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describing jail officers' alleged failure to administer a suicide screening for John Robert Schubert, Jr, an individual suspected of then-experiencing a mental health crisis; Mr. Schubert committed suicide while being held in jail
Summary of this case from Disability Rights Tex. v. PacillasOpinion
CAUSE NO. EP-21-CV-132-KC
2022-01-13
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. #2; and Shanon Edmiston, the Estate of John Robert Schubert, Jr., and John Robert Schubert, Jr.’s heirs-at-law, Plaintiffs, v. CULBERSON COUNTY, TEXAS ; Oscar Borrego, Sr.; Oscar E. Carrillo; Ernesto Diaz; Peter E. Melendez; and Adelaida Zambra, Defendants.
Michael Thomas O'Connor, Thomas Dean Malone, Brandie A. Moser, Kristen Leigh Homyk, Law Offices of Dean Malone, P.C., Dallas, TX, for Plaintiff Shanon Edmiston. Brandie A. Moser, Kristen Leigh Homyk, Thomas Dean Malone, Law Offices of Dean Malone, P.C., Dallas, TX, for Plaintiff Helen Holman. Thomas Phillip Brandt, John Francis Roehm, III, Christopher Thomas Brandt, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Defendants Texas Culberson County, Oscar Borrego, Sr., Oscar E. Carrillo, Peter E. Melendez.
Michael Thomas O'Connor, Thomas Dean Malone, Brandie A. Moser, Kristen Leigh Homyk, Law Offices of Dean Malone, P.C., Dallas, TX, for Plaintiff Shanon Edmiston.
Brandie A. Moser, Kristen Leigh Homyk, Thomas Dean Malone, Law Offices of Dean Malone, P.C., Dallas, TX, for Plaintiff Helen Holman.
Thomas Phillip Brandt, John Francis Roehm, III, Christopher Thomas Brandt, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Defendants Texas Culberson County, Oscar Borrego, Sr., Oscar E. Carrillo, Peter E. Melendez.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered Defendants’ Motions to Dismiss for Failure to State a Claim. ECF No. 15 ("Borrego Motion"), ECF No. 16 ("Zambra Motion"), ECF No. 17 ("Melendez Motion"), ECF No. 18 ("Diaz Motion"), ECF No. 19 ("Carrillo Motion"), ECF No. 20 ("County Motion"). For the reasons discussed herein, the Borrego, Melendez, and Carrillo Motions are GRANTED in part and DENIED in part. The Zambra and Diaz Motions are GRANTED . The County's Motion is DENIED .
All facts are taken as true from the allegations in Plaintiffs’ Complaint. See Arnold v. Williams , 979 F.3d 262, 265 n.1 (5th Cir. 2020). Defendants Borrego, Zambra, Melendez, Diaz, and Carrillo attached their sworn statements to their respective Motions. See Borrego Mot., Ex. 1; Zambra Mot., Ex. 1; Melendez Mot., Ex. 2; Diaz Mot., Ex. 2; Carrillo Mot., Ex. 1. These statements are effectively identical to those alleged in the Complaint upon which the Court relies.
A. July 6–7, 2019 Incident
This case arises from the suicide of John Robert Schubert, Jr. On the evening of July 6, 2019, Schubert was wandering around Van Horn, Texas. Compl. ¶ 12, ECF No. 1. At approximately 11:05 p.m., Jailer Oscar Borrego, Sr. answered a 911 call from Schubert during which Schubert said someone was trying to kill him. Compl. ¶ 15. At 11:09 p.m., Jailer Borrego received another 911 call, this time from an off-duty officer, reporting that a man, identified by Plaintiffs as Schubert, knocked on the officer's door and said that someone was trying to kill him. Compl. ¶ 15. Shortly thereafter, Jailer Borrego received still another 911 call from the El Capitan Hotel in Van Horn reporting that a man, later identified as Schubert, told a hotel employee that someone was trying to kill him. Compl. ¶ 16.
Jailer Borrego notified Deputy Peter Melendez, who traveled to the hotel to locate the man reported in the 911 calls. Compl. ¶¶ 16, 33. At 11:15 p.m., Deputy Melendez found Schubert at the hotel. Compl. ¶ 33. Schubert appeared nervous and told Deputy Melendez that someone was trying to kill him, but he did not give the name or a description of the alleged assailant. Compl. ¶ 33. Deputy Melendez then took Schubert to a Border Patrol station for identification and learned that Schubert had an active arrest warrant for an alleged parole violation. Compl. ¶¶ 22, 34. On July 7, 2019, at 12:14 a.m., Deputy Melendez brought Schubert to the Culberson County jail and put him in the jail's booking area. Compl. ¶ 17. Deputy Melendez was then dispatched for another call and left the jail. Compl. ¶ 36. Around the same time, Jailer Adelaida Zambra arrived at the jail for her work shift, and Jailer Borrego told her that he would handle Schubert so that she could handle dispatching duties. Compl. ¶ 42.
Sometime after 12:59 a.m., Sheriff Oscar Carrillo, who had been monitoring the police radio and heard the radio calls related to Schubert, arrived at the jail. Compl. ¶¶ 21–22. Sheriff Carrillo asked Schubert questions about what he was doing in Van Horn, and Schubert told Sheriff Carrillo that he had departed from a halfway house facility in Horizon, Texas, without permission, and he would not be allowed to return to the facility. Compl. ¶ 23. He also reported that he had hitchhiked from El Paso, where he had been in rehab. Compl. ¶¶ 23, 28. Schubert appeared cooperative and truthful in his responses to Sheriff Carrillo. Compl. ¶ 24. During the conversation, Schubert was not wearing a shirt, and he told Sheriff Carrillo that he was not wearing the shirt because it was wet. Compl. ¶ 28. Two other officers witnessed some or all of this questioning: Jailer Borrego was present for the interview, Compl. ¶ 24, and Deputy Ernesto Diaz witnessed at least part of the conversation between Sheriff Carrillo and Schubert after arriving at the jail at approximately 1:10 a.m. Compl. ¶¶ 30–31.
At 1:35 a.m., Jailer Borrego gave Schubert jail clothing and placed him in an individual cell. Compl. ¶¶ 18–19, 28. At this point, Deputy Melendez returned to the jail and assisted Jailer Borrego in locking Schubert into the cell. Compl. ¶ 36. Schubert repeated to Deputy Melendez that someone was trying to kill him, but he did not give the name or a description of the alleged assailant. Compl. ¶ 36. Jailer Borrego also provided Schubert with a mattress at Sheriff Carrillo's direction. Compl. ¶ 24. At 1:48 a.m., after locking Schubert in the cell, Jailer Borrego, Sheriff Carrillo, and Deputy Diaz left the jail, leaving Jailer Adelaida Zambra as the sole jail employee on duty to monitor both radio dispatch and the detainees. Compl. ¶¶ 19, 28. Upon leaving the jail, Jailer Borrego told Jailer Zambra that Schubert was locked in an individual cell and requested a license and criminal history check on Schubert. Compl. ¶ 43. Jailer Zambra conducted the checks and also requested Schubert's medical history report. Compl. ¶¶ 44–45.
At approximately 2:42 a.m., Jailer Zambra manually checked on the jail's detainees. Compl. ¶ 46. When she arrived near Schubert's cell, she saw Schubert kneeling on the ground, hanging from a sheet that was tied around his neck and secured to a shelf. Compl. ¶ 46. She called out to Schubert, but he was unresponsive. Compl. ¶ 46. At approximately 2:44 a.m., Jailer Zambra called Deputy Melendez and Sheriff Carrillo and reported the situation. Compl. ¶ 46. Soon after, Sheriff Carrillo arrived at the jail, removed the sheet from Schubert's neck, and proceeded to perform CPR. Compl. ¶ 47. Jailer Zambra called emergency services at approximately 2:50 a.m. Compl. ¶ 47. Emergency services arrived at the jail at 2:59 p.m., at which point Schubert was not breathing and did not have a pulse. Compl. ¶ 49. Schubert was transported to Culberson Hospital emergency room, where he was later pronounced dead. Compl. ¶ 27. The autopsy of Schubert's body indicates that the cause of his death was asphyxia by hanging. Compl. ¶ 50.
At no point during Schubert's detention did any of the Individual Defendants complete a Screening Form for Suicide and Medical/Mental/Developmental Impairments, which the Texas Commission on Jail Standards ("TCJS") requires be completed for all for new detainees. Compl. ¶¶ 19, 59; see 37 Tex. Admin. Code § 273.5(b) (2021) ("An approved mental disabilities /suicide prevention screening instrument shall be completed immediately on all inmates admitted."). The form includes questions about whether the detainee is experiencing suicidal ideations, substance abuse problems, depression, paranoia, hallucinations, or other mental health issues. Compl. ¶ 59. If a detainee answers affirmatively, the interviewing officer is required to notify a supervisor, magistrate, or mental health services immediately. Compl. ¶ 59.
In the Inmate Death Report related to Schubert's death, Sheriff Carrillo indicated that it was "unknown" whether Schubert was intoxicated during his detention or whether Schubert had any medical conditions. Compl. ¶ 53. The Report also states that Schubert was not on suicide watch. Compl. ¶ 53.
Following Schubert's death, the Texas Commission on Jail Standards conducted a Death-In-Custody Review of the incident. Compl. ¶ 56. The inspector found two violations of minimum standards and issued a notice of non-compliance to Culberson County. Compl. ¶¶ 56–57. The TCJS technical assistance memorandum addressing these violations warned Culberson County to "ensure all inmates are properly classified prior to placing them into a ... cell." Compl. ¶ 68. The Special Inspection Report from TCJS also indicated that "deficiencies exist[ed]" at the facility that required "immediate consideration" and for the jail officials "to promptly initiate and complete appropriate corrective measures." Compl. ¶ 58.
B. Past Incidents at Culberson County Jail
In their Complaint, Plaintiffs allege several past events related to jail suicides and suicide prevention practices in Culberson County, which Plaintiffs argue are relevant to their claims in this case. First, two years prior to Schubert's death, another detainee committed suicide while in the custody of Culberson County. On November 2, 2017, Melody Kopera died after hanging herself with a sheet at the Culberson County jail, where she had been detained after being arrested. Compl. ¶ 91. Kopera was screened for mental health issues and suicide risk upon arrival, and she stated that she had a history of drug use, felt depressed, suffered from Post-Traumatic Stress Disorder, had been receiving mental health treatment, and had attempted suicide in the past. Compl. ¶¶ 92, 99. She said that she believed she had recently suffered a concussion and was also worried that someone might hurt or kill her. Compl. ¶¶ 92, 99. Though Kopera's responses to the screening questions strongly suggested suicide risk, she was not put on suicide watch, and jail employees did not notify a magistrate, supervisor, or mental health professional. Compl. ¶¶ 92, 98. On October 28, 2017, Kopera was found hanging in her cell by a bed sheet that was tied to a shelf. Compl. ¶¶ 92, 102–03. She was later pronounced dead. Compl. ¶ 92. TCJS found one violation of minimum jail standards related to Kopera's death and issued a notice of non-compliance to Culberson County. Compl. ¶¶ 92–93. Specifically, Culberson County violated TCJS's "Identification" standard by failing to refer Kopera to a mental health professional and notify a magistrate of her screening responses. Compl. ¶ 95.
At the time of Kopera's death, Sheriff Carrillo was the sheriff of Culberson County, and Deputy Melendez was employed by the Culberson County Sheriff's Department. Compl. ¶¶ 93, 102–03. Both Sheriff Carrillo and Deputy Melendez were contacted at the time of Kopera's suicide and were physically involved in the effort to save her life. Compl. ¶¶ 102–03. In response to the incident, Sheriff Carrillo submitted an Operation Plan to TCJS to address areas of noncompliance with state standards. Compl. ¶ 100. In response, TCJS advised him to "ensure that [jail] personnel receive training on how to properly complete the suicide screening instrument, and on proper notification to required entities." Compl. ¶ 100.
Furthermore, in the years prior to the incidents of this case, TCJS issued several other notices of state standards violations to Culberson County related to mental health classification of detainees and suicide prevention practices. First, on March 8, 2012, TCJS issued a notice that Culberson County jail needed to ensure that jailers were following the screening form direction and notifying a magistrate or mental health professional when a detainee suffering from mental illness is taken into custody, and that TCJS warned that a remedial order would be issued if the jail did not ensure proper notifications, among other things. Compl. ¶¶ 106–07. Then, on April 6, 2016, the TCJS determined that several Culberson County jailers who were responsible for classifying detainees were not appropriately licensed. Compl. ¶ 108. On February 22, 2017, a TCJS inspector provided technical assistance because Culberson County jailers were not recording the results of mental health record searches on detainees’ screening forms. Compl. ¶ 110. Finally, on December 5, 2018, TCJS reviewed Culberson County's Suicide Prevention Training program and reported that it did not cover the required training topics. Compl. ¶ 111.
TCJS has also issued memoranda to all Texas jails addressing jail suicide prevention practices. In July 2015, TCJS sent a memorandum to all sheriffs and jail administrators, including Sheriff Carrillo, regarding the use of phone cords by detainees to commit suicide. Compl. ¶ 72. The memorandum included several suggestions for reducing the risk of detainee suicides by phone cord. Compl. ¶ 72.
C. Procedural History
On June 8, 2021, Plaintiffs initiated this action, alleging that Schubert's suicide in Defendants’ custody was caused by Defendants’ violations of Schubert's constitutional rights. Compl. Plaintiffs bring claims under 42 U.S.C. § 1983 against the Defendants Borrego, Zambra, Melendez, Diaz, and Carrillo ("Individual Defendants") in their individual capacities for failing to protect Schubert, in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Compl. ¶¶ 118–22. Plaintiffs also bring claims against the Individual Defendants under a theory of bystander liability. Compl. ¶ 121. Against Culberson County, Plaintiffs bring a claim under § 1983 and Monell v. Department of Social Services of N.Y.C. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), arguing that the County's policies related to suicide prevention in jails caused the violation of Schubert's constitutional rights. Compl. ¶¶ 126–30.
On August 13, 2021, the Individual Defendants filed separate Motions to Dismiss, each arguing that Plaintiffs failed to state a constitutional violation and asserting qualified immunity. Borrego Mot., Zambra Mot., Melendez Mot., Diaz Mot., Carrillo Mot. Culberson County also filed a Motion to Dismiss, arguing that Plaintiffs failed to allege constitutional violations by the Individual Defendants or that any such violations were caused by County policies. County Mot. Plaintiffs filed a Response to the Individual Defendants’ Motions collectively, ECF No. 24 ("Response to Individual Defendants"), and a Response to the County's Motion, ECF No. 23 ("Response to County"). Each Defendant then filed a Reply. ECF No. 28 ("County Reply"), ECF No. 29 ("Carrillo Reply"), ECF No. 30 ("Zambra Reply"), ECF No. 31 ("Borrego Reply"), ECF No. 32 ("Melendez Reply"), ECF No. 33 ("Diaz Reply").
II. DISCUSSION
A. Standard
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).
B. Analysis
Against the Individual Defendants, Plaintiffs bring claims under 42 U.S.C. § 1983 for their failure to protect Schubert, in violation of the Eighth and Fourteenth Amendments. Plaintiffs also argue that each Individual Defendant may be held liable under a theory of bystander liability for failing to stop his or her fellow officers from violating Schubert's rights. Each Individual Defendant has moved to dismiss all § 1983 claims against him or her, arguing that Plaintiffs failed to allege that he or she committed any constitutional violation and raising qualified immunity.
Plaintiffs also bring a claim against Culberson County under § 1983 and Monell , arguing that the County's policies and customs related to suicide prevention in jails caused the violation of Schubert's constitutional rights. Culberson County has moved to dismiss on the grounds that Plaintiffs failed to allege violations by the Individual Defendants and, alternatively, that any such violations were not caused by County policies. In addition to their § 1983 claims, Plaintiffs also set out several other causes of action under state and federal law, which Defendants do not address in their Motions.
1. Section 1983 claims against the Individual Defendants
Title 42 U.S.C. § 1983 provides a cause of action against state actors who violate federal rights while acting under the color of law. Id. ("Every person who, under color of any [state law] subjects, or causes to be subjected, [a person] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured."). To state a claim under § 1983, a plaintiff must allege "that some person deprived him of a federal right" and "that the individual who has deprived him of that right acted under color of state or territorial law." Arnold v. Williams , 979 F.3d 262, 266 (5th Cir. 2020) (quoting Gomez v. Toledo , 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) ).
The doctrine of qualified immunity shields government officials from liability "so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Lincoln v. Turner , 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna , 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) ). When a defendant official invokes qualified immunity, the burden shifts to the plaintiff to demonstrate that the defense does not apply. Id. A plaintiff seeking to defeat 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." Morgan v. Swanson , 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (cleaned up). This inquiry "does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074. The law can be clearly established despite "notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Lincoln , 874 F.3d at 848 (quoting Flores v. City of Palacios , 381 F.3d 391, 399 (5th Cir. 2004) ).
a. Failure to protect
"The constitutional rights of a pretrial detainee ... flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment." Hare v. City of Corinth , 74 F.3d 633, 639 (5th Cir. 1996) (citing Bell v. Wolfish , 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ); accord. Hyatt v. Thomas , 843 F.3d 172, 177 (5th Cir. 2016). "The rights of a pretrial detainee include ... the right to protection from known suicidal tendencies." Garza v. City of Donna , 922 F.3d 626, 632 (5th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 651, 205 L.Ed.2d 386 (2019) (cleaned up); see Hare , 74 F.3d at 639.
Plaintiffs bring their failure to protect claims under both the Fourteenth and Eighth Amendments. Compl. ¶¶ 119–20. The Eighth Amendment protects convicted inmates. Hare , 74 F.3d at 639. Plaintiffs note that, at the time of his death, Schubert was being detained on an alleged parole violation related to a prior offense for which he was convicted. Resp. Individual Defs. 22. "In suits brought by detained parolees, both the Fourteenth and Eighth Amendment standards apply." Ard v. Rushing , 597 F. App'x 213, 218–19 (5th Cir. 2014) (citing Hamilton v. Lyons , 74 F.3d 99, 106 (5th Cir. 1996) ). In any event, the analysis under the Fourteenth and Eighth Amendments is identical in this case. See id. (explaining that claims for failure to protect are analyzed under the deliberate indifference standard under both the Eighth and Fourteenth Amendments).
In the Fifth Circuit, a claim against a government official for failure to protect a pretrial detainee requires a showing that the official acted with deliberate indifference to the detainee's needs or safety. See Baldwin v. Dorsey , 964 F.3d 320, 326 (5th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1379, 209 L.Ed.2d 123 (2021). A defendant official shows deliberate indifference only if "he knows that [a detainee] face[s] a substantial risk of serious bodily harm" and "disregards that risk by failing to take reasonable measures to abate it." Hyatt , 843 F.3d at 179 (quoting Gobert v. Caldwell , 463 F.3d 339, 346 (5th Cir. 2006) ); accord. Garza , 922 F.3d at 635.
Plaintiffs argue that Kingsley v. Hendrickson , 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), counsels the Court to apply an objective reasonableness standard in this case, rather than deliberate indifference. Compl. ¶¶ 113–17. In Kingsley , the Supreme Court held that pretrial detainees alleging excessive force need only show that the force used against them was objectively unreasonable and do not need to establish that the official was subjectively aware that the use of force was unreasonable. See 567 U.S. at 395, 132 S.Ct. 2492. Plaintiffs argue that because their failure-to-protect claims arise under the same constitutional provision as the claims in Kingsley —the Due Process Clause—the same objective reasonableness standard should apply here. Compl. ¶ 114. And as Plaintiffs note, Compl. ¶ 115, at least one Court of Appeals has extended Kingsley to failure-to-protect claims by pretrial detainees. See Castro v. Cnty. of Los Angeles , 833 F.3d 1060, 1070 (9th Cir. 2016) ("On balance, we are persuaded that Kingsley applies, as well, to failure-to-protect claims brought by pretrial detainees against individual defendants under the Fourteenth Amendment.").
However, the Fifth Circuit has explicitly declined to extend Kingsley beyond the excessive force context. For example, in Cope v. Cogdill , 3 F.4th 198 (5th Cir. 2021), the Fifth Circuit rejected the plaintiff's argument that Kingsley applied to her claim for failure to provide medical care, explaining that Kingsley "did not abrogate [the Fifth Circuit's] deliberate-indifference precedent" for cases involving pretrial detainees. Id. at 208 n.7. And in Alderson v. Concordia Parish Correctional Facility , 848 F.3d 415 (5th Cir. 2017), the court applied deliberate indifference to a failure-to-protect claim, see id. at 419–20, notwithstanding a concurring opinion suggesting that Kingsley should be extended to at least some failure-to-protect claims by pretrial detainees, id. at 424–25 (Graves, J., concurring). Accordingly, the Court applies the deliberate-indifference standard here.
"Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence." Williams v. Hampton , 797 F.3d 276, 288 (5th Cir. 2015) (quoting Farmer v. Brennan , 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (cleaned up)). In some cases, "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer , 511 U.S. at 842, 114 S.Ct. 1970 ; see e.g. , Easter v. Powell , 467 F.3d 459, 463–64 (5th Cir. 2006) (holding that a prison nurse's knowledge of risk may be inferred where she was aware that the detainee had a heart condition and he presented obvious signs of cardiac problems); Brannan v. City of Mesquite , No. 3:19-CV-1263-X, 2020 WL 7344125, at *3–4, 6 (N.D. Tex. Dec. 14, 2020) (finding facts existed to show that a risk of serious harm was obvious to the defendant officer where he observed the arrestee swallow what he believed to be methamphetamine and observed her decline during a jail interview). "While the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him ... he would not escape liability if the evidence showed that he ... refused to verify underlying facts that he strongly suspected to be true or declined to confirm inferences of risk." Farmer , 511 U.S. at 843 n.8, 114 S.Ct. 1970. Moreover, if evidence exists that a particular type of harm is "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the [defendant] had been exposed to [that] information ... such evidence could be sufficient to permit a trier of fact to find ... [that the defendant had] actual knowledge of the risk." Id. at 842–43, 114 S.Ct. 1970 (cleaned up). Because the liability of each defendant official must be considered separately in a § 1983 action, see Stewart v. Murphy , 174 F.3d 530, 537 (5th Cir. 1999), the Court considers Plaintiffs’ claims against each Individual Defendant in turn.
i. Jailer Borrego
Plaintiffs allege that Jailer Borrego received three 911 calls, two reporting Schubert's odd behavior and one call from Schubert himself asking for help. Compl. ¶ 15. Borrego then dispatched Deputy Melendez to investigate. Compl. ¶ 16. After Schubert was brought to the jail, Jailer Borrego witnessed Sheriff Carrillo and Schubert having a conversation in which Schubert revealed that he was recently in rehab and had departed a halfway house. Compl. ¶ 24. Jailer Borrego locked Schubert in a cell apparently containing bedding, before leaving the jail at approximately 1:48 a.m. Compl. ¶¶ 18–19, 24.
a. Existence of a constitutional violation
As noted, Plaintiffs must show that Jailer Borrego had the requisite knowledge of Schubert's risk of serious harm and that he disregarded that risk. See Hyatt , 843 F.3d at 179. On the knowledge requirement, Borrego argues that "knowledge of Schubert knocking on doors, asking for help, and claiming someone is trying to kill him does not create an inference that Schubert was mentally ill or suicidal." Borrego Mot. 15–16. The Court is not persuaded. From the 911 calls, Jailer Borrego knew Schubert was walking around Van Horn, telling strangers that an assailant—who Schubert was not able to name or describe—was trying to kill him and that he had contacted 911 in fear. Compl. ¶¶ 15–16, 36. From this, a fact finder may infer that Borrego understood that Schubert was delusional and experiencing a mental health crisis, and thus at risk of serious harm.
Jailer Borrego also argues that, even if he knew that Schubert was suffering from mental illness or delusional, that would "not invariably lead to a conclusion that Borrego believed [Schubert] was suicidal." Borrego Mot. 18–19. On a motion to dismiss, Plaintiffs do not need to plead facts that would "invariably" show that Jailer Borrego knew Schubert was at risk of suicide—they only need to plead "factual content that allows the court to draw the reasonable inference" that he knew Schubert was at risk. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. From the signs of Schubert's mental health crisis and the fact that jail suicides are a widely known problem, both generally and at this particular jail, Compl. ¶ 71, the Court can make the "reasonable inference" that Borrego was aware that Schubert was at risk of suicide, and serious harm more generally.
Furthermore, Jailer Borrego witnessed the conversation between Sheriff Carrillo and Schubert, during which Schubert stated information that would further support an inference that Schubert was at risk of serious harm. Schubert told Sheriff Carrillo, in the presence of Jailer Borrego, that he had a history of drug problems such that he recently was in rehab, that he hitchhiked from El Paso, and that he recently left a halfway house where he would not be allowed to return. Compl. ¶¶ 23–24. Viewing these facts in the light most favorable to Plaintiffs, they suggest that Borrego was aware that Schubert was in a fragile psychological state—he was managing substance abuse issues and did not have a stable home or means of transportation. On top of Jailer Borrego's knowledge that Schubert was wandering around fearing an unidentified assailant, these facts reinforce the conclusion that Borrego knew that Schubert was at risk of suicide because the risk was obvious. See Farmer , 511 U.S. at 842, 114 S.Ct. 1970 ("[A] factfinder may [infer] kn[owledge] of a substantial risk from the very fact that the risk was obvious.") Plaintiffs have adequately pleaded the knowledge component of their deliberate indifference claim against Jailer Borrego.
Having established the requisite knowledge of risk, Plaintiffs must show that Jailer Borrego "fail[ed] to take reasonable measures to abate it." See Hyatt , 843 F.3d at 179. According to the Complaint, Jailer Borrego took no measures at all. Compl. ¶¶ 15–20. In particular, he placed Schubert in a cell that apparently contained loose bedding and failed to remove it. Compl. ¶ 18. Fifth Circuit law is clear that an officer acts with deliberate indifference when he or she provides a suicidal detainee with loose bedding, despite knowing that the detainee is at risk of committing suicide and that the bedding would provide the detainee with the means to do so. See Converse v. City of Kemah , 961 F.3d 771, 777–78 (5th Cir. 2020) (citing Jacobs v. W. Feliciana Sheriff's Dep't , 228 F.3d 388, 395–96 (5th Cir. 2000) ). In Converse , the court determined that a reasonable jury could find that a jail official was deliberately indifferent when he failed to remove bedding from a suicidal detainee's cell, despite suicide prevention training that addressed the risks posed by loose bedding and exposure to news stories on the frequency of jail suicides. See 961 F.3d at 777–78.
The Court notes that Plaintiffs do not explicitly allege that Schubert's cell contained sheets or bedding. However, they allege that he was placed in the cell and then hung himself in his cell with a sheet shortly thereafter, with no intervening events during which some third party could have provided him with the sheet. Compl. ¶¶ 17, 46. Because the Court views the facts in the light most favorable to Plaintiffs, the Court assumes that Schubert's cell contained bedding when he was placed there by Borrego and other of the Individual Defendants. See Calhoun , 312 F.3d at 733.
As in Converse , here Plaintiffs allege that the Individual Defendants, through their training and exposure to news, knew that detainees often use items in their cells, such as bedding, to hang themselves. Compl. ¶¶ 70–71. As such, a fact finder may conclude that Jailer Borrego knew that the bedding in Schubert's cell posed a substantial risk to a suicidal inmate like Schubert. Because he placed Schubert in a cell with bedding and a tie-off point despite that risk, a fact finder could determine that Jailer Borrego acted with deliberate indifference under Fifth Circuit law. See Converse , 961 F.3d at 777–78.
Moreover, Plaintiffs allege that Jailer Borrego did not conduct the required screening form that is designed to determine whether a detainee presents a risk of suicide. Compl. ¶ 19. As Jailer Borrego points out, there is no clearly established independent constitutional right to suicide screening. See Borrego Mot. 19–20; Borrego Reply 4; Bonilla ex rel. Est. of Bonilla v. Orange Cnty. , 982 F.3d 298, 307 (5th Cir. 2020) ("No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols [or] even discusses suicide screening or prevention protocols." (quoting Taylor v. Barkes , 575 U.S. 822, 826, 135 S.Ct. 2042, 192 L.Ed.2d 78 (2015) )). And failure to comply with jail protocol, alone, "does not constitute deliberate indifference if [the defendant] is unaware of [the detainee]’s risk of self-harm." See Rogge v. City of Richmond , 995 F. Supp. 2d 657, 670 (S.D. Tex. 2014) (citing Whitt v. Stephens Cnty. , 529 F.3d 278, 284 (5th Cir. 2008) ). But here, Plaintiffs allege that Jailer Borrego was aware of Schubert's risk of self-harm and still declined to conduct the required screening or take any other measures to further assess or manage that risk. Compl. ¶ 19. As articulated by the Supreme Court, an official cannot "escape liability if [he] ... refuse[s] to verify underlying facts that he strongly suspect[s] to be true or decline[s] to confirm inferences of risk." Farmer , 511 U.S. at 843 n.8, 114 S.Ct. 1970. An official may be held liable for failing to protect a detainee when the officer is aware of a high likelihood of harm to the detainee "but resists opportunities to obtain final confirmation." Id. Here, Jailer Borrego had a clear opportunity to confirm an inference of Schubert's suicide risk: he could have conducted state-mandated mental health screening designed to determine a detainee's risk of suicide or other harm. Instead, after learning that Schubert had been wandering around town, apparently delusional, Jailer Borrego declined to confirm his inference of risk. While Jailer Borrego's failure to screen Schubert does not amount to a constitutional violation on its own, it adds to the facts that give rise to a deliberate indifference claim against him.
b. Qualified immunity
To overcome Jailer Borrego's assertion of qualified immunity, Plaintiffs must allege a violation of a clearly established constitutional right. See Lincoln , 874 F.3d at 847. As a general matter, at the time of Schubert's death, pretrial detainees had the clearly established right to be protected from their known suicidal tendencies. See Hare , 74 F.3d at 644. But the Fifth Circuit has also noted that the law is not "established with any clarity as to what measures ... jailers must take to prevent inmate suicides once they know of the suicide risk." Baldwin , 964 F.3d at 328 (quoting Hare v. City of Corinth , 135 F.3d 320, 328 (5th Cir. 1998) ). Here, however, Borrego took no measures to reduce Schubert's known risk of suicide. Compl. ¶¶ 15–20. It is beyond debate that a suicidal prisoner has the right to at least some level of protection, see Hare , 74 F.3d at 644, and Jailer Borrego provided none.
And not only did Jailer Borrego fail to take protective measures, but he also placed Schubert in a cell that apparently contained loose bedding, despite knowing that loose bedding poses a risk to suicidal detainees. Compl. ¶¶ 18, 71. In 2000, the Fifth Circuit held in Jacobs that a jail official acts with deliberate indifference when he or she provides a detainee who is known to be suicidal with items that may be used as ligatures "even though he knew that those items should not be in the hands of a seriously suicidal detainee." 228 F.3d at 397. There, the court denied qualified immunity to a sheriff who ordered a suicidal detainee to have a blanket and towel in her cell, which contained tie-off points, despite knowing the risks those items posed to the detainee. Id. The deputy who provided the items to the detainee was also denied qualified immunity because he was also aware of the risks they posed. Id. at 397–98.
The Court notes that in Jacobs , the defendant officials were aware that another detainee had previously committed suicide in the same cell using similar items and tie-off points. Id. at 395, 397. However, the Fifth Circuit has explained that Jacobs ’ holding was not limited to cases in which the defendants were aware of a prior suicide in the same facility. Converse , 961 F.3d at 777 (noting that the Fifth Circuit has "never held ... that multiple suicides must occur in the same cell before a jail official is required to take preventative measures."). Rather, under Jacobs , "[t]he proper inquiry ... is whether the [defendants] had the subjective knowledge that the bedding posed a substantial risk of suicide, not how the[y] obtained that knowledge." Converse , 961 F.3d at 777. In Converse , the court affirmed the denial of qualified immunity under Jacobs when the defendant officials provided loose bedding to a suicidal detainee despite knowing of the risks it posed through training and exposure to news. Id.
As noted, Jailer Borrego placed in Schubert in a cell containing loose bedding and failed to remove it, even though he knew that Schubert was at risk of suicide. Compl. ¶ 18. And like the defendants in Converse , Borrego knew through his training, experience, and exposure to news that loose bedding posed a danger to suicidal detainees like Schubert. Compl. ¶ 71. Therefore, Plaintiffs have stated facts sufficient to overcome Jailer Borrego's assertion of qualified immunity. See Jacobs , 228 F.3d at 397. Jailer Borrego's Motion is denied.
ii. Sheriff Carrillo
Plaintiffs allege that, after listening to the police radio calls reporting Schubert's behavior, Sheriff Carrillo went to the Culberson County jail and had a conversation with Schubert. Compl. ¶¶ 21–23. Schubert told Sheriff Carrillo that he had hitchhiked from El Paso, where he was in rehab, and that he had recently left a halfway house where he would not be permitted to return. Compl. ¶ 23. Sheriff Carrillo did not place Schubert on suicide watch or take any other measures to prevent him from harming himself, nor did he complete or require other officials to complete the state-mandated suicide screening form for Schubert. Compl. ¶¶ 24–25. Schubert was placed in a cell that apparently contained loose bedding prior to Sheriff Carrillo leaving the jail at 1:48 a.m. Compl. ¶ 28.
a. Existence of a constitutional violation
With respect to whether Sheriff Carrillo knew of Schubert's risk of serious harm, Carrillo makes substantially the same arguments as Jailer Borrego: the 911 calls and fact that Schubert was wandering around and telling strangers that an unknown person was trying to kill him did not indicate to Carrillo that Schubert was suffering from mental illness, and any signs of Schubert's mental illness did not lead Carrillo to the conclusion that Schubert was suicidal. Carrillo Mot. 14, 17. For the reasons discussed, these arguments fail.
Like Jailer Borrego, Sheriff Carrillo also knew, through his conversation with Schubert, that Schubert had experienced problems with drugs, was recently in rehab, and had left a halfway house where he would not be allowed to return. Compl. ¶ 23. These facts reinforce the inference that Schubert presented a suicide risk. But Sheriff Carrillo argues that his conversation with Schubert allowed him to assess Schubert and led him to believe, albeit incorrectly, that Schubert was not at risk of suicide. Carrillo Mot. 18. Sheriff Carrillo notes that Schubert appeared honest and cooperative during the conversation. Carrillo Mot. 18. This shows that Sheriff Carrillo took some steps to assess Schubert's mental state. But as discussed, the facts Sheriff Carrillo learned from his conversation with Schubert confirm, rather than dispel, the conclusion that Schubert was at risk of suicide. As such, this argument is unavailing.
Furthermore, Sheriff Carrillo had knowledge of the pervasiveness of jail suicides. Less than two years prior to the events of this case, Sheriff Carrillo witnessed Melody Kopera's death by suicide in Culberson County jail under similar circumstances. Compl. ¶ 102. Sheriff Carrillo also received at least one memorandum from TCJS warning jailers of the problem of jail suicides by strangulation. Compl. ¶ 72. As such, there is reason to believe that, at the time of Schubert's death, the risk of jail suicides was "longstanding, pervasive, well-documented, [and] expressly noted by prison officials," and "the circumstances suggest that [Sheriff Carrillo] had been exposed to [that] information. See Farmer , 511 U.S. at 842–43, 114 S.Ct. 1970 (cleaned up). So a factfinder may infer that he had actual knowledge of the risk. See id. Taking Plaintiffs’ allegations together, a reasonable fact finder could determine that Sheriff Carrillo was subjectively aware of Schubert's risk of serious harm.
And like Jailer Borrego, Sheriff Carrillo took no actions to reduce that risk. Compl. ¶¶ 21–29. Although Sheriff Carrillo had a discussion with Schubert, he did not use the information he learned during the conversation to take any protective measures—he did not provide him with access to psychiatric treatment or require Schubert to be put on suicide watch. Compl. ¶¶ 24–25. Instead, Sheriff Carrillo had Schubert placed in a cell apparently containing tie-off points and loose bedding, Compl. ¶¶ 28, despite Carrillo's knowledge that bedding posed a risk to suicidal detainees, Compl. ¶ 71 (alleging that all Individual Defendants knew that detainees commonly hang themselves with items from their cells, including bedding, through news, training, and experience). Sheriff Carrillo was also aware that at least one other detainee previously committed suicide at Culberson County jail, Melody Kopera, and that she also used loose bedding to hang herself in her cell. Compl. ¶ 102. This provided additional notice to Sheriff Carrillo that locking a detainee at risk of suicide in a cell with loose bedding posed a significant risk. See Jacobs , 228 F.3d at 395, 397 (noting that the defendants were aware of a prior suicide in analyzing whether the defendants understood he risk loose bedding posed to suicidal detainees). Therefore, Plaintiffs have stated a claim that Sheriff Carrillo acted with deliberate indifference to Schubert's known risk of suicide. See Converse , 961 F.3d at 777–78.
Plaintiffs also assert that Sheriff Carrillo has supervisory liability in this case because he did not require the other Individual Defendants to screen Schubert or to complete the TCJS-required screening form. Compl. ¶ 24. A supervisor may be held liable for the failure to supervise or train if: "(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference." Goodman v. Harris Cnty. , 571 F.3d 388, 395 (5th Cir. 2009). "To satisfy the deliberate indifference prong, a plaintiff usually must demonstrate a pattern of violations and that the inadequacy of the training [or supervision] is ‘obvious and obviously likely to result in a constitutional violation.’ " Cousin v. Small , 325 F.3d 627, 637 (5th Cir. 2003) (quoting Thompson v. Upshur Cnty. , 245 F.3d 447, 459 (5th Cir. 2001) ).
Here, Plaintiffs’ claim fails on the deliberate indifference prong because the failure to train or supervise jailers in suicide screening, alone, is not "obviously likely to result in a constitutional violation." See Cousin , 325 F.3d at 637. As noted, the failure to screen detainees for suicide risk—on its own—does not violate a clearly established constitutional right. See Taylor , 575 U.S. at 826, 135 S.Ct. 2042. In some cases, like this one, the failure to screen a detainee may contribute to the circumstances that, as a whole, amount to a constitutional violation. But the Fifth Circuit has said that it is not "obvious" that the failure to ensure one's employees screen each new detainee, alone, would create a pattern of constitutional violations. See id. As such, plaintiffs’ supervisory liability claim against Sheriff Carrillo fails. See Cousin , 325 F.3d at 637.
b. Qualified immunity
As noted, pretrial detainees have a clearly established constitutional right to be protected from their known suicidal tendencies. See Hare , 74 F.3d at 644. And an official may be held liable if he or she provides a suicidal detainee with loose bedding or fails to remove bedding from a cell containing tie-off points, if the officer knows that bedding poses a suicide risk. See Jacobs , 228 F.3d at 397. Like Jailer Borrego, Sheriff Carrillo failed to act on his knowledge of Schubert's suicide risk in any meaningful way, and he had Schubert locked in a cell with bedding even though he knew that bedding poses a risk to suicidal inmates, Compl. ¶¶ 23–24, 28, in violation of clearly established law. See Jacobs , 228 F.3d at 397. Carrillo's Motion is denied.
iii. Deputy Melendez
Deputy Melendez was dispatched to the El Capitan Hotel to locate Schubert after reports of his bizarre behavior, and he spoke with Schubert at the hotel. Compl. ¶ 33. During their conversation, Schubert told Deputy Melendez that someone was trying to kill him and appeared nervous. Compl. ¶ 33. Deputy Melendez then arrested Schubert for an alleged parole violation and transported him to Culberson County jail. Compl. ¶¶ 34–35. Later, Deputy Melendez helped Jailer Borrego lock Schubert into a cell apparently containing bedding and tie-off points, and during the lock-in process Schubert repeated that someone was trying to kill him. Compl. ¶ 36.
a. Existence of a constitutional violation
Like the other Individual Defendants, Deputy Melendez argues that he did not know that Schubert was suicidal. Melendez Mot. 17. But, like Jailer Borrego and Sheriff Carrillo, Deputy Melendez knew that Schubert was wandering around the streets of Van Horn repeating to strangers that an unidentified assailant was trying to kill him. Indeed, it was Deputy Melendez who was tasked with responding to the 911 calls, both those of the third parties and Schubert's own call. Given these circumstances, it is reasonable to conclude that Melendez was aware that Schubert was suffering from mental illness and at risk of suicide. Moreover, Deputy Melendez heard Schubert continue to talk about the assailant even as he locked Schubert in a jail cell—where Schubert would presumably be safe from any actual assailant. Compl. ¶ 36. This adds support to the idea that there was no actual assailant and Schubert was experiencing a mental health crisis that put Schubert at a high risk of suicide or other serious harm.
Deputy Melendez also "fail[ed] to take reasonable measures to abate [that risk]." See Hyatt , 843 F.3d at 179. Like the other Individual Defendants, Deputy Melendez took no action to reduce Schubert's risk of suicide. Compl. ¶¶ 33–36. Rather, he assisted in locking Schubert in a cell that contained loose bedding, Compl. ¶ 36, despite knowing that bedding poses a risk to suicidal inmates, Compl. ¶ 71. Like Sheriff Carrillo, Deputy Melendez also witnessed the suicide of Melody Kopera, which also involved the use of loose bedding to create a ligature, Compl. ¶ 103, providing additional notice that locking a detainee at risk of suicide in a cell with loose bedding posed a significant risk. See Jacobs , 228 F.3d at 395, 397.
Plaintiffs also allege that Deputy Melendez acted with deliberate indifference by transporting Schubert to jail, rather than to a mental health facility, in violation of Texas Health and Safety Code § 573.001. Compl. ¶¶ 37–39. Section 573 permits peace officers to take persons into custody if the officer has reason to believe the person is suffering from mental illness and poses a substantial risk of serious harm to themselves or others. Tex. Health & Safety Code Ann. § 573.001(a)(1) (2021). It requires the officer to take the arrestee to the nearest appropriate inpatient mental health facility or emergency medical services provider, rather than a detention facility. § 573.001(d) – (e). Viewing the facts in the light most favorable to Plaintiffs, the Court presumes that Deputy Melendez arrested Schubert pursuant to section 573.011(a)(1). And as discussed, Melendez had reason to believe Schubert was suffering from mental illness and posed a risk to himself. As such, under section 573, Deputy Melendez should have taken Schubert to a mental health facility or emergency room, not to jail.
As Deputy Melendez notes, a violation of section 573 does not necessarily amount to a constitutional violation. See Melendez Mot. 18; Tweedy v. Boggs , 983 F.2d 232, 232 n.1 (5th Cir. 1993) ("[A] violation of state law, without more, will not justify federal judicial intervention [under § 1983 ]."). However, state law may "serve as a useful guide in a federal court's determination and redress of constitutional deprivations." Tweedy , 983 F.2d at 232 n.1 (quoting Smith v. Sullivan , 611 F.2d 1039, 1045 (5th Cir. 1980) ). Section 573 is clearly designed to ensure detainees suffering from mental illness, like Schubert, receive proper treatment and thereby reduce the likelihood that they will harm themselves or others. So Deputy Melendez's decision to violate the provision in the circumstances of this case supports Plaintiffs’ deliberate indifference claim against him. Taking Plaintiffs’ allegations all together, Plaintiffs have sufficiently alleged that Deputy Melendez violated Schubert's constitutional rights.
b. Qualified immunity
Like Jailer Borrego and Sheriff Carrillo, Deputy Melendez took no action to reduce Schubert's known risk of suicide, and he participated in placing him in a jail cell containing loose bedding. Compl. ¶ 36. As such, his actions violated clearly established law. See Jacobs , 228 F.3d at 397. Deputy Melendez's Motion is denied.
iv. Deputy Diaz and Jailer Zambra
Unlike the other Individual Defendants, Deputy Diaz and Jailer Zambra are not alleged to have interacted with Schubert in any meaningful way prior to his suicide, so it is not reasonable to infer that either official was aware that Schubert was at risk of committing suicide. Deputy Diaz arrived at the jail at 1:20 a.m. and witnessed Schubert speaking with Sheriff Carrillo at some point, although it is not clear what part of their conversation he heard. Compl. ¶¶ 30–32. But he is not alleged to have had any other interactions with Schubert. Jailer Zambra was primarily handling dispatch duties prior to checking in on Schubert, and she did not interact personally with Schubert until she found him hanging in his cell. Compl. ¶¶ 42, 46–47. Plaintiffs do not allege that either Diaz or Zambra were aware that Schubert was wandering around Van Horn experiencing delusions or of any information about Schubert's background. On these allegations, a reasonable fact finder could not conclude that either Deputy Diaz or Jailer Zambra had the requisite knowledge for deliberate indifference. See Williams , 797 F.3d at 288 (requiring sufficient evidence of subjective deliberate indifference for failure-to-protect claims). Deputy Diaz and Jailer Zambra's Motions are granted, and the claims against them are dismissed.
b. Bystander liability
Plaintiffs also argue that each Individual Defendant is liable as a bystander to their fellow officials’ constitutional violations. Compl. ¶ 121. "[A]n officer may be liable under § 1983 under a theory of bystander liability where the officer (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Whitley v. Hanna , 726 F.3d 631, 646 (5th Cir. 2013). As the Individual Defendants note, see, e.g. , Carrillo Mot. 22–23, bystander liability generally arises in the excessive force context. Whitley , 726 F.3d at 647 n.11 (5th Cir. 2013) ; see e.g. , Hale v. Townley , 45 F.3d 914, 919 (5th Cir. 1995) (recognizing bystander liability claim against officer for failing to stop another officer's use of excessive force); Hamilton v. Kindred , 845 F.3d 659, 663 (5th Cir. 2017) (same). The Fifth Circuit has noted that "other constitutional violations also may support a theory of bystander liability." Whitley , 726 F.3d at 647 n.11. However, the Fifth Circuit has not specified which constitutional violations, beyond excessive force, may underlie a bystander liability claim, nor has it recognized such a claim that the Court is aware of. See Frakes v. Masden , No. CV H-14-1753, 2015 WL 7583051, at *9 (S.D. Tex. Nov. 25, 2015) ("The Fifth Circuit did not, in either Richie [v. Wharton Cty. Sheriff Dept. Star Team , 513 F. App'x 382, 385 (5th Cir. Feb. 19, 2013)] or Whitley , recognize bystander liability in a context other than the use of excessive force."), aff'd sub nom. Frakes v. Ott , 668 F. App'x 130 (5th Cir. 2016).
In any event, here, Plaintiffs’ bystander liability claims against the Individual Defendants are subsumed by their claims that each officer is directly liable for their own failure to protect Schubert. The two claims require substantially the same showing: that the defendant official knew that the plaintiff's health or safety was at risk and intentionally chose to disregard that risk. Compare Hamilton , 845 F.3d at 663 (bystander liability) with Hyatt , 843 F.3d at 179 (direct liability for failure to protect). In this case, Plaintiffs allege that each Individual Defendant was directly responsible for Schubert's wellbeing during his detention and were thus required to personally protect him from his known suicidal tendencies. Compl. ¶ 35 ("[N]o Individual Defendant can use the excuse that another Individual Defendant had custody of [Schubert]. Each Individual Defendant owed his or her own constitutional duties to [Schubert]."). So it makes little sense to ask whether each Individual Defendant failed to intervene in another officer's deliberate indifference to Schubert's safety; instead, the Court simply considers whether each Individual Defendant acted with deliberate indifference, as discussed above.
The cases cited by Plaintiffs do not persuade the Court otherwise. Each case involves allegations that officers failed to intervene when another officer or other person harmed the plaintiff; none involved officers failing to intervene when another officer failed to stop the plaintiff from harming him or herself. See, e.g. , Batiste v. City of Beaumont , 421 F. Supp. 2d 1000, 1006 (E.D. Tex. 2006) (considering plaintiff's allegations that defendant witnessed but failed to intervene when other officers used force against her under a failure-to-protect theory); Cantu v. Jones , 293 F.3d 839, 844–45 (5th Cir. 2002) (discussing defendant officer's failure to prevent plaintiff from being attacked by a fellow inmate under the deliberate indifference standard).
Moreover, at the time of the events at issue here, it was not clearly established that an official could be held liable under a theory of bystander liability when the underlying constitutional violation is failure to protect. See Frakes , 2015 WL 7583051, at *9. As such, the Individual Defendants are entitled to qualified immunity on Plaintiffs’ bystander liability claims, and those claims are dismissed.
2. Section 1983 claims against Culberson County
Plaintiffs also seek to hold Culberson County liable under § 1983 and Monell , on the grounds that its mental health and suicide prevention policies caused the violation of Schubert's constitutional rights. Compl. ¶¶ 126–29. To state a Monell claim against a local government, "a plaintiff must show the deprivation of a federally protected right caused by action taken ‘pursuant to an official municipal policy.’ " Valle v. City of Houston , 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Monell , 436 U.S. at 691, 98 S.Ct. 2018 ). The policy element "distinguish[es] acts of the municipality from acts of employees of the municipality, and thereby make[s] clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati , 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). For § 1983 purposes, a municipal or local government policy may be a "policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by [a policymaker]" or a "persistent, widespread practice of city officials or employees, which, although not [officially] authorized ... is so common and well settled as to constitute a custom that fairly represents municipal policy." Bennett v. City of Slidell , 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam).
Plaintiffs must also identify a policymaker whose decisions may be attributed to the local government. See Valle v. City of Houston , 613 F.3d 536, 541 (5th Cir. 2010). Plaintiffs state that Sheriff Carrillo was "the likely chief policymaker for jail operations for the County," Compl. ¶ 86, and Culberson County concedes as much, County Mot. 19 (citing Tex. Loc. Gov't Code Ann. § 351.041 (West 2020) ("The sheriff of each county is the keeper of the county jail.")). So the Court assumes Sheriff Carrillo is the relevant policymaker.
Claims by pretrial detainees against local governments "may be brought under two alternative theories: as an attack on a ‘condition of confinement’ or as an ‘episodic act or omission.’ " Shepherd v. Dallas Cnty. , 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare , 74 F.3d at 644–45 ). Conditions-of-confinement claims relate to general conditions or rules of a jail facility such as "durable restraints or impositions on inmates’ lives like overcrowding, deprivation of phone or mail privileges, the use of disciplinary segregation, or excessive heat." Garza , 922 F.3d at 633–34. Episodic-acts-or-omissions claims arise from the "particular act or omission of one or more officials," and "an actor usually is interposed between the detainee and the municipality [or local government]." Id. at 632 (quoting Scott v. Moore , 114 F.3d 51, 53 (5th Cir. 1997) (en banc)).
This is an episodic-acts-or-omissions case. As in Olabisiomotosho v. City of Houston , 185 F.3d 521 (5th Cir. 1999), Plaintiffs’ allegations focus on the Individual Defendants’ "failure to take better care of [a detainee and] ... failure to medically screen [him] and secure [him] to treatment," among other actions. Id. at 526. "Such a complaint perfectly fits the definition of the episodic [act or] omission." Id. To establish municipal liability for an episodic act or omission, "the plaintiff must demonstrate a municipal employee's subjective indifference [to the plaintiff's safety or needs] and additionally that the municipal employee's act ‘resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the [plaintiff’]s constitutional rights." Id. (quoting Hare , 74 F.3d at 649 n.14 ); accord. Sanchez v. Young Cnty. , 866 F.3d 274, 280 (5th Cir. 2017).
a. Employee's subjective indifference
As discussed, Plaintiffs have successfully pleaded that three of the Individual Defendants, who were employed by Culberson County at the time of Schubert's death, violated Schubert's constitutional right to protection from known suicidal tendencies with subjective deliberate indifference. Plaintiffs allege that Jailer Borrego, Sheriff Carrillo, and Deputy Melendez each knew that Schubert was at risk of committing suicide and yet failed to take any measures to reduce that risk. Each officer failed to screen Schubert, offer him psychiatric treatment, or place him on suicide watch, and all three participated in giving him access to loose bedding that they knew posed a risk to suicidal detainees. Compl. ¶¶ 15–29, 33–36. These actions and inactions, when the Individual Defendants knew of Schubert's risk of suicide, violated Schubert's constitutional right to protection. See Converse , 961 F.3d at 777–78.
b. Resulting from policy adopted or maintained with objective deliberate indifference
The second prong of the test asks whether those violations "resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference." Hare , 74 F.3d at 649 n.14. Plaintiffs allege several policies and customs that they argue collectively caused the violation of Schubert's constitutional rights: First, Plaintiffs allege that Culberson County's custom was to violate the screening provision of its written mental disability plan, which required all detainees to be screened for suicide risk and other mental health problems using the TCJS form and notify appropriate parties when a detainee is determined to be at risk. Compl. ¶¶ 83–84. Next, they allege that Culberson County had customs of not requiring arrestees suffering from mental illness to be transported to a mental health facility, in violation of Texas Health and Safety Code § 573.001, and of failing to staff its jail with a mental health professional. Compl. ¶¶ 86–87. Plaintiffs also allege that, although Culberson County had a policy requiring "inmates who were known to be assaultive, potentially suicidal, mentally ill, or who had demonstrated bizarre behavior" to be checked on at least once every thirty minutes, but the policy also allowed inmates to be observed on a discretionary, "as needed" basis. Compl. ¶ 88. Finally, Plaintiffs allege that Culberson County had the custom of understaffing their jails. Compl. ¶ 89. To succeed on their Monell claim, Plaintiffs must show that these policies caused the constitutional violations at issue and that the polices evince objective deliberate indifference by Culberson County.
i. Sufficiency of allegations of Culberson County policies
But first, as a threshold matter, Culberson County argues that Plaintiffs’ policy allegations are conclusory and that Plaintiffs "fail to allege facts of specific, similar, persistent, repeated, and constant violations." County Mot. 15. To sufficiently allege a policy or custom, its "description ... and its relationship to the underlying constitutional violation ... cannot be conclusory; it must contain specific facts." Henderson v. Anderson , 463 F. App'x 247, 250 (5th Cir. 2012) (quoting Spiller v. City of Texas City, Police Dep't , 130 F.3d 162, 167 (5th Cir. 1997)). On a motion to dismiss, courts in the Fifth Circuit have required "more than boilerplate allegations," but not "facts that prove the existence of a policy." Thomas v. City of Galveston , 800 F. Supp. 2d 826, 844 (S.D. Tex. 2011) ; see Sanchez v. Gomez , 283 F. Supp. 3d 524, 532 (W.D. Tex. 2017) (adopting Thomas ’s description of the appropriate pleading standard for allegations of municipal policies); Callaway v. City of Austin , No. A-15-CV-00103-SS, 2015 WL 4323174, at *9 (W.D. Tex. July 14, 2015) (same). Allegations of past incidents of misconduct, or "any other minimal elaboration a plaintiff can provide, help[s] to satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests, and also to permit the court to infer more than the mere possibility of misconduct." Thomas , 800 F. Supp. 2d at 844 (cleaned up).
None of Plaintiff's allegations are conclusory. First, the allegation that Culberson County's custom was to violate the screening provision of its mental disability plan—that is, fail to screen detainees appropriately—contains sufficient facts. It describes a specific county plan to screen detainees according to the TCJS form and a concrete custom of failing to do so; it is more than a boilerplate allegation of generally inadequate policies or an overall policy of failing to protect detainees. Moreover, the Complaint lists several instances when the County was noted by TCJS, a commission of the state of Texas, to have violated standards directly related to screening and mental health classifications: TCJS issued a notice in 2016 that several jailers who were responsible for classifying detainees did not have the appropriate training. Compl. ¶ 108. Then in 2017, TCJS reported that Culberson County jailers were not logging mental health database information on intake screening forms for incoming detainees. Compl. ¶ 110. And in 2018, TCJS reported that Culberson County's Suicide Prevention Training program did not cover the required training topics. Compl. ¶ 111. This history of past misconduct related to mental health screening supports Plaintiffs’ allegation that Culberson County has a custom of failing to follow screening protocols. See Thomas , 800 F. Supp. 2d at 844 (explaining that allegations of past misconduct related to an alleged policy helps to satisfy the pleading standard for municipal policies).
Plaintiffs’ allegations that Culberson County had customs of not requiring arrestees suffering from mental illness to be transported to a facility, Compl. ¶ 86, and of not staffing its jail with a mental health professional, Compl. ¶ 87, are also sufficiently specific. These are not boilerplate allegations; they contain enough elaboration that the County has adequate notice of Plaintiffs’ accusations, and the Court can infer more than the possibility of misconduct. See Thomas , 800 F. Supp. 2d at 844. For the same reasons, Plaintiffs’ allegation that the County had a policy requiring "inmates who were known to be assaultive, potentially suicidal, mentally ill, or who had demonstrated bizarre behavior" to be checked at least once every thirty minutes but allowed those inmates to be observed on a discretionary, "as needed" basis, Compl. ¶ 88, is also sufficiently specific.
Finally, Plaintiffs’ allegation that Culberson County understaffed its jails, Compl. ¶ 89, is not conclusory. Prior to the events of this case, Jailer Zambra repeatedly complained to her supervisors that the jail was understaffed; she "told them to hire more people and that some of the employees are working long hours and many days due to shortness of employees." Compl. ¶ 48. Plaintiffs allege that the County took no action in response to Jailer Zambra's complaints. Compl. ¶ 48. This is enough elaboration for the Court to find the allegation not conclusory.
ii. Causation
Next, Plaintiffs must show that those policies caused the constitutional violation at issue. See Hare , 74 F.3d at 649 n.14. Culberson County argues Plaintiffs failed to allege that any of its individual policies caused the violation of Schubert's rights. County Mot. 20–22. The "causation component [of a Monell claim] requires that the plaintiffs identify, with particularity, the policies or practices they allege cause the constitutional violation[ ] and demonstrate a ‘direct causal link.’ " Stukenberg ex rel. M.D. v. Abbott , 907 F.3d 237, 255 (5th Cir. 2018) (quoting Piotrowski v. City of Houston , 237 F.3d 567, 580 (5th Cir. 2001) ). However, the Fifth Circuit does not require courts "to consider each [individual] policy or practice in a vacuum." Id. at 255. "The court may properly consider how individual policies or practices interact with one another within the larger system." Id. When a plaintiff alleges that several policies collectively violated his or her constitutional rights, a fact finder may consider the "different, compounding ways that these alleged policies might interact [and] reasonably conclude that they had a mutually enforcing effect that deprived [the plaintiff of his or her rights]." Sanchez v. Young Cnty. , 956 F.3d 785, 796 (5th Cir.), cert. denied , ––– U.S. ––––, 141 S. Ct. 901, 208 L.Ed.2d 455 (2020) (citing Wilson v. Seiter , 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) ). Jail policies may violate prisoners’ rights "in combination when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need." Wilson , 501 U.S. at 304, 111 S.Ct. 2321.
Here, the identifiable human need is the need to be protected from one's suicidal tendencies while in custody. And a reasonable fact finder may conclude that the alleged policies, taken together, interacted to cause the violation of Schubert's rights. Per Culberson County custom, the Individual Defendants failed to screen Schubert. Compl. ¶¶ 19, 84. This reduced or eliminated the chance that an employee would notify a magistrate or mental health services of Schubert's situation, which likely would have been required if the TCJS form directions were followed. As a result, Schubert was deprived of an opportunity to obtain mental health care. Compl. ¶ 73. The County policy of not taking detainees suffering from mental illness to a facility upon arrest or staffing its jail with a mental health professional further limited his opportunities to get necessary care. Compl. ¶¶ 86–87.
Moreover, the failure to check on Schubert for nearly an hour—consistent with Culberson County's lax "as needed" checking policy—gave Schubert the time to form a ligature with the jail bedding and hang himself in his cell, which he may have been less likely to do if he had been able to get mental health care. Compl. ¶ 88. Finally, if the jail was understaffed per County custom, the jailer on duty would be even less likely to check on Schubert frequently and less able to detect whether he needed mental health treatment or other attention. Compl. ¶ 89. In fact, on the night of Schubert's death, Jailer Zambra was the sole employee on duty and responsible for both dispatch duties and monitoring detainees, which likely influenced her failure to check on Schubert for forty-two minutes. Compl. ¶¶ 43–44. Taken together, a fact finder could determine that these policies mutually reinforced each other to deprive Schubert of protection from his known suicidal tendencies, in violation of the Constitution. See Sanchez , 956 F.3d at 796.
iii. Objective deliberate indifference
Finally, Plaintiffs must show that the policies were "adopted or maintained with objective deliberate indifference to the pretrial detainee's constitutional rights." See Hare , 74 F.3d at 649 n.14. "A county acts with deliberate indifference where its policymakers promulgate or fail to promulgate a policy or custom, despite the known or obvious consequences that constitutional violations will result." Shepard v. Hansford Cnty. , 110 F. Supp. 3d 696, 715 (N.D. Tex. 2015) (citing Piotrowski , 237 F.3d at 579 ). Because the standard is objective, courts "consider[ ] not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff's rights." Lawson v. Dallas Cnty. , 286 F.3d 257, 264 (5th Cir. 2002). Objective deliberate indifference may "be inferred ... from a pattern of constitutional violations." Garza , 922 F.3d at 637.
Here, Plaintiffs have alleged one prior troubling violation that occurred in the Culberson County jail, which is factually similar to this case and consistent with the County customs that Plaintiffs allege. Less than two years before Schubert's death, Melody Kopera committed suicide in the same facility. Compl. ¶ 91. Kopera's answers to the TCJS screening questions strongly suggested she was at risk of suicide. Compl. ¶¶ 92, 99. But her screening was not properly completed, because there was no notification to a magistrate or mental health professional. Compl. ¶ 98. For this failure, TCJS sanctioned Culberson County. Compl. ¶ 95. Moreover, in line with the County policies, Compl. ¶¶ 86–87, Kopera was not provided with any psychiatric care when she was arrested or during her detention. Compl. ¶ 99. Finally, Kopera was left for twenty-two minutes before she was found suspended. Compl. ¶ 96. Though less than the time that Schubert was left alone, the very strong indicators of suicide risk in Kopera's case suggest that leaving her for even twenty-two minutes may have been indifferent to her safety. Compl. ¶¶ 92, 99. This failure to check on a suicidal detainee frequently is consistent with Culberson County's lax checking policy, as alleged by Plaintiffs. Compl. ¶ 88.
Moreover, in the years before the events of this case, Culberson County received a string of other citations from TCJS for violating state minimum jail standards related to suicide prevention, demonstrating the County's cavalier attitude towards the safety rules designed to protect detainees from harm. These citations include failing to ensure jailers made mental health notifications to appropriate parties, Compl. ¶ 106–07, allowing jailers without proper training to classify detainees, Compl. ¶ 108, failing to record the results of mental health record searches on detainee's screening forms, Compl. ¶ 110, and maintaining an inadequate Suicide Prevention Training program, Compl. ¶ 111.
Although a pattern of violating state standards does not necessarily amount to a pattern of federal constitutional violations, it supports the inference that Culberson County has maintained the customs alleged by Plaintiffs despite the "obvious consequences that constitutional violations will result." See Shepard , 110 F. Supp. 3d at 715. The constitutional violation at issue in this case is the failure to protect a detainee from his known suicidal tendencies, and the TCJS standards that Culberson County has repeatedly violated are specifically designed to prevent detainees from committing suicide. As such, those repeated violations objectively and reasonably indicate a lack of concern for detainees’ safety and a pattern of disregard for their constitutional rights to be protected. Coupled with Melody Kopera's relatively recent suicide while in custody, Culberson County's history of alleged disregard for the rules designed to protect the very constitutional right at issue here supports a finding that the County's policies were maintained with objective deliberate indifference. Because Plaintiffs have sufficiently pleaded that the Individual Defendants violated Schubert's rights with subjective deliberate indifference and that those violations were caused by policies maintained with objective deliberate indifference by Culberson County, Plaintiffs’ Monell claim may go forward. See Olabisiomotosho , 185 F.3d at 526. Culberson County's Motion is denied.
3. Other claims
In addition to their § 1983 claims, Plaintiffs seek "all remedies and damages available pursuant to Texas and federal law, including but not necessarily limited to the Texas wrongful death statute ( Tex. Civ. Prac. & Rem. Code § 71.002 et seq. ), the Texas survival statute ( Tex. Civ. Prac. & Rem. Code § 71.021 ), the Texas Constitution, common law, and all related and/or supporting case law." Compl. ¶ 118. Plaintiffs do not elaborate further on these claims. However, Defendants’ Motions to Dismiss address only Plaintiffs’ § 1983 claims alleging federal constitutional violations, and do not address any other causes of action set out in the Complaint. Thus, to the extent that Plaintiffs assert any additional claims, the Court does not dismiss them now.
III. CONCLUSION
For the reasons set forth above, the Court enters the following orders:
The Borrego Motion, ECF No. 15, is GRANTED in part and DENIED in part. The Motion is granted as to Plaintiffs’ bystander liability claim and denied as to Plaintiffs’ failure to protect claim. Plaintiffs’ bystander liability claim against Jailer Borrego is DISMISSED .
The Carrillo Motion, ECF No. 19, is GRANTED in part and DENIED in part. The Motion is granted as to Plaintiffs’ bystander and supervisory liability claims and denied as to Plaintiffs’ failure to protect claim. Plaintiffs’ bystander and supervisory liability claims against Sheriff Carrillo are DISMISSED .
The Melendez Motion, ECF No. 17, is GRANTED in part and DENIED in part. The Motion is granted as to Plaintiffs’ bystander liability claim and denied as to Plaintiffs’ failure to protect claim. Plaintiffs’ bystander liability claim against Deputy Melendez is DISMISSED .
The Zambra Motion, ECF No. 16, is GRANTED . The Plaintiffs’ § 1983 claims against Zambra are DISMISSED .
The Diaz Motion, ECF No. 18, is GRANTED . Plaintiffs’ § 1983 claims against Deputy Diaz are DISMISSED .
The County Motion, ECF No. 20, is DENIED .
SO ORDERED .