Case: 22-50102 Document: 00516841270 Page: 1 Date Filed: 08/01/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 1, 2023
No. 22-50102 Lyle W. Cayce
____________ Clerk
Shanon Edmiston, Individually; Helen Holman, as dependent
administrator of, and on behalf of, LISA WILLIAMS a/k/a LISA
SCHUBERT, E.S., J.S. #1, J.S. #1; Shanon Edmiston, the
ESTATE OF JOHN ROBERT SCHUBERT, JR., and JOHN
ROBERT SCHUBERT, JR.’s heirs-at-law,
Plaintiffs—Appellees,
versus
Oscar Borrego, Sr.; Oscar E. Carrillo; Peter E.
Melendez,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CV-132
______________________________
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
This opinion is rendered contemporaneously with the opinion for the
appeal in 22-10360, Crandel v. Hall, consolidated on appeal with 22-10361,
Crandel v. Hastings. The two opinions concern the suicides by two pretrial
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detainees in two Texas jails and, inter alia, failure-to-protect claims.
Moreover, the same counsel for plaintiffs appear in each appeal.
At hand is an interlocutory appeal contesting the denial of motions to
dismiss asserting qualified immunity against failure-to-protect claims
concerning the pretrial detainee. Primarily at issue is whether the complaint
plausibly alleges the three appellants possessed subjective knowledge of a
substantial risk of suicide by detainee John Robert Schubert, Jr. This action
under 42 U.S.C. § 1983 arises out of his death while in pretrial detention in
the Culberson County, Texas, Jail. Plaintiffs fail to plausibly allege appellants
possessed the requisite subjective knowledge. VACATED and
RENDERED.
I.
Plaintiffs assert claims in district court under § 1983 against Oscar
Borrego, Sr., Sheriff Oscar E. Carrillo, Deputy Peter E. Melendez, Adelaida
Zambra, and Ernesto Diaz for failing to protect Schubert, claiming violations
of the Eighth and Fourteenth Amendments. They also have claims against
individual defendants under a theory of bystander liability, and a claim
against the Sheriff for supervisory liability. And, against Culberson County,
plaintiffs assert a claim under § 1983 and Monell v. Department of Social
Services of New York City, 436 U.S. 658 (1978), on the basis that its policies
related to jail-suicide prevention caused a violation of Schubert’s
constitutional rights. But, this interlocutory appeal concerns only the failure- to-protect claims against Borrego, Sheriff Carrillo, and Deputy Melendez
(appellants).
A.
Because denial of a motion to dismiss is at issue, the following
recitation of fact is, unless otherwise noted, based on plaintiffs’ operative 75-
page complaint. As done in the complaint, approximate times are used. And,
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for the statements, including by appellants, obtained on 7 July 2019, and
contained in the Texas Rangers’ report, discussed infra, the district court
relied on the statements in the report as included in the complaint; therefore,
we do not distinguish between the report and the complaint.
On 6 July 2019, in Van Horn, Texas, Borrego, a jailer with the jail,
received a series of calls concerning a male—later identified as Schubert—
needing assistance. In the first call, at 11:05 p.m., the male caller asserted
someone was trying to kill him. In the second call, at 11:09 p.m., an off-duty
trooper stated a man was at his door saying someone was trying to kill him.
And, in the third and final call, at 11:12 p.m., someone at the El Capitan Hotel
in Van Horn said a man told the hotel clerk someone was trying to kill him.
Schubert, who had been wandering around Van Horn, was both the initial
unknown caller and the subject of the second and third calls.
Borrego directed Culberson County Sheriff’s Deputy Melendez to
respond. The Deputy was dispatched initially to a location in Van Horn
regarding Schubert’s knocking on a resident’s door, but Schubert was not
present when the Deputy arrived. After being notified of the third call, the
Deputy located Schubert at 11:15 p.m. at the El Capitan Hotel.
The Deputy spoke with Schubert, later providing in a statement
(included in the complaint) that Schubert “appeared nervous and said that
people were trying to kill [him]”. The Deputy said Schubert: accurately
stated the day of the week, the approximate time, and his location in Van
Horn; provided his name and date of birth; but gave an incorrect year.
The Deputy took Schubert to a Border Patrol Station to obtain
information to identify him correctly. In doing so, the Deputy learned
Schubert had an active warrant for parole violation.
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Based on the warrant, the Deputy arrested Schubert and transported
him to the jail. They arrived at 12:14 a.m. on 7 July, and Schubert was placed
in the booking area.
Culberson County Sheriff Carrillo heard Borrego’s dispatch to
Deputy Melendez and followed up to check on the situation involving
Schubert. After learning that the Deputy arrested Schubert, the Sheriff
“decided to go to the jail and check on [Schubert] and jail personnel”.
Arriving at the jail after 12:59 a.m., the Sheriff was advised Schubert had a
warrant for parole violation.
With Borrego present, Schubert told the Sheriff: “he had hitchhiked
from El Paso and was in a half-way house in Horizon, Texas”; “he had left
the Horizon facility without permission and was not allowed to stay at the
facility once he returned”; and “they were mean to him at the facility,
and . . . he had had enough”. Throughout the interview, Schubert was not
wearing a shirt, because, as he explained, it was wet.
Schubert appeared to be cooperative and truthful in his responses.
Borrego and the Sheriff did not complete a “Screening Form for Suicide and
Medical/Mental/Developmental Impairments”, which plaintiffs allege is
required by the Texas Commission on Jail Standards (TCJS).
After the Sheriff spoke with Schubert, Borrego, at 1:35 a.m., provided
Schubert jail-issued clothing pursuant to the Sheriff’s instruction. Deputy
Melendez and Borrego escorted Schubert to a cell at 1:42 a.m. Schubert
repeated to the Deputy that someone was trying to kill him. Borrego,
pursuant to the Sheriff’s instruction, provided Schubert with a mattress. He
was not placed on suicide watch.
The Sheriff and Borrego left the jail at 1:48 a.m. The Deputy went
back on patrol at about the same time.
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When Borrego went to the dispatch office at 1:48 a.m. to clock out, he
asked Zambra, another jail employee, to run a driver’s-license and criminalhistory check on Schubert. (Zambra, a defendant in this action, is not a party
to this interlocutory appeal on qualified immunity. The district court granted
her motion to dismiss, based on such immunity.)
Zambra printed a copy of Schubert’s driver’s license and criminal
history at 2:17 a.m.; and, at 2:28 a.m., she requested a medical-history report:
a “Continuity of Care Query” (CCQ). It was later noted by the TCJS, in its
8 August 2019 report (a copy of the report summary is included in the body
of the complaint), that the CCQ came back as “no match”.
At 2:42 a.m., Zambra “manually” checked on the jail’s detainees.
When she checked Schubert’s cell, she could see him “half-kneeling with a
white sheet mangled on his neck and tied to a top grey shelf”. She went to
the “catwalk hallway” to get a better view of Schubert and called out to him
through the jail bars, but he did not respond. Next, she “called Deputy
Melendez and Sheriff Carrillo [at 2:44 a.m.] and asked that they come to the
jail as soon as possible”.
The Sheriff, after hearing Zambra’s radio call at 2:47 a.m., arrived first
and removed the sheet from Schubert’s neck, laid him on a bunk, and began
CPR. Upon the Sheriff’s instruction, Zambra called the rescue team at 2:50
a.m. EMTs were dispatched at 2:56 a.m., and arrived at the jail at 2:59 a.m.
Upon their arrival, Schubert was not breathing and did not have a pulse. He
was pronounced dead, with his autopsy report listing his cause of death as
suicide through asphyxia due to hanging.
B.
This action was filed in June 2021. Although additional claims were
added, at issue in this interlocutory appeal, as discussed supra, are only
plaintiffs’ claims under § 1983 against Borrego, Sheriff Carrillo, and Deputy
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Melendez for failure to protect, in violation of the Eighth and Fourteenth
Amendments. All individual defendants filed motions to dismiss, asserting
qualified immunity.
The district court in January 2022 denied in part appellants’ motions,
concluding they were not entitled to qualified immunity against the failure- to-protect claims. In doing so, the court concluded the complaint plausibly
alleged: each of the appellants possessed the requisite subjective knowledge
of a risk of suicide or serious harm; and, they failed to take action to abate
that risk. The court concluded the “risk was obvious”, based on: Schubert’s
fragile psychological state; his statements regarding an unidentified assailant;
and appellants’ knowledge about the risk of jail suicides. The court further
concluded it is clearly established that, when an official is subjectively aware
of the risk of suicide and responds by giving the detainee loose bedding, an
obvious ligature, he acts with deliberate indifference and is not entitled to
qualified immunity.
Regarding plaintiffs’ other claims, the district court, inter alia,
dismissed the bystander-liability claims against the three appellants and the
supervisory-liability claim against the Sheriff.
II.
This interlocutory appeal by Borrego, the Sheriff, and the Deputy
(again, appellants) followed. Such an appeal from the denial of qualified
immunity is permitted pursuant to the collateral-order doctrine. E.g., Club
Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). Along that line,
our court has jurisdiction to “review a district court’s order denying a motion
to dismiss on the basis of qualified immunity only to the extent that the appeal
concerns the purely legal question of whether the defendants are entitled to
qualified immunity on the facts”. Bevill v. Fletcher,
26 F.4th 270, 274 (5th
Cir. 2022) (alteration omitted) (citation omitted).
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“On interlocutory appeal, we review [de novo the] denial of a qualified-immunity-based motion to dismiss . . . .” Benfield v. Magee, 945 F.3d 333, 336
(5th Cir. 2019). At this stage, we must “accept all well-pleaded facts as true,
drawing all reasonable inferences in the nonmoving party’s favor”.
Id. “We
do not, however, accept as true legal conclusions, conclusory statements, or
naked assertions devoid of further factual enhancement.”
Id. at 336–37
(alteration omitted) (citation omitted).
“A plaintiff seeking to overcome a motion to dismiss because of
qualified immunity . . . must plead facts that allow the court to draw the
reasonable inference that the defendant is liable for the harm alleged.” Bevill,
26 F.4th at 274 (citation omitted). That is, “a plaintiff must plead factual
allegations that, if true, ‘raise the right to relief above the speculative level’”,
meaning that the relief is “plausible, not merely possible”. Benfield, 945 F.3d
at 337 (first quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); then
citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
Plaintiffs, in response to questioning at oral argument, submitted a
Federal Rule of Appellate Procedure 28(j) letter maintaining that, under
Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010), we may
consider documents attached to a dismissal motion that “are referred to in
the plaintiff’s complaint and are central to the plaintiff’s claim”. This is an
exception to the general rule that, in reviewing a motion to dismiss, the court
may not go outside the complaint and any attachments to it. Collins v. Morgan
Stanley Dean Witter,
224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ.
P. 12 (b)(6)). Sullivan relies on our decision in Scanlan v. Texas A&M
University,
343 F.3d 533 (5th Cir. 2003). Scanlan in turn relied on Collins,
which promulgated this “limited exception” for when our court may go
outside the complaint, including attachments to it, in reviewing a motion to
dismiss. Scanlan,
343 F.3d at 536; see Collins,
224 F.3d 496.
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We need not consider this narrow exception’s application vel non,
however, because, as noted supra and explained below, the district court
relied on the statements as included in the complaint. In denying dismissal,
the court stated: “All facts are taken as true from the allegations in Plaintiffs’
Complaint. . . . Defendants Borrego, Zambra, Melendez, Diaz, and Carrillo
attached their sworn statements to their respective Motions. . . . These
statements are effectively identical to those alleged in the Complaint upon
which the Court relies.” (Emphasis added.) Cf. Scanlan, 343 F.3d at 536
(citing Collins,
224 F.3d at 496) (explaining that, in Collins, our court
“approved the district court’s consideration of documents attached to the motion
to dismiss” and “that the plaintiffs did not object to, or appeal, the district
court’s consideration of those documents was central to this Court’s
approval of that practice” (emphasis added)).
“Qualified immunity protects officers from suit unless their conduct
violates a clearly established [statutory or] constitutional right.” Converse v.
City of Kemah, 961 F.3d 771, 774 (5th Cir. 2020) (quoting Mace v. City of
Palestine,
333 F.3d 621, 623 (5th Cir. 2003)). In our court, plaintiffs assert,
solely for the purpose of preserving the issue for further review, that qualified
immunity should be “abolished or modified so that it is inapplicable here”.
For this appeal, we proceed with the qualified-immunity doctrine intact.
When, as in this instance, defendants assert qualified immunity as a
basis for dismissing a complaint, “plaintiff seeking to overcome qualified
immunity must [plead facts allowing us to draw a reasonable inference]: ‘(1)
that the official violated a statutory or constitutional right, and (2) that the
right was clearly established at the time of the challenged conduct’”. Id.
(quoting Cass v. City of Abilene,
814 F.3d 721, 728 (5th Cir. 2016)); Bevill,
26
F.4th at 274. We have discretion to elect which of the two prongs for this
analysis should be addressed first. E.g., Pearson v. Callahan,
555 U.S. 223,
236 (2009).
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For this first prong, in order “[t]o overcome [appellants’] qualified
immunity defense, [p]laintiffs must first demonstrate that each official
violated [Schubert]’s statutory or constitutional right”. Converse, 961 F.3d
at 775. “[T]he Fourteenth Amendment protects pretrial detainees’ right to
medical care and to ‘protection from known suicidal tendencies’”. Baldwin
v. Dorsey,
964 F.3d 320, 326 (5th Cir. 2020) (emphasis added) (quoting Garza
v. City of Donna,
922 F.3d 626, 632 (5th Cir. 2019)); see also Converse,
961
F.3d at 775 (“We have repeatedly held that pretrial detainees have a
Fourteenth Amendment right to be protected from a known risk of suicide.”
(emphasis added)).
Where the claimed violation of that Fourteenth Amendment right
turns on alleged acts or omissions of an official, as in this action, the question
is whether the “official breached his constitutional duty to tend to the basic
human needs of persons in his charge”. Hare v. City of Corinth, 74 F.3d 633,
645 (5th Cir. 1996) (en banc) (explaining difference in episodic and
conditions-of-confinement claims); see also Cope v. Cogdill,
3 F.4th 198, 206–
07 (5th Cir. 2021), cert. denied,
142 S. Ct. 2573 (2022). Officials breach their
constitutional duty, violating a detainee’s rights, when “they had gained
actual knowledge of the substantial risk of suicide and responded with
deliberate indifference”. Converse,
961 F.3d at 775 (emphasis added)
(quoting Hare,
74 F.3d at 650). It is undisputed that “[d]eliberate
indifference is an extremely high standard to meet”. Domino v. Tex. Dep’t of
Crim. Just.,
239 F.3d 752, 756 (5th Cir. 2001).
Accordingly, an “official will not be held liable if he merely ‘should
have known’ of a risk”. Converse, 961 F.3d at 775. Rather, to satisfy this high
standard, plaintiff must plausibly allege both that the official was “aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exist[ed]” and that he “also [drew] the inference”.
Id. at 775–
76 (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)). An official with
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such knowledge “shows a deliberate indifference to that risk ‘by failing to
take reasonable measures to abate it’”. Id. (quoting Hare,
74 F.3d at 648).
Plaintiffs, however, maintain this court should instead apply the
objective-unreasonableness standard the Court adopted in Kingsley v.
Hendrickson for claims of excessive force (not failure to protect) by officers against
a pretrial detainee. 576 U.S. 389 (2015). But, we are bound by our rule of
orderliness. E.g., Def. Distrib. v. Platkin,
55 F.4th 486, 495 n.10 (5th Cir.
2022) (“The rule of orderliness means that one panel of our court may not
overturn another panel’s decision, absent an intervening change in law, such
as by statutory amendment, or the Supreme Court, or our en banc court.”
(citation omitted)). This rule renders this objective-unreasonableness
assertion meritless. See Cope,
3 F.4th at 207 n.7 (explaining Kingsley “did not
abrogate [this court’s] deliberate-indifference precedent”); Alderson v.
Concordia Par. Corr. Facility,
848 F.3d 415, 419 n.4 (5th Cir. 2017) (“Because
the Fifth Circuit has continued to rely on Hare and to apply a subjective
standard post-Kingsley, this panel is bound by our rule of orderliness.”).
Regarding the second prong of the qualified-immunity analysis, for a
right to be “clearly established” it must be “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right”. Est. of Bonilla v. Orange Cnty., 982 F.3d 298, 306 (5th Cir. 2020)
(quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). Critically, courts
“must not ‘define clearly established law at a high level of generality’”;
rather, we must undertake the inquiry “in light of the specific context of the
case”. Cope,
3 F.4th at 204 (quoting Mullenix v. Luna,
577 U.S. 7, 12 (2015)).
Pursuant to our above-discussed discretion to begin our two-prong
qualified-immunity analysis with either prong, we elect to begin with the first.
For the reasons that follow, plaintiffs fail to plausibly allege a violation of a
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statutory or constitutional right. Therefore, we do not reach the second
prong (whether clearly-established).
To overcome appellants’ motions to dismiss based on qualified
immunity, plaintiffs must, as stated supra, have pled facts permitting our
court to draw a reasonable inference that Borrego, Sheriff Carrillo, and
Deputy Melendez “(1) had subjective knowledge of a substantial risk of
serious harm and (2) responded to that risk with deliberate indifference”. Id.
at 210 (citation omitted). In the context of detainee suicide, the requisite
substantial risk of serious harm must be specific; plaintiffs must allege
defendants “were aware of a substantial and significant risk that the detainee
might kill himself”. Id. at 207 (alteration omitted) (citation omitted).
For the reasons that follow, plaintiffs fail to plausibly allege appellants
had the requisite subjective knowledge of a substantial risk of suicide.
Accordingly, whether they responded to that putative risk with deliberate
indifference does not come into play.
A.
We first address plaintiffs’ blanket allegation that appellants “were
aware of the excessive risk of [Schubert’s] health and safety and were aware
of facts from which an inference could be drawn of serious harm, suffering
and death. Moreover, they in fact drew that inference”. As stated supra, we
must carefully discern factual allegations from legal conclusions in plaintiffs’
complaint. This statement about appellants’ state-of-mind merely restates
the standard required to demonstrate the requisite subjective knowledge;
therefore, we do not accept it as a well-pleaded allegation when evaluating
the sufficiency of the complaint. See Doe v. Robertson, 751 F.3d 383, 388 (5th
Cir. 2014) (observing allegation that defendants “exhibited deliberate
indifference” was “merely a legal conclusion”, even if it “might have ‘been
couched as a factual allegation’” (quoting Iqbal,
556 U.S. at 678)).
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Regarding plaintiffs’ well-pleaded allegations concerning the lack of
mental-health screening, plaintiffs allege appellants ignored TCJS’
instructions and put Schubert at risk. These allegations fail. Our court has
acknowledged there is no independent constitutional right to suicide
screening. E.g., Est. of Bonilla, 982 F.3d at 307 (citing Taylor v. Barkes, 575
U.S. 822, 826 (2015)) (“No decision of this Court establishes a right to
proper implementation of adequate suicide prevention protocols. No
decision of this Court even discusses suicide screening or prevention
protocols.”).
The well-pleaded allegations do not give rise to a plausible inference
that Schubert had previously experienced suicidal tendencies, nor that he
acted in a way to alert officials of a substantial risk of suicide. Further,
plaintiffs do not allege he had documented instances of mental illness, as the
earlier-discussed CCQ came back as “no match”. (Therefore, even if
plaintiffs could assert a right to suicide screening, allegations “of inadequate
screening or a violation of facility procedure would not raise an issue of
deliberate indifference” without additional allegations plausibly
demonstrating appellants subjectively knew Schubert was at risk for suicide.
Id. at 305.)
Additionally, plaintiffs allege the following. Culberson County had
been previously cited by the TCJS for violating jail standards relating to the
completion of the screening form and prevention of jail suicides. The TCJS
had also cited the county’s jail for being non-compliant with various
requirements, including requirements to ensure that all jailers were up-todate on their licensing, that only jailers with the proper training perform
inmate-classification duties, that jailers make sure to log that they have
searched for whether the inmate has previously received mental-health
treatment, and that jailers attend the required suicide-prevention training.
Plaintiffs further allege a prior suicide at the jail put appellants “on notice”.
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In response to Schubert’s death, the TCJS, in its above-referenced 8 August
2019 report, stated the jail: exhibited two violations of minimum standards;
and was issued a notice of non-compliance.
B.
With these general allegations considered, we turn to specific
allegations regarding appellants’ entitlement vel non to qualified immunity.
When, as here, multiple government actors are defendants and assert
qualified immunity, we “evaluate each officer’s actions separately, to the
extent possible”. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.
2012).
Again, because motions to dismiss are under review, we must consider
the well-pleaded allegations in the complaint. For the reasons that follow, we
hold plaintiffs “have failed to [allege] that [Schubert’s] tendencies were
known to anyone—let alone [appellants]”. Est. of Bonilla, 982 F.3d at 305.
1.
Borrego, a jailer for the Culberson County Jail, received the three 911
calls, one in which a male (later identified as Schubert) stated an unknown
person was trying to kill him and two in which others reported a man was
going around saying that someone was trying to kill him. Borrego also, with
Sheriff Carrillo, witnessed Schubert’s explaining his history of drug abuse
and his leaving a halfway house. Borrego did not complete a mental-health
screening form for Schubert.
Plaintiffs also allege Borrego “formed the opinion . . . that [Schubert]
was mentally ill and needed immediate mental health treatment” and that
“[Schubert] did not need to be jailed”. We do not accept this “conclusory
statement”, however, because it amounts to a “naked assertion[] devoid of
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further factual enhancement”. Benfield, 945 F.3d at 336–37 (citation
omitted).
Accepting the well-pleaded allegations as true and drawing reasonable
inferences in plaintiffs’ favor, we consider whether Borrego “had the
requisite knowledge of a substantial risk”. Farmer, 511 U.S. at 842; Benfield,
945 F.3d at 336. Our court has repeatedly held officials have the requisite
subjective knowledge when circumstantial evidence directs an official to the
specific risk of suicide. E.g., Cope, 3 F.4th at 207–08 (official witnessed
decedent attempt suicide the day before incident in question); Converse,
961
F.3d at 776, 778–79 (official was present when decedent was pulled off bridge
while he attempted to jump and where official heard decedent express that
he should have jumped and would make another attempt to do so when
released); Hyatt v. Thomas,
843 F.3d 172, 178 (5th Cir. 2016) (even though
decedent stated he did not want to kill himself, official knew decedent
suffered from depression, had recently attempted suicide, and his wife
believed him to be suicidal).
Plaintiffs do not plausibly allege Schubert did or said anything to
indicate he was suicidal or otherwise intended to harm himself. The
allegations that Schubert told Borrego he had recently left a half-way house
and may have abused drugs did not automatically impute knowledge to
Borrego of a substantial risk of suicide. E.g., Est. of Bonilla, 982 F.3d at 305
(“[T]he fact of [the decedent’s] intoxication would not indicate that [the
defendant] inferred [he] was a suicide risk”.). Additionally, the allegations
do not plausibly show that Schubert’s prior or active drug use demonstrated
to Borrego that Schubert faced a substantial risk of suicide. E.g., id.
Because plaintiffs fail to allege sufficient facts to plausibly show
Borrego was subjectively aware of the risk of suicide, their allegations do not
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state a failure-to-protect claim against him. Cf. Converse, 961 F.3d at 778–80.
Accordingly, Borrego is entitled to qualified immunity against the claim.
2.
Sheriff Carrillo was monitoring the radio when he heard the dispatch
to Deputy Melendez. The Sheriff learned Schubert had been taken into
custody after three 911 calls, one in which Schubert (again, unidentified at
the time) called to say that an unknown person was trying to kill him and two
others called to report that a man (Schubert) was going around saying that
someone was trying to kill him. After Schubert was transported, the Sheriff
“decided to go to the jail and check on [Schubert] and jail personnel”.
Plaintiffs allege that, while interviewing Schubert, the Sheriff, as did
Borrego, learned Schubert had a history of drug abuse and had recently left a
halfway house. Although plaintiffs allege Schubert was cooperative and
appeared truthful in his responses, plaintiffs also allege: the Sheriff was still
required to conduct a mental-health screening form in accordance with
TCJS; and, because “the form had not been completed”, the Sheriff “had to
operate on the belief that [Schubert] was suicidal” and “was required to put
[Schubert] on suicide watch”.
Our court requires, as stated supra, defendant have “actual knowledge
of the substantial risk of suicide”. Id. at 775. Plaintiffs fail to allege Schubert
did or said anything to indicate he was suicidal.
Because plaintiffs fail to allege sufficient facts to plausibly show the
Sheriff was subjectively aware of the risk of suicide, their allegations do not
state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly,
Sheriff Carrillo is entitled to qualified immunity against the claim.
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3.
The following allegations concern the third and final appellant,
Deputy Melendez. He was dispatched to respond to the 911 calls in which
Schubert was the subject. Borrego directed the Deputy to a location in Van
Horn regarding an individual—unknown at the time—stating someone was
trying to kill him. Upon the Deputy’s locating Schubert at the El Capitan
Hotel at 11:13 p.m., he spoke with Schubert and described him as appearing
nervous. Schubert also reiterated that “there was someone trying to kill
him”. Schubert was oriented regarding time and place. He also “provided
his correct name and a date of birth which was correct other than . . . off by
two years”.
The Deputy took Schubert to a Border Patrol station in order to
identify him. After further investigation, the Deputy was able to identify
Schubert and learned he “allegedly had an active warrant for an alleged
parole violation”. Pursuant to the warrant, the Deputy took Schubert to the
jail.
The Deputy was dispatched to another call shortly after arriving at the
jail with Schubert, but he later returned and assisted Borrego in escorting
Schubert to his cell. During this time, Schubert repeated that someone was
trying to kill him, but did not provide a name or description.
Plaintiffs allege the Deputy “was well aware that [Schubert] was not
in his right mind. He knew that [Schubert] was mentally ill. He likewise
formed the belief that [Schubert] was a danger to himself and/or others”.
Again, these are “naked assertions devoid of further factual enhancement”,
and they do not plausibly allege the requisite subjective knowledge. Benfield,
945 F.3d at 336–37 (citation omitted).
The key distinction between the Deputy and the other two appellants
is plaintiffs’ assertion that the Deputy erred in his means and method of
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Case: 22-50102 Document: 00516841270 Page: 17 Date Filed: 08/01/2023
No. 22-50102
taking Schubert into custody. Texas Health and Safety Code Chapter 573
permits officers to take an individual into custody without a warrant if, inter
alia, they “ha[ve] reason to believe and do[] believe that the person is a
person with mental illness; and because of that mental illness there is a
substantial risk of serious harm to the person or to others unless the person
is immediately restrained”. TEX. HEALTH & SAFETY CODE § 573.001(a)(1).
Plaintiffs concede that a violation of Chapter 573 is not per se a constitutional
violation; accordingly, they offer any alleged violation as evidence that a
constitutional violation occurred.
In this court, plaintiffs maintain they alleged Schubert was taken into
custody pursuant to this provision. Plaintiffs’ assertion stretches the bounds
of the complaint.
The complaint does not allege Schubert was taken into custody under
this statute; rather, it alleges the Deputy “should have transported [Schubert]
to the nearest-inpatient mental health facility” pursuant to Chapter 573.
(Emphasis added.) Additionally, to the extent plaintiffs allege the Deputy
was required to take Schubert into custody under Chapter 573, that chapter
is permissive, not mandatory. See § 573.001(a) (“A peace officer, without a
warrant, may take a person into custody . . . .” (emphasis added)).
Accordingly, this allegation is without merit.
We next consider whether the allegations about the facts known to the
Deputy at the time plausibly provided the requisite subjective knowledge of
a substantial risk of suicide. In addition to his initial knowledge from the
dispatch, Schubert, while escorted to his cell, reiterated to the Deputy that
someone was trying to kill him. Again, plaintiffs’ assertions do not plausibly
allege the Deputy had actual knowledge that Schubert posed a substantial risk
of suicide. E.g., Converse, 961 F.3d at 775.
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Case: 22-50102 Document: 00516841270 Page: 18 Date Filed: 08/01/2023
No. 22-50102
Because plaintiffs fail to allege sufficient facts to plausibly show the
Deputy was subjectively aware of the risk of suicide, their allegations do not
state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly,
Deputy Melendez is entitled to qualified immunity against the claim.
III.
For the foregoing reasons, the district court’s denying Borrego,
Sheriff Carrillo, and Deputy Melendez’ motions to dismiss the failure-to-protect claims is VACATED and judgment is RENDERED for them.
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