ORDER DENYING MOTION TO DISMISS
On this day, the Court considered the following filings:
• Defendant Alejandro Romero’s “Motion Dismiss Plaintiffs Fourth Amended Complaint” (ECF No. 122) [hereinafter “Motion to Dismiss”], filed on May 12, 2015; 1
• Plaintiff Roswitha M. Saenz’s “Response in Opposition to Defendant Alejandro Romero’s Motion to Dismiss Plaintiffs Fourth Amended Complaint (Doc. 122), and Alternative Motion for Leave to File Fifth Amended Complaint” (ECF No. 126), filed on May 29, 2015;
• Defendant Romero’s “Supplemental Brief to Motion to Dismiss Plaintiffs Fourth Amended Complaint” (ECF No. 159) [hereinafter “Supplemental Brief’], filed on November 28, 2016; and
• Plaintiffs “Response to Defendant Romero’s Supplemental Brief in Support of Motion to Dismiss” (ECF No. 162), filed on December 10, 2016, in the above captioned cause.2
After due consideration, the Court is of the opinion that Defendant Romero is not entitled to qualified immunity and that his Motion to Dismiss should be denied for the reasons set forth below.
The Court will not provide a detailed recitation of the facts and procedural history, having done so on two prior occasions. See Order 3-6; Order Granting in Part and Denying in Part Officer Flores’s Mot. to Dismiss 2-4, Jan. 28, 2015, ECF No. 86 [hereinafter “Order on Flores Mot. Dismiss”].
I. LEGAL STANDARD
Plaintiff asserts a § 1983 excessive-force claim against Defendant Romero.
“The doctrine of qualified immunity protects government officials from
Moreover, generally, when considering a qualified immunity defense raised in the context of a Rule 12(b)(6) motion to dismiss, the Court must determine whether “the plaintiffs pleadings assert facts which, if true, would overcome the defense of qualified immunity.” Backe v. LeBlanc,
“Of course, a defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route.” McKenna v. Wright,
II. ANALYSIS
A. Qualified Immunity for Private Actors like Defendant Romero
The Court must first address the threshold inquiry regarding whether Defendant Romero, as a government-contracted security guard, is entitled to qualified immunity. There are two relevant Supreme Court cases that address this issue: Richardson v. McKnight,
In Richardson, the Supreme Court held that prison guards employed by a privately-retained company to manage a state prison facility were not entitled to qualified immunity.
Recently, however, in Filarsky, the Supreme Court unanimously held that a private attorney retained by the city to conduct an internal affairs investigation of a firefighter was entitled to qualified immunity.
Thus, Filarsky and Richardson are in tension with one another, and the state of the law regarding the applicability of quali
Given the circuit-wide, and even national, uncertainty regarding this issue, the Court finds it unnecessary to decide the overarching question whether private security officers are entitled to qualified immunity generally. Namely, the Court concludes that Plaintiffs allegations in the present case easily overcome any qualified immunity defense to which Defendant Romero would otherwise be entitled, thereby obviating the need to decide whether privately-retained security officers, such as Defendant Romero, are entitled to qualified immunity. Hence, the Court also finds it unnecessary to resolve the vexing private-actor-qualified-immunity issue using the unclear Richardson framework.
B. General Qualified Immunity Analysis
Turning to whether Plaintiff has overcome Defendant Romero’s claim of qualified immunity, the Court must determine
1. Clearly Established Constitutional Right
Plaintiff has satisfied the first prong because she has alleged that Defendant Romero used excessive force against Saenz. See supra note 1. As a pretrial detainee, Saenz had a Fourteenth Amendment Due Process right to be free from excessive force, and this right has been clearly established. Graham v. Connor,
, 2. Objective Reasonableness of the Conduct under Clearly-Established Law
Whether Plaintiff has satisfied the second prong is less straight forward. The Court must determine whether, after accepting Plaintiffs factual averments as true and,viewing them, in the light most favorable to her, Defendant Romero acted in an objectively reasonable manner judged against clearly established law at the time. After reviewing the parties’ pleadings, the Court concludes that he did not.
“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right. ’ ” Ashcroft v. al-Kidd,
When determining whether a state actor has violated a plaintiffs clearly established constitutional rights, “[t]he central concept is that of fair warning: 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.” Bush v. Strain,
In its previous Order, the Court discerned the following factual bases for Plaintiffs excessive force claims:
First, Plaintiff alludes to a number of injuries suffered by Saenz at the hands of Defendants Romero and Flores. For example, Plaintiff contends that Defendants Romero and Flores “inflicted upon Saenz” while he was at the jail “a serious head injury, [sic] that involved a deep laceration, [sic] and profuse bleeding.” She also alleges that Defendants Romero and Flores “beat, struck and injured Saenz,” which resulted in “numerous marks all over his body consistent with trauma from multiple strikes from Defendants’ batons, flashlights, feet, fists and other hard objects.”
Second, in setting forth her § 1983 claim, Plaintiff asserts that Defendants Romero and Flores “used excessive force against Daniel Saenz” when they dragged “Saenz ... cruelly, maliciously and with deliberate indifference to his medical attention [sic] ... by his handcuffs and shoulders across the floor” while Saenz was “handcuffed, unarmed and restrained with both hands behind his back.” She further contends that “[t]o further harm Daniel, the Defendants used handcuffs with a longer than usual chain between the two metal wrist clamps so that he could be dragged by defendants.” The alleged dragging of Saenz lasted “for at least 18 minutes” while Saenz “was bleeding ... profusely.”
Order 12-13 (citations omitted).
The Court finds that the aforementioned actions were not objectively reasonable. Defendant Romero had “fair warning” that the conduct alleged was impermissible. Several judicial decisions suggest that tas-ing and beating a restrained detainee— resulting in a head laceration and profuse bleeding—and subsequently dragging him is constitutionally impermissible.
For example, in Kitchen v. Dallas County, the Fifth Circuit held that officers had reasonable warning that “kicking, stomping, and choking a subdued inmate would violate the inmate’s constitutional rights under certain circumstances.”
Given the foregoing Fourteenth Amendment, Fourth Amendment, and Eighth Amendment case law from within and outside this circuit, the Court concludes that on the facts currently alleged, Defendant Romero’s conduct was objectively unreasonable as judged against clearly established law existing at the time of the incident. Consequently, the Court declines to find that Plaintiffs claims are barred by qualified immunity.
3. Defendant Romero’s Arguments
Defendant Romero’s qualified immunity arguments center on the weakness of Plaintiffs allegations that he dragged Saenz, completely disregarding the rest of Plaintiffs’ allegations relating to kicking, hitting, and tasing. First, Defendant Romero asserts that the Court should judge his conduct from the excessive-force law as it existed at the time of the incident. Second, Defendant Romero argues that under this standard, Plaintiff has failed to
The Fifth Circuit has previously held that a pretrial detainee’s excessive force claim “is subject to the same analysis as a convicted prisoner’s claim for use of excessive force under the Eighth Amendment.” See Kitchen,
Specifically, Defendant Romero asserts that Plaintiff has failed to show that he had a malicious sadistic intent to inflict pain, harm, or punishment in dragging Saenz. Suppl. Br. 15. Instead, Defendant Romero alleges that the video shows that Defendant Romero dragged Saenz to provide him medical treatment. Id. at 16-17.
It is worth noting that Defendant Romero previously asserted this same argument in his original Motion to Dismiss. Mot. Dismiss 22. The Court initially disregarded this argument, noting that the Supreme Court recently “clarified that ‘a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.’” Order 25 n.12 (quoting Kingsley,
In reasserting this argument, Defendant Romero contends that “contrary to the Court’s original holding, the Kingsley objective test is not the controlling standard for analyzing excessive force claims for pretrial detainees under the Fourteenth Amendment for pretrial detainees at the time the incident in this case took place.” Suppl. Br. 12. Instead, Defendant Romero argues, “the controlling authority in analyzing excessive force cases under the Fourteenth Amendment for pretrial detainees at the time of this incident is the Fifth Circuit’s subjective test under Valencia.” Id. In other words, Defendant Romero asserts that the Kingsley objective standard should not be retroactively applied. Id. at 13. To support this contention, Defendant Romero cites Harper v. Harris County, Texas: “The Fifth has ‘decisively rejected the retroactive application of new legal standards to excessive force claims involving qualified immunity and has held that the objective reasonableness of a government official’s conduct must be measured with reference to the law as it existed at the time of the conduct in question.’ ” Id. at 14 (quoting
Even if Defendant Romero is correct that the Valencia standard applies, the Court’s conclusion remains undisturbed. In Valencia the Court noted that “[o]ften ... there will be no evidence of the detention facility official’s subjective intent, and ... [the] determination [must be based] on objective factors suggestive of intent.”
Once again, Defendant Romero points to the video Plaintiff submitted with her complaint to support this contention.
Both parties place heavy reliance on the video but unsurprisingly reach dueling conclusions as to what it demonstrates. Plaintiff asserts that the video shows Saenz “bleeding so profusely while being dragged all around the jail that trustees had to mop up his blood from the floor.” In contrast, Defendant Romero contends that “the video shows Romero dragging Daniel Saenz to the nurses in the El Paso Detention Facility so he could receive medical treatment,” which demonstrated “a legitimate government purpose” on his part.
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[T]he Court cannot agree with Defendant Romero’s argument that the video “clearly show[s]” that “Romero dragged Saenz so he could receive medical treatment from the nurses in the jail.” Certainly, the video shows two people dragging a seemingly unconscious individual to an area where three nurses are present. A number of security officers on the scene also appear to engage in some sort of conversation. However, as the video contains no audio and provides only an obscured view of Defendant Romero upon his arrival at the purported nurses’ station, it is impossible to ascertain Defendant Romero’s intent from the video alone. At the very least, the Court cannot concur in Defendant Romero’s conclusion that “the video ... contradicts Plaintiffs version of the events,” such that “there is no plausible claim of excessive force against Romero.” Though the video may not confirm outright Plaintiffs factual allegations,9 neither does it undermine her allegations to the point where dismissal would be proper.
Order 18-20 (citations omitted).
The Court stands by its prior determination regarding the video evidence. Moreover, just as the Court previously concluded that Plaintiffs allegation that Defendants Flores and Romero “use[ed] handcuffs with a longer than usual chain between the two metal wrist clamps” was not raised as a stand-alone theory of liability, the Court similarly finds that Plaintiffs claim that Saenz was dragged around the jail facility was not raised as a standalone theory of liability either. See Order
Thus, Plaintiffs allegations regarding the “dragging” actions are part of a larger narrative composed of several similar facts—all of which serve to bolster her excessive-force claim. Defendant Romero himself concedes that Saenz was bleeding, unconscious, and unable to walk on his own, but references this only to argue that Defendant Romero was dragging Saenz around to get him medical attention quickly. Suppl. Br. 17. Significantly, Defendant Romero fails to recognize that Plaintiffs allegations suggest that Saenz was unconscious and bleeding precisely because of Defendants Romero and Flores’s actions.
Consequently, the Court continues to hold that viewing Plaintiffs allegations in the light most favorable to her
paints the picture of a pretrial detainee suffering from a deep laceration to his head with profuse bleeding—an injury so obvious that other medical personnel “recognizefed] [Saenz’s] serious condition” and felt that he warranted immediate medical treatment—who was dragged for eighteen minutes by his shoulders and handcuffs, which incidentally had been specifically placed on Saenz “so that he could be dragged.” Such actions allegedly “cause[d] pain and suffering to Daniel Saenz.”
Order 22-23 (citations omitted). The Court further concludes that its holding that Plaintiff has sufficiently stated a cause of action for excessive force pursuant to § 1983 should not be disturbed. Finally, the Court newly holds that Plaintiff has overcome Defendant Romero’s claim of qualified immunity in her complaint. Thus, the Court’s ultimate conclusion regarding Defendant Romero’s Motion to Dismiss remains the same.
III. CONCLUSION
Accordingly, it is ORDERED that Defendant Romero is not entitled to qualified immunity.
IT IS FURTHER ORDERED that Defendant Romero’s “Motion to Dismiss Plaintiffs Fourth Amended Complaint” (ECF No. 122) is GRANTED IN PART AND DENIED IN PART.
IT IS FINALLY ORDERED that Plaintiff “Motion for Leave to File Plaintiffs’s’ [sic] Response to Defendant Romero’s Supplemental Brief in Support of Motion to Dismiss” (ECF No. 161) is GRANTED.
Notes
. The Fifth Circuit Court of Appeals recently adjudicated Defendant Alejandro Romero’s interlocutory appeal of the Court’s "Order Granting in Part and Denying in Part Motions to Dismiss” (ECF No. 132) [hereinafter "Order”], filed on July 6, 1015, in the above-captioned cause. U.S. Ct. of Appeals Mandate and J., Oct. 4, 2016, ECF No. 152 [hereinafter "Fifth Circuit Judgment”]. The Fifth Circuit reversed and remanded the Court's determination that Defendant Romero did not properly invoke qualified immunity and instructed the Court to "determine on remand whether [Defendant] Romero is entitled to qualified immunity in the first instance.” Id. at 4.
. The Court notes that Plaintiff filed her response to Defendant Romero’s Supplemental Brief one day late and on the same day that she filed her "Motion for Leave to File Plaintiffs’s’ [sic] Response to Defendant Romero’s Supplemental Brief in Support of Motion to Dismiss” (ECF No. 161), although the Court has not yet ruled on this motion. Plaintiff is reminded that leave of Court must be requested and obtained prior to filing untimely documents.
.To be sure, Plaintiff does not explicitly assert an excessive-force claim, as she titles her first claim for relief “Violation of Constitutional Right to be Free From Unreasonable Seizures and Deprivation of Life.” Fourth Am. Compl. 12, Apr. 30, 2015, ECF No. 116. In that claim, however, Plaintiff specifically argues that Defendants Flores and Romero "used excessive force against Daniel Saenz.” Id. at 14. This allegation has been present in Plaintiff’s various complaints, dating back to her original complaint, in which she asserted that "Defendants' ... use of excessive force ... constitute^] [a] violation[ ] of Daniel Saenz’s civil and constitutional rights.” Compl. 7, June 26, 2014, ECF No. 1. For this reason, the Court has consistently construed Plaintiff's claim as one alleging excessive-force. See, e.g., Order on Flores's Mot. Dismiss 9; Order at 8-9 n.3. Defendant Romero also construes Plaintiff as asserting an excessive-force claim. Mot. Dismiss 18 ("Plaintiff also asserts a section 1983 claim against Romero for ... excessive force .... ”).
. See Alex Kozinski & Andrew Bentz, Privatization and its Discontents, 63 Emory L.J. 263, 272 (2013) ("But what’s troubling about Fi-larsky is where it leaves Richardson .... The tension between Filarsky and Richardson will likely cause no end of trouble.”); see also Karen Blum et. al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 640-42 (2013) ("Thus, since Filarsky, it is unclear whether private actors acting under color of state law and vulnerable to suit under Section 1983 are entitled to qualified immunity.”) ("Richardson and Filarsky are inconsistent....”) (“[I]t remains unclear how the attorney in Filarsky is different from the private prison guards in Richardson .... There will inevitably be a circuit split on this issue in the near future, and the Supreme Court will undoubtedly revisit the question”) (italics added for case names) (collecting cases post-Filarsky with varying results in applying qualified immunity to private actors).
. "The Richardson opinion, upon which lower courts principally rely, fails to address complex issues of precedent and to clarify its own logic in applying the standard. Lower courts have unsurprisingly reached contradictory results in trying to apply Richardson, Richardson’s treatment of history is unclear .... The policy determination is also confusing.” Developments in the Law—State Action and the Public /Private Distinction, III. Private Party Immunity from Section 1983 Suits, 123 Harv. L. Rev. 1266, 1270 (2010) (italics added for case names). Accordingly, ”[l]ower courts have varied widely in applying Richardson, with the majority of cases denying qualified immunity.” Id. at 1271; see also Andrew W. Weis, Note, Qualified Immunity for "Private” § 1983 Defendants after Filarsky v. Delia, 30 Ga. St. U. L. Rev. 1037, 1055-56 (2014) ("Richardson presented problems for lower courts. First Richardson ... specified that the inquiry into private party qualified immunity proceeds by analyzing the historical and policy bases for immunity, but failed to show to what extent these bases must be present to actually support immunity. Additionally, Richardson left open the question of whether a historical or policy basis alone might support immunity or whether both were required."). Filarsky also is not particularly helpful. Rather than clarifying the Richardson standard, Filarsky merely claims to apply it by distinguishing it and ultimately reaches the opposite result. See Filarsky,
. The Fifth Circuit acknowledged that Bush was decided in the Fourth Amendment context but determined that “it was nonetheless relevant to the present case” because the Fifth Circuit has "demonstrated a tendency to 'blur' the lines between Fourteenth Amendment and either Fourth or Eight Amendment excessive force standards.” Kitchen,
.In arguing that Plaintiff has failed to properly plead a § 1983, excessive-force claim, Defendant Romero attempts to liken the instant case to Jackson v. Buckman, a case where a pretrial detainee asserted a § 1983, excessive-force claim against two jail nurses after they dragged him to his bed, causing an injury to his back. See Suppl Br. 16-17 (citing and discussing
. The Court has previously noted that Plaintiff asserts that the video "is a true and correct copy of the video tape from the jail,” Fourth Am. Compl. 7, and Defendant Romero does not dispute this. Thus, "[bjecause the parties agree that [the] video is accurate, [the Court] must ‘view[ ] the facts in the light depicted by the videotape.’ ” Rynearson v. United States,
. For example, while one portion of the video depicts two individuals using mops to clean something off of the floor in one part of the jail, it is not at all clear that the "something’’ is blood and that the blood belonged to Saenz.
. Therefore, the Court's original ruling on Defendant Romero's Motion to Dismiss remains the same. The Court had previously granted the Motion to Dismiss as to Plaintiff’s (1) Fourth Amendment claim, Order 9-10; (2) deprivation-of-life claim, id. at 10-11; and (3) negligence claims (with the exception of Plaintiff’s claim for the negligent use of handcuffs), id. at 25-33. The Fifth Circuit did not disturb the Court's holding as to these claims; thus the Court has not addressed them here. The Court had also previously denied the Motion to Dismiss as to Plaintiff’s § 1983 excessive-force claim. Id. at 11-25. The limited inquiry on remand is whether Defendant Romero is entitled to qualified immunity on this claim and whether that determination affects the Court’s previous ruling on his Motion to Dismiss. Fifth Cir. J. 4. As outlined above, the Court concludes that Defendant Romero is not entitled to qualified immunity, and the Court’s holding denying dismissal on this basis is unaffected. Consequently, Plaintiff’s remaining claims against Defendant Romero are: (1) a negligence claim for his use of handcuffs; and (2) a § 1983 excessive-force claim.