BARBARA THOMPSON NEVEAH NYA LISA MCCONNELL ESTATE OF MICHAEL THOMPSON v. ALONZO MARTINEZ (2025)

ORDER

On this day, the Court considered the Motions to Dismiss filed by Officers Jesus Cobos (“Cobos Mot.”), ECF No. 40, Michael Arias (“Arias Mot.”), ECF No. 51, Dominic Guerrero (“Guerrero Mot.”), ECF No. 53, Chief of Texas Tech-El Paso Police Department Kyle K. Bonath (“Bonath Mot.”), ECF No. 42, and the City of El Paso (“City Mot.”), ECF No. 65. For the following reasons, the Cobos, Arias, Guerrero, and City Motions are GRANTED in part and DENIED in part, and the Bonath Motion is GRANTED in full.

I. BACKGROUND

A. Factual Allegations

This civil rights case stems from a fatal encounter between police officers in El Paso, Texas and Michael Thompson on June 27, 2022. The following facts are derived from the allegations in Thompson's Amended Complaint, ECF No. 25, and are taken as true for purposes of adjudicating the Motions.See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002). The chronology of events in the Amended Complaint is unclear and often internally inconsistent; the account that follows reflects the Court's best estimate of what occurred, and when, based on a reading of the allegations “in the light most favorable to” Plaintiffs.See id.

Thompson was a United States Army Veteran who served overseas before being discharged. Am. Compl. ¶¶ 15, 17–18. After his service, Thompson suffered from post-traumatic stress disorder. Id. ¶ 18. On the night of June 27, 2022, Thompson was walking toward a 7-Eleven convenience store when he passed Jesus Cobos, a Texas Tech El Paso Police Department (“TTEPPD”) officer working an off-duty security shift for a nearby Walmart. Id. ¶¶ 20–24, 61. Cobos began following Thompson, which made him feel paranoid and triggered “a mental health episode.”Id. ¶¶ 23, 25. Recognizing that he was lapsing into a state of increasing paranoia and “mental distress,” Thompson entered the 7-Eleven and asked the store clerk to call 911. Id. ¶¶ 25–26. The clerk, observing that Thompson appeared to be experiencing visual and auditory hallucinations, complied, calling 911 and requesting assistance. Id. ¶ 27. Plaintiffs provide no allegations regarding what sort of assistance—whether for medical or police intervention—the 7-Eleven clerk requested. Id.

In either event, El Paso Police Department (“EPPD”) Officer Dominic Guerrero responded to the call and encountered Thompson in the 7-Eleven parking lot. Id. ¶¶ 28, 33. Thompson, still gripped by paranoia, told Guerrero, “You look like a thug, and you're going to kill me.” Id. ¶¶ 15, 29, 32. Guerrero then took Thompson to the ground, pinned him face-down in a prone position, and applied his full body weight across Thompson's back. Id. ¶ 33. EPPD Officer John Spencer then arrived on the scene. Id. ¶¶ 6, 34. Spencer immediately joined Guerrero in restraining Thompson face-down on the ground. Id.¶ 34. EPPD Officer Thomas Sneed arrived shortly thereafter, deployed a taser on Thompson,and placed him in handcuffs. Id. ¶¶ 5, 35, 121.

At some point—seemingly shortly after Thompson was handcuffed—Cobos, who had not been involved since initially following Thompson, returned to the scene. Id. ¶ 36. EPPD Officers Michael Arias and Alonzo Martinez also arrived around the same time. Id. ¶¶ 9, 94, 95, 103. Cobos assisted in restraining Thompson. Id. ¶ 38. Arias placed “his left knee over Thompson's knee and thigh area to hold him down[ ] and began to strike him.” Id. ¶ 95. He then pressed Thompson's head down with his left hand and applied his right forearm across Thompson's shoulder blades, further restricting his ability to breathe. Id. ¶96. Martinez did not intervene and instead took photographs of Thompson. Id. ¶ 103.

EPPD Sergeant Jacqueline Aguilera arrived soon after to supervise the scene. Id. ¶ 80. At this point, Thompson, still handcuffed, was “bent over the hood of a patrol unit,” “moving his body from side to side, yelling and screaming.” Id. ¶¶ 81–82. The Officers then collectively placed Thompson—handcuffed and face-down—into the back of Guerrero's squad car. Id. ¶ 42. As he was being moved, Thompson went limp and stopped breathing. Id. ¶¶ 39, 42, 44. Despite this, Spencer and Sneed tased him at least four more times. Id. ¶ 45. Then Aguileraobserved that Thompson was unresponsive and questioned whether he was experiencing a severe mental health episode or a physical medical emergency. Id. ¶¶ 84–85.

Although Emergency Medical Services (“EMS”) personnel from the El Paso Fire Department had arrived by then, they did not intervene. Id. ¶¶ 86, 207, 209.Instead, Spencer and Sneed checked Thompson's eyes and confirmed that he was unresponsive. Id. ¶ 87. A paramedic then checked his pulse and reported that he had none. Id. ¶ 216. Even so, EMS personnel left Thompson in the vehicle. Id. ¶ 217. Sneed and Arias then removed Thompson from the squad car and sat him upright on the ground. Id. Arias conducted a pat-down search of Thompson. Id. ¶¶ 223–24. Aguilera then ordered that Thompson be administered Narcan. Id.¶¶ 49, 50, 88. When he remained unresponsive, EMS personnel began CPR and arranged for transport to a nearby hospital. Id. ¶¶ 125, 225. Thompson arrived at 1:36 a.m. and was pronounced dead eleven minutes later. Id. ¶¶ 127, 133. The medical examiner ruled his death a homicide, citing restraint asphyxia, blunt force trauma, and electro-muscular excitation from taser deployments. Id. ¶¶ 134, 137.

B. Procedural History

Plaintiffs—Thompson's mother, his children, and his stepmother, as representative of his estate—filed this lawsuit in state court on June 27, 2024, exactly two years after the incident, asserting a variety of claims. See generally Notice Removal Ex. B (“Original Pet.”), ECF No. 1-3; Notice Removal ¶ 4, ECF No. 1. The case was removed on August 7, 2024, under 28 U.S.C. §§ 1441 and 1331. See Notice Removal ¶¶ 2–3. Plaintiffs filed the operative Amended Complaint on October 8, 2024. See generally Am. Compl.

Plaintiffs' statements of their causes of action are frequently incoherent, see, e.g., Am. Compl. ¶¶ 238, 240, making it difficult at times to discern which claims are being asserted against which Defendants. Viewed in the light most favorable to Plaintiffs, they appear to assert: (1) Fourth Amendment claims for unlawful detention and excessive force against Officers Cobos, Guerrero, Arias, Sneed, Spencer, and Martinez (the “Officers”), id. ¶¶ 158–61; (2) Fourteenth Amendment claims for equal protection violations and deliberate indifference to medical needs against those same Officers and Sergeant Aguilera, id. ¶¶ 85, 158, 238; (3) state law assault and battery claims against each Officer and Aguilera, id. ¶ 240; (4) a supervisory liability claim against Bonath, id. ¶¶ 197, 236–37; and (5) Monell claims against the City of El Paso based on alleged unconstitutional policies and customs as well as failures to train and discipline, id. ¶¶ 163–95, 201–04. The Amended Complaint also asserted a negligence claim against Walmart, which was dismissed on April 25, 2025, as barred by the statute of limitations. See Apr. 25, 2025, Order 8–9, ECF No. 76.

Cobos filed a Motion to Dismiss on October 19, 2024. Plaintiffs responded, see Pls.' Resp. Cobos, ECF No. 46, and Cobos did not reply. Bonath filed his Motion on October 24, to which Plaintiffs responded, see Pls.' Resp. Bonath, ECF No. 50; he also filed no reply. Both Arias and Guerrero moved to dismiss on November 8, Plaintiffs responded to both together, see Pls.' Resp. Arias & Guerrero, ECF No. 59, and both replied separately, see Arias Reply, ECF No. 60; Guerrero Reply, ECF No. 70. Finally, the City of El Paso filed its Motion to Dismiss on December 12, Plaintiffs responded, see Pls.' Resp. COEP, ECF No. 67, and the City did not reply. Cobos filed a Rule 12(c) motion; the others all filed Rule 12(b)(6) motions. Additionally, in its Motion, the City seeks dismissal of all claims against all individual officers—including those who did not separately move to dismiss—both on the basis that Plaintiffs failed to effect service within the statute of limitations and that all individual officers are entitled to qualified immunity. See City Mot. 12–15, 23–24.

II. DISCUSSION

A. Standard

1. 12(b)(6) 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 all well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Calhoun, 312 F.3d at 733 (citation omitted); see also Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citation omitted). 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, 555, 570 (2007); see alsoColony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011) (citation omitted). “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 (2009) (citation omitted).

“[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (cleaned up); 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 (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 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

2. 12(c) Standard

Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Rule 7(a) provides that the pleadings are closed upon the filing of a complaint and an answer ․” 5C Wright & Miller, Federal Practice & Procedure, § 1367 (3d ed. 2004) (footnote omitted). The court must “assume that the allegations of fact presented by the opposing party are true ․ and must further view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Smith v. McMullen, 589 F. Supp. 642, 644 (S.D. Tex. 1984) (citations omitted); see 5C Wright & Miller, § 1368 (“It is axiomatic ․ that for purposes of the court's consideration of the Rule 12(c) motion, all of the well-pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false.”).Functionally, then, the 12(c) standard is the same asthe 12(b)(6) one.

3. Qualified Immunity

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 (2015)). “When a defendant invokes qualified immunity, the burden shifts to the plaintiff to” show that the defense does not apply. Id. (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). 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.” Id. at 847–48 (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)). But “an assertion of qualified immunity in a defendant's ․ motion to dismiss does not subject the complaint to a heightened pleading standard.” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020)(citing Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016)). Rather, plaintiffs need only “plead qualified-immunity facts with the minimal specificity that would satisfy Twombly and Iqbal.” Id.

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.” Lincoln, 874 F.3d at 848 (quoting Lincoln v. Barnes, 855 F.3d 297, 301 (5th Cir. 2017)). ). “This inquiry ‘does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Id. (quoting Barnes, 855 F.3d at 301). 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.” Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004)).

B. Analysis

First, the City moves to dismiss all claims against itself and each individual Officer—except Cobos, who is not an EPPD officer—as barred by limitations. City Mot. 9–16; see also Arias Mot. ¶¶ 8–10; Guerrero Mot. ¶¶ 10–12. Next, both Guerrero and Arias seek dismissal of Plaintiffs' Fourth Amendment claims for unlawful detention and excessive force, arguing that the Complaint fails to state a claim and that they are entitled to qualified immunity. Arias Mot. ¶¶ 19–26; Guerrero Mot. ¶¶ 13–19. Cobos does not seek dismissal on these grounds, conceding that the Fourth Amendment claims against him “probably, though barely, pass[ ] muster at the pleadings stage.” Cobos Mot. 3. Cobos, Arias, and Guerrero all move to dismiss Plaintiffs' Fourteenth Amendment deliberate indifference to a medical emergency claims, id. at 7; Arias Mot. ¶¶ 12–18; Guerrero Mot. ¶ 13, as well as the equal protection claims, Cobos Mot. 8; Arias Mot. ¶ 27; Guerrero Mot. ¶ 20. All three also seek dismissal of Plaintiffs' state law assault and battery claims. Cobos Mot. 8–10; Arias Mot. ¶¶ 33–37; Guerrero Mot. ¶¶ 21–22. Bonath moves to dismiss the supervisory liability claim against him, also arguing that Plaintiffs have failed to state a claim and that he is entitled to qualified immunity. Bonath Mot. 5–6. Finally, the City moves to dismiss all claims against its remaining Officers on qualified immunity grounds, and to dismiss all claims against itself under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). City Mot. 16–24.

1. Statute of Limitations

The City of El Paso, Guerrero, and Arias argue that all of Plaintiffs' claims are barred by limitations due to untimely and non-diligent service. City Mot.9–16; Arias Mot. ¶¶ 8–10; Guerrero Mot. ¶¶ 10–12.In doing so, Defendants rely on Texas law, which generally requires that a plaintiff both file suit and serve the defendant within the applicable limitations period. See City Mot. 10 (citing Tex. Civ. Prac. & Rem. Code § 16.003); Arias Mot. ¶¶ 9–10 (same); Guerrero Mot. ¶ 11 (same).

Almost all of Plaintiffs' claims arise under 42 U.S.C. § 1983, a federal law that allows individuals to sue state and local government officials alleged to have violated their civil rights. That statute does not contain its own limitations period. Heilman v. City of Beaumont, 638 F. App'x 363, 366 (5th Cir. 2016). Therefore, in § 1983 actions, federal courts apply the forum state's general statute of limitations for personal injury claims. Id. (citing Piotrowski v. City of Houston, 238 F.3d 567, 576 (5th Cir. 2001)). In Texas, that period is two years. Tex. Civ. Prac. & Rem. Code § 16.003(a); Heilman, 638 F. App'x at 366 (citations omitted). And when the injury results in death, the claim accrues on the date of death. Tex. Civ. Prac& Rem. Code § 16.003(b).

Here, Plaintiffs filed suit on June 27, 2024—one day before the limitations period expired following Thompson's June 28, 2022, death. See Original Pet. 1.Defendants contend that, under Texas law, Plaintiffs were also required to serve each Defendant within the two-year period, and that they did not. City Mot. 10; Arias Mot. ¶ 10; Guerrero Mot. ¶ 12. It is true that for claims under Texas law, satisfying the statute of limitations ordinarily requires both filing and service of process within the deadline. Ortega v. Young Again Prods., Inc., 548 F. App'x 108, 113 (5th Cir. 2013) (citing Slagle v. Prickett, 345 S.W.3d 693, 697 (Tex. App. 2011)). And if service is delayed, the plaintiff must show due diligence in attempting to effectuate it. Id. (citing Slagle, 345 S.W.3d at 697). If they do not, the claims are barred and must be dismissed.¹ Id.

But that service requirement applies only to state law claims—it does not govern federal claims brought in federal court. See Vela v. City of Austin, No. 1:15-cv-1015-RP, 2016 WL 1583676, at *3 (W.D. Tex. Apr. 19, 2016) (citing Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1986)). Section 1983 is a federal cause of action. Accordingly, while state law determines the length of the limitations period, federal law controlswhat actions must be taken for a lawsuit to be timely. See id.; see also Jackson v. Duke, 259 F.2d 3, 6 (5th Cir. 1958) (“While state law controls [federal claims] as to the time within which an action must be begun, the manner in which it is commenced and when it is deemed to have begun, being procedural and not substantive, is covered by the Federal Rules of Civil Procedure.” (citations omitted)). And under the Federal Rules of Civil Procedure, a “civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3. Thus, for federal claims, the filing date alone—not the date of service—controls for limitations purpose. See Henderson v. United States, 517 U.S. 654, 657 n.2 (1996) (“In a suit on a right created by federal law, a complaint suffices to satisfy the statute of limitations.”). Because Plaintiffs filed suit within the two-year period, their § 1983 claims are not time-barred.

This covers all of Plaintiffs' claims except their state-law assault and battery claims. And because, as discussed below, those claims—as least as to the EPPD Officers—are dismissed as barred by the Texas Tort Claims Act (“TTCA”), the Court need not reach the statute of limitations issue.

2. Section 1983 Claims Against theIndividual Officers

The Officers next argue that they are entitled to qualified immunity from Plaintiffs' § 1983 claims against them in their individual capacities.

a. Wrongful Detention

Plaintiffs allege that Thompson was unlawfully detained when officers physically restrained him, placed him in handcuffs, and put him in the back of a squad car. Am. Compl. ¶¶ 158–61. They assert wrongful detention claims against Officers Guerrero, Sneed, Spencer, Arias, Martinez, and Cobos. Id.

The Fourth Amendment protects individuals from unreasonable searches and seizures. United States v. Flowers, 6 F.4th 651, 655 (5th Cir. 2021). A person is “seized” when an officer restrains their freedom of movement by force or show of authority such that, under the totality of the circumstances, a reasonable person would not feel free to leave. Id. (citations omitted).

The level of protection afforded under the Fourth Amendment depends on the nature of the seizure. Lincoln, 874 F.3d at 840. Ordinarily, seizures arise in the context of suspected or actual criminal activity. See Matz v. Klotka, 769 F.3d 517, 522 (7th Cir. 2014). In such cases, an officer may briefly detain an individual based on reasonable suspicion or arrest them based on probable cause. Id. (citations omitted); see also United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014); United States v. Zukas, 843 F.2d 179, 181–82 (5th Cir. 1982). But Thompson was not suspected of any crime. Am. Compl. ¶¶ 41, 65. Rather, Plaintiffs allege that Thompson was experiencing—or feared he was about to experience—a psychotic episode, and explicitly sought help by asking the 7-Eleven clerk to call 911. Id. ¶¶ 25–26.

In such circumstances, the Fourth Amendment requires that the seizure be supported by probable cause. See Cantrell v. City of Murphy, 666 F.3d 911, 923 (5th Cir. 2012); Maag v. Wessler, 960 F.2d 773, 775–76 (9th Cir. 1991) (“Although there are few decisions that discuss the fourth amendment standard in the context of seizure of the mentally ill, all have recognized the proposition that such a seizure is analogous to a criminal arrest and must therefore be supported by probable cause.” (collecting cases)); see also, e.g., Rose v. Herrera, No. 21-cv-186, 2023 WL 10476031, at *6 (S.D. Tex. Feb. 8, 2023); Lupi v. Diven, No. 1:20-cv-207-RP, 2020 WL 6324396, at *7 (W.D. Tex. Oct. 27, 2020).

And under Texas law, an officer has probable cause to detain a person experiencing a mental health crisis if (1) the officer reasonably believes that, due to mental illness, there is a substantial risk of serious harm to the individual or others unless immediately restrained, and (2) the officer believes there is insufficient time to obtain a warrant. Cantrell, 666 F.3d at 923 (citing Tex. Health & Safety Code § 573.001); Lupi, 2020 WL 6324396, at *7 (citation omitted). “Mental illness” is defined as a condition that substantially impairs thought, perception of reality, emotional process, or judgment, or grossly impairs behavior as evidenced by recent disturbed conduct. Cantrell, 666 F.3d at 923 (citing Tex. Health & Safety Code § 573.003). And a “substantial risk of serious harm” may be shown by the person's behavior or evidence of severe emotional distress such that they cannot remain safely at liberty. Rich v. Palko, 920 F.3d 288, 295 (5th Cir. 2019) (citing Tex. Health & Safety Code § 573.001(b)). Officers may base their belief that the statutory criteria for apprehension have been met by relying on either their own impressions of the person's conduct or credible third-party reports. Id. (citing Tex. Health & Safety Code § 573.001(c)).

i. Guerrero

First, Plaintiffs allege that Guerrero unlawfully detained Thompson by initiating his seizure without any legal basis. Am. Compl. ¶¶ 108, 114. Guerrero moves to dismiss the unlawful detention claim, arguing that Plaintiffs have failed to allege how he was personally involved in any unlawful detention, and that, in any event, he is entitled to qualified immunity. Guerrero Mot. ¶¶ 17–19.

Specifically, Guerrero contends that Plaintiffs merely claim that he was part of a group of officers who “participated and watched,” and that such generalized assertions cannot sustain a claim for unlawful detention. Id. ¶ 17 (citing Am. Compl. ¶ 160). But Gerrero errs by focusing only on the specific allegations made under the Amended Complaint's “Fourth Amendment Unreasonable Seizure” header. See Am. Compl. ¶¶ 158–61. Plaintiffs are not limited to the allegations presented under a specific claim header. Arevalo v. City of Farmers Branch, No. 16-cv-1540, 2017 WL 5569841, at *4 n.6 (N.D. Tex. Nov. 20, 2017) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Indeed, “there is no requirement as to where in the complaint plaintiffs must allege the facts supporting their claim because courts ‘must consider the complaint as a whole.’ ” Oldridge v. City of Wichita, No. 21-cv-1284, 2022 WL 17338334, at *13 (D. Kan. Nov. 30, 2022)(quoting Lander v. Summit Cnty Sch. Dist., 109 F. App'x 215, 217 (10th Cir. 2004)).

And here, Plaintiffs make particularized allegations regarding Guerrero's individual role in the incident elsewhere in the Amended Complaint. They allege that Guerrero was the first officer to arrive following the 911 call. Am. Compl. ¶ 28. Then, upon arrival, and after Thompson said “You look like a thug, and you're going to kill me,” Guerrero wrestled Thompson to the ground, placed him in a prone position, and applied his full body weight to Thompson's back. Id. ¶¶ 15, 32–33. Plaintiffs further allege that, after Thompson was handcuffed, he was placed in Guerrero's patrol car. Id. ¶ 207. By describing the specific acts taken by Guerrero to detain Thompson, Plaintiffs satisfy the requirement that allegations be made about each § 1983 defendant's particular wrongdoing, rather than a group of officers' collective misconduct. See, e.g., Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007).

The question, then, is whether Guerrero reasonably believed that Thompson posed a substantial risk of serious harm to himself or others—and thus had probable cause to detain him. Cantrell, 666 F.3d at 923. Plaintiffs allege that Thompson recognized his own mental state was deteriorating and asked the 7-Eleven clerk to call 911. Am. Compl. ¶ 26. The clerk observed that Thompson appeared to be experiencing visual and auditory hallucinations. Id. ¶ 27. And when Guerrero arrived, Plaintiffs allege that Thompson “remained in the same mental state” and expressed fear that Guerrero was going to kill him. Id.¶¶ 29, 32.

As discussed above, an officer may rely on either their own observations or a credible report from a thirdparty to form a belief that a person meets the criteria for emergency apprehension. In assessing third-party credibility, police are permitted to presume an unknown caller is credible absent special circumstances suggesting otherwise. Lawson v. Marion County, No. 13-cv-105, 2014 WL 5761121, at *4 (E.D. Tex. Nov. 5, 2014) (citing United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997)). There are no such “special circumstances” alleged here. Thus, when Guerrero encountered Thompson, he had both (1) a presumptively credible third-party report from the 7-Eleven clerk indicating that Thompson was mentally unstable and (2) his own direct observations of Thompon's paranoid and erratic behavior.

In similar circumstances, courts have upheld probable cause determinations. For example, in Rose, officers detained a person based on a third-party report and their own observations of agitated, paranoid behavior—the court found that seizure constitutional. 2023 WL 10476031, at *2, 7. In Martinez v. Smith, officers detained a woman after a thirdparty reported suicidal behavior. 200 F.3d 816 (5th Cir. 1999). Though the plaintiff insisted that she was fine, the Fifth Circuit held that her behavior—such as sitting abruptly on the floor in the middle of a conversation with the officers—could reasonably support a finding that she posed a danger to herself. Id.; see also Palko, 920 F.3d at 295–96. Guerrero, like the officers in these cases, had reasonable grounds to believe that Thompson posed a substantial risk of serious harm to himself or others due to mental illness, satisfying the first prong of the probable cause test.

As to the second requirement, the record contains no allegations that Guerrero had time to obtain a warrant. On the contrary, Thompson himself allegedly initiated the 911 call seeking immediate help, which suggests exigency. See Grisham v. Valenciano, 93 F.4th 903, 911 (5th Cir. 2024) (citing Navarette v. California, 572 U.S. 393, 399–400 (2014)); United States v. Collins, 110 F. App'x 701, 704 (7th Cir. 2004) (collecting cases).

Taken together, these allegations establish that Guerrero had probable cause to detain Thompson for emergency mental health intervention. Therefore, Plaintiffs' wrongful detention claim against Guerrero is dismissed.

ii. Spencer, Sneed, Arias, and Martinez

Next, Plaintiffs allege thattheother Officersarrived on the scene and assisted Guerrero in restraining and unlawfully detaining Thompson. See Am. Compl. ¶ 158. Arias moves to dismiss any unlawful detention claim asserted against him, see Arias Mot. ¶ 11, and the City moves to dismiss any such claim against Officers Spencer, Sneed, and Martinez, see City Mot. 23–24.

When evaluating qualified immunity, the Court must assess each officer's entitlement individually. Meadours, 483 F.3d at 421(collecting cases). But this does not require a separate analysis for each officer when their actions are materially indistinguishable—it requires only that the Court consider each officer's individual conduct. Id. at 422 n.3.

Here, while the precise allegations differ—Spencer helped Guerrero restrain Thompson on the ground; Sneed placed him in handcuffs; Arias held him down with a knee to the thigh; and Martinez stood nearby taking photographs—the analysis is the same.See Am. Compl. ¶¶ 34, 95, 103, 121. The claim at issue here is unlawful detention, not excessive force. And for purposes of unlawful detention, the critical question is not the degree of force used, but whether the Officers had probable cause to detain Thompson in the first place. On that point, all four officers stand in the same position: Each arrived after Guerrero had already initiated the detention and each is alleged to have acted in support of that detention based on the same set of facts. Plaintiffs do not allege that any of these Officers had different or additional information. Their actions with respect to the detention are thus materially indistinguishable, and a separate analysis for each Officers' actions is not necessary. See, e.g., Goode v. Baggett, 811 F. App'x 227, 237 (5th Cir. 2020).

And, although it is unclear what these Officers personally observed about Thompson's mental state, Plaintiffs' allegations establish that Guerrero had probable cause to detain him—and “probable cause can rest upon the collective knowledge of the police.” United States v. Webster, 750 F.2d 307, 323 (5th Cir. 1984) (quoting United States v. Ashley, 569 F.2d 975, 983 (5th Cir. 1978)); United States v. Butler, 611 F.2d 1066, 1070 n.11 (5th Cir. 1980) (“Collective knowledge rather than the sole knowledge of any individual officer is the factor to be considered when determining the existence of probable cause.” (citation omitted)). Thus, even if the other Officers lacked firsthand knowledge of the facts establishing probable cause, they were entitled to rely on Guerrero's assessment. See, e.g., United States v. Robinson, No. 08-cv-24, 2008 WL 11449399, at *3 (W.D. La. May 13, 2008) (citing Charles v. Smith, 894 F.2d 718, 724 (5th Cir. 1990)), adopted, 2008 WL 11449400 (July 18, 2008), aff'd, 344 F. App'x 936 (5th Cir. 2009).Accordingly, Plaintiffs have not plausibly alleged that Spencer, Sneed, Arias, or Martinez unlawfully detained Thompson in violation of the Fourth Amendment.

In sum, Plaintiffs' wrongful detention claims against Guerrero, Arias, Spencer, Sneed, and Martinez are dismissed.

b. Excessive Force

Next, Plaintiffs allege that each Officer used excessive force against Thompson when they detained him. Am. Compl. ¶¶ 158–61. Guerrero and Arias move for dismissal of these claims, and the City moves for dismissal of the claims on Spencer, Sneed, and Martinez's behalf. Guerrero Mot. ¶ 17; Arias Mot. ¶ 11; City Mot. 23–24.

The Fourth Amendment governs “all claims that law enforcement have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen.” Graham v. Connor, 490 U.S. 386, 395 (1989). Courts analyze a claim for excessive force “without regard to whether the arrest itself was justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (collecting cases).

To state a claim for excessive force, a plaintiff must allege facts that show “(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018) (internal quotation marks omitted) (quoting Windham v. Harris County, 875 F.3d 229, 242 (5th Cir. 2017)). This is a fact-intensive inquiry that depends on the “circumstances of each particular case.” Bagley v. Guillen, 90 F.4th 799, 803 (5th Cir. 2024) (quoting Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012)). And “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (citation omitted).

A “de minimis injury is not cognizable” under § 1983. Sam, 887 F.3d at 713 (quoting Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017)). But “[a]ny force found to be objectively unreasonable necessarily exceeds the de minimis threshold.” Id. (quoting Alexander, 854 F.3d at 309); Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022) (“[T]he extent of injury necessary to satisfy the injury requirement is ‘directly related to the amount of force that is constitutionally permissible under the circumstances.’ ”(quoting Alexander, 854 F.3d at 309)). And the “second and third elements [of an excessive force claim] collapse into a single objective reasonableness inquiry.” Peña v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 381 (2007)). “Consequently, only one inquiry is required to determine whether an officer used excessive force in violation of the Fourth Amendment”—i.e., whether the force was reasonable. Sam, 887 F.3d at 713 (quoting Alexander, 854 F.3d at 309).

In turn, this inquiry is guided by the so-called Graham factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). Courts must also consider not just the need for force, but whether the amount of force used was proportionate to that need. Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2020) (quoting Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). In particular, when dealing with an “uncooperative arrestee,” officers should use “measured and ascending actions that correspond to [the arrestee's] escalating verbal and physical resistance.” Cloud, 993 F.3d at 384 (alteration in original) (quoting Joseph, 981 F.3d at332–33). And an officer may not use any force against a person who has “committed no crime, posed no threat to anyone's safety, and did not resist the officers or fail to comply with a command.” Bagley, 90 F.3d at 803 (quoting Newman, 703 F.3d at 762, 764).

Beginning with the injury requirement, Thompson died shortly after the altercation with the Officers. The medical examiner ruled his death a homicide, citing restraint asphyxia, blunt force trauma, and electro-muscular excitation. Am. Compl. ¶¶ 134, 137. And Plaintiffs plausibly allege that several of the Officers contributed to this result. Guerrero, the first Officer on the scene, tackled Thompson, pinned him in prone position, and applied his full body weight to Thompson's back. Id. ¶ 33. That conduct plausibly caused restraint asphyxia, which occurs when a person's breathing is impaired by the way they are physically restrained. See, e.g., Lou v. Lopinto, No. 21-cv-80, 2023 WL 3976132, at *8 (E.D. La. June 13, 2023). Later, Arias arrived and allegedly pressed Thompson's head down with one hand while placing his forearm across Thompson's shoulder blades—further restricting his ability to breathe. Am. Compl.¶ 96. Arias also struck Thompson while he was already restrained. Id. ¶ 95. And Plaintiffs allege that Sneed and Spencer repeatedly tased Thompson, plausibly causing the electro-muscular excitation identified in the autopsy. See id. ¶¶ 45, 100, 118, 137.

Plaintiffs acknowledge that one of the medical examiners detected methamphetamine in Thompson's system, which could weaken the heart.Id. ¶ 154. But that does not defeatcausation—that is, that the injury “resulted directly and only from” the Officers' use of force. Sam, 887 F.3d at 713.First, the examiner did not state that methamphetamine contributed to Thompson's death—only that it was present and may, in general, weaken the heart. Am. Compl. ¶ 155. Second, under the “eggshell skull rule,” a tortfeasor takes the victim as they find him. Darden v. City of Fort Worth, 880 F.3d 722, 728 (5th Cir. 2018) (citations omitted). Thus, even if an individual is more vulnerable to injury or death, the defendant remains liable if their conduct caused the harm—even if it would not have harmed a healthier person. See Goode v. Baggett, 811 F.App'x 227, 231 (5th Cir. 2020) (citing Darden, 880 F.3d at 728). This principle applies in excessive force cases under § 1983. Id. For instance, inAguirre v. San Antonio, the Fifth Circuit denied qualified immunity to an officer after a suspect died from prone-position restraint, despite the presence of cocaine in the suspect's system—a factor that “heighten[s] the risk of asphyxiation.” 995 F.3d 395, 404–05, 414 (5th Cir. 2021); see alsoPratt v. Harris County, 822 F.3d 174, 189 n.3 (5th Cir. 2016) (Haynes, J., concurring in part) (“[N]o case has held that ‘directly and only' literally means that no other cause contributed to the death in question.”). So too here:Plaintiffs plausibly allege that Thompson would not have died but for the Officers' actions. In any event, they also allege a range of other injuries—cuts and abrasions on his face, lesions on his back, head contusions, and widespread bruising—that align with the force used. See Am. Compl. ¶¶ 135–53; see, e.g., Sanchez v. Gomez, No. 3:17-cv-133-PRM, 2020 WL 1036046, at *24 n.21 (W.D. Tex. Mar. 3, 2020) (taser that caused “small abrasions” satisfied injury requirement).

Accordingly, Plaintiffs have established that Thompson (1) suffered an injury that (2) resulted directly from theOfficers' use of force. And several of the Officers may be held liable for those injuries if the force they used was objectively unreasonable under the Graham factors.

i. Guerrero

Beginning with the first Graham factor—the severity of the crime at issue—Plaintiffs allege that Thompson did not commit any crime, let alone a serious one. Am. Compl. ¶ 41. And where an individual is seized due to mental health concerns rather than suspected criminal activity, the first Graham factor “weigh[s] heavily” in the plaintiff's favor. Joseph, 981 F.3d at 333; see also Aguirre, 995 F.3d at 407 (first factor favored plaintiff where decedent was detained not on suspicion of criminal activity but due to “mental disturbance”); Knotts v. Ledbetter, No. 23-cv-2369, 2025 WL 360893, at *4 (N.D. Tex. Jan. 31, 2025) (same); Erwin v. Murray, No. 23-cv-1005, 2024 WL 2208715, at *6 (E.D. La. May 16, 2024) (same).

As for the second factor—whether Thompson posed an immediate threat to the safety of the Officers or others—the Court has already found that Guerrero had probable cause to believe that Thompson posed a substantial risk of serious harm to himself or others. But the inquiry does not end there. Officers must employ “measured and ascending” force. Joseph, 981 F.3d at 333. The speed with which an officer resorts to force—and whether he attempts de-escalation beforehand—bears on the reasonableness of force.Pena v. City of Rio Grande City, 816 F. App'x 966, 973 (5th Cir. 2020) (quoting Newman, 703 F.3d at 762). Here, Plaintiffs allege that Guerrero arrived, heard Thompson make an odd statement, and immediately pinned him face-down and applied his full body weight to Thompson's back—without any effort to de-escalate or communicate. Am. Compl. ¶¶ 32–33, 70. This factor thus also weighs in Plaintiffs' favor. See, e.g., Heckford v. Pasadena, No. 20-cv-4366, 2022 WL 209747, at *6 (S.D. Tex. Jan. 21, 2022) (escalating to force within twenty seconds was unreasonable); Faulkenberry v. Yost, No. 1:15-cv-1089-SS, 2018 WL 297615, at *5 (W.D. Tex. Jan. 3, 2018) (finding excessive force where officer tackled suspect with “little if any attempted negotiation”).

Turning to the third Graham factor, where a suspect does not resist arrest, the range of permissible force is significantly reduced. See Darden, 880 F.3d at 731 (citations omitted). Plaintiffs allege that Thompson never resisted arrest or attempted to flee. See Am. Compl. ¶¶ 47, 65. This weighs in their favor as well. See, e.g., Darden, 880 F.3d at 732 (finding a genuine issue of material fact where plaintiff alleged officers slammed him to the ground despite no resistance); Thomas v. Johnson, No. 23-cv-662, 2023 WL 5254689, at *5 (S.D. Tex. Aug. 15, 2023).

Finally, regarding the type of force Guerrero used, “exerting significant, continued force on a person's back while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” Aguirre, 995 F.3d at 416 (quoting McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016)). In sum, Plaintiffs have plausibly alleged that Guerrero violated Thompson's Fourth Amendment rights by using objectively unreasonable force. The Court therefore proceeds to the second prong of the qualified immunity analysis: whether Guerrero's conduct violated clearly established law.

An officer's conduct violates clearly established law when it infringes a person's Fourth Amendment rights and “controlling authority ․ defines the contours of the right in question with a high degree of particularity.” Id. (quoting Linicomnv. Hill, 902 F.3d 529, 538 (5th Cir. 2018). The key inquiry is whether existing law gave theofficer “fair warning” that their conduct was unconstitutional—i.e., whether the lawfulness was “beyond debate.” Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)).

“It has long been clearly established that, when a suspect is not resisting, it is unreasonable for an officer to apply unnecessary, injurious force against a restrained individual, even if the person had previously not followed commands or initially resisted seizure.” Aguirre, 995 F.3d at 416 (citing Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015)). Moreover, it has also “long been clearly established that the ‘continued use of bodyweight force to hold [a person] in the prone restraint position after [they are] subdued and restrained’ is unreasonable.” Ordonez v. Gonzalez, No. 3:23-cv-99-KC, 2024 WL 1250181, at *15 (W.D. Tex. Mar. 25, 2024) (quoting Timpa v. Dillard, 20 F.4th 1020, 1036–38 (5th Cir. 2021) (alterations in original)).

Here, Plaintiffs allege both that Thompson never resisted, and that Guerrero placed him in a prone position and used his full bodyweight to restrain him. Under clearly established law, that level of force under those circumstances was objectively unreasonable. See Timpa, 20 F.4th at 1036–38; Aguirre, 995 F.3d at 412. Therefore, because Guerrero is plausibly alleged to have used excessive force, and because established law would have put a reasonable officer on notice that such force violated the Fourth Amendment, Guerrero is not entitled to qualified immunity on Thompson's excessive force claims.

ii. Arias

As to Arias, he allegedly arrived after Thompson had already been restrained in the prone position and proceeded to press Thompson's head into the ground while applying his right forearm across Thompson's upper back. Am. Compl. ¶¶ 95–96. For the same reasons discussed above, the Graham factors weigh in Plaintiffs' favor: Thompson had not committed a crime; Arias is not alleged to have used “measured and ascending force” but instead immediately applied physical pressure; and Thompson is not alleged to have resisted or attempted to flee.

Further, also discussed above, “exerting significant, continued force on a person's back while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” Aguire, 995 F.3d at 412 (quoting McCue, 838 F.3d at 64). Likewise, applying pressure to a suspect's head when they are already on the ground and not resisting constitutes excessive force.Ordonez, 2024 WL 1250181, at *14 (citations omitted).

And as to the second prong of the qualified immunity analysis, it is clearly established that using force against a non-resisting individual in this manner—whether by pressing their head into the ground or applying body weight across their back—is unconstitutional. See Darden, 880 F.3d at 733; Timpa, 20 F.4th at 1036–38 (collecting cases). Accordingly, Arias is not entitled to qualified immunity on Plaintiffs' excessive force claim either.

iii. Spencer

Next, Plaintiffs allege that when Spencer arrived on scene, he immediately assisted Guerrero in restraining Thompson in a prone position. Am. Compl. ¶ 34. They further allege that, after Thompson was handcuffed and placed in the back of the squad car—and after he had stopped breathing—Spencer and Sneed tased him a total of four more times, though it is unclear how many of those tasings are attributable to Spencer personally. Id. ¶¶ 44–45.

As with Guerrero and Arias, the Graham factors favor Plaintiffs. Moreover, as held, applying continued pressure to a person's back while they are restrained in a face-down position constitutes excessive force. Aguirre, 995 F.3d at 412. So too does tasing a person who has already been subdued and handcuffed. Salazar, 2020 WL 13609390, at *17 (citing Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013)). Here, Thompson was not only restrained and handcuffed when Spencer tased him—he is alleged to have already stopped breathing. Under those circumstances, Spencer's alleged use of force was plainly excessive.

The second prong of the qualified immunity analysis is also satisfied. The Fifth Circuit has long held that applying pressure to a restrained person's back while in a prone position violates clearly established law. And the same is true for tasing an individual who is handcuffed and non-resistant. Boyd v. McNamara, 74 F.4th 662, 663 (5th Cir. 2023) (“[O]ur precedents conclusively establish that the use of a taser on a non-threatening ․ subject is an unconstitutionally excessive use of force.”); Salazar, 2020 WL 13609390, at *17 (citations omitted). Accordingly, Spencer is not entitled to qualified immunity on the excessive force claim either.

iv. Sneed

The allegations against Sneed are similar to those against Spencer. Plaintiffs allege that Sneed was the first to deploy a taser on Thompson and that, together with Spencer, he tased Thompson a total of four times—even after Thompson had stopped breathing. Am. Compl. ¶¶ 35, 44–47. They also allege that Sneed placed Thompson in handcuffs. Id. ¶ 121.

As with Spencer, the allegations concerning the taser use support a claim of excessive force. And for the same reasons, the constitutional violation was clearly established at the time. See Boyd, 74 F.4th at 663; Salazar, 2020 WL 13609390, at *17. By contrast, the allegation that Sneed handcuffed Thompson does not, by itself, state a claim for excessive force. Handcuffing only constitutes excessive force in limited circumstances—typically when the cuffs are applied so tightly as to cause serious, lasting injury and where the officer applies or refuses to adjust them with deliberate intent to harm. See Ordonez v. Gonzalez, No. 3:23-cv-99-KC, 2024 WL 5038700, at *4–5 (W.D. Tex. Dec. 9, 2024) (citations omitted). Plaintiffs do not allege that the cuffs were too tight, much less that Sneed applied them maliciously or with deliberate indifference to Thompson's safety. That theory of excessive force therefore fails.

Still, because Plaintiffs allege that Sneed repeatedly tased Thompson without justification—after he was already restrained and nonresponsive—Sneed is not entitled to qualified immunity on Plaintiffs' excessive force claim, as limited to the tasing.

v. Martinez

Finally, Plaintiffs do not allege that Martinez used any force against Thompson or even touched him. See generally Am. Compl. Accordingly, to the extent Plaintiffs assert an excessive force claim against Martinez, that claim is dismissed.

c. Deliberate Indifference to a Medical Emergency

Next, Plaintiffs allege that the Officers were deliberately indifferent to Thompson's medical needs in violation of his Fourteenth Amendment rights. Id. ¶ 158. Guerrero, Arias, and Cobos have moved to dismiss, Arias Mot. ¶¶ 13–18; Guerrero Mot. ¶¶ 13–19; Cobos Mot. 7, and the City has moved to dismiss on behalf of the other EPPD Officers, City Mot. 23–24.

The Fourteenth Amendment protects an arrestee's right “not to have their serious medical needs met with deliberate indifference on the part of ․ officials.” Brooks v. Taylor County, 592 F. Supp. 3d 550, 556 (N.D. Tex. 2022) (citing Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)). To succeed on a deliberate indifference claim, a plaintiff must show that (1) the official was aware of facts that gave rise to an inference that a substantial risk of serious harm existed, and (2) the official drew this inference and disregarded the risk. Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (citing Domino v. Tex. Dep't of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001)).

“Deliberate indifference is an extremely high standard to meet.” Domino, 239 F.3d at 756. It cannot be inferred from a negligent or even grossly negligent response to a substantial risk of serious harm. Dyer, 964 F.3d at 381 (citation omitted). Thus, “an officer's failure to immediately recognize ambiguous symptoms as a medical emergency does not amount to deliberate indifference.” Trevino v. Hinz, 751 F. App'x 551, 555 (5th Cir. 2018). Absent a request for medical attention, only an obvious medical emergency suffices to put officers on notice. See Bias v. Woods, 288 F. App'x 158, 162 (5th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 842 & n.8 (1994)). Courts have applied the deliberate indifference standard in instances where an individual has not been formally arrested and taken into police custody. See, e.g., United States v. Mitchell, No. 10-cr-284, 2012 WL 1118599, at *7 (E.D. La. Apr. 3, 2012) (collecting cases for the proposition that “[a] plaintiff can maintain a denial of medical care claim even if the events that give rise to the claim occur before he is in custody”), aff'd, 538 F. App'x 369 (5th Cir. 2013).

i. Guerrero

Plaintiffs allege two distinct forms of deliberate indifference on Guerrero's part: First, that he failed to respond appropriately to Thompson's mental health crisis; and second, that he failed to recognize or respond to signs of physical distress once Thompson was restrained. Am. Compl. ¶¶ 110–11. Guerrero argues that, under either theory, Plaintiffs have failed to state a claim and that he is entitled to qualified immunity. Guerrero Mot. ¶¶ 13–18.

As to the first theory, Plaintiffs allege that Guerrero—despite being the first Officer on the scene and observing signs of paranoia—failed to adequately alert others to Thompson's mental health status. Am. Compl. ¶ 110. They contend that this omission “delayed and denied the appropriate response and coordination of proper support” for Thompson's mental health needs. Id.It is well established that psychological conditions may present a risk of serious harm and can thus constitute a medical emergency that forms the basis for a deliberate indifference claim. Jenkins v. Barnard, No. 18-cv-363, 2021 WL 2878552, at *6 (E.D. Tex. June 11, 2021), adopted, 2021 WL 2874116 (July 8, 2021).

To be sure, the Court has already determined that Guerrero had probable cause to detain Thompson based on observed behavior suggesting a substantial risk of harm. But that determination rests on an objective standard: what a reasonable officer in Guerrero's position could have concluded based on the facts. See Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008). A deliberate indifference claim demands much more: that Guerrero actually perceived Thompson to be in medical crisis and consciously disregarded that risk. See Ford v. Anderson County, 102 F.4th 292, 307 (5th Cir. 2024) (officer must “subjectively” know of the risk (quoting Cope v. Cogdill, 3 F.4th 198, 206–07 (5th Cir. 2021))). And whereas theprobable cause inquiry asks whether the officer was justified in takingaffirmative action—i.e., the decision to detain—deliberate indifference asks whether the officer had a culpable mental state in failing to act—namely, a “subjective intent to cause harm.” See Batiste v. Theriot, 458 F. App'x 351, 356 (5th Cir. 2012) (quoting Mace v. City of Palestine, 333 F.3d 621, 626 (5th Cir. 2003)). The two inquiries are thus different in both kind and degree.

Here, Guerrero responded to a 911 call reporting erratic behavior and observed signs of paranoia and agitation on arrival. While such behavior may have warranted intervention, nothing in the Complaint suggests that Guerrero subjectively recognized it as signaling a medical emergency requiring immediate medical intervention. His failure to interpret ambiguous symptoms as urgent medical indicators—without more—is insufficient to support a deliberate indifference claim. Trevino, 551 F. App'x at 555; see also, e.g., Macias v. Dewitt County, No. 23-cv-43, 2023 WL 11053038, at *8 (S.D. Tex. Dec. 15, 2023) (collecting cases for the proposition that there is no deliberate indifference where officers fail to identify or treat mental health symptoms that do not constitute an obvious emergency), adopted as modified sub nom. Macias v. Texas, 2024 WL 1174178 (Mar. 18, 2024).

Next, Plaintiffs allege that Guerrero described Thompson as “passively resisting,” when in fact he had gone limp, and that this “misjudgment” delayed recognition of Thompson's medical distress. Am. Compl. ¶¶ 111–12. But, again, Plaintiffs fail to allege facts showing that Guerrero subjectively perceived Thompon's condition as a serious medical emergency and then deliberately ignored it. See Dyer, 964 F.3d at 380–81s. For example, they do not claim that Guerrero ignored any explicit request for medical assistance. See, e.g., Harvey v. Jones, No. 15-cv-2279, 2015 WL 9687841, at *2 (W.D. La. Nov. 16, 2015) (no deliberate indifference where officer did not refuse or ignore plaintiff's complaint), adopted, 2016 WL 112713 (Jan. 8, 2016). Nor do they allege that Guerrero recognized that Thompson had lost consciousness and consciously chose not to intervene.See Am. Compl. ¶¶ 111–12.

Quite the opposite. Plaintiffs' theory is that Guerrero misinterpreted Thompon's limpness as passive resistance, and that this misjudgment delayed medical care. But failing to recognize a serious medical need—even if grossly negligent—does not constitute deliberate indifference. Domino, 239 F.3d at 756 (“ ‘[T]he failure to alleviate a significant risk that [the official] should have perceived, but did not’ is insufficient to show deliberate indifference.” (quoting Farmer, 511 U.S. at 838(alteration in original)); see also McWilliams v. City of Houston, No. 21-20369, 2022 WL 17337820, at *1–2, 4–5 (5th Cir. Nov. 30, 2022) (no deliberate indifference where officers failed to recognize severity of unconscious arrestee's conditionand did not adequately monitor him).

Because Plaintiffs have not adequately alleged that Guerrero perceived and then disregarded an obvious medical emergency, they have not met the “extremely high standard” necessary to show deliberate indifference. See Domino, 239 F.3d at 756.

ii. Aguilera, Sneed, and Spencer's use of Narcan

Next, Plaintiffs allege that Sergeant Aguilera and Officers Sneed and Spencer were deliberately indifferent to a medical emergency when they administered Thompson Narcan due to their failure to “understand the purpose of the use of the opioid overdose medication.” Am. Compl. ¶ 50. They contend that administering Narcan delayed essential medical care. Id. ¶ 78.

But as noted, deliberate indifference cannot be inferred from negligentresponses to serious medical risks. Trevino, 751 F. App'x at 554. Therefore, officers are not deliberately indifferent simply because their response was flawed. Administering the wrong medication, for instance, may reflect negligence, malpractice, or poor judgment, but without more, it does not amount to deliberate indifference. Nunley v. Mills, 217 F. App'x 322, 324 (5th Cir. 2007);² see also Green v. Ross, 398 F. App'x 2, 4 (5th Cir. 2010). Courts have thus found no deliberate indifference where officers administered Narcan during a medical emergency, even if doing so reflected flawed medical reasoning. See, e.g., Davis v. Lafourche Par. Crim. Complex, No. 24-cv-1922, 2024 WL 4645494, at *3 (E.D. La. Sept. 30, 2024) (citations omitted), adopted, 2024 WL 4643853 (Oct. 31, 2024); Maldonado v. Town of Greenburgh, No. 18-cv-11077, 2024 WL 4336771, at *18 (S.D.N.Y. Sept. 26, 2024).

Indeed, Plaintiffs' own allegations frame the Narcan decision as a mistake stemming from insufficient training—not deliberate indifference. They allege that Aguilera “commanded Narcan to be administered due to her lack of training to defer to the medical personnel on the scene,” and that Sneed and Spencer acted similarly because they failed to perceive that Thompson was experiencing mental or medical distress. Am. Compl. ¶¶ 50, 226.

These amount to allegations of serious misjudgment that tragically precipitated a man's death. But they do not establish that any Officer “consciously disregarded” a known and serious risk. Accordingly, the deliberate indifference claim against Aguilera, Spencer, and Sneed based on the administration of Narcan is dismissed.

iii. Failure to Perform CPR

Finally, Plaintiffs allege that all ofthe Officerswere deliberately indifferent in failing to ensure that Thompson received CPR after it became apparent that he had stopped breathing. Id. ¶¶ 209–10. In brief, they claim that Sneed noticed Thompson had ceased breathing while in the back of the squad car, and that an EMS paramedic then verified that he no longer had a pulse.Id. ¶¶ 213–14. Yet, they allege, neither the Officers nor EMS personnel provided CPR or “other lifesaving measures” until it was “too late.” Id. ¶¶ 210, 214.

These allegations are marred by internal inconsistencies, ambiguities, and factual omissions. First, although Plaintiffs appear to assert a collective failure to render CPR by both the Officers and EMS personnel, they name no EMS personnel as Defendants. Therefore, while the allegations regarding EMS may provide context, there are no claims against any EMS personnel before the Court.

Then, as to the Defendant Officers, Plaintiffs suggest two theories of liability: (1) that the Officers improperly withheld authorization for EMS personnel to render aid, and (2) that the Officers themselves should have administered CPR when EMS declined to act. Id. ¶¶ 77, 209, 223. Plaintiffs also specifically allege that Arias conducted a pat-down search of Thompson rather than attempting resuscitation. Id. ¶¶ 222–23.

An officer's duty to provide medical care is generally satisfied by summoning EMS or allowing EMS to access the individual in need.Marshall v. Russell, 391 F. Supp. 3d 672, 690 (S.D. Tex. 2019) (collecting cases); see also D'Braunstein v. Cal. Highway Patrol, 131 F.4th 764, 769 (9th Cir. 2025) (no deliberate indifference where officer promptly called EMS but did not perform CPR themselves (citing Tatum v. City &Cnty. of S.F., 441 F.3d 1090, 1099 (9th Cir. 2006))); Hicks v. Scott, 958 F.3d 421, 439 (6th Cir. 2020) (holding that officers generally meet constitutional obligations by summoning care and avoiding reckless delay (citing Wilkerson v. City of Akron, 906 F.3d 477, 483 (6th Cir. 2018))). Likewise, an officer does not act with deliberate indifference by prioritizing scene security after calling for aid.Hicks, 958 F.3d at 439 (citing Thomas v. City of Columbus, 854 F.3d 361, 365 (6th Cir. 2017)).

Here, Plaintiffs do not specifically allege that the Officers called EMS, but they do allege that EMS was already on the scene before anyone noticed that Thompson had stopped breathing. See Am. Compl. ¶¶ 75, 122–23. Thus, the Officers were not the only first responders on scene at the time of Thompson's medical emergency. Plaintiffs allege, however, that EMS refrained from intervening because they had not received police authorization. See id. ¶ 209. But elsewhere, Plaintiffs allege that it was actually EMS personnel who finally “allowed” the Officers to intervene.Id. ¶ 220. And they allege that EMS twice checked Thompson's pulse, eventually administered CPR, and transported him to the hospital—without alleging that the Officers specifically authorized any of those actions. See id. ¶¶ 125, 213, 215. These contradictions make it unclear whether EMS withheld care because of the Officers, whether the Officers withheld care because of EMS, or whether both parties were waiting for the other to act.

More fundamentally, Plaintiffs do not provide a sufficiently comprehensive timeline for these events. They do not allege whether or when the Officers called EMS, nor how long Thompson remained without aid after he stopped breathing.³ Such omissions undermine an inference of deliberate indifference—particularly because such claims often turn on delay. For example, courts have found deliberate indifference where officers waited “multiple hours” to seek care or perform CPR. See, e.g., Flanagan-Zaiontz v. Bexar County, No. 5:19-cv-1493-FBH-JB, 2021 WL 11670791, at *6 (W.D. Tex. June 22, 2021), adopted, 2021 WL 11670789 (July 30, 2021); Stewart v. Tilley, No. 6:15-cv-7-RP, 2017 WL 5665336, at *8 (W.D. Tex. Nov. 27, 2017). By contrast, brief delays—even where the individual is unconscious or lacks a pulse—do not suffice. See Aguirre, 995F.3d at 420–21 (four and a half-minute delay not deliberate indifference); Hyatt v. Callahan County, No. 14-cv-169, 2015 WL 12964681, at *7& n.11 (N.D. Tex. June 18, 2015) (ten-minute delay insufficient despite lack of breathing or pulse).

It is possible, based on the Complaint, that the Officers acted swiftly—or that they did not. But Plaintiffs do not sufficiently allege facts to support either conclusion. And while the Court must draw all reasonable inference in Plaintiffs' favor, it cannot manufacture facts that they have not put forth. See, e.g., Am. State Ins. Co. v. Perez, 2010 WL 11575231, at *9 (S.D. Tex. Feb. 22, 2010) (“The court is not allowed to read anything into the underlying pleadings or imagine factual scenarios that might fill in gaps in the pleadings.” (citation omitted)); Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp., No. 97-cv-3012, 1999 WL 816503, at *1 (E.D. La. Oct. 12, 1999) (“The court is not required to conjure up unpled allegations to save a complaint.”). This is especially true where Defendants invoke qualified immunity—at which point, Plaintiffs bear the burden of demonstrating through their allegations that the Officers' conduct violated clearly established law. See Lincoln, 874 F.3d at 847; Cass v. City of Abilene, 814 F.3d 721, 733 (5th Cir. 2016) (citing Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010)).

Plaintiffs' shifting, imprecise allegations do not establish that any Officer consciously disregarded an obvious and serious medical need. They therefore fall short of the “extremely high” standard required to state a deliberate indifference claim. See Domino, 239 F.3d at 756. Accordingly, any such claim premised on the Officers' alleged delay in authorizing or administering CPR is dismissed. Because this appears to be the only deliberate indifferenceclaim asserted against Arias, and the only remaining such allegation against the other EPPD Officers, Plaintiffs' deliberate indifference claims against Guerrero, Sneed, Spencer, Arias, Martinez, and Aguilera are dismissed.

iv. Cobos

Finally, Plaintiffs appear to allege that Cobos was also deliberately indifferent to Thompson's medical needs. Am. Compl. ¶ 158. Cobos argues that “Plaintiffs make zero effort” to allege any facts supporting this claim. Cobos Mot. 7.

Plaintiffs allege that at the time of Thompson's detention—and thus at the time he allegedly acted with deliberate indifference—Cobos was “working for Walmart on an off-duty job” as a security officer. Am. Compl. ¶¶ 22, 239. As a threshold matter, then, the Court must determine whether Cobos was acting under color of state law at the time of the incident, because § 1983 imposes liability only on those who were. Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989).

A person acts under color of state law when they exercise power “possessed by virtue of state law and made possibly only because [they are] clothed with the authority of state law.” Gomez v. Galman(Gomez I), 18 F.4th 769, 775 (5th Cir. 2021) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). The fact that a police officer is technically “off-duty” is not dispositive. Id.at 775–76 (citing United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)). Rather, courts consider two factors: (1) whether the officer misused or abused official authority, and (2) whether there was a nexus between the officer's official duties, the alleged misconduct, and the victim. Id. (citing Bustos v. Martini Club, Inc., 599 F.3d 458, 464–65 (5th Cir. 2010)).

Where, as here, an officer is moonlighting as private security, the analysis is “particularly” “slippery and troublesome,” because it can be unclear on whose behalf the officer is acting—i.e., the state or his private employer. Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 748 (5th Cir. 2001) (citations omitted). The inquiry turns onwhether the officer appeared to be acting in an official capacitysuch that the suspect would perceive them as exercising state authority. See Williamsv. Dillard Dep't Stores, Inc., No. 04-cv-702, 2005 WL 8160957, at *2 (E.D. Tex. Nov. 7, 2005), aff'd, 211 F. App'x 327 (5th Cir. 2006). Courts thus look for indicia of official conduct, such as wearing a police uniform, displaying a badge, issuing commands, threatening arrest, or identifying oneself as an officer. Meade v. Dillard Dep't Stores, 2001 WL 1223752, at *3 (5th Cir. 2001); Williams, 2005 WL 8160957, at *3. And in cases involving off-duty officers outside of the private-security context, courts apply the same core principle: state action depends on whether the officer invoked—or appeared to invoke—official authority. See Gomez I, 18 F.4th at 776 (officer acted under color of law where suspect obeyed command) Tarpley, 945 F.2d at 809 (samewhere he identified himself as an officer); Tyson, 42 F.4th at 512–14, 522–23 (same where officer displayed badge and verbally asserted official authority).By contrast, courts decline to find state action where officers were not in uniform, did not present a badge, gave no orders, and did not otherwise invoke the power of their office—in those circumstances, “no ‘air of authority’ pervaded the ․ altercation.” Bustos, 599 F.3d at 465.

Here, Plaintiffs allege none of the indicia of state authority. They do not claim that Cobos was in uniform, displayed a badge, issued commands, or identified himself as a police officer. See generally Am. Compl. Nor do they allege that Thompson followed any such commands. Id.Further, Cobos is the only Officer not alleged to have responded to a 911 call or police dispatch—an important marker of official involvement. See, e.g., Cavit v. Rychlik, No. 09-cv-1279, 2010 WL 173530, at *4 (S.D. Tex. Jan. 4, 2010). Instead, Plaintiffs allege only that Thompson encountered Cobos outside a 7-Eleven, where Cobos was working private security for a nearby Walmart.Am. Compl. ¶¶ 23–24.Without any other supporting allegations, the fact that Cobos later assisted the other Officers in restraining Thompson cannot, standing alone, establish that he acted under color of law at the time of the encounter, as he could have been performing the same function in his role as Walmart security.See, e.g., United Staes v. Cintron, 482 F. App'x 353, 357–58 (10th Cir. 2012) (off-duty officer working private security not subject to Fourth Amendment when he acted to further the private employer's interests and “never identified himself as a police officer”); see alsoMahone v. Midtown Med. Ctr., No. 17-cv-14836, 2018 WL 5786120, at *1 (11th Cir. July 27, 2018); Mills v. Patten, No. 17-cv-110, 2019 WL 5092118, at *4 (S.D. Miss. July 16, 2019), adopted, 2019 WL 4192736 (Sept. 4, 2019).

Because Plaintiffs have not plausibly alleged that Cobos was acting under color of state law, their Fourth and Fourteenth claims against him—including for deliberate indifference—are dismissed.

d. Violation of Equal Protection Clause

Plaintiffs also allege that the Officers violated Thompson's right to equal protection under the Fourteenth Amendment. Am. Compl. ¶ 238. They claim that Defendants “target[ed] Mr. Thompson for police action based on his race and racial profiling,” and subjected him to “unequal treatment on the basis of his race.” Id. While Plaintiffs do not specify which Defendants this claim is asserted against, see id., Arias, Guerrero, and Cobos each move to dismiss, seeArias Mot. ¶ 27; Guerrero Mot. ¶ 20; Cobos Mot. 8, and the Cityagain moves to dismiss on behalf of the remaining EPPDOfficers, see City Mot. 23–24.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quotingPlyler v. Doe, 457 U.S. 202 (1982)). To state a racial discrimination claim under the Equal Protection Clause and § 1983, a plaintiff must allege (1) that they were treated differently from a similarly situated individual of a different race, and (2) that the differential treatment was motivated by discriminatory intent. See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015) (citing Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004)).In other words, disparate impact is not enough; a plaintiff must allege “purposeful discrimination.”Allen v. Hays, 65 F.4th 736, 748 (5th Cir. 2023) (quoting Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997)).

A plaintiff bears the burden of pleading the operative facts that support a finding of discriminatory intent. Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001) (citing Cleburne, 473 U.S. at 439–40); Munsinger v. Scott, No. 01-cv-604, 2002 WL 373562, at *2 (N.D. Tex. Mar. 6, 2002) (citingHoldiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987)). “Allegations of discriminatory intent, without reference to specific facts, will not suffice.” A.M. ex rel. Mohamed v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 623 (N.D. Tex. 2017) (alterations omitted) (quoting Fennell, 804 F.3d at 412). Absent allegations which, if true, would amount to direct evidence of discriminatory intent, a plaintiff must typically identify a similarly situated individual of another race who was treated differently. See Thompson v. Wilkinson, No. 24-cv-261, 2024 WL 4834051, at *4 (E.D. Tex. Oct. 31, 2024) (citing Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012)), adopted, 2024 WL 4834031 (Nov. 19, 2024); see alsoMohamed, 252 F. Supp. 3d at 624 (collecting cases).

Here, Plaintiffs allege only that the Officers “target[ed]” Thompson “on the basis of his race.” Am. Compl. ¶ 238. They offer no comparator, no racist remarks, nor any other indicia of discriminatory motive. See generally id. Such allegations are insufficient to state an equal protection claim. See Wilkinson, 2024 WL 4834051, at *4 (dismissing claim based on allegation that officer acted “due to [plaintiff's] race” without factual support); see also McKnight v. Eason, 227 F. App'x 356, 356–57 (5th Cir. 2017); Lawson v. Martinez, No. 5:14-cv-164-XR, 2015 WL 1966069, at *4 (W.D. Tex. Mar. 26, 2015), adopted, 2015 WL 1966122 (Apr. 27, 2015). Therefore, Plaintiffs' equal protection claims are dismissed as to all Officers.

3. Section 1983 Monell claims against the City of El Paso

Plaintiffs assert Monell claims against the City of El Paso based on two theories: (1) that the City maintains a policy of unreasonably seizing individuals experiencing mental health crises and (2) that it permits a widespread and customary use of excessive force during such seizures. Am. Compl. ¶¶ 162–95. The City argues that Plaintiffs have not pleaded facts sufficient to support either of the theories. City Mot. 16–23.

Under Monell, a municipality “can be sued directly under § 1983 ․ [where] the action that is alleged to be unconstitutional implements or executes a policy ․ officially adopted and promulgated by the [the municipality's] officers.” 436 U.S. at 690. To state a Monell claim, a plaintiff must identify: “(1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy or custom.” Valle v. City of Houston, 613 F.3d 536, 541–42 (5th Cir. 2020) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2022)).

An “official policy” or custom is most clearly established through a formal directive promulgated by a policymaker. See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). When an “official policy” is not so explicit, the “persistent, widespread practice of city officials or employees ․ so common and well settled as to constitute a custom that fairly represents municipal policy” will suffice. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010) (quoting Webster, 735 F.2d at 841). Official policy may also exist where a municipality fails to train its employees, demonstrating a “deliberate indifference” to the rights of its inhabitants. City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). Finally, under the “ratification theory,” an official policy or custom may be shown to exist where municipal policymakers ratify an employee's unconstitutional conduct by failing to discipline them. King v. City of Austin, No. 1:16-cv-1020-SS, 2018 WL 2027748, at *10 (W.D. Tex. May 1, 2018) (citingFuentes v. Nueces County, 689 F.App'x 775, 779 (5th Cir. 2017)).

a. Policy of Using Excessive Force

Plaintiffs' Monell claims regarding the City of El Paso's alleged policy of using excessive force fall under three umbrellas. First, they allege that the EPPD maintains a custom of using excessive force against individuals with known mental health conditions—a practice they claim is so common and widespread as to constitute official municipal policy. Am. Compl. ¶ 194. Second, they assert that the EPPD failed to properly train or supervise its officers on how to respond to people experiencing mental health crises, including by using de-escalation and communication tactics. Id. And third, Plaintiffs contend that the EPPD ratified the Officers' alleged misconduct by failing to pursue any criminal or disciplinary action against them. Id. The City moves to dismiss, arguing that each theory falls short of establishing a viable claim. City Mot. 16–23.

i. Widespread Practice or Custom

First, the City argues that Plaintiffs have not alleged a pattern of similar incidents sufficient to establish that it maintained a customary policy of using excessive force against people with mental health conditions. Id. at 16–19.

Under this theory, Plaintiffs must show that similar constitutional violations “have occurred for so long and with such frequency that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct.” Zarnow, 614 F.3d at 169 (citing Webster, 735 F.2d at 842). This typically requires allegations of “[s]ufficiently numerous prior incidents,” not isolated or anecdotal examples.McConney v. City of Houston, 863 F.2d 1180, 1884 (5th Cir. 1989) (citations omitted). And those incidents must be factually similar to the one at issue—“they cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific violation in question.” Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2025) (collecting cases).

Plaintiffs cite only two other incidents besides the one involving Thompson. First, they refer to the death of Mr. Salas-Sanchez, which they attribute to “untrained, undisciplined SPPD [sic]officers.” Am Compl. ¶ 167. Second, they allege that El Paso officers used excessive force against a different mentally ill individual, Michael Sosa, in a manner similar totheir use of force against Thompson. Id. ¶ 182. To establish a pattern, there must be some factual basis for the Court to determine that these prior incidents involved sufficiently similar constitutional violations to the ones at issue here. McCully, 406 F.3d at 383; see also Verastique v. City of Dallas, 106 F.4th 427, 432–33 (5th Cir. 2024). But Plaintiffs provide no details whatsoever about these incidents—what force was used and under what circumstances. See Am. Compl. ¶¶ 167, 182; see also, e.g., Verastique, 106 F.4th at 432–33. Without even a modicum of specificity, the Court cannot meaningfully assess whether the incidents were constitutionally similar. See Verastique, 106 F.4th at 432 (affirming dismissal where allegations of prior incidents were “inscrutably vague” and “devoid of critical factual enhancement.”).

Further, even if the Court assumes that all three incidents were sufficiently similar,⁴ that number falls well short of what is required to establish a pattern. See, e.g., Stewart v. Loftin, No. 21-cv-3789, 2025 WL 751314, at *8 (W.D. La. Feb. 20, 2025) (recommending granting motion to dismiss where plaintiff alleged five other incidents to demonstrate a pattern), adopted, 2025 WL 750198 (Mar. 7, 2025); Armstrong v. Ashley, 60 F.4th 262, 277–78 (5th Cir. 2023) (nine incidents over twenty-four year period not sufficient to establish a pattern); Saenz v. City of El Paso, 637 F. App'x 828, 832 (5th Cir. 2016) (twenty-one incidents werenot sufficient to establish a pattern); see also Dubash v. City of Houston, No. 23-cv-3556, 2024 WL 4351351, at *10 (S.D. Tex. Aug. 26, 2024), adopted, 2024 WL 4355196 (Sept. 30, 2024). The nadir in this Circuit appears to be four. See Barr v. City of San Antonio, No. 5:06-cv-261-XR, 2006 WL 2322861, at *4 (W.D. Tex. July 25, 2006) (denying motion to dismiss but expressing “serious reservations” about the plaintiff's Monell pattern claim).

Finally, Plaintiffs also fail to support their claim with statistical data or internal reports suggesting that the alleged pattern is broader than the three cited incidents. See generally Am. Compl.; see e.g., Ramirez v. Escajeda, 298 F. Supp. 3d 933, 943 (W.D. Tex. 2018). In short, Plaintiffs have not alleged that excessive force by EPPD officers against those suffering from mental illness has “occurred for long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.” Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)).

ii. Failure to Train

Next, the City argues that Plaintiffs have not pleaded any facts establishing that the EPPD had an inadequate training policy regarding the use of de-escalation and communication tactics when interacting with people experiencing mental health crises. City Mot. 19–22.

To state a failure-to-train claim, Plaintiffs must allege facts showing that (1) the municipality adopted an inadequate training policy; (2) acted with deliberate indifference in doing so; and (3) the inadequate training policy directly caused the constitutional violation. Speck v. Wiginton, 606 F. App'x 733, 736 (5th Cir. 2015) (citing Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)). A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985)).

The Supreme Court has held that “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62. Here, the Court has already determined that Plaintiffs' allegations fail to establish a pattern of similar constitutional violations. See Armstrong, 60 F.4th at 277 (failure to train claim failed when plaintiff failed to establish pattern of constitutional violations); see also Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407–08 (1997).

Without a pattern, Plaintiffs may proceed only under the “single-incident exception”—a narrow and rarely successfultheory that applies where the specific constitutional violation at issue was the highly predictable result of a complete lack of training. Connick, 563 U.S. at 63–64; Valle, 613 F.3d at 549. This exception applies only where there is a total absence of training, “not just a failure to train in ‘one limited area.’ ” Peterson, 588 F.3d at 849 (citation omitted).

For example, in Sneed v. Austin Independent School District, the court rejected application of the single-incident exception where the plaintiff alleged that the district's harassment and discrimination training was merely inadequate in one specific area—namely, harassment based on “cultural issues” like implicit bias—rather than wholly absent. 487 F. Supp. 3d 584, 596 (W.D. Tex. 2020). By contrast, in Littell v. Houston Independent School District, the Fifth Circuit applied the exception because the plaintiffs alleged that a school district provided no training at all on a broad subject—unconstitutional searches—that was highly likely to arise in “recurrent situations.” 894 F.3d 616, 624–25 (5th Cir. 2018).

Here, Plaintiffs allege that the EPPD failed to “properly train or supervise [its officers] ․ how to implement de-escalation and communication tactics during incidents where their officers have notice and knowledge that the person for whom they are called has a mental health issue.” Am. Compl. ¶ 194. But alleging a “fail[ure] to properly train” is not the same as alleging a “complete failure to train,” as the single-incident exception requires. See Lewis v. Williamson County, No. 1:21-cv-74-LY, 2021 WL 5167338, at *2, 6 (W.D. Tex. Nov. 5, 2021) (citations omitted); see also McCully, 406 F.3d at 386 (declining to apply single-incident exception where there was some form of training provided). And even if Plaintiffs had alleged a complete absence of mental health de-escalation training, at least one court has held that training related to mental health interactions is a “limited topic,” that is “insufficient to meet the single-incident exception's exacting standard.” Royal v. Scurry County, No. 23-cv-214, 2025 WL 714721, at *10 (N.D. Tex. Jan. 7, 2025) (citing McCully, 406 F.3d at 386), adopted, 2025 WL 597258 (Feb. 25, 2025), and adopted, 2025 WL 714170 (Mar. 5, 2025).

Additionally, the Court takes judicial notice that Texas officers must complete the Basic Peace Officer Course approved by the Texas Commission on Law Enforcement (TCOLE), which has included a mandatory Crisis Intervention Training since at least 2005.⁵ Course Content and Hours of the BPOC From 1970 to Current, Tex' Comm'n L. Enf.'t 7–20, https://www.tcole.texas.gov/document/history_of_bpoc-2023.pdf (last visited May 7, 2025). And the current curriculum specifically includes training on tactics for de-escalating mental health crises. Crises Intervention Training Refresher, Tex' Comm'n L. Enf't 9, https://www.tcole.texas.gov/document/3843-crisis-intervention-training-refresher-mar-2022.docx (last visited May 12, 2025). Completion of the TCOLE curriculum is a prerequisite for graduation from the El Paso Police Department's Training Academy. The EPPD Academy, https://www.joineppd.com/academy.php (last visited May 12, 2025).

Thus, Plaintiffs' allegations—together with the materials of which the Court has taken judicial notice—establish that EPPD officers receive training on de-escalation and otherwise handling individuals having mental health crises.⁶ At most, then, Plaintiffs take issue with the quality or sufficiency of that training. “But showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.” Connick, 563 U.S. at 68. Accordingly, Plaintiffs have not plausibly alleged a Monell claim based on failure to train.

iii. Failure to Discipline

Next, a municipality's failure to discipline may support a Monell claim in limited circumstances. Johnson v. Dallas Cnty. Hosp. Dist., No. 23-cv-1574, 2024 WL 4394772, at *10 (N.D. Tex. Oct. 3, 2024) (citing Canton, 489 U.S. at 387). To state such a claim, a plaintiff must plausibly allege that: (1) the municipality failed to discipline the officers involved; (2) there is a causal connection between that failure and the constitutional violation; and (3) the failure constituted deliberate indifference. Id. (citing Hutcheson v. Dallas County, 994 F.3d 477, 482 (5th Cir. 2021)). To establish causation, a plaintiff must generally show that the municipality maintained a “policy or custom authorizing or encouraging police misconduct through a persistent failure to discipline offending officers.” Webster, 735 F.2d at 851 (Williams, J. dissenting) (emphasis added) (collecting cases). As with failure to train claims, this typically requires establishing a pattern. Piotrowski, 237 F.3d at 582; Johnson, 2024 WL 4394772, at *10; King, 2018 WL 2027748, at *9–10.

Plaintiffs allege only that the EPPD “failed to pursue criminal or disciplinary charges” against the Officers involved in Thompson's death, and that these Officers “have deprived citizens and residents of El Paso of their constitutional rights.” Am. Compl. ¶ 194. But they allege no facts suggesting this failure was part of any longstanding custom or policy—indeed, they do not offer any prior instances of failure to discipline. See generally Am. Compl. Failing to discipline the Officers involved for their conduct giving rise to this case, alone, is insufficient for the City to be held liable. See, e.g., Piotrowski, 237 F.3d at 582 (dismissing failure-to-discipline claim where plaintiff failed to identify other similar incidents); see also Ripley v. Bexar County, No. 5:21-cv-333-OLG, 2022 WL 22839767, at *10 (W.D. Tex. Mar. 3, 2022) (“A single, conclusory allegation clearly does not establish the ‘deliberate indifference’ required to state a failure to discipline claim.”).

Because Plaintiffs have failed to put forth sufficient allegations to support any of their theories of liability, their Monell claim based on the City's alleged use of excessive force is dismissed.

b. Policy of Unlawful Detention

Next, although unclear, it appears that Plaintiffs also intend to assert a Monell claim regarding the City of El Paso's alleged policy of unlawfully detaining mentally ill individuals. See Am. Compl. ¶¶ 165, 169, 194. To the extent they do, that claim rests on the same three theories as Plaintiffs'excessive force based Monell claim: (1) that the EPPD has a practice of making warrantless mental health arrests without legal authority or probable cause; (2) that the EPPD failed to train its officers on the probable cause standard; and (3) that the EPPD ratified such conduct by failing to discipline the officers involved. See id.

However—unlike their excessive force claims—Plaintiffs have failed to state a claim for unlawful detention against any of the individual Officers. And “without a predicate constitutional violation, there can be no Monell liability.” Pipkins v. Stewart, 105 F.4th 358, 360 (5th Cir. 2024) (quoting Loftin v. City of Prentiss, 33 F.4th 774, 783 (5th Cir. 2022)).

Accordingly, because Plaintiffs have failed to plead an underlying constitutional violation for unlawful detention, they cannot—as a matter of law—maintain a Monell claim on that basis against the City of El Paso. That claim is therefore dismissed.

4. Supervisory Liability Claim Against Bonath

Plaintiffs assert a supervisory liability claim against former TTEPPD police chiefBonath, arguing that he failed to train his officers properly and had “actual or constructive knowledge” of the unconstitutional “policies or customs” that allegedly caused Thompson's death. Am. Compl. ¶¶ 197, 236–37. Bonath moves to dismiss, arguing that Plaintiffs fail to state a claim and that he is entitled to qualified immunity. Bonath Mot. 5–6.

“There is no vicarious or respondeat superior liability of supervisors under Section 1983.” Schwarzer v. Wainwright, No. 18-cv-34, 2023 WL 2950639, at *19 (S.D. Tex. Jan. 17, 2023) (citations omitted), adopted, 2023 WL 2645538 (Mar. 27, 2023). Rather, a supervisor is liable if (1) he affirmatively participated in the acts causing the constitutional deprivation, (2) he implemented unconstitutional policies that causally resulted in the alleged injury, or (3) he failed to train the officers involved. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (citing Gates v. Texas Dep't of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008)); Jason v. Tanner, 938 F.3d 191, 196 (5th Cir. 2019) (citing Upshur, 245 F.3d at 459).

Plaintiffs do not allege that Bonath was present during the incident and thus do notclaim that he affirmatively participated in any unconstitutional act. See generally Am. Compl. Instead, they proceed under the latter two theories. The policy-implementation theory fails: Plaintiffs allege that Bonath served as Chief of the TTEPPD—not the EPPD—and they do not identify any policy, let alone an unconstitutional one, implemented by the TTEPPD. See generallyAm.Compl.; see also Robinson v. Ely, 547 F. App'x 628, 629 (5th Cir. 2013) (“Because he fails to state a claim of an underlying constitutional violation, [plaintiff] cannot establish a claim against [defendant supervisor] ․ for implementation of an allegedly unconstitutional policy.” (citing Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997))).

That leaves Plaintiffs' claim that Bonath failed to adequately train his officers—specifically, that he failed to train Cobos “on his limits and conduct as an off-duty employee for Wal-Mart,” and failed to train all officers involved “on deferring to medical or allowing medical professionals to take the lead for issues related to individuals undergoing medical distress when available and not intervening.” Am. Compl. ¶¶ 236–37. To state a claim for supervisory liability under § 1983 based on failure to train, a plaintiff must show that (1) the supervisor failed to train the officers involved, (2) that failure caused a constitutional violation, and (3) the failure constituted deliberate indifference. Tanner, 938 F.3d at 196 (citing Upshur, 245 F.3d at 459).

First, as the former Chief of the TTEPPD, Bonath was not responsible for training the EPPD Officers—that is, all Officers involved except for Cobos. Any claim that he failed to train those Officers on deferring to medical professionals thus cannot proceed. As to the allegation that Bonath failed to train Cobos, the Court has held that Plaintiffs have not plausibly alleged that Cobos was acting under color of law, and thus have not stated any Fourth or Fourteenth Amendment claims against him. And without an underlying constitutional violation, there can be no supervisory liability. See Rios v. City of Del Rio, 444 F.3d 417, 425–26 (5th Cir. 2006); see also, e.g., Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 67 (D. Me. 1999) (no supervisory liability where subordinate was not acting under color of state law (citing Los Angeles v. Heller, 475 U.S. 796, 799 (1986))). Any supervisory liability claim against Bonath based on Cobos's conduct therefore also fails. Accordingly, Plaintiffs have not stated a viable claim of supervisory liability against Bonath, and that claim is dismissed.

5. Assault and Battery

Finally, Plaintiffs assert state law assault and battery claims against Officers Guerrero, Sneed, Spencer, Arias, Martinez, Cobos, and Aguilera in their individual capacities. Am. Compl. ¶ 240. Arias, Guerrero, and Cobos move to dismiss under the Texas Tort Claims Act (“TTCA”), see Arias Mot. ¶¶ 33–37; Guerrero Mot. ¶ 21;Cobos Mot. 8–10, as does the City for the other EPPD Officers, City Mot. 23–24.

The TTCA provides a limited waiver of governmental immunity, see Tex. Civ. Prac. & Rem. Code § 101.023, andincludes an election-of-remedies provision intended to “force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)). Specifically, the election-of-remedies provision provides that:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem. Code § 101.106(f).

Put simply, dismissal is required if: (1) the suit is based on conduct within the scope of the defendant's employment with a governmental unit, and (2) the claim could have been brought against the governmental unit under the TTCA. Laverie, 517 S.W.3d at 752 (citations omitted). As to the second requirement, the TTCA permits claims against governmental units based on intentional torts—such as assault and battery—regardless of whether sovereign immunity ultimately bars recovery. See Tex. Civ. Prac. & Rem. Code § 101.106(f); see Villasana v. City of San Antonio, No. 5:13-cv-278-XR, 2014 WL 640965, at *13 (W.D. Tex. Feb. 18, 2024) (collecting cases); see also Jackson v. Texas S. Univ., 31 F. Supp. 3d 884, 889 (S.D. Tex. 2014) (“The phrase ‘could have been brought’ in § 101.106(f) applies to claims raised under the Act ‘regardless of whether the Act waives immunity from suit.’ ” (quoting Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011))). Thus, intentional torts fall within Section 101.106(f) so long as they were committed within the scope of employment—even if the governmental unit is immune.

a. EPPD Officers

Plaintiffs do not dispute that intentional tortsfall within the scope of the TTCA. But they argue that the EPPD Officers acted “ultra vires” and outside the scope of their employment by assaulting and battering Thompson. Am. Compl. ¶ 240. But conduct is not outside the scope of employment simply because it was unauthorized or wrongful. Jackson, 31 F. Supp. 3d at 889 (citing Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999)). Rather, conduct falls within the scope of employment if it (1) is the kind the employee is employed to perform, (2) occurs substantially within the authorized time and space limits, and (3) is actuated, at least in part, by a purpose to serve the employer—even if the employee uses “forbidden means” to accomplish that purpose. Id.

Here, the alleged assault and battery occurred during Thompson's detention—an act that the Officerswere employed to carry out in response to a 911 call. Nothing in the Complaint plausibly suggests that the EPPD Officers' presence or actions were wholly detached from their law enforcement duties. See generally Am. Compl. Thus, even if they used excessive or unlawful force, their conduct remains within the scope of employment under Texas law. See, e.g., Howard v. City of Houston, No. 21-cv-1179, 2022 WL 2106466, at *4 (S.D. Tex. June 10, 2022) (alleged assault during arrest arose from officers' performance of duties and was barred by the TTCA); Alexander v. Walker, 435 S.W.3d 789, 791–92 (Tex. 2014) (same); Rohlf v. Ibarra, No. 23-cv-178, 2024 WL 2857017, at *2 (Tex. App. June 6, 2024) (same).

Because the Officers' conduct was within the scope of their employment, and the assault and battery claims could have been brought against the respective governmental unit, the requirements of Section 101.106(f) are satisfied. The Court therefore dismisses these claims as to all EPPD Officers.See Tex. Civ. Prac. & Rem. Code § 101.106(f).

b. Cobos

As to Cobos, he was working an off-duty job as a security guard for Walmart at the time of the incident—and thus at the time of the alleged assault and battery. And the Court has already held that he was not acting “under color of law.” But while the analyses are similar, it is a distinct question whether Cobos was acting within the scope of his employment under Texas law. See Gomez v. Galman(Gomez II), No. 24-30207, 2025 WL 1099698, at *5 (5th Cir. Apr. 14, 2025). Indeed, the burden of establishing scope of employment is “even greater” than that of showing an officer acted under color of law, because the latter “does not depend on duty status ⁷ or whether the action was for the benefit of the state.” Gomez I, 18 F.4th at 781 (citing Tarpley, 945 F.2d at 809).But see Gomez II, 2025 WL 1099698, at *5 n.9 (asserting that Gomez I actually stands for the opposite proposition).

Here, Plaintiffs allege that Cobos was on duty as a private security guard for a nearby Walmart. It is therefore plausible that his actions in restraining Thompson were actuated solely by a purpose to serve Walmart, not the City of El Paso. That conclusion is reinforced by the fact that Cobos came upon Thompson while apparently patrolling for Walmart—not in response to a 911 call, as the other officers had. See, e.g., City of Balch Springs v. Austin, 315 S.W.3d 219, 227 (Tex. App. 2010) (officer working off-duty security at Walmart was not acting with scope of employment for TTCA purposes).

Plaintiffs have therefore plausibly alleged that Cobos was not acting within the time and space of his government employment, and that his actions were not motivated by a purpose to serve his government employer. Accordingly, the TTCA's election-of-remedies bar does not apply, and the Court considers Plaintiffs' assault and battery claims against Cobos on the merits.

Under Texas law, the common-law torts of assault and battery are merged into a single cause of action for “assault,” adopting the elements of a criminal assault set out in Texas Penal Code § 22.01(a). See Cervini v. Cisnerosi, 593 F. Supp. 3d 530, 539 (W.D. Tex. 2022); Carter v. Diamond URS Huntsville, LLC, 175 F. Supp. 3d 711, 741 (S.D. Tex. 2016) (collecting cases). A person commits assault when he “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Howe v. Yellowbook, USA, 840 F. Supp. 2d 970, 983 (N.D. Tex. 2011) (quoting Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App. 1999)). Texas law thus does not require a plaintiff to show physical injury: The gravamen of assault is offensive contact itself. Prim v. Stein, 6 F.4th 584, 591 (5th Cir. 2021) (citing Sanchez v. Striever, 614 S.W.3d 233, 240 (Tex. App. 2020)).

Plaintiffs allege that Cobos physically restrained Thompson while the other Officers beat him, and that Cobos helped carry Thompson into a squad car. Even if Cobos did not strike or otherwise injure Thompson, these allegations are sufficient to state a claim for assault under Texas law. See Prim, 6 F.4th at 591(allegation of arm-grab, without injury, sufficient to state assault).

Accordingly, Cobos's motion to dismiss Plaintiffs' assault claim is denied.

C. Leave to Amend

Finally, Plaintiffs request leave to amend if any of their claims are dismissed. Pls.' Resp. Cobos 8; Pls.' Resp. Arias & Guerreo 20; Pls.' Resp. COEP 22. Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). But a court may deny leave to amend for any “substantial reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice, or futility.” United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (citing United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270–71 (5th Cir. 2010)). Amendment is futile if any “amended complaint would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (collecting cases). Thus, the standard for whether amendment would be futile is “the same standard of legal sufficiency as applies under Rule 12(b)(6).” Id. (citations omitted).

The Court dismissed both Monell claims: (1) the Monell claim for excessive force, and (2) the Monell claim for wrongful detention. Because it is plausible that the former could be cured through additional factual allegations, Plaintiffs are granted leave to amend their excessive force Monell claim. See, e.g., Sanchez, 2020 WL 1036046, at *22–26.However, Plaintiffs' Monell claim based on unlawful detention is dismissed with prejudice. As explained, Plaintiffs fail to plausibly allege that any of the Officers lacked probable cause to detain Thompson—and nothing in the Complaint suggests this deficiency could be cured. Therefore, any Monell claim predicated on unlawful detention fails as a matter of law.

For the same reasons, amendment of Plaintiffs' Fourth Amendment claims for unlawful detention brought against all the City of El Paso Officers are futile, and those claims are dismissed with prejudice as well. See, e.g., Emesowum v. Zeldes, No. 5:15-cv-831-XR, 2016 WL 3579232, at *6 (W.D. Tex. June 27, 2016) (“Given that his own version of the facts in his Original Complaint show that the officers had probable cause to arrest[,] ․ [plaintiff's] claim is dismissed with prejudice to refiling.”), aff'd, 697 F. App'x 386 (5th Cir. 2017). The same applies to Plaintiffs' Fourteenth Amendment claims of deliberate indifference to Thompson's medical needs, which are also dismissed with prejudice.See, e.g., Belton v. Gautreaux, No. 20-cv-278, 2021 WL 400474, at *7 (M.D. La. Feb. 4, 2021).

Plaintiffs are, however, given leave to amend their equal protection claims against the Officers. The Court dismissed those claims for failure to allege discriminatory intent, and such a deficiency is potentially curable. See, e.g., Bradyn S. v. Waxahachie Indep. Sch. Dist., No. 18-cv-2724, 2019 WL 3859301, at *8 (N.D. Tex. Aug. 16, 2019).

Plaintiffs are given leave to amend their Fourteenth Amendment claims against Cobos, as they have not plausibly alleged that he was acting under color of law—a deficiency that may be curable through amendment. See, e.g., Hutson v. Colorado, 646 F. App'x 588, 589 (10th Cir. 2016) (noting that district court granted plaintiff leave to amend allegations regarding action under color of law). And because the supervisory liability claim against Bonathfailed, in part, for lack of an underlying constitutional violation by Cobos, Plaintiffs are likewise granted leave to amend that claim in tandem.

Finally, Plaintiffs' state law assault and battery claims against the EPPD Officersin their individual capacities are dismissed with prejudice. As discussed, the Officers were acting within the scope of their employment, and the claims could have been brought against the governmental entity. Amendment would therefore be futile. See, e.g., McKinney v. Johnston County, No. 22-cv-2264, 2023 WL 8816385, at *3 (N.D. Tex. Dec. 19, 2023).

III. CONCLUSION

For the foregoing reasons, the Motions are GRANTED in part and DENIED in part. First, Cobos's Motion to Dismiss, ECF No. 40, is GRANTED in part and DENIED in part. Plaintiffs'Fourth and Fourteenth Amendment claims against Cobos—unlawful detention, excessive force, deliberate indifference, and equal protection—are DISMISSED without prejudice. But Cobos's Motion is DENIED as to Plaintiff's state-law assault claim, which remains pending.

Second, Kyle Bonath's Motion to Dismiss, ECF No. 42, is GRANTED. Plaintiffs' supervisory liability claim is DISMISSED without prejudice.

Third, the City of El Paso's Motion to Dismiss, ECF No. 65, is GRANTEDin part and DENIED in part. Plaintiffs' Monellclaim based on a policy of unlawful detention is DISMISSED with prejudice. Plaintiffs' Monell claim based on a policy of excessive force against individuals with mental health conditions is DISMISSED without prejudice. Plaintiffs' equal protection claims against Aguilera, Sneed, Spencer, and Martinez are DISMISSED without prejudice. Plaintiffs' deliberate indifference and state-law claims against Aguilera, Sneed, Spencer, and Martinez are DISMISSED with prejudice. Plaintiffs' unlawful detention claims against Sneed, Spencer, and Martinez are DISMISSEDwith prejudice. Plaintiffs' excessive force claim against MartinezisDISMISSED with prejudice. But the City's Motion is DENIED as to Plaintiffs' excessive force claims against Sneed and Spencer, which remain pending.

Fourth, Michael Arias's Motion to Dismiss, ECF No. 51, and Dominic Guerrero's Motion to Dismiss, ECF No. 53, are each GRANTED in part and DENIED in part. The Motions are GRANTED as to Plaintiffs' unlawful detention, deliberate indifference, and state law assault and battery claims, which are DISMISSED with prejudice. The Motions are GRANTED as to Plaintiffs' equal protection claims, which areDISMISSED without prejudice. The Motions are DENIED as to Plaintiffs' excessive force claims, which remain pending.

IT IS FURTHER ORDERED that if Plaintiffs wish to reassert any claims dismissed without prejudice, they must file an amended complaint by July 18, 2025.

SO ORDERED.

FOOTNOTES

1.   Indeed, Plaintiffs' state law claims against Walmart were dismissed on this basis. See Apr. 25, 2025, Order 8–9.

2.   Although Nunley applied the deliberate indifference standard under the Eighth Amendment, the analysis is the same under the Fourteenth Amendment. Martinez v. City of N. Richland Hills, 846 F. App'x 238, 243 n.2 (5th Cir. 2021). “Therefore, cases discussing deliberate indifference in the Eighth Amendment context are applicable in this analysis.” Id.

3.   Plaintiffs do allege that twenty-five minutes elapsed between EMS's arrival at the scene and Thompson's arrival at the hospital, despite the drive taking only eleven minutes “in normal traffic.” Am. Compl. ¶ 54.But: (1) as stated, the claim here is against the Officers, not EMS personnel; (2) Plaintiffs do not suggest that there was only “normal traffic” on this day; and (3) it is unclear whether a twenty-five-minute gap between EMS arrival and hospital arrival is unreasonable, much less indicative of deliberate indifference, without more information.

4.   Indeed, although Plaintiffs provide neither citation nor detailed description, it appears they are referring to the matter ofSanchez v. Gomez, No. 3:17-cv-133-RPM, 2020 WL 1036046 (W.D. Tex. Mar. 3, 2020). In that case, Erik Emmanuel Salas-Sanchez—an individual experiencing an acute mental health episode—was shot and killed by an EPPD officer. See id. at *2. The opinion also references allegations that other EPPD officers had used excessive force against a mentally ill individual named Michael Sosa in a prior incident.Id. at *13.

5.   When adjudicating a Rule 12(b)(6) motion to dismiss, a court may consider only the contents of the complaint, documents attached to the complaint, or matters appropriate for judicial notice under Federal Rule of Evidence 201. Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019) (citations omitted). “The court may judicially notice a fact that is not subject to reasonable dispute because it ․ can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Courts may take “judicial notice of information posted on a government website.” See Jaso v. The Coca Cola Co., 435 F. App'x 346, 353 n.5 (5th Cir. 2011). The Texas Commission on Law Enforcement is a Texas government agency, and the Court takes judicial notice of the contents of the website.

6.   This is not to say that a plaintiff could never plausibly allege that a municipality does not, in fact, provide the training that it purports to provide in compliance with state standards, or that those standards are constitutionally inadequate. But making such a showing would require more than the broad, conclusory assertions presented here. Plaintiffs do not even acknowledge the governing TCOLE standards, much less make allegations to challenge their adequacy or implementation. By omitting any reference to the training framework—and without alleging that the standards are either unheeded or insufficient—Plaintiffs'generalized allegation that no training at all was provided is implausible.

7.   This language appears to suggest that scope of employment turns on whether an officer was on or off duty. That view, however, is in tension with other decisions in this Circuit holding that an officer's duty status is not dispositive of whether they were acting within the scope of their employment under Texas law. See Smith v. Heap, 31 F.4th 905, 914 n.13 (5th Cir. 2022); see also Frias v. Hernandez, No. 23-cv-550, 2024 WL 1252945, at *8–10 (N.D. Tex. Mar. 22, 2024); Davidson v. AT&T Mobility, LLC, No. 17-cv-6, 2018 WL 1407283, at *8 (N.D. Tex. Mar. 21, 2018).