision of police control and the operation of jails.
Those are specifically deemed to be governmental functions. See Tex
Civ Prac & Rem Code § 101.0215(a)(1), (a)(7). Plaintiffs’
allegations don’t concern any of the three circumstances subject
to the waiver of sovereign immunity. This means that the City is
immune from the asserted negligence claims. For example, see
Henderson v Iowa Colony, 2016 WL 2586715, *2 (Tex App—

9

Houston [1st Dist], no pet); Mitchell v Orange County, 2009 WL
2617582, *3 (Tex App—Beaumont, pet dismd woj), cert denied,
562 US 860 (2010). As such, these claims against the City must
be dismissed.
b. Section 1983 claims, individual Defendants
Plaintiffs bring constitutional claims under 42 USC § 1983
against Alston and the HCJ Defendants. The central concern is
the constitutional right of pretrial detainees to reasonable care for
their serious medical needs. See Dyer v Houston, 964 F3d 374, 380
(5th Cir 2020), citing Thompson v Upshur County, 245 F3d 447, 457
(5th Cir 2001). This right flows from “both the procedural and
substantive due process guarantees of the Fourteenth
Amendment.” Hare v City of Corinth, 74 F3d 633, 639 (5th Cir
1996, en banc), citing Bell v Wolfish, 441 US 520 (1979). Plaintiffs
also assert applicability of the Eighth Amendment. For example,
see Dkt 53 at ¶ 4.35. But those rights pertain only to convicted
prisoners. Hare, 74 F3d at 639, citing Estelle v Gamble, 429 US 97,
104 (1976).
Alston and the HCJ Defendants assert qualified immunity as
a defense. This protects a government official if the conduct
“either did not violate a federal right of the plaintiff or that right
was not clearly established at the time of the relevant events.”
Batyukova v Doege, 994 F3d 717, 724 (5th Cir 2021), citing Dyer,
964 F3d at 380. The Fifth Circuit frames the analysis as follows:
“To evaluate whether a government official is
entitled to qualified immunity, we conduct a
two-prong inquiry: we ask (1) whether the
undisputed facts and the disputed facts,
accepting the plaintiffs’ version of the disputed
facts as true, constitute a violation of a
constitutional right, and (2) whether the
defendant’s conduct was objectively reasonable
in light of clearly established law.” Carroll v
Ellington, 800 F3d 154, 169 (5th Cir 2015),
quoting Thompson, 245 F3d at 457. “We have
discretion to address either prong first without
necessarily addressing the other.” Carroll, 800
F3d at 169.

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Harmon v Dallas County, 927 F3d 884, 892 (5th Cir 2019, per curiam)
(citation form altered).
As to the availability of qualified immunity generally, the
Fifth Circuit explains:
The precise question we must answer is
“whether a reasonable officer could have
believed [his conduct] to be lawful, in light of
clearly established law and the information the
officer[ ] possessed.” Keller v Fleming, 952 F3d
216, 225 (5th Cir 2020), quoting Anderson v
Creighton, 483 US 635, 641, (1987) (cleaned up).
“[W]e must frame the [clearly established law
question] with specificity and granularity,”
Morrow v Meachum, 917 F3d 870, 874–75 (5th Cir
2019), for “[t]he dispositive question is whether
the violative nature of particular conduct is
clearly established.” Id, quoting Mullenix v Luna,
577 US 7, 12 (2015, per curiam). The plaintiff
must identify controlling precedent that makes
the unlawfulness of the officer’s conduct
sufficiently clear that a reasonable officer would
have understood his conduct violated that right.
Keller, 952 F3d at 225, citing Reichle v Howards,
566 US 658, 664 (2012).
Brown v Tarrant County, 985 F3d 489, 495 (5th Cir 2021) (citation
form altered).
i.
Officer Gabrielle Alston
Plaintiffs allege that Alston’s “acts and/or omissions
constitute deliberate indifference to Decedent’s medical needs,
was unreasonable and violated his rights under the Eighth and
Fourteenth Amendments to the United States Constitution.”
Dkt 53 at ¶¶ 7.4–7.5. They assert two failures on her part—to
transport Stephen first “to a medical facility for any
detoxification,” and to inform HCJ personnel of his “highly
visible intoxicated state.” Id at ¶ 4.4.
Allegation as to the latter is certainly deficient. The complaint
alleges that Alston arrested Stephen, “charging him with public
intoxication.” Id at ¶ 4.3. To be booked on such charge

11

necessarily means that Stephen’s intoxicated condition was in fact
disclosed at the HCJ. And the repeated allegation throughout the
fourth amended complaint is that Stephen’s state of intoxication
was highly visible and obvious. For example, see id at ¶¶ 4.4, 4.9, 4.10,
6.44, 7.17. Plaintiffs sponsor nothing to establish that a prison
officer has a constitutional obligation to inform her fellow
officers of known or obvious medical conditions. Compare
Hyatt v Thomas, 843 F3d 172, 176–78 (5th Cir 2016) (no
constitutional violation where jail officer informed her shift relief
of plaintiff’s nonobvious conditions). And certainly, nothing
suggests a clearly established right in that regard.
As to the more generalized assertion of deliberate
indifference, it is resolved on the same basis as the HCJ
Defendants, discussed next. That is, Plaintiffs establish neither
any violation of a constitutional right as to a failure to diagnose
or monitor Stephen, nor any violation of a clearly established
right in that regard.
The Section 1983 claim against Alston must be dismissed.
ii.
The HCJ Defendants
Plaintiffs assert that “acts and/or omissions” of each of the
HCJ Defendants “constitute deliberate indifference to
Decedent’s medical needs.” Dkt 53 at ¶¶ 6.4 (as to PerezGonzalez), 6.29 (as to Sardinas), 6.54 (as to Ahmed), 6.79 (as to
Altorshan). None of the alleged acts or omissions are specified in
any way in these counts, leaving it to review of the generalized
factual allegations that precede them. And the undifferentiated
mixture presented there makes it difficult to discern connections.
Consideration here starts with several more attenuated
allegations before addressing the central contention that the HCJ
Defendants violated Stephen’s constitutional right as a pretrial
detainee to reasonable care for his serious medical needs.
A. Attenuated allegations
Plaintiffs reference HCJ policies as to searches for weapons
and drugs, initial screening upon intake, and suicide assessment.
Dkt 53 at ¶¶ 4.6, 4.13, 5.1. But they nowhere specify the extent
to which such policies are required to implement federal
guarantees of right. It is also quite unclear whether Plaintiffs even

12

intend to assert claims on these bases. This is because other
allegations specifically concede compliance with those self-same
policies. Id at ¶¶ 4.7–4.9, 4.18. As such, to the extent asserted,
any such claims must be dismissed.
Plaintiffs also allege that the HCJ Defendants “used
excessive force” on Stephen while he “was alone in his cell,”
“inflicting bruises and abrasions to his head, hand, abdomen and
legs.” Id at ¶ 4.19. They don’t say how this was done, don’t allege
who did it, and don’t return to it when pleading their causes of
action. Such conclusory allegation can’t overcome a defense of
qualified immunity. See Arnold v Williams, 979 F3d 262, 267
(5th Cir 2020), citing Backe v LeBlanc, 691 F3d 645, 648 (5th Cir
2012). And in any event, the video segments submitted by
Plaintiffs for review entirely contradict the assertion. Quite
simply, no such conduct is recorded during Stephen’s time in his
cell or elsewhere in the HCJ. To the extent asserted, any claim in
this regard must also be dismissed.
Another attenuated allegation states that the HCJ
Defendants allowed Stephen to “fall to the ground” and “remain
face down on the floor,” after which they “repulsively and
inhumanely dragged” him across the floor to his cell. See Dkt 53
at ¶ 4.9. Like the above reference to excessive force, Plaintiffs
don’t attempt to connect this in their counts to any stand-alone
assertion of violation of constitutional right. As such, it is best
understood as indicating that the HCJ Defendants were on notice
of Stephen’s acute intoxication, from which Plaintiffs would
deduce deliberate indifference. And in that regard, the video
segments submitted by Plaintiffs do support their assertion that
Stephen was unable to stand, eventually losing his balance and
needing help. See Videos 3 and 4. But beyond this, the more
extreme characterization of the allegation cannot be accepted.
This is because the video segments show that the officers
generally took care to otherwise support Stephen and guard
against injury. That is, they lowered him to the ground without
incident, placed him on his side, searched him, and conversed at
times with him. The videos also show from several angles that
after the officers hauled Stephen across a smooth floor to his cell,
he was placed without incident onto a bunk and provided liquids

13

to drink. See Videos 5 through 9. And Plaintiffs don’t allege injury
from this conduct alone, with none apparent in the video. To the
extent that they intend this to assert a claim, it must be dismissed.
B. Failure to diagnose, to monitor, and to
render emergency aid
The central allegations by Plaintiffs concern an asserted
failure by the HCJ Defendants to properly diagnose Stephen, to
properly monitor him in his cell, and to render timely and
effective emergency aid once it was determined that he needed it.
These are factually distinct. But the same law addresses them all.
The standard for analyzing an alleged violation of the pretrial
right to medical attention depends upon whether the challenged
conduct involves an “episodic act or omission” or a “condition
of confinement.” Tamez v Manthey, 589 F3d 764, 769 (5th Cir
2009, per curiam), quoting Scott v Moore, 114 F3d 51, 53 (5th Cir
1997, en banc); see also Hare, 74 F3d at 644–45. This is plainly an
episodic-act case, being one where “the complained-of harm is a
particular act or omission of one or more officials.” Tamez,
589 F3d at 769, quoting Scott, 114 F3d at 53. For example, the
Fifth Circuit in Olabisiomotosho v City of Houston found such analysis
applied to an alleged failure by the officer “to take better care of”
an inmate and “to medically screen her and secure her to
treatment.” 185 F3d 521, 526 (5th Cir 1999).
To defeat qualified immunity in an episodic-acts case, the
plaintiff must “prove the official ‘acted or failed to act with
deliberate indifference to the detainee’s needs.’” Brown v Bolin,
500 F Appx 309, 314 (5th Cir 2012), quoting Hare, 74 F3d at 648.
To establish deliberate indifference in this context requires the
plaintiff to “establish that the official knew of and disregarded an
excessive risk of inmate health or safety.” Brown, 500 F Appx
at 314, citing Farmer v Brennan, 511 US 825, 837 (1994). This is an
“extremely high standard.” Domino v Texas Department of Criminal
Justice, 239 F3d 752, 756 (5th Cir 2001), citing Johnson v Treen,
759 F2d 1236, 1238 (5th Cir 1985). The Fifth Circuit holds, “The
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Brown, 500 F Appx at 314,
quoting Farmer, 511 US at 837. It also recently observed in Dyer

14

that some panels have articulated a further requirement that the
official subjectively intend that harm occur. 964 F3d at 380, 383–
84 (collecting cases). That needn’t be addressed here because the
traditional two-part inquiry disposes of the issue. See ibid.
As to failure to diagnose. Plaintiffs allege that the HCJ
Defendants should have recognized that Stephen needed urgent
medical attention and provided it, but that they failed to do so.
Dkt 53 at ¶¶ 4.10–11. It is well established on this point that a
passive failure to identify a serious medical need doesn’t
constitute deliberate indifference. Trevino v Hinz, 751 F Appx 551,
555 (5th Cir 2018, per curiam). Indeed, the Fifth Circuit is adamant
that this means that “negligence or even grossly negligent
conduct” doesn’t suffice. Id at 554, citing Thompson, 245 F3d at
458–59, in turn citing Hare, 74 F3d at 645, 649. “A gross error is
still only an error, and an error is not an abuse of power. Because
an error by a government official is not unconstitutional, ‘it
follows that gross negligence is not a sufficient basis for liability.”’
Hare, 74 F3d at 645, quoting Salazar v City of Chicago, 940 F2d 233,
238 (7th Cir 1991) (further citation omitted). Instead, only if it’s
shown that the defendants “failed to act when they were either
aware or should have been aware, because it was so obvious, of
an unjustifiably high risk” of serious medical injury can it be said
that they acted with deliberate indifference. Tamez, 589 F3d at
770 (internal quotations omitted); see also Sibley v Lemaire,
184 F3d 481, 489–90 (5th Cir 1999).
Fifth Circuit decisions on starkly similar fact patterns entitle
the HCJ Defendants to qualified immunity on this aspect of
Plaintiffs’ claims. In Tamez v Manthey, police arrested the decedent
for evading arrest following his running a stop sign at high speed.
589 F3d 764, 766 (5th Cir 2009, per curiam). His behavior was
described as aggressive and combative, and the on-duty nurse
observed that his eyes were fully dilated. The medical staff
determined that his condition didn’t present an emergency and
kept him in city jail overnight, checking on him regularly. The
police transferred him to a hospital for further evaluation in the
morning, where he experienced several seizures and died. It was
later determined that he had recently ingested a large amount of
cocaine. Id at 766–68. Even so, the Fifth Circuit found no

15

constitutional violation. Noticing the pupil dilation and other
symptoms, it said, didn’t mean that the defendants ignored a
substantial risk to the decedent’s health. Rather, the police
expressly determined (albeit incorrectly) that his health didn’t
require immediate attention. Id at 770–72.
Likewise is Estate of Allison v Wansley, 524 F Appx 963 (5th Cir
2013, per curiam). Police there arrested the decedent and placed
her in county jail. They observed that she seemed very intoxicated
because she was unbalanced and slurred her speech. The jail staff
checked on her regularly, and she fell asleep without incident. She
then died of ethanol poisoning later that night. Id at 965–68. The
Fifth Circuit held that the decision to place her in the holding cell
and check on her regularly was objectively reasonable. Id at 972.
Tamez most directly addressed the constitutional-violation
inquiry on qualified immunity. Estate of Allison most directly
addressed the clearly-established inquiry. But the Fifth Circuit has
said that both inform what it means for police conduct to be
objectively reasonable in the context of providing medical care to
detainees. See Trevino, 751 F Appx at 555–56, citing Tamez,
589 F3d at 764, and Estate of Allison, 524 F Appx at 972. It is thus
settled law in the Fifth Circuit that jail personnel don’t act with
deliberate indifference when they place a visibly intoxicated detainee
in a holding cell rather than take him to the hospital—provided
that regular supervision occurs. Estate of Allison, 524 F Appx
at 972–73. The Fifth Circuit flatly holds that, absent clear
“external manifestations of medical distress,” the Fourteenth
Amendment doesn’t mandate that “officers take all criminal
suspects under the influence of drugs or alcohol to hospital
emergency rooms rather than detention centers.” Ibid, quoting
Grayson v Peed, 195 F3d 692, 696 (4th Cir 1999). The conclusion
is the same even where a detainee exhibits ambiguous symptoms.
Estate of Allison, 524 F Appx at 972.
Plaintiffs allege throughout only variations on the allegation
that Stephen appeared to be heavily intoxicated, as he was
incoherent and unable to stand. For example, see Dkt 53
at ¶¶ 4.3, 4.4, 4.9, 4.10, 6.20, 6.21, 7.17, 7.21. Plaintiffs’ counsel
confirmed at hearing that Stephen was ultimately determined to
have died from ingesting large quantities cocaine. See also Dkt 54

16

at 18 n 2; Dkt 55 at 10 n 1. But there’s no allegation that he
informed anyone of such ingestion, that he was in observable
medical distress because of it, or that the HCJ Defendants were
affirmatively aware that Stephen was at some point suffering
from cocaine toxicity.
Instead, the amended complaint squarely asserts that
Sardinas did in fact conduct an initial medical-screening interview
with which Stephen complied, and that the other HCJ
Defendants also “made their initial checks” on him. Dkt 53
at ¶¶ 4.8, 4.9. Plaintiffs also acknowledge that Perez-Gonzalez
examined him again after he was placed in his cell. Id at ¶ 4.10.
True, they assert that this medical check was somehow
insufficient. Ibid. But that isn’t the legal standard. “Even if those
steps were ‘ineffectual,’ they do not demonstrate deliberate
indifference.” Estate of Allison, 524 F Appx at 971–72, quoting
Southard v Texas Board of Criminal Justice, 114 F3d 539, 554 (5th Cir
1997). And the video segments make clear that this in-person
medical inspection included cooperative conversation, the
provision of fluids, and a check of his pulse and pupils. See
Video 9 at 00:19:33 to 00:26:10; see also id at 00:55:18 to 00:56:20
(further conversation and observation).
At most, Plaintiffs allege a passive failure to identify a serious
medical need. But “negligence or even grossly negligent conduct”
in this regard doesn’t suffice to establish deliberate indifference.
Trevino, 751 F Appx at 554; see also Dyer, 964 F3d at 381. Absent
any clear manifestation of medical distress, it can’t be said that
the HCJ Defendants were deliberately indifferent in their decision to
let Stephen “sleep it off,” provided that they check on him
regularly. Estate of Allison, 524 F Appx at 972. But even were a
violation of constitutional right found, Plaintiffs must still
“identify controlling precedent that makes the unlawfulness of
the officer’s conduct sufficiently clear that a reasonable officer
would have understood his conduct violated that right.” Brown,
985 F3d at 495 (citations omitted). They fail to do this. Indeed,
Tamez and Estate of Allison are settled law to the contrary.
This aspect of the Section 1983 claims against the HCJ
Defendants must be dismissed.

17

As to failure to monitor. Plaintiffs allege that HCJ policies
required monitoring “to physically and visually check on inmates
every thirty (30) minutes” that (at least in some unquantified
respect) must be “face-to-face inspections.” See id at ¶¶ 4.15,
4.16, 4.20. And they allege that the checks by the HCJ Defendants
weren’t made according to those intervals or with the requisite
in-person proximity. See id ¶¶ 4.16, 4.20. Plaintiffs argue that
Stephen’s condition was so obvious that it required in-person
monitoring and, at least in part, that someone with medical
training do the monitoring. Id at ¶¶ 4.9, 6.21, 7.27. That sort of
monitoring, Plaintiffs also say, would have shown that Stephen
needed urgent medical care. For example, see id at ¶ 4.21.
Fifth Circuit precedent does establish the general
proposition that jail staff must monitor detainees suspected of
being under the influence of drugs or alcohol. For example, see
Trevino, 751 F Appx at 552–53; Estate of Bonilla v Orange County,
982 F3d 298, 308 (5th Cir 2020). That’s because, absent such
checks, it may be said that jail staff “should have been aware” of
any external manifestations of distress that monitoring would
have revealed. Tamez, 589 F3d at 770 (quotation omitted). And
Fifth Circuit precedent likewise confirms that jail officers in
similar circumstances generally must check on detainees every
fifteen to thirty minutes. See Estate of Allison, 524 F Appx at 967,
972 (fifteen- to thirty-minute intervals); Estate of Bonilla, 982 F3d
at 308 (same); Trevino, 751 F Appx at 552–53 (ten- to fifteenminute intervals).
But Plaintiffs’ broader contention as to the type and intensity
of required monitoring is unfounded. They provide no citation
indicating that walk-by checks are an impermissible means by
which jail personnel may monitor a detainee thought to be under
the influence of drugs or alcohol. To the contrary, the Fifth
Circuit found no constitutional violation where jail staff
conducted only walk-by checks in Tamez and Estate of Allison. See
Tamez, 589 F3d at 771; Estate of Allison, 524 F Appx at 972. And
the jail staff in those cases were ordinary officers, without even
the specialized medical credentials alleged here as to the HCJ
Defendants. Compare Dkt 53 at ¶¶ 1.6–1.9 (alleging as medical
specialists and medical screeners), with Tamez, 589 F3d at 771

18

(involving ordinary detectives), and Estate of Allison, 524 F Appx
at 967–68 (involving ordinary jailers). If anything, this means that
the HCJ provided better monitoring practices than that found
sufficient in those decisions. And in that light, it can in no way be
said that it was clearly established under the law that something
more was required.
This leaves Plaintiffs to contend (as they do) that the HCJ
Defendants simply didn’t monitor frequently enough. Dkt 53
at ¶¶ 4.15–4.16, 4.20. For their part, the HCJ Defendants appear
to misconstrue the fourth amended complaint when arguing that
Plaintiffs specifically concede that Stephen was checked at
appropriate intervals. See Dkt 54 at 19, citing Dkt 53 at ¶ 4.15.
The phrasing in the complaint is certainly inartful and at times
elliptical. But Plaintiffs squarely allege elsewhere that the HCJ
Defendants “failed to check on Decedent every fifteen (15)
and/or thirty (30) minutes.” Dkt 53 at ¶ 4.20; see also id at ¶ 4.16.
Even so, the problem with the argument remains its factual
deficiency. Plaintiffs have urged consideration of the video
segments, which recorded events in Stephen’s cell and the
hallway in front of it. See Videos 9 (cell) and 10 (hallway). The
precise number of checks is perhaps difficult to discern because
of the indirect angle of the hallway camera. But even if not exact,
the segments show that HCJ personnel quite regularly checked
on Stephen, viewing his cell at least forty times during the sixand-a-half hours that he was detained there prior to his death.
Most of these generally consist of officers walking by the cell with
Stephen plainly visible in it (and then back by on return). But
others consist of them pausing to talk or interact with him. These
walk-bys were quite frequent at first, ranging from nine to twelve
per hour. That frequency tapered off through the predawn hours,
while never appearing to fall below two checks per hour.
A court isn’t required to accept as true allegations that are
contradicted by pertinent evidence properly under consideration.
See Cicalese, 456 F Supp 3d at 872, citing R2 Investments, 401 F3d
at 642. Quite simply, Plaintiffs can’t establish a constitutional
violation in this regard for the very reason that the HCJ
Defendants regularly monitored Stephen. This included five
walk-bys or checks in the sixty minutes before CPR began. See

19

Video 10 at 06:10:31, 06:15:48, 06:34:48, 06:39:25, 06:47:54. This
number of checks itself belies contention that the conduct of
these officers was deliberately indifferent.
This aspect of the Section 1983 claims against the HCJ
Defendants must also be dismissed.
As to failure to render emergency aid. Plaintiffs also allege that,
after discovering Stephen unconscious on the floor of his cell,
the HCJ Defendants failed to seek medical treatment, to timely
and appropriately administer CPR, or to timely request or
transport him for “life-saving medical treatment.” Dkt 53
at ¶¶ 4.26–30. But video footage again contradicts the
contention. It shows that CPR was robustly administered for
nearly nine minutes, including defibrillation. See Video 9 at
06:49:55. And as to transportation to a hospital, Plaintiffs’ other
allegations note that when found, Stephen was “not breathing
and had no pulse.” Dkt 53 at ¶ 4.24; see also Dkt 57 at 11 (noting
Stephen was “found dead in his cell”). This means that
subsequent medical attention elsewhere wasn’t possible or would
have been ineffectual. But even assuming that any violation of
right could be sufficiently pleaded in this regard, Plaintiffs haven’t
shown any clearly established right to something more than
immediate administration of CPR—or that some other action
was required once Stephen was found and pronounced dead. For
comparison, see Arenas v Calhoun, 922 F3d 616, 619–20, 624–26
(5th Cir 2019) (no violation where jail staff performed CPR and
attempted to resuscitate detainee, but detainee had already died).
The real concern here—as with the asserted failures to
diagnose and to monitor—devolves back to the timing of
identification that Stephen needed emergency medical attention.
For example, the most troubling aspect of the video segments
isn’t even one specified in the fourth amended complaint. It
concerns that final hour before CPR began on Stephen. There
was a walk-by of Stephen’s cell as he lay at rest on his bunk. See
Videos 9 and 10 at 06:10:31. He then rolled from his bunk
unconscious onto the floor about three minutes later. He was
observed by officers in this state in several ensuing walk-bys and
checks over a short period of time. See Video 10 at 06:15:48,
06:34:48, 06:39:25, 06:47:54. Only then did officers decide to

20

enter his cell, after which their vigorous CPR efforts began. See
Video 9 at 06:49:03.
The failure to enter the cell sooner is concerning. But even
assuming that the HCJ Defendants were negligent in this
regard—or even grossly negligent—Fifth Circuit precedent
entitles them to qualified immunity. For example, the detainee in
Estate of Allison fell asleep in her cell after interacting with the jail
staff at intake, with officers conducting visual checks every fifteen
to thirty minutes. 524 F Appx at 967. At some point they noticed
that she “had not changed positions in a while, and [they] could
not tell whether she was breathing by looking into her cell.” Ibid.
The Fifth Circuit found that the delay didn’t amount to deliberate
indifference. “While the result here was tragic, we cannot say that
all, or even most, reasonable officers would not have done the
same, absent an inmate’s additional external manifestations of
medical distress.” Id at 972–73. So, too, in Trevino v Hinz. The
detainee there “vomited, had several shaking episodes, and told
the officers she was sick.” 751 F Appx 551, 556 (5th Cir 2018, per
curiam). She later died of a seizure due to a cocaine overdose. But
the officers had no knowledge of such ingestion, and so they
weren’t on notice to monitor for associated concerns. Ibid. The
Fifth Circuit held that the officers were entitled to qualified
immunity, finding that “an officer’s failure to immediately
recognize ambiguous symptoms as a medical emergency does not
amount to deliberate indifference.” Id at 555.
The Fifth Circuit has held in many other contexts that
conduct that could be second-guessed as negligence or gross
negligence doesn’t overcome an assertion of qualified immunity.
For example, Estate of Henson v Krajca, 440 F Appx 341, 345–47
(5th Cir 2011) (deliberate indifference not shown where jail nurse
may have been grossly negligent in failing to prevent detainee
from dying of chronic obstructive pulmonary disease); Sanchez v
Young County, 866 F3d 274, 280 (5th Cir 2017) (deliberate
indifference not shown where jail employees may have been
negligent or grossly negligent in failing to prevent suicide); Leal v
Wiles, 734 F Appx, 905, 910–11 (5th Cir 2018, per curiam)
(deliberate indifference not shown where jail employees may have
been negligent in failing to protect detainee from being assaulted

21

by rival gang members); Dyer, 964 F3d at 380–81 (deliberate
indifference not shown where paramedics may have been
negligent in failing to take further steps to treat head injury and
drug-induced behavior of arrestee). And at best, that’s what
Plaintiffs state here—allegations of negligence or gross
negligence. But this doesn’t establish the deliberate indifference
necessary to state a constitutional violation.
The allegations in the fourth amended complaint don’t
overcome the assertion of qualified immunity by the HCJ
Defendants. The claims in this regard must be dismissed.
c. Section 1983 claims, City of Houston
Municipal liability under Section 1983 doesn’t extend merely
on a respondeat superior basis. Monell v Department of Social Services of
City of New York, 436 US 658, 691 (1978). The plaintiff must show
that an official policy promulgated by the municipal policymaker
was the moving force behind the violation of a constitutional
right. Piotrowski v City of Houston, 237 F3d 567, 578 (5th Cir 2001).
“The ‘official policy’ requirement was intended to distinguish acts
of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for
which the municipality is actually responsible.” Doe v Edgewood
Independent School District, 964 F3d 351, 364–65 (5th Cir 2020)
(emphasis in original), quoting Pembaur v Cincinnati, 475 US 469,
479 (1986).
Plaintiffs bring Monell claims under 42 USC § 1983 against
the City, but without clear connection to the HCJ and municipal
policies described above. And as already noted, their allegations
establish that the HCJ Defendants did in fact comply with
policies as to screening for weapons and drugs and as to
assessment at intake as to physical condition and suicide risk.
What appears to remain are two liability theories. The first is
allegation that the City failed to train its employees to adequately
identify and treat the serious medical conditions of detainees.
Dkt 53 at ¶¶ 5.1–5.4, 7.26–7.31. The other is allegation that the
City ratified the conduct by the individual Defendants after
learning of it. Id at ¶¶ 4.33, 7.27, 8.1.

22

i. Failure-to-train theory
The Supreme Court observes, “A municipality’s culpability
for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train.” Connick v Thompson, 563 US 51, 61
(2011). But a decision by a local government not to train certain
employees about their legal duty to avoid violating citizens’ rights
may in some circumstances rise to the level of an official
government policy for purposes of Section 1983. Id at 61–62,
citing Board of County Commissioners of Bryan County Oklahoma v
Brown, 520 US 397, 407–10 (1997) (citations omitted).
To state such a claim, a plaintiff must plead that the training
procedures of the municipality’s policymaker were inadequate;
the policymaker was deliberately indifferent in adopting the
training policy; and the inadequate training policy directly caused
the plaintiff’s injury. Conner v Travis County, 209 F3d 794, 796
(5th Cir 2000), quoting Baker v Putnal, 75 F3d 190, 200 (5th Cir
1996). Plaintiffs fail to meet any of these elements.
As to adequacy of training procedures. Plaintiffs at base allege that
the City failed to train jail staff to evaluate and treat detainees for
serious medical needs. See Dkt 53 at ¶ 4.11. But municipal
liability doesn’t attach merely because “a particular officer may be
unsatisfactorily trained” or “an otherwise sound program has
occasionally been negligently administered.” City of Canton v
Harris, 489 US 378, 390–91 (1989). To meet the first element, the
Fifth Circuit directs that the focus must be on the adequacy of the
training program in relation to the tasks that the particular officer
must perform. Snyder v Trepagnier, 142 F3d 791, 798 (5th Cir 1998),
quoting City of Canton, 489 US at 390. The plaintiff must allege
with specificity how the training program is defective in this
regard to withstand a motion to dismiss. Roberts v City of Shreveport,
397 F3d 287, 293 (5th Cir 2005) (quotations omitted).
To the contrary, the allegations by Plaintiffs are wholly
conclusory. They neither identify specific facts about the City’s
training protocols nor describe any deficiencies that pertain to the
individual Defendants’ duties. See Snyder, 142 F3d at 798; Taylor,
488 F Supp 3d at 535–36. Instead, they generally allege that the
City “was required to train its jail personnel on the method and
means of evaluating persons placed in custody to keep them safe

23

from physical or psychological injury, harm or death,” with
conclusory connection that the actions at issue here constitute
“[f]ailing to properly train, supervise, discipline, transfer,
monitor, counsel and otherwise control police officers.” Dkt 53
at ¶¶ 4.11, 7.27. The Fifth Circuit is clear that it’s insufficient to
“present evidence of isolated violations and ascribe those
violations to a failure to train.” Zarnow v City of Wichita Falls,
614 F3d 161, 170 (5th Cir 2010), citing Goodman v Harris County,
571 F3d 388 (5th Cir 2009). In other words, a Plaintiff can’t state
a failure-to-train claim by merely pointing to a municipal policy
and saying that it wasn’t observed. See Roberts v City of Shreveport,
397 F3d 287, 293 (5th Cir 2005).
As to deliberate indifference. In the context of municipal liability,
deliberate indifference is “a stringent standard of fault,” one
“requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Connick, 563 US at 61,
quoting Board of County Commissioners, 520 US at 409–10. “Thus,
when city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city may
be deemed deliberately indifferent if the policymakers choose to
retain that program.” Connick, 563 US at 61, citing Board of County
Commissioners, 520 US at 407. To establish the deliberate
indifference of a municipality, it is “ordinarily necessary” for a
plaintiff to allege a pattern of similar constitutional violations by
untrained employees. Connick, 563 US at 62, quoting Board of
County Commissioners, 520 US at 407. A plaintiff must generally
show that, given the duties assigned to specific officers or
employees, “the need for more or different training is obvious,
and the inadequacy is likely to result in the violation of
constitutional rights.” City of Canton, 489 US at 390.
Plaintiffs fail to allege any other similar violation, much less
the pattern that is typically required to establish deliberate
indifference in this context. They say only that the City acted at
“a level of official policy, practice, and custom, with deliberate,
callous, conscious and unreasonable indifference” in failing to
train and supervise the individual Defendants. Dkt 53 at ¶ 7.27.
That is wholly conclusory and deficient.

24

As to causation. Plaintiffs having failed to allege facts to
establish the first two elements, they necessarily fail to allege facts
showing that any inadequate training caused an underlying
constitutional violation. See Taylor, 488 F Supp 3d at 536.
Plaintiffs fail to sufficiently plead their failure-to-train claim.
It must be dismissed.
ii. Ratification theory
The Supreme Court permits a ratification theory against a
municipality to go forward in certain limited circumstances:
[W]hen a subordinate’s decision is subject to
review by the municipality’s authorized
policymakers, they have retained the authority
to measure the official’s conduct for
conformance with their policies. If the
authorized
policymakers
approve
a
subordinate’s decision and the basis for it, their
ratification would be chargeable to the
municipality because their decision is final.
City of St Louis v Praprotnik, 485 US 112, 127 (1988) (emphasis in
original).
On the pleadings in Covington v City of Madisonville, the Fifth
Circuit found such theory sufficiently alleged to withstand
motion to dismiss. 812 F Appx 219, 228–29 (5th Cir 2020, per
curiam). It specified as follows:
Ratification in this context requires that a
policymaker knowingly approve a subordinate’s
actions and the improper basis for those
actions. Otherwise, unless conduct is
“manifestly indefensible,” a policymaker’s
mistaken defense of a subordinate who is later
found to have broken the law is not ratification
chargeable to the municipality.
Id at 228, citing Praprotnik, 485 US at 127, Beattie v Madison County
School District, 254 F3d 595, 603 n 9 (5th Cir 2001), and Coon v
Ledbetter, 780 F2d 1158, 1161–62 (5th Cir 1986).
Inquiry in this regard requires “identification of officials or
governmental bodies ‘who speak with final policymaking

25

authority for the local governmental actor concerning the action
alleged to have caused the particular constitutional or statutory
violation at issue.’” Doe v Harris County Precinct Six Constable Sylvia
Trevino, 452 F Supp 3d 548, 559 (SD Tex 2020), quoting Bolton v
City of Dallas, 541 F3d 545, 548 (5th Cir 2008). It isn’t that “the
specific identity of the policymaker” must be alleged in the
complaint. Groden v City of Dallas, 826 F3d 280, 285 (5th Cir 2016),
citing Johnson v City of Shelby, 574 US 10, 11 (2014, per curiam). But
it must still “plead facts that show that the defendant or
defendants acted pursuant to a specific official policy, which was
promulgated or ratified by the legally authorized policymaker.”
Groden, 826 F3d at 282 (emphasis in original).
Plaintiffs’ don’t allege specific facts that support an inference
that any pertinent policymaker knew of unlawful actions and
approved them. They instead simply attribute all action generally
to the City. For example, they allege, “Defendant City of
Houston, as acting at the level of official policy, practice, and
custom, with deliberate, callous, conscious and unreasonable
indifference to Decedent’s constitutional rights, authorized,
tolerated, and institutionalized the practices and ratified the illegal
conduct herein detailed . . . .” Dkt 53 at ¶ 7.27; see also id
at ¶¶ 4.33, 8.1. Such allegations are wholly conclusory and
deficient. Neither a putative policymaker nor any specific action
taken by that person or entity is identified. But that is the
requirement—the pleading of facts sufficient to show that a
policymaker has actual knowledge of the improper basis for the
subordinate’s action and yet approves the action anyway. See
Beattie, 254 F3d at 604; Groden, 826 F3d at 282; see also Taylor,
488 F Supp 3d at 545.
Beyond this, none of the conduct here can be said to be
manifestly indefensible in the sense that a policymaker (if named)
reviewing it would have notice that Stephen’s constitutional
rights were violated. As determined above, the individual
Defendants are entitled to qualified immunity with respect to the
underlying conduct. This necessarily means that the conduct
doesn’t show “an obvious violation of clearly established law.”
Young v Board of Supervisors of Humphreys County, 927 F3d 898, 903
(5th Cir 2019) (quotation omitted).

26

Plaintiffs fail to sufficiently plead their ratification claim. It
must be dismissed.
d. Request for discovery
Plaintiffs suggest that dismissal is “premature” because there
hasn’t been “adequate time” for discovery. They seek further
information on the events that occurred on the night at issue,
including whether any jail staff was “reprimanded” and details on
the City’s training policies. Dkt 56 at 10–11; Dkt 57 at 11–12. But
Rule 8 “does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Iqbal, 556 US
at 678–79. As such, a plaintiff isn’t entitled at the pleading stage
to discovery “broadly to seek information that might impeach the
defendants’ version of events.” Hutcheson v Dallas County, 994 F3d
477, 481 (5th Cir 2021), citing Backe, 691 F3d at 648.
As to the claims asserted against the individual Defendants,
the Fifth Circuit explains that prevention of unnecessary
discovery “is precisely the point of the qualified immunity doctrine:
to protect public officials from expansive, intrusive discovery
until and unless the requisite showing overcoming immunity is
made.” Backe, 691 F3d at 648 (emphasis in original); see also
Hutcheson, 994 F3d at 481; Khansari v City of Houston, 14 F Supp 3d
842, 861 (SD Tex 2014). As to the claims asserted against the
City, discovery is inappropriate where a plaintiff pleads only a
“boilerplate recitation of the grounds for municipal liability.”
Harkless v Brazoria County, 2016 WL 1702595, *5 (SD Tex),
quoting Thomas v City of Galveston, 800 F Supp 2d 826, 844–45
(SD Tex 2011).
Even so, certain discovery was permitted. The original
complaint was filed in February 2017. The docket reflects
discovery that took place when this matter was assigned to Judge
Lynn Hughes. See Dkts 10, 20, 29. This included production of
the ten video segments that appear to account for the entirety of
Stephen’s time within the HCJ, along with related files. See
Dkt 10 (ordering production of all logs, incident reports, pictures,
and video of Stephen at HCJ).
The matter was then reassigned to this Court in
October 2019. Dkt 47. At a status conference, Plaintiffs received
leave to file a further amended complaint to meet then-pending

27

motions to dismiss. The parties were permitted to exchange
interrogatories and requests for admissions, while being directed
“to confer as to further document production.” They were
admonished to initiate any dispute over document production by
way of discovery letter. See Minute Entry of 02/25/2020. None
was ever submitted.
Given the targeted discovery that was allowed and the related
failure to timely request other discovery in the manner directed,
the request for further discovery is denied.
e. Potential for repleading
A district court “should freely give leave [to amend] when
justice so requires.” FRCP 15(a)(2). The Fifth Circuit holds that
this evinces a bias in favor of granting leave to amend. See
Dussouy v Gulf Coast Investment Corp, 660 F2d 594, 597(5th Cir
1981); Carroll v Fort James Corp, 470 F3d 1171, 1175 (5th Cir 2006).
But whether to grant such leave is within the sound discretion of
the district court. Pervasive Software Inc v Lexware GmbH & Co KG,
688 F3d 214, 232 (5th Cir 2012), quoting Wimm v Jack Eckerd
Corp, 3 F3d 137, 139 (5th Cir 1993). It may be denied “when it
would cause undue delay, be the result of bad faith, represent the
repeated failure to cure previous amendments, create undue
prejudice, or be futile.” Morgan v Chapman, 969 F3d 238, 248
(5th Cir 2020), citing Smith v EMC Corp, 393 F3d 590, 595
(5th Cir 2004).
The operative pleading here is Plaintiffs’ fourth amended
complaint. Dkt 53. Defendants also moved to dismiss the third
amended complaint on the same arguments sponsored now. See
Dkts 31, 35, 36. Plaintiffs received leave to meet those arguments
with “a further and final amended complaint.” Minute Entry of
02/25/2020. Their fourth amended complaint fails to do so.
Further leave to amend is inappropriate. Plaintiffs’ claims will
be dismissed with prejudice.

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5. Conclusion
The motion by the individual Defendants to dismiss the
claims brought by Plaintiffs is GRANTED. Dkt 54.
The motion by the City of Houston to dismiss the claims
brought by Plaintiffs is GRANTED. Dkt 55.
All claims in this action are DISMISSED WITH PREJUDICE.
SO ORDERED.
Signed on June 15, 2021, at Houston, Texas.

Hon. Charles Eskridge
United States District Judge

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