Opinion
Case No. 6:18-CV-253-JDK
2019-08-06
ESTATE OF Rodolfo MUNOZ, Jr., Deceased, BY Catherine RUELAS, Independent Administrator and Representative, Plaintiff, v. Officer Carla FORD, et al., Defendants.
Gregory Eugene Kulis, Gregory E. Kulis & Associates, Ltd., Chicago, IL, for Plaintiff. Ann Leitch Hahn, Philip Trent Peroyea, Office of The Attorney General-Law Enforcement Defense Div., Austin, TX, for Defendants.
Gregory Eugene Kulis, Gregory E. Kulis & Associates, Ltd., Chicago, IL, for Plaintiff.
Ann Leitch Hahn, Philip Trent Peroyea, Office of The Attorney General-Law Enforcement Defense Div., Austin, TX, for Defendants.
ORDER GRANTING MOTION TO DISMISS
JEREMY D. KERNODLE, UNITED STATES DISTRICT JUDGE
This case arises out of the tragic suicide of Rodolfo Munoz, Jr. while he was an inmate at the Coffield Unit in Tennessee Colony, Texas. Plaintiff Catherine Ruelas, Munoz's mother and the administrator and representative of his estate, alleges that prison officials were deliberately indifferent to Munoz's condition and violated his rights under the Eighth and Fourteenth Amendments of the U.S. Constitution. Ruelas seeks compensatory and punitive damages under 28 U.S.C. § 1983.
Before the Court is a motion to dismiss filed by three Defendants—Officers Michael A. Collum, Carla Ford, and Brennan F. Shay. Docket No. 38. For the reasons stated below, the Court GRANTS the motion. Further, because Plaintiff has failed to serve any other Defendant, the Court will permit Plaintiff an additional thirty days in which to properly serve Defendants Jeffrey A. DeSilva, Ronnie Lee Stephens, Robert S. Jones, Prince Charles Warren, and John E. LaBlanc. If Plaintiff fails to perfect service within that period, the Court will dismiss the action against the remaining Defendants for lack of prosecution. BACKGROUND
As required by established law, the Court accepts as true Plaintiff's well-pleaded facts and views them in the light most favorable to Plaintiff. See, e.g. , Raj v. La. State Univ. , 714 F.3d 322, 330 (5th Cir. 2013).
In June 2016, Rodolfo Munoz, Jr. was an inmate at a correctional facility located in Tennessee Colony, Texas, within the Texas Department of Criminal Justice. Docket No. 37 at ¶¶ 4–5. On June 28, 2016, Munoz was found dead, having hanged himself in his cell. Id. at ¶¶ 21–24. Plaintiff, who is represented by counsel, alleges that Munoz previously filed "an I-60 report[,] which on information is a report concerning the safety of an inmate." Id. at ¶ 9. According to Plaintiff, the officers assigned to Munoz's wing "deliberately ignored Rodolfo Munoz's safety concerns and I-60 submission." Id. at ¶ 11. They also failed to "physically check the well-being of the inmate on the morning of June 28, 2016, knowing he was possibly suicidal and not feeling well and had recently raised concerns for his safety and/or for help." Id. at ¶ 12. Plaintiff alleges that Prison Warden Jeffery Catoe later told Plaintiff that "the defendants did not check on [Munoz] every thirty (30) minutes." Id. at ¶ 16.
According to Plaintiff, Defendants "knew that ... Munoz ... was exhibiting signs and symptoms of distress and hopelessness [and] indicating an intent for suicide," and should therefore have "placed [him] in a mental health high risk status [and] provided [him with] medical care." Id. at ¶ 19. Instead, Defendants "failed to provide him with any medical treatment or even physically observe him for long periods of time, up to and including the time he was found hanging." Id. Plaintiff asserts that Defendants were "deliberately indifferent to [Munoz's] high risk of suicide and intentionally ignored his condition." Id. at ¶ 20. Their conduct was "unreasonable and violated [Munoz's] rights under the Eighth and Fourteenth Amendments to the United States Constitution to due process of and equal protection [sic], and violated 42 U.S.C. § 1983." Id. at ¶ 31. Plaintiff demands "actual or compensatory damages against Defendants ... and because these Defendants acted maliciously, wantonly, or oppressively, punitive damages against Defendants in their individual capacities," plus fees and costs. Id. at ¶ 32.
Three Defendants, Officers Michael A. Collum, Carla Ford, and Brennan F. Shay, filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Docket No. 38. These Defendants argue that (1) the complaint fails to allege their personal involvement in depriving Munoz of his constitutional rights and (2) they are entitled to qualified immunity. Id. Plaintiff failed to file a response to the motion. On July 5, 2019, the Court ordered Plaintiff to submit a reply "tailored to the assertion of qualified immunity [which] fairly engage[s] [the] allegations" raised by the Defendants in their motion to dismiss (Docket No. 38) pursuant to Schultea v. Wood , 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). Plaintiff did not file the requested reply.
Plaintiff's counsel, Gregory Kulis at Kulis Law, has repeatedly ignored deadlines and Court orders in this case. In addition to not responding to Defendants' motion to dismiss or the Court's Order requesting a reply on qualified immunity, Mr. Kulis failed to appear at a hearing, neglected to provide notification to the Court in advance explaining his absence, and failed to respond to a prior order to show cause. See Docket Nos. 31; 32; 33; 38; 39. Similar conduct in the future will result in sanctions.
LEGAL BACKGROUND
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement "must simply ‘give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.’ " Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim will have "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). In reviewing claims for plausibility, the Court must, as noted above, accept "all well-pleaded facts in the complaint as true and viewed in the light most favorable to the plaintiff." Raj v. La. State Univ. , 714 F.3d 322, 330 (5th Cir. 2013).
Under Rule 12(b)(6), a defendant may move to dismiss a claim for failing to properly state a claim. The Fifth Circuit has said that such motions are "viewed with disfavor and are rarely granted." Lormand v. U.S. Unwired, Inc. , 565 F.3d 228, 232 (5th Cir. 2009) (quoting Test Masters Educ. Servs., Inc. v. Singh , 428 F.3d 559, 570 (5th Cir. 2005) ); see Lowrey v. Texas A & M Univ. Sys. , 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc. , 677 F.2d 1045, 1050 (5th Cir. 1982) ); see also Altman v. Key Energy Servs., LLC , 2012 WL 4033336, at *2 (E.D. Tex. Sept. 12, 2012). A claim cannot be dismissed under Rule 12(b)(6) unless the plaintiff "would not be entitled to relief under any set of facts or any possible theory that [it] could prove consistent with the allegations in the complaint." Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep't , 479 F.3d 377, 380 (5th Cir. 2007) (citing Jones v. Greninger , 188 F.3d 322, 324 (5th Cir. 1999) ); see also Altman , 2012 WL 4033336, at *1. It must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim entitling them to relief. Griffith v. Kroger Co. , 2008 WL 11347989, at *2 (E.D. Tex. Mar. 7, 2008) (citing Conley , 355 U.S. at 45–46, 78 S.Ct. 99 ).
When a defendant asserts the defense of qualified immunity in a motion to dismiss under Rule 12(b)(6), " ‘the district court must’—as always—do no more than determine whether the plaintiff has ‘file[d] a short and plain statement of his complaint, a statement that rests on more than conclusions alone.’ " Anderson v. Valdez , 845 F.3d 580, 589–90 (5th Cir. 2016) (quoting Schultea v. Wood , 47 F.3d 1427, 1433 (5th Cir. 1995) ). "After applying this general pleading standard to the complaint, the court may [then], in its discretion, insist that a plaintiff file a reply tailored to [the defendant's] answer [or motion to dismiss] pleading the defense of qualified immunity." Id. (quoting Schultea , 47 F.3d at 1433–34 ) (alteration in original). Such replies "shall be simple, concise, and direct." Id. (quoting Schultea , 47 F.3d at 1433 ). The Fifth Circuit has repeatedly held that "the heightened pleading standard derived from Rule 9 does not apply to the complaint or to any reply merely because an answer or motion to dismiss asserts a defense of qualified immunity." Id ; see also Brown v. City of Houston , 297 F. Supp. 3d 748, 773–74 (S.D. Tex. 2017). Nevertheless, when a plaintiff files a reply addressing qualified immunity, he must "plead more than conclusions." Morgan v. Hubert , 335 F. App'x 466, 469 (5th Cir. 2009). " ‘[A] plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants.’ " Id. (quoting Schultea , 47 F.3d at 1432 ). "Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs' injury." Reyes v. Sazan , 168 F.3d 158, 161 (5th Cir. 1999).
A court may dismiss claims on the basis of qualified immunity at the pre-answer stage under Rule 12. See Brown v. City of Houston , 297 F. Supp. 3d 748, 772 (S.D. Tex. 2017) ; see also 33 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Judicial Review § 8355 (2d ed. 2019) (noting a defense of qualified immunity may be raised in a motion to dismiss and a motion for summary judgment).
ANALYSIS
Defendants raise two independent arguments for dismissal under Rule 12(b)(6). First, they contend that the complaint fails to allege they were "personally involved in the alleged constitutional violations." Docket No. 38 at 3–4. Second, Defendants claim they are entitled to qualified immunity. Id. at 4–6. The Court addresses each argument in turn.
A.
It is well-established that "[p]ersonal involvement is an essential element of a civil rights cause of action" under 42 U.S.C. § 1983. Hinojosa v. Livingston , 807 F.3d 657, 668 (5th Cir. 2015) (citing Thompson v. Steele , 709 F.2d 381, 382 (5th Cir. 1983) ; see Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 452 (5th Cir. 1994) (en banc). Supervisors are not liable for the conduct of their subordinates. See Hinojosa , 807 F.3d at 668 ; see also Ashcroft v. Iqbal , 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Officials are not liable for the conduct of other officials. See Hinojosa , 807 F.3d at 668. Instead, each official's liability depends upon his or her "own actions." Id. ; see also Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 (Under § 1983, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."). As the Fifth Circuit explained, "[a] supervisory official may be held liable ... only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury." Porter v. Epps , 659 F.3d 440, 446 (5th Cir. 2011) (ellipsis in original) (quoting Gates v. Texas Dep't of Protective & Regulatory Servs. , 537 F.3d 404, 435 (5th Cir. 2008) ).
For this reason, courts routinely dismiss § 1983 claims against officials when the complaint fails to allege that the official was personally involved in the claimed constitutional violation. See, e.g. , Thompson v. Steele , 709 F.2d 381, 382 (5th Cir. 1983) (dismissing claims because plaintiff failed to allege defendants, as supervisory corrections officers, had any direct responsibility for the delivery of a mailgram); Carr v. Collier , 2019 WL 3422939, at *3–4 (E.D. Tex. May 16, 2019) (recommending the dismissal of claims because the complaint failed to allege defendants, as supervisory prison officials, were personally involved in any alleged harassment perpetrated against the plaintiff).
Here, Defendants Collum, Ford, and Shay argue that the complaint "is devoid of any specific identification of [their] personal roles in the alleged incident aside from the fact that each Defendant worked on the decedent's wing of the unit." Docket No. 38 at 3–4. The Court agrees. The complaint alleges that Collum, Ford, and Shay were three among eight officers who "were assigned the [sic] to the decedents [sic] wing on June 28, 2016[,] and were in charge of his care and custody." Docket No. 37 at ¶ 7. But the complaint does not specify any particular action taken by Collum, Ford, or Shay. In fact, the complaint acknowledges that Plaintiff is unsure whether Collum, Ford, or Shay knew about Munoz's condition and whether they "failed and refused to provide any adequate medical treatment." Id. at ¶¶ 17–18. Although the complaint includes a few general statements that "Defendants ... personally participat[ed] in the unlawful conduct," the statements are conclusory, fail to identify any particular defendant, and are devoid of detail. Id. at 25.
Nor does the complaint allege that Collum, Ford, and Shay were supervisory officials who implemented a policy that causally resulted in the alleged violation. Cf. Porter , 659 F.3d at 446. The complaint instead states only that these three Defendants were officers assigned to Munoz's wing, and separately identifies the prison warden as Jeffery Catoe. Docket No. 37 at ¶¶ 7, 15–16.
The complaint thus fails to state a § 1983 claim against Collum, Ford, and Shay, and dismissal is warranted on this basis alone. See, e.g. , Hinojosa , 807 F.3d at 668.
B.
Dismissal is also proper because Defendants are entitled to qualified immunity. The Supreme Court has held that "[q]ualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." E.g. , Taylor v. Barkes , ––– U.S. ––––, 135 S. Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (citation omitted); Kinney v. Weaver , 367 F.3d 337, 349–50 (5th Cir. 2004) (citing Harlow v. Fitzgerald , 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Taylor , 135 S. Ct. at 2044 (citation omitted); see Kinney , 367 F.3d at 349. "When properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law." Taylor , 135 S. Ct. at 2044 (citation omitted).
1.
Qualified immunity is available to public officials such as prison guards who exercise discretion. See, e.g. , Wood v. Strickland , 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), abrogated on other grounds by Harlow v. Fitzgerald , 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ; Henry v. N. Tex. State Hosp. , 2013 WL 3870292, at *3 (N.D. Tex. July 9, 2013). When an official asserts qualified immunity, the Court proceeds with a two-step analysis. E.g. , Foley v. Univ. of Hous. Sys. , 355 F.3d 333, 337 (5th Cir. 2003) ; Henry , 2013 WL 3870292, at *3. First , the Court determines "whether the plaintiff has made a sufficient showing that the official violated a clearly established constitutional or statutory right." Foley , 355 F.3d at 337. The "clearly established" standard does not require that "the facts of past cases were ‘materially similar’ to the conduct [ ] being challenged." Kinney , 367 F.3d at 350 (quoting Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ); Brown , 297 F. Supp. 3d at 771. But the law must be "clear in the more particularized sense that reasonable officials should be ‘on notice that their conduct is unlawful.’ " Kinney , 367 F.3d at 350 (quoting Saucier v. Katz , 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). Second , the Court asks "whether the official's actions were objectively reasonable in light of the clearly established right." Foley , 355 F.3d at 337. The Court considers an official's conduct objectively reasonable, "unless all reasonable officials in the defendant's circumstances would have then known that the conduct violated the Constitution." Gates v. Tex. Dep't of Protective & Regulatory Servs. , 537 F.3d 404, 419 (5th Cir. 2008).
Courts should resolve "immunity questions at the earliest possible stage in litigation" because qualified immunity provides immunity from suit. Pearson v. Callahan , 555 U.S. 223, 231–32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal citations and quotation marks omitted); Waganfeald v. Gusman , 674 F.3d 475, 483–84 (5th Cir. 2012) ; Henry , 2013 WL 3870292, at *3. Thus, when a defendant asserts qualified immunity in a Rule 12 motion to dismiss, the Court analyzes the complaint to determine whether it "assert[s] facts[,] which, if true, would overcome the defense of qualified immunity." Brown , 297 F. Supp. 3d at 773 (quoting Martone v. Livingston , 2014 WL 3534696, at *4 (S.D. Tex. July 16, 2014). In analyzing the plaintiff's allegations, the Court "must—as always—do no more than determine whether the plaintiff has filed a short and plain statement of his complaint, a statement that rests on more than conclusions alone." Anderson v. Valdez , 845 F. 3d 580, 589–90 (5th Cir. 2016) (internal quotations omitted).
After applying this general pleading standard the Court may, "in its discretion, insist that a plaintiff file a reply tailored to [the defendant's ... motion to dismiss] pleading the defense of qualified immunity." Id. (quoting Schultea , 47 F.3d at 1433–34 ). This reply must "plead more than conclusions" but need not satisfy the heightened pleading standard of Rule 9. Morgan v. Hubert , 335 F. App'x 466, 469 (5th Cir. 2009) ; see Anderson , 845 F. 3d at 590. The reply should include "allegations of fact focusing specifically on the conduct of the individual who caused the [plaintiff's] injury." E.g. , Reyes v. Sazan , 168 F.3d 158, 161 (5th Cir. 1999).
Here, the Court requested from Plaintiff a reply addressing qualified immunity. Docket No. 39. But Plaintiff neglected to file one. The Court will therefore analyze the complaint to determine whether the alleged facts, if true, would overcome the defense of qualified immunity. See, e.g. , Brown , 297 F. Supp. 3d at 773 ; see also Reyes , 168 F.3d at 161 (holding that a court should dismiss a complaint if neither the requested reply nor the complaint provides "the require detail" to overcome qualified immunity).
2.
Plaintiff's complaint against Defendants Collum, Ford, and Shay fails because it does not allege that they violated a clearly established constitutional or statutory right. Plaintiff claims that Defendants violated Munoz's "Eighth and Fourteenth Amendment rights" by being "deliberately indifferent to his high risk of suicide." Docket No. 37 at ¶¶ 20, 29–32. But the conduct identified in the complaint does not rise to the level of deliberate indifference.
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. This prohibition, made applicable to the States through the Fourteenth Amendment, see Robinson v. California , 370 U.S. 660, 666–68, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), "does not mandate comfortable prisons, but neither does it permit inhumane ones." E.g. , Ball v. LeBlanc , 792 F.3d 584, 592 (5th Cir. 2015) (quoting Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). "To plead an Eighth Amendment violation based on the conditions of an inmate's confinement, a plaintiff must allege conditions that ‘pose a substantial risk of serious harm." Hinojosa v. Livingston , 807 F.3d 657, 665 (5th Cir. 2015) (quoting Farmer , 511 U.S. at 834, 114 S.Ct. 1970 ). The plaintiff must also allege that "the defendant prison officials were deliberately indifferent to the inmate's health or safety," which requires "more than an allegation of mere negligence, but less than an allegation of purpose or knowledge." Id. (citing Farmer , 511 U.S. at 834–36, 114 S.Ct. 1970 ). A prison official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety." Id. (quoting Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (quoting Farmer , 511 U.S. at 837, 114 S.Ct. 1970 ). The Fifth Circuit has held that the "extremely high standard" of deliberate indifference requires that prison officials "refused to treat [the prisoner], ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Domino v. Tex. Dep't of Crim. Justice , 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen , 759 F.2d 1236, 1238 (5th Cir. 1985) ).
In cases involving inmate suicide, a plaintiff must plead more than "gross negligence in treating [the inmate's] mental health problems." Young v. McCain , 760 F. App'x 251, 256 (5th Cir. 2019). "Allegations of unsuccessful medical treatment, negligence, neglect, medical malpractice, or a mistaken judgment do not amount to deliberate indifference." Id. (citing Varnado v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 1991). Because "suicide is inherently difficult to predict, particularly in the depressing prison setting ... an incorrect diagnosis regarding the genuineness of a suicide threat does not amount to deliberate indifference." Id. (internal citation and quotation marks omitted). Nor does the failure to properly implement "adequate suicide prevention protocols." Taylor v. Barkes , ––– U.S. ––––, 135 S. Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) ; see also Young , 760 F. App'x at 257 (noting that "disagreement with a diagnostic measure" does not allege deliberate indifference). Indeed, the Fifth Circuit has observed that, "while ... the law is clearly established that jailers must take measures to prevent inmate suicides once they know of the risk, we cannot say that the law is established with any clarity as to what those measures must be." Hyatt v. Thomas , 843 F.3d 172, 177–78 (5th Cir. 2016) (ellipsis in original).
Accordingly, the Fifth Circuit has held that the failure to properly diagnose or insufficiently treat an inmate's mental condition does not generally rise to the level of deliberate indifference. See Young , 760 F. App'x at 253, 256–57 (finding no deliberate indifference where plaintiff alleged defendants were aware he was "suicidal"; downgraded him from extreme to standard suicide watch, "which allowed him to harm himself"; and permitted a psychiatrist to meet with him "only briefly via videoconferencing"); Domino , 239 F.3d at 755–56 (finding no deliberate indifference where evidence showed defendants "were monitoring [the inmate's] condition," had "scheduled counseling sessions" with him, and the inmate's threat of suicide was "said all the time [and] wasn't new"); Hyatt , 843 F.3d at 179–80 (finding no deliberate indifference where evidence showed defendant was aware of substantial risk inmate would attempt suicide but "responded reasonably" by withholding the most obvious means of self-harm, placing him under video surveillance, and informing relieving officer of risk). In Hare v. City of Corinth, MS , the Fifth Circuit held that the plaintiff properly alleged deliberate indifference by "consistently alleg[ing] that the individual defendants knew, or should have known, that [his daughter, an inmate] was exhibiting suicidal tendencies" and yet placed her in "an isolated cell, without removing the blanket," which she used to hang herself. 135 F.3d 320, 326 (5th Cir. 1998).
Here, Plaintiff fails to allege that Defendants Collum, Ford, and Shay acted with deliberate indifference, which means Plaintiff has not alleged a violation of a clearly established constitutional right. As an initial matter, as noted supra , part A, the complaint lacks any detail concerning these three Defendants in particular. The allegations about deliberate indifference are made against all named "Defendants" and acknowledge that Plaintiff is not certain Defendant Collum, Ford, or Shay was even "aware of or responsible for" Munoz during the relevant period. Docket No. 37 at ¶¶ 17–18. This failure alone entitles these Defendants to the defense of qualified immunity. See Floyd v. City of Kenner , 351 F. App'x 890, 898–99 (5th Cir. 2009) (official was entitled to qualified immunity where allegations were "bare" and lacked "any detail about what [the official] ... did to [deprive plaintiff of his constitutional rights]").
The complaint, moreover, fails to allege that any Defendant acted with deliberate indifference. First , although the complaint states in a conclusory fashion that Defendants "kn[ew] [Munoz] was possibly suicidal and not feeling well," the complaint does not allege that Defendants were subjectively aware of a substantial risk that Munoz would attempt suicide. Cf. Hyatt , 843 F.3d at 178–79. Plaintiff claims that Munoz "filed an I-60 report" at some point before his death, and believes that the report "concern[ed] the safety of the inmate." Docket No. 37 at ¶ 9. But the complaint does not specify what Munoz revealed in the report, does not allege that Defendants ever read the report, and does not provide any other reason to believe that Defendants were aware of a substantial risk that Munoz would commit suicide. See Domino , 239 F.3d at 756. This stands in stark contrast to the evidence in Hyatt , which showed the defendant knew of the inmate's "recent suicide attempt and his history of depression," was told that the inmate was suicidal, and "did not issue [the inmate] certain items ‘due to his history of depression and suicide attempts.’ " 843 F.3d at 178–79.
Second , the complaint does not allege that any Defendant deliberately failed to take reasonable measures in response to a substantial suicide risk. Cf. Hyatt , 843 F.3d at 179. The complaint claims that Defendants "did not physically check the well-being of the inmate on the morning of June 28, 2016," "did not check on [Munoz] every thirty (30) minutes," and failed to place Munoz "in a mental health high risk status." See Docket No. 37 at ¶¶ 6, 12, 16–26. But this does not rise to the "extremely high standard" of deliberate indifference—especially here, where the complaint says so little about Munoz's risk of suicide. Domino , 239 F.3d at 756. As the Supreme Court and Fifth Circuit have held, inmates are not entitled to "the proper implementation of adequate suicide prevention protocols." Taylor , 135 S. Ct. at 2044–45 ; Hyatt , 843 F.3d at 177–78. Thus, while Plaintiff's allegations might show that Defendants incorrectly diagnosed Munoz or failed to provide him with optimal suicide prevention treatment, they do not indicate deliberate indifference. See Young , 760 F. App'x at 256–57 (allegations that officials acted with gross negligence were insufficient to establish deliberate indifference); Hyatt , 843 F.3d at 179–80 (alleged measures taken by defendants, though "ultimately, and tragically, insufficient," did not constitute deliberate indifference). Indeed, as the Fifth Circuit held in Domino , "an incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference." 239 F.3d at 756.
Because Plaintiff fails to allege that Defendants violated a clearly established constitutional right, the Court need not address step two of the qualified immunity analysis—whether Defendants actions were objectively reasonable in light of a clearly established right. See Lytle v. Bexar Cty., Tex. , 560 F.3d 404, 410 (5th Cir. 2009) (noting the court's "inquiry ceases" because the alleged conduct did not violate a constitutional right); Childers v. San Saba Cty. , 2016 WL 10988781, at *1 (W.D. Tex. Nov. 9, 2016), aff'd , 714 F. App'x 384 (5th Cir. 2018) ; see also Fuentes v. Gomez , 2018 WL 322161, at *11 (S.D. Tex. Jan. 8, 2018) ("Since the Court finds Defendants are entitled to qualified immunity because Plaintiffs have not established a violation of [decedent's] constitutional rights, it does not have to address whether Defendants' conduct was objectively reasonable."). Defendants Collum, Ford, and Shay are therefore entitled to qualified immunity, and dismissal is proper for this additional reason.
CONCLUSION
Accordingly, it is ORDERED that Defendants' motion to dismiss (Docket No. 38) is GRANTED , and the claims against Defendants Michael A. Collum, Carla Ford, and Brennan F. Shay are DISMISSED WITH PREJUDICE . See, e.g. , Vasquez v. Morgan , 2019 WL 2393428, at *3 (S.D. Tex. June 6, 2019) ; Billingsley v. Howard , 196 F. App'x 258, 260 (5th Cir. 2006).
Finally, although more than 420 days have elapsed since the complaint was filed, Plaintiff has not properly served all Defendants in this action. See Docket No. 1. The Court will provide Plaintiff an additional thirty (30) days from the date of this Order within which to properly serve the remaining Defendants—Officers Jeffrey A. DeSilva, Ronnie Lee Stephens, Robert S. Jones, Prince Charles Warren, and John E. LaBlanc. See Salazar v. United States , 2018 WL 2729262, at *1 (E.D. Tex. May 9, 2018) ; Newsome v. Baker Hughes, Inc. , 2016 WL 4249962, at *1 (S.D. Miss. June 13, 2016) ; Smith v. City of Arlington , 2017 WL 5068582, at *1 (N.D. Tex. Aug. 3, 2017). Failure to serve these Defendants within 30 days will result in their dismissal under Federal Rule of Civil Procedure 4(m). See FED. R. CIV. P. 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff —must dismiss the action without prejudice against that defendant or order that service be made within a specified time.") (emphasis added).