Case: 21-20565 Document: 00516596932 Page: 1 Date Filed: 01/04/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 4, 2023
No. 21-20565 Lyle W. Cayce
Clerk
Douglas Petersen, Individually, and as Administrator of the Estate of
Brian Petersen; Pamela Petersen, Individually, and as Administrator of
the Estate of Brian Petersen,
Plaintiffs—Appellants,
versus
Bridgitt Johnson, EMT; Wellpath Recovery Solutions,
L.L.C.; Southwest Correctional Medical Group,
Incorporated; City of Conroe, Texas; Darrick Terrail
Dunn,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-4243
Before Higginbotham, Haynes, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Brian Petersen was caught in a sting operation conducted by the
Internet Crimes Against Children Task Force for the City of Conroe, Texas.
Via a dating app, Petersen agreed to meet up with a 14-year-old boy—who
was actually Darrick Dunn, an undercover Task Force detective. After
circling the meeting spot for two hours, all the while communicating with
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No. 21-20565
Dunn via the dating app, Petersen was arrested and later charged with online
solicitation of a minor. He posted bail and was released.
Two days later, Petersen committed suicide by carbon monoxide
poisoning. Thereafter, his parents sued numerous defendants in a § 1983
lawsuit alleging claims for false arrest, malicious prosecution, municipal
liability, and state law negligence claims. The district court granted the
defendants’ motions to dismiss. We affirm.
I.
Dunn is a detective employed by the City of Conroe assigned to the
Internet Crimes Against Children Task Force. In July 2019, the Task Force
conducted a sting operation to apprehend sexual predators on the prominent
dating application “Grindr.” As part of the operation, Dunn went
undercover using the Grindr profile name “Fresh Meat.”
On July 31, Dunn received a message from a profile registered to
Petersen, a 39-year-old teacher working in Conroe. The exchange began as
follows: 1
Petersen: How’s your week going?
Are you looking for something tonight?
And yes, I can host.
Dunn: You into younger boys
1
Dunn and the City of Conroe attached the Grindr chat to their motions to dismiss.
Generally, “the factual information to which the court addresses its [Rule 12(b)(6)] inquiry
is limited to the (1) the facts set forth in the complaint, (2) documents attached to the
complaint, and (3) matters of which judicial notice may be taken under Federal Rule of
Evidence 201.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).
But “[w]hen a defendant attaches documents to its motion that are referred to in the
complaint and are central to the plaintiff’s claims, the court may also properly consider
those documents.”
Id.
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Petersen: What?
Age?
?
You there?
Dunn: I’m here.. under 18
Petersen: There’s a lot so wriggle room in that.
Dunn: Lol.. r u into younger boys
Petersen: I’m into guys who are interesting. I’m not
particularly into younger guys, but I don’t write
them off either.
Dunn: [Sends Picture]
Petersen: Lol How old though?
Dunn: Well I’m young just letting you know.. but I’m
fun and cool
Petersen: How old?
You look fun and cool. I just need info to make a
choice.
?
I can host.
Dunn: U free tomorrow
Petersen: Maybe. It depends on if you give me information.
Dunn: What information
Petersen: First off, age.
Then maybe a few questions after that.
Dunn: I’m 14
After some further back and forth, Dunn told Petersen that he was going to
bed.
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The next day, August 1, 2019, Dunn and Petersen continued their
conversation:
Petersen: What sexual experience do you have?
Dunn: I been with 2 guys before if that’s what yur asking
Petersen: Yeah. So you know how to take it?
When are you available and for how long?
Dunn: Of course… I’m free today from 1-10pm… my
mom will be working
Petersen: Where would I pick you up?
Dunn: My apartment… where will we go??
Petersen: My house.
After tentatively agreeing to meet at 2 p.m., Petersen asked Dunn for a
“shirtless pic” and a voice message. Dunn sent a non-shirtless picture of the
same individual as before. He also sent a 13-second voice message, to which
Petersen responded: “Lol Your voice is not what I was expecting.” Petersen
declined to send his own picture, explaining that “[t]he age differential
makes sending a picture very risky.” Dunn expressed hesitancy over the
purpose and location of their meeting, to which Petersen responded, “I
understand if you want to not meet.” Petersen said he “generally only me[]t
with guys 25+,” and that he was nervous too. Rather than go to his house,
Petersen suggested they “talk for a bit. I drop you back off. Then we talk on
here to see if we want to continue anything today.”
At 2 p.m., Petersen told Dunn to head over to the Sonic Drive-In near
Dunn’s apartment. Over the next two hours, Petersen detailed his
whereabouts:
Petersen: Are you at the entrance of sonic?
Dunn: Not yet.
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...
Petersen: I will circle once.
Are you close?
Or there?
Starting my circle.
Dunn: Walking there now
Petersen: You are just now starting to walk?
Dunn: I’m out of the apartments
Petersen: Tell me when you’re there and I’ll start driving
back
Dunn: Ok. . and what do I look for, a car.. truck.. van??
[emoji]
Petersen: Almost there
Dunn: Where do I go
Petersen: Entrance to sonic
Side entrance near the apartments
Dunn: Side entrance to what
Petersen: Sonic
Sorry lots of traffic
Dunn: it’s hot.. I’m gonna stand inside a restaurant and
wait
Petersen: Outside next to the sign. I’ve been sitting in my
car forever. You can stand outside fo[r] a couple
minutes
Entrance sign
About to turn. Are you there?
Dunn: I’m at the first financial building across from
sonic
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Should I walk to sonic??
Petersen: Yes please
Dunn: Ok which entrance?
Petersen: Side near the apartments
Dunn: Lots of cars here
Petersen: Go out by where the cars enter and exists [sic]
next to the street
Dunn: ‘This is too much.. what you driving??
[emoji]
Petersen: Are you there?
Dunn: Yes.
According to Dunn’s incident report, which was attached to the second
amended complaint, “[d]etectives observed a male sitting alone in a silver
passenger car across from the Sonic. The driver drove to the Sonic parking
lot and back . . . several times,” which “led [detectives] to believe the driver
was possibly Petersen.” Dunn and the other detectives stopped the driver,
starting the chain of events that precipitated this action.
The second amended complaint alleges that during the stop, “Dunn
took, without a search warrant, [Petersen’s] phone from him without
[Petersen’s] permission and accessed the text messages and other
information therein.” Dunn’s incident report somewhat consistently states:
“I got the driver’s cellphone and located the ‘Grindr’ app displayed. The
conversation between Petersen and I [sic] was also displayed on the app,
which helped us positively identify Petersen as my suspect.”
Dunn arrested Petersen and charged him with online solicitation of a
minor, a second-degree felony. Petersen was transported to the Montgomery
County jail and booked. According to the second amended complaint,
Petersen experienced “a very high level of anxiety, fear, depression,
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hopelessness, thoughts of suicide, and other great mental anguish”
immediately following the arrest.
Southwest Correctional Medical Group, Inc. and Wellpath Recovery
Solutions, LLC provided contractual mental health and medical care services
at the Montgomery County jail. EMT Bridgitt Johnson worked for
Southwest and Wellpath at the jail. 2 Upon Petersen’s arrival, Johnson
screened him and had him fill out a suicide prevention form. No other
medical professional evaluated Petersen, and no further care was provided.
Petersen posted bail and was released from custody the next day. He
committed suicide two days later. In his suicide note, attached to the second
amended complaint, Petersen stated that he believed he “wasn’t going to
meet a teen,” but rather an “adult” engaging in “age play.”
On December 14, 2020, Petersen’s parents, Douglas and Pamela
Petersen, acting individually and as the administrators of Petersen’s estate,
sued the Wellpath Defendants in the Southern District of Texas. They
sought relief under 42 U.S.C. §§ 1983 and 1985, alleging that the Wellpath
Defendants violated Petersen’s Fourteenth Amendment right to due
process. They also sought relief under Texas state law theories of medical
negligence and gross negligence.
In February 2021, the Plaintiffs amended their complaint, adding
Montgomery County as a defendant. Montgomery County and the Wellpath
Defendants filed separate motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The district court dismissed the Wellpath Defendants
but did not rule on Montgomery County’s motion. Thereafter, the Plaintiffs
filed a second amended complaint, asserting claims against Dunn in his
2
Unless otherwise specifically noted, Southwest, Wellpath, and Johnson are
hereafter collectively referenced as the “Wellpath Defendants.”
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personal capacity and the City of Conroe under §§ 1983 and 1985, and
seeking wrongful death damages. They alleged that Dunn, with the City’s
oversight and approval, violated the Fourth and Fourteenth Amendments
“because of his false arrest, malicious prosecution, and illegal search of
[Petersen’s] phone.”
Dunn, the City of Conroe, and Montgomery County each filed Rule
12(b)(6) motions to dismiss the second amended complaint. Dunn sought
dismissal of “all or, alternatively, part of [the] Plaintiffs’ action against him
on the ground of qualified immunity.” Otherwise, both Dunn and the City
argued that the Plaintiffs’ second amended complaint failed to state a
plausible claim for relief. On October 5, 2021, the district court granted the
defendants’ motions. The Plaintiffs timely appealed the district court’s
order, as well the court’s prior order dismissing the Wellpath Defendants. 3
II.
We review a district court’s dismissal under Rule 12(b)(6) de novo. In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly,
550 U.S. 554, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly,
550 U.S. at 556). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not
3
While Montgomery County is named in the briefs, no section addresses the
Plaintiffs’ claims against the County. The Plaintiffs therefore abandoned these claims on
appeal, see United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam); they
later filed an unopposed motion to dismiss Montgomery County, which this court granted.
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suffice.” Id. (citing Twombly,
550 U.S. at 555). “We may affirm a district
court’s Rule 12(b)(6) dismissal on any grounds raised below and supported
by the record.” Cuvillier v. Taylor,
503 F.3d 397, 401 (5th Cir. 2007).
III.
We first address the Plaintiffs’ claims against Dunn and the City of
Conroe. “To state a claim under § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Plaintiffs
assert that they stated plausible claims against Dunn for (A) false arrest and
illegal search under the Fourth Amendment and (B) malicious prosecution
under the Fourteenth Amendment, and against the City of Conroe for
(C) municipal liability. For these alleged violations, the Plaintiffs seek
wrongful death damages. 4
A.
“Qualified immunity protects government officials” like Dunn “from
civil liability in their individual capacity to the extent that their conduct does
not violate clearly established statutory or constitutional rights.” Cass v. City
of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per curiam). “A plaintiff
seeking to overcome qualified immunity must show: ‘(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.’”
Id. (quoting Ashcroft v.
al-Kidd,
563 U.S. 731, 735 (2011)). Once qualified immunity is raised, “the
4
The Plaintiffs do not appear to have alleged wrongful death as a separate claim,
aside from seeking damages on that theory.
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burden shifts to the plaintiff to demonstrate the inapplicability of the
defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
The Plaintiffs contend that Dunn is not entitled to qualified immunity
because he violated Petersen’s clearly established constitutional rights by
arresting him without a warrant and without probable cause. But their
contention falters because Dunn had probable cause to arrest Petersen and
did not violate any clearly established constitutional right in doing so.
In the false arrest context, qualified immunity will apply “if a
reasonable officer could have concluded that there was probable cause upon
the facts then available to him.” Brown v. Lyford, 243 F.3d 185, 190 (5th Cir.
2001); see Club Retro,
568 F.3d at 204. “Probable cause justifying an arrest
‘means facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.’” Hogan v. Cunningham,
722
F.3d 725, 731 (5th Cir. 2013) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37
(1979)). Actual probable cause is not necessary; merely arguable probable
cause is sufficient to trigger qualified immunity. Club Retro,
568 F.3d at 207
(“[P]laintiffs must allege facts permitting an inference that defendants lacked
arguable (that is, reasonable but mistaken) probable cause for the arrests.”);
see also D.C. v. Wesby,
138 S. Ct. 577, 591 (2018). Defeating qualified
immunity is thus “a significant hurdle.” Brown,
243 F.3d at 190. Here, the
Plaintiffs ultimately fail to clear it.
Petersen was arrested for online solicitation of a minor in violation of
Tex. Penal Code § 33.021(c). Section 33.021(c) provides that:
A person commits an offense if the person, over the
Internet . . . knowingly solicits a minor to meet another person,
including the actor, with the intent that the minor will engage
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in sexual contact, sexual intercourse, or deviate sexual
intercourse with the actor or another person.
The statute defines a “minor” as “an individual who is younger than 17 years
of age; or an individual whom the actor believes to be younger than 17 years
of age.” Id. § 33.021(a)(1). “[T]he gravamen of the offense . . . is the
knowing solicitation of a minor to meet a person, with the intent that the
minor will engage in some form of sexual contact with that person.” Ex Parte
Zavala, 421 S.W.3d 227, 231–32 (Tex. App.—San Antonio 2013, pet. ref’d).
Texas courts have held that the crime “is committed, and is completed, at
the time of the request, i.e., the solicitation.”
Id. at 232. Accordingly, “[t]he
requisite intent arises within the conduct of soliciting the minor, and must
exist at the time of the prohibited conduct of solicitation.”
Id.
The operative question is thus whether a reasonable person knowing
the facts and circumstances available to Dunn would have believed that
Petersen knowingly solicited a person he thought was a minor with the intent
that the minor engage in sexual contact with Petersen. The Plaintiffs
maintain that the answer is no, for two reasons. First, they contend that no
reasonable person would have believed that Petersen thought he was
communicating with someone he believed to be under the age of 17. They
reassert their complaint allegations that the images Dunn sent of “a so-called
‘14-year-old’” were “taken many years prior to the text exchange between
[Petersen] and Dunn”; that “Dunn left a 13-second voice [message]
contain[ing] the voice of an obviously much older man than a 14-year-old”;
and that the context of the Grindr exchange clearly showed that Petersen
believed he was speaking with “someone engaging in ‘age play.’”
The district court rejected this argument, correctly concluding that
“Petersen’s subjective belief about Dunn’s real age is immaterial to the
probable cause analysis.” That analysis instead turns on the belief of a
reasonable person in Dunn’s position, knowing the facts and circumstances
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available to Dunn at the time of Petersen’s arrest. And based on the Grindr
exchange, a reasonable officer could have believed that Petersen was
communicating with someone who Petersen believed was under 17. Dunn
described himself (as the Grindr user “Fresh Meat”) as a 14-year-old boy on
three separate exchanges with Petersen and indicated that he had just started
school at Conroe High. And Petersen repeatedly made comments consistent
with a belief that Dunn was underage. For example, Petersen stated: “I can’t
[send a picture]. The age differential makes sending a picture very risky.”
He also referenced “back to school shopping,” and explained that he knew
“a lot of people” at Conroe High, including “nephews [Dunn’s] age that are
involved in a lot.” Contrary to the Plaintiffs’ argument, the Grindr chat
amply supports a reasonable belief that Petersen thought he was
communicating with a 14-year-old boy.
Second, the Plaintiffs assert that “a reasonable person would not
believe that [Petersen] was speaking with Dunn with the requisite intent to
engage in sexual [contact].” The record also belies this assertion. Early in
the conversation, after Dunn stated he was 14, Petersen asked “What sexual
experience do you have?” Once Dunn indicated he had “been with 2 guys,”
Petersen asked, “So you know how to take it?” Petersen then followed up
with “When are you available and for how long?” They agreed that Petersen
would pick Dunn up near “[t]he Park Apartments” and that they would go
to Petersen’s house. But as Petersen neared the pickup spot, Dunn indicated
he was “nervous.” Petersen said, “I understand if you want to not meet.”
He then clarified “we won’t go to my place. You come to me. We talk for a
bit. I drop you back off. Then we talk on here to see if we want to continue
anything today.”
After Petersen drove near the Sonic “for over an hour,” Dunn
eventually agreed to meet, saying “we can just talk for a [bi]t.” Petersen then
headed to the Sonic, offering to “circle once” while Dunn walked over.
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Their conversation continued, with Petersen detailing his location and
movements. Petersen messaged Dunn when he arrived, saying he was at the
“[s]ide entrance near the apartments” and “[o]utside next to the sign.”
When Dunn still did not show, Petersen complained that he had “been sitting
in [his] car for forever,” repeated his location, and gave instructions for
finding his car. The detectives stopped Petersen and arrested him near the
agreed pickup spot.
The Plaintiffs assert that, given Dunn and Petersen’s eventual
agreement to meet in public and “just talk,” no reasonable person could have
concluded that Petersen intended for Dunn to engage in sexual contact. But
their assertion fails under Texas law because “[t]he crime of soliciting a
minor on the internet under section 33.021(c) is completed at the time of the
internet solicitation . . . .” Ganung v. State, 502 S.W.3d 825, 829 (Tex.
App.—Beaumont 2016, no pet.). Because the actor’s intent is adjudged at the
time of the solicitation, “it does not matter what happens after the
solicitation occurs [or] whether the solicited meeting actually occurs.”
Id.
(internal quotation marks and citation omitted).
Here, Dunn had probable cause to believe that Petersen committed
the offense once Petersen asked Dunn about his availability and the parties
tentatively agreed to go to Petersen’s house. By that point, the parties had
been communicating on an online dating site; Dunn had indicated he was 14;
and Petersen had asked about Dunn’s sexual experience and whether Dunn
“kn[e]w how to take it.” Their eventual hesitancy does not matter—the
online solicitation had already occurred. See id. (explaining the crime occurs
at the time of the online solicitation). Given this background, a reasonable
officer could have concluded that Petersen asked to meet with the intent to
engage in sexual contact with “Fresh Meat.” We therefore agree with the
district court that—at the very least—arguable probable cause existed to
arrest Petersen. The false arrest claim was thus properly dismissed.
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And this is so regardless of the alleged improper search and seizure of
Petersen’s phone. According to the Plaintiffs, “probable cause did not exist
for the only crime of which [Petersen] could have been guilty (online
solicitation of a minor), thus the seizure” of the phone was “illegal along with
the arrest absent probable cause.” The Plaintiffs are incorrect because, as
just explained, probable cause already existed for Petersen’s arrest
irrespective of the phone’s seizure.
As for the alleged search of the phone, the Plaintiffs assert that
Petersen was only identified as a “possibl[e]” suspect for the crime; Dunn
had to search the phone to confirm Petersen’s identity. But this is belied by
the same record that substantiates probable cause. As detailed above, Dunn
had more than enough information to identify Petersen, including his playby-play movements around the agreed rendezvous point, before the putative
search occurred. Any evidence obtained by the search—regardless of its
legality—was therefore immaterial to Petersen’s arrest. See Henderson v.
United States, 405 F.2d 874, 875 (5th Cir. 1968) (per curiam) (describing a
situation where probable cause for an arrest existed independently of the
fruits of the search at issue). Moreover, the Plaintiffs failed to allege any
injury that resulted from the search apart from the arrest, or request any
damages not tied to the arrest itself. See Murray v. Earle,
405 F.3d 278, 290
(5th Cir. 2005) (“Section 1983 does require a showing of proximate
causation[.]”); Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299, 308
(1986) (“[T]he abstract value of a constitutional right may not form the basis
for § 1983 damages.”). The district court therefore correctly dismissed the
Plaintiffs’ illegal search and seizure claims.
B.
The Plaintiffs’ malicious prosecution claim likewise fails. The
Plaintiffs alleged that “Dunn charged [Petersen] with a second-degree felony
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even though, if Dunn is to be believed about telling [Petersen] he was 14,
[Petersen] could only be charged with a third-degree felony.” The district
court granted dismissal, finding the Plaintiffs failed to state “a cognizable
claim.”
We agree. The Plaintiffs’ interpretation of § 33.021 is based on a
misreading of the statute. Petersen was arrested and charged for online
solicitation of a minor under § 33.021(c). A violation of subsection (c) is a
second-degree felony if, inter alia, the offense “involves an individual whom
the actor believes to be younger than 17.” See Tex. Penal Code
§ 33.021(a), (c), (f). Such was the case here. Petersen was therefore correctly
charged, and the Plaintiffs’ argument misses the mark. The malicious
prosecution claim was properly dismissed.
C.
Because the Plaintiffs’ claims against Dunn fail, their municipal
liability claim against the City of Conroe must also fail. Indeed, to establish
municipal liability under § 1983, a plaintiff must show a violation of a
constitutional right. See Groden v. City of Dallas, Tex., 826 F.3d 280, 283 (5th
Cir. 2016) (listing the factors for municipal liability claims). As the Plaintiffs
do not do so, the district court did not err in dismissing their municipal
liability claim.
IV.
Lastly, we turn to the Plaintiffs’ claims against the Wellpath
Defendants. The Plaintiffs sought relief under 42 U.S.C. §§ 1983 and 1985,
alleging that the Wellpath Defendants violated Petersen’s Fourteenth
Amendment right to due process, and under Texas state law theories of
medical negligence and gross negligence. These claims lack merit.
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To sustain a § 1983 claim against the Wellpath Defendants, the
Plaintiffs “must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West, 487 U.S. at
48. The Plaintiffs reason that because Southwest and Wellpath provided
contract services for a governmental entity (Montgomery County) and
Johnson worked for Southwest and Wellpath, the Plaintiffs have shown that
the Wellpath Defendants acted “under color of state law.” Even so, the
Plaintiffs’ § 1983 claims against the Wellpath Defendants must be dismissed
because the Wellpath Defendants owed no duty under the Fourteenth
Amendment at the time of Petersen’s suicide.
The duties owed to a pretrial detainee under the Fourteenth
Amendment arise out of the “special relationship” between the state and the
detainee. See McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir.
2002) (per curiam). In other words, the state has a duty to protect a detainee
from certain private dangers by virtue of the state’s “incarceration,
institutionalization, or other similar restraint of personal liberty.”
Id. This
“special relationship” has limits—it does not extend beyond the confines of
custody. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189,
201 (1989) (“[T]he State does not become the permanent guarantor of an
individual’s safety by having once offered him shelter. Under these
circumstances, the State had no constitutional duty to protect [the
inmate].”); see also Hare v. City of Corinth, Miss.,
74 F.3d 633, 650 (5th Cir.
1996) (en banc) (holding that the state owes a duty under the Due Process
Clause “to provide both pretrial detainees and convicted inmates with basic
human needs, including medical care and protection from harm, during their
confinement” (emphasis added)).
Petersen committed suicide two days after he was released from
custody. Because he was no longer in the state’s custody, the “special
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relationship” had ended, and the Wellpath Defendants owed him no duty of
care. See Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995) (en banc)
(“[T]he state creates a ‘special relationship’ with a person only when the
person is involuntarily taken into state custody and held against his will
through the affirmative power of the state; otherwise, the state has no duty
arising under the Constitution to protect its citizens against harm[.]”
(emphasis added)); accord Coscia v. Town of Pembroke, Mass.,
659 F.3d 37, 39
(1st Cir. 2011) (“[W]e have been apprised of no case recognizing due process
liability for suicide based on police conduct except for death during
custody.”); Collignon v. Milwaukee Cnty.,
163 F.3d 982, 987 (7th Cir. 1998)
(plaintiffs cannot maintain that the state had an obligation to stop a pre-trial
detainee from committing suicide once he had been released from jail).
Consequently, the Plaintiffs cannot state a plausible claim under § 1983, and
their §§ 1983 and 1985 claims against the Wellpath Defendants were properly
dismissed.
The Plaintiffs’ state law negligence claims against the Wellpath
Defendants fare no better. “The elements of a medical negligence claim are:
(1) a duty to conform to a certain standard of care; (2) a failure to conform to
the required standard; (3) actual injury; and (4) a causal connection between
the conduct and the injury.” Methodist Hosp. v. German, 369 S.W.3d 333, 338
(Tex. App.—Houston [1st Dist.] 2011, pet. denied). Even assuming the other
elements are met, the Plaintiffs’ negligence claims stall at causation.
“Proximate cause has two components: (1) foreseeability and
(2) cause-in-fact.” Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex.
2013) (per curiam). “For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in
bringing about the harm, and absent the act or omission—i.e., but for the act
or omission—the harm would not have occurred.”
Id. Relevant here, the
Supreme Court of Texas has held that a medical provider’s “failure to
17
Case: 21-20565 Document: 00516596932 Page: 18 Date Filed: 01/04/2023
No. 21-20565
hospitalize a person who later commits suicide is a proximate cause of the
suicide only if the suicide probably would not have occurred if the decedent
had been hospitalized.” Id. Nothing alleged in the Plaintiffs’ complaint
satisfies that high threshold, particularly given the fleeting interaction
between Petersen and EMT Johnson, and the interval of time between
Petersen’s release from custody and his suicide. As with the other claims
against the Wellpath Defendants, the district court did not err in dismissing
the Plaintiffs’ negligence claims.
V.
To sum up: The district court did not err in granting the defendants’
motions to dismiss. The Plaintiffs do not state plausible claims against Dunn
or the City of Conroe under §§ 1983 and 1985, as Dunn had probable cause
to arrest Petersen and therefore did not violate Petersen’s constitutional
rights. The Plaintiffs’ municipal liability claim against the City of Conroe
fails for the same reason. The Wellpath Defendants owed Petersen no duty
upon his release from custody, thus defeating the Plaintiffs’ §§ 1983 and 1985
claims against them. And finally, Plaintiffs cannot show the requisite
causation to sustain their state law negligence claims.
AFFIRMED.
18
