ESTATE OF MACIAS v. TEXAS DEPARTMENT OF ADULT PROTECTIVE SERVICES (2021)

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER OF REMAND

Before the Court are the Report and Recommendation of United States Magistrate Judge (docket no. 49), along with plaintiffs' written objections (docket no. 51) thereto. The Report and Recommendation concerns the following motions to dismiss: Defendants' Motion to Dismiss for Lack of Capacity or, in the Alternative, for Failure to Join Necessary Parties (docket no. 9); Defendants DPS, Gideon, Escalon, Mutz, and Pilkington's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (docket no. 11); Defendant Bobo's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(b)(7), 12(h)(2), and 19(a) (docket no. 12); Defendants Texas Department of Family Protective Services, Henry L. Whitman, and Brandi Weimer's Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (docket no. #26); Defendant McCraw's Motion to Dismiss with Brief in Support (docket no. 41); Defendant Crystalynn Nichole Cornevin's Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(4), 12(b)(5), and 12(b)(6) (docket no. 42); Defendants Matlock, Barina, Mitchell, and Smith's Motion to Dismiss with Brief in Support (docket no. 43). In evaluating the merits of Defendants' motions, the Magistrate Judge also considered the following responses and replies: Plaintiffs' Responses (docket nos. 13, 17, 29, 44, 45 & 46) and Defendants' Replies (docket nos. 39 & 47). After conducting an extensive analysis, the report recommends that Defendants' Motions to Dismiss (docket nos. 11, 12, 26, 41, 42 & 43) be granted in part. In sum, it is recommended that this Court dismiss Plaintiffs' federal causes of action arising under 42 U.S.C. § 1983 and remand the remaining wrongful death, survivorship, and negligence claims to state court. It is further recommended that Defendants' Motion to Dismiss for Lack of Capacity or, in the Alternative, for Failure to Join Necessary Parties (docket no. 9) be dismissed without prejudice to refiling in state court.

STANDARD OF REVIEW

Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of the Report and Recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). In such cases, the Court need only review the Report and Recommendation and determine whether it is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

On the other hand, any Report and Recommendation to which objection is made requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).

The Court has thoroughly analyzed Plaintiffs' submission in light of the entire record. As required by Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an independent review of the entire record in this cause and has conducted a de novo review with respect to those matters raised by the objections. After due consideration, the Court concludes the objections lack merit.

BACKGROUND

This civil rights action arises out of the tragic death of Amelia Macias during an encounter with officers from the Bexar County Sheriff's Department and Texas Department of Public Safety, who were attempting to serve a mental health warrant on her son, Fernando Macias. Plaintiffs are the Estate of Amelia Macias and Ms. Macias's surviving children—Walter Macias, Steven Macias, and Yvonne Schilling. Plaintiffs originally filed this action in state court against the Texas Department of Public Safety (“DPS”), the Texas Department of Family Protective Services (“DFPS”), and various individual officers involved in the police encounter. Plaintiffs' Petition was removed to this Court on the basis of federal question jurisdiction. Plaintiffs name the following parties as Defendants: the State of Texas (DPS and DFPS); Steven C. McCraw and Kezeli “Kez” Wold (Directors of DPS and DFPS, respectively), in their official and individual capacities; Henry L. Whitman, Jr. (Commissioner of DFPS), in his individual capacity; various DPS officers in their individual capacities (Veronica Gideon, Michael J. Smith, Cody Mitchell, Elias Escalon, Chad Matlock, Nathan Mutz, Brent Barina, Jason Bobo, Joseph Evans, and Drew Pilkington); and two DFPS agents (Crystalynn Nichole Cornevin and Brandi Weimer) in their individual capacities. Summonses were issued and returned as executed for all named Defendants except for DFPS Director Kez Wold and DPS Officer Joseph Evans.

The live pleading, Plaintiffs' Second Amended Complaint, alleges the following facts, which the Court accepts as true for purposes of ruling on Defendants' motions to dismiss. Amelia Macias, at the time of her death, was 84 years old and wheelchair-bound. (Second Am. Compl. (docket no. 24) at ¶ 1). Ms. Macias had a 61-year-old son, Fernando Macias, who suffered from mental illness and was responsible for Ms. Macias's care. (Id.) Walter Macias, Fernando's older brother, contacted the Bexar County Sheriff's Department for assistance in obtaining a mental health warrant to protect his mother after he became aware that Fernando was mentally unstable and was attempting to buy an AR-15 automatic weapon. (Id.). Officers with the Bexar County Sheriff's Department's Mental Health Unit responded to the call at approximately 5:00 p.m. on March 6, 2018, and a standoff ensued between Fernando and the deputies that lasted well into the early morning hours of March 7. (Id. at ¶ 2).

Upon their arrival, the Mental Health Unit officers attempted to enter the residence, but Fernando fired his weapon in an effort to protect himself and his mother, and the officers retreated. (Id. at ¶ 52). A Bexar County Special Weapons and Tactics (“SWAT”) team was called for assistance while the Mental Health Unit secured the perimeter of the residence. (Id. at ¶ 53). Negotiators made multiple attempts to communicate with Fernando but were unsuccessful. (Id. at ¶ 54). When the Bexar County SWAT team entered the Macias home to secure the lower story, Fernando opened fire again, striking two officers who were attempting to proceed to the second floor of the home. (Id. at ¶¶ 56–58.) At this time, Fernando also intentionally shot at propane tanks inside the residence but was unsuccessful in causing a detonation. (Id. at ¶ 59). The Bexar County SWAT team then secured the residence and “waited out” Fernando for fifteen hours. (Id. at ¶ 60). No one saw or heard from Fernando or Ms. Macias during this time period. (Id. at ¶ 65.) At approximately 3:00 a.m. the following morning, a DPS SWAT team arrived on the scene to relieve and assist members of the Bexar County SWAT team. (Id. at ¶ 61).

Upon their arrival, the DPS SWAT team introduced various “diversionary devices” into the second floor of the residence, where Fernando had last been observed, in order to increase visibility and provide information about the location of both Fernando and Ms. Macias. (Id. at ¶¶ 63–64). In response, Fernando began to fire at the Bexar County deputies from a second-floor window, and gunfire was exchanged between Bexar County SWAT team deputies and Fernando. (Id. at ¶¶ 66–67). To this end, plaintiffs appear to be alleging that, although the DPS SWAT team arrived to relieve the Bexar County SWAT team, the Bexar County officers had not yet left the property at the time the diversionary devices were released and gunfire was exchanged for the third time during the standoff, or at least that some Bexar County SWAT team members remained involved. See (id.).

The DPS SWAT team then sent an unmanned aerial system camera-equipped drone into the residence in another attempt to locate Fernando. (Id. at ¶ 68). When the DPS SWAT team believed they had located Fernando on the second floor wearing a red shirt, the DPS SWAT team then “jointly and deliberately” shot hundreds of bullets into the residence. (Id. at ¶¶ 66, 70). Ms. Macias, who was unarmed and lying near the second floor window, was struck multiple times and died of her injuries. (Id. at ¶¶ 69–70). Fernando sustained multiple non-fatal gunshot wounds and was taken into custody. (Id. at ¶ 73). After the gunfire ceased, it was discovered that Ms. Macias was the one wearing red, not Fernando. (Id. at 66).

Plaintiffs allege that during the months preceding Ms. Macias's death, Walter and other family members had been attempting to contact DFPS regarding their concerns about Fernando's erratic and delusional behavior and the safety of Ms. Macias, who was in his care and custody. (Id. at ¶¶ 6–8). Specifically, Fernando had talked to his siblings about an upcoming apocalypse and a government conspiracy and his intent to secure weapons in preparation. (Id. at ¶¶ 8–13). Walter and other family members tried to advise DFPS that their mother was in danger because Fernando was trying to purchase a weapon, suffered from a mental illness, and was not taking his medication. (Id. at ¶ 14). These calls were not returned for months, and instead of responding to the request for help, DFPS agent Defendant Cornevin was advised that the case should be closed by her supervisor. (Id. at ¶¶ 15–16). Based on these factual allegations, Plaintiffs assert the following claims: (1) violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against all Defendants (Count I); (2) the failure to DPS and DFPS to adequately train and supervise their employees in violation of Section 1983 against DPS Director McCraw, DFPS Director Wold, DFPS Commissioner Whitman, and DFPS Supervisor Brandi Weimer (Counts II and III); (3) recovery under Texas's wrongful death and survivorship statutes against all Defendants (Counts IV and V); and (4) tort claims of negligence and gross negligence against DPS and DFPS (Counts VI and VII). Plaintiffs seek mental anguish damages and damages for loss of companionship and consortium, as well as punitive damages. Finally, Plaintiffs seek a permanent injunction against Defendants to prevent future violations of the kind suffered by Ms. Macias.

Defendants seek dismissal of Plaintiffs' Second Amended Complaint based on the following theories: (1) Plaintiffs lack the legal capacity to sue Defendants; (2) Plaintiffs have failed to establish standing to sue DFPS and the individually named DFPS employees because they cannot establish that Ms. Macias's or their own injuries are fairly traceable to the actions of these Defendants; (3) DPS and DFPS cannot be sued under Section 1983 because they are not “persons” for purposes of the statute; (4) the individually named DPS officers and DFPS employees enjoy qualified immunity from liability as to Plaintiffs' constitutional claims raised pursuant to Section 1983; (5) DPS, DFPS, and the individually named DPS officers and DFPS employees enjoy either sovereign immunity or cannot be sued under the election-of-remedies doctrine as to Plaintiffs' tort claims; and (6) Plaintiffs failed to properly serve DFPS employee Crystalynn Nichole Cornevin.

After considering the arguments of the parties, the pleadings and the governing law, the Magistrate Judge concluded that Plaintiffs have standing to sue the DFPS Defendants but not to seek a permanent injunction against Defendants. The Magistrate Judge further concluded that all of Plaintiffs' federal constitutional claims asserted pursuant to Section 1983 must be dismissed either due to pleading deficiencies or the entitlement of certain Defendants to qualified immunity. In light of these findings, the Magistrate Judge recommends that this Court decline to exercise supplemental jurisdiction over Plaintiffs' remaining state-law claims and remand this case to state court. The report does not address the questions of Plaintiffs' legal capacity to sue Defendants, the viability of Plaintiffs' tort claims, or the service issues raised by Defendant Cornevin. If this Court accepts the Report and Recommendations, these issues can be addressed by the state court after remand.

Plaintiffs object to the finding that the individually named DPS officers are entitled to qualified immunity from liability as to Plaintiffs' constitutional claims raised pursuant to 42 U.S.C. § 1983. These claims allege that the individually named DPS officers, in their individual capacities, used excessive force in violation of the Fourth Amendment. Plaintiffs argue “this claim was not analyzed as applied to what a reasonable officer would have understood at the precise moment they did so here with an innocent third party” because “Fernando was not engaged in active shooting when deadly force was employed.”

Plaintiffs also object to the finding that their Fourteenth Amendment claim against Defendant DFPS is subject to dismissal. This claim alleges that Defendant DFPS deprived Ms. Macias of her right to life in violation of due process protections. Plaintiffs state that Ms. Macias “had a property right in the government benefits she received from the State of Texas that were taken from her without notice and a right to be heard.”

DISCUSSION

The DPS Officers are Entitled to Qualified Immunity

Plaintiffs argue the their Fourth Amendment claim is not subject to dismissal, and more discovery is necessary on the issue of qualified immunity, because the DPS Officers did not act in an objectively reasonable manner given that Fernando was not engaged in active shooting when deadly force was employed. Resolving all inferences in Plaintiffs' favor, the Magistrate Judge found that Plaintiffs have stated a plausible claim that the degree of force employed by the DPS Officers was not commensurate to the need and was objectively unreasonable. As set forth in the Report:

Construing the pleadings in the light most favorable to Plaintiffs, Plaintiffs have stated plausible Fourth Amendment violation—that Defendants used excessive force that was objectively unreasonable under the totality of the circumstances. Plaintiffs could prove a set of facts consistent that their allegations that would demonstrate that the DPS Officers, though perhaps entitled to use some force, did not use the appropriate degree of force, and the deadly force employed was neither measured nor corresponded with the level of Fernando's resistance.

Regarding the severity of the crime at issue, at least in terms of the initial impetus for a visit from the police, Plaintiffs' pleadings establish that the police encounter with Fernando began in an attempt to secure mental health treatment for Fernando by serving a mental health warrant, not in response to a crime. Accepting Plaintiffs' allegations as true, Fernando also did not present an immediate threat to the safety of the DPS Officers, Ms. Macias, or the general public at the moment they chose to employ deadly force and tactically assault the Macias residence. True, Fernando had fired his weapon at the various teams of officers dispatched to his home on three different occasions, but he had only done so when faced with an officer attempting to enter his residence in person or through the use of diversionary devices or drones. When the officers remained secured outside his home, as they allegedly did for the 15 hours prior to the arrival of the DPS Officers, all was quiet and no one heard from or saw Fernando or Ms. Macias. Importantly, the allegations state that at the precise moment that the DPS Officers allegedly fired hundreds of weapons into the Macias residence, there was a lull in the action, albeit a brief one, as Plaintiffs allege that Fernando and the Bexar County SWAT team exchanged fire after the DPS Officers had arrived and had released diversionary devices at the residence. Nonetheless, Plaintiffs allege that Fernando was not actively shooting or threatening to shoot anyone at the time DPS Officers assaulted the Macias residence with the gunfire that led to Ms. Macias's death.

Courts have placed weight “on the quickness with which law enforcement personnel have escalated from negotiation to force.” Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016). Here, there are no allegations that DPS Officers engaged in any attempts to negotiate with Fernando at any point throughout the standoff or that any negotiations by anyone else present at the scene occurred during the 15 hours prior to their arrival. Rather, the pleadings state that the DPS

(R&R, docket no. 49, at page 27).

Nonetheless, that Plaintiffs have stated a plausible Fourth Amendment violation is not the end of the Court's inquiry. Because the DPS Officers have invoked qualified immunity, the Court must determine whether, at the time of the alleged wrongful conduct at issue, the alleged violation of the Fourth Amendment was clearly established.

“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If officers of reasonable competence could differ on the lawfulness of defendant's actions, the defendant is entitled to qualified immunity. Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015). Although there need not be a case directly on point addressing similar factual circumstances, the unlawfulness of the challenged conduct must still be “beyond debate.” Joseph v. Bartlett, 981 F.3d 319 (5th Cir. 2020). At the motion to dismiss stage, as here, Plaintiffs must plead specific facts that, if proved, would overcome the individual defendant's immunity defense, because, at the time of the conduct at issue, the DPS Officers had fair notice that their conduct was unlawful. See Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Plaintiffs' allegations do not set forth a clearly established Fourth Amendment violation.

Plaintiffs point out that “Fernando was not engaged in active shooting when deadly force was employed.” An “officer violates the Fourth Amendment if he resorts to overwhelming physical force rather than continuing verbal negotiations with an individual who poses no immediate threat or flight risk, who engages in, at most, passive resistance” and whom the officer stopped for a minor traffic violation or for no crime at all. See Bolton v. City of Austin, Civil Action No. A-17-CA-077-SS, 2018 WL 2392557, at *1 (W.D. Tex. May 25, 2018); see also Joseph, 981 F.3d at 333-43; Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017). In this case:

Fernando was armed and had engaged in three different shooting incidents with the officers dispatched to his residence throughout an overnight standoff, had in fact struck two different officers with bullets during those incidents, and had demonstrated his willingness to disregard his own life and those of others, including his hostage, in attempting to detonate propane tanks inside the house.

(R&R, docket no. 49, at page 30). Even accepting all of Plaintiffs' allegations as true, and presuming Fernando was not engaged in any active resistance at the moment of the DPS Officers' assault on his home, the Court cannot credibly compare him to a passive suspect.

Moreover, plaintiffs have not directed the Court to any case that could be construed as providing fair notice to the DPS Officers that their conduct was clearly unconstitutional—that it is objectively unreasonable to use deadly force on an armed suspect who has refused to cooperate with law enforcement and has already used deadly force himself on the officers. Nor has independent research identified any case law that provides even an outline of the contours of a suspect's right to be free from deadly force in a standoff situation like the one this case presents.

Although not binding in this Circuit, the Sixth Circuit has held that officers employing deadly force on a suspect who had taken his wife and son as hostages in his home were entitled to qualified immunity, where the suspect was an active shooter and therefore unquestionably posed an immediate threat to the officers. Ewolski v. City of Brunswick, 287 F.3d 492, 508 (6th Cir. 2002). However, the facts here are distinguishable in that Plaintiffs allege that Fernando was not engaged in active shooting at the precise time deadly force was employed, but the fact that remains that Fernando had repeatedly used deadly force throughout the course of the standoff and a reasonable officer in the position of the DPS Defendants could have concluded that he generally presented a risk of serious bodily injury to the officers and to his hostage.

Accepting Plaintiffs' allegations as true, the chronology of the police standoff involved a long fifteen-hour lull in action prior to the arrival of the DPS SWAT team, followed by the exchange of fire between Fernando and Bexar County SWAT officers after the DPS Officers released diversionary devices towards the residence. Plaintiffs' pleadings therefore allege that at some point in time prior to the DPS Officers' use of the deadly force that ultimately killed Ms. Macias and wounded Fernando, they witnessed Fernando employing deadly force on Bexar County SWAT officers. If there was a lull in the action before the DPS Officers shot their hundreds of bullets at the residence, Plaintiffs have not pleaded that the lull was significant.

Additionally, there is no precedent suggesting that the DPS Officers were required to parse the timing of Fernando's active resistance against the periods of his passive resistance to determine when it would be reasonable to employ force to seize him. If the Fourth Amendment indeed requires such an assessment, the contours of this requirement were not sufficiently clear at the time of the events in question, and the undersigned cannot say that a reasonable official would have understood that they could not employ deadly force at the precise moment they did so here. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (“A right is clearly established if the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). Therefore, for these and the reasons set forth in the Report and Recommendation, the DPS Officers are entitled to qualified immunity on Plaintiffs' Fourth Amendment excessive force claim.

Plaintiffs' Have Not Stated a Claim for Deprivation of a Property Interest Under the Fourteenth Amendment

Plaintiffs also allege a Fourteenth Amendment violation arguing that the DFPS violated Ms. Macias's right to substantive due process by depriving her of her right to life. The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ․ deprive any person of life, liberty, or property, without due process of law.” Const. Amend. XIV. The Fourteenth Amendment's due process clause has two components—(1) a guarantee of procedural protections when a state seeks to deprive an individual of protected liberty or property interests, and (2) a substantive protection against conduct that “shocks the conscience.” Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016). Plaintiffs object to the dismissal of their Fourteenth Amendment claim, stating that Ms. Macias had a property interest in DFPS's care and a constitutional right to certain procedural protections—such as notice and an opportunity to be heard—before her case was closed.

“[N]ot all government benefits programs create constitutionally recognized property interests.” Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 735 (5th Cir. 2008). And the “mere existence of a governmental program ․ does not give a plaintiff a property right, protected by the due process clause, to receive the benefit, absent some legitimate claim of entitlement—arising from statute, regulation, contract, or the like—to the benefit.” Blackburn v. City of Marshall, 42 F.3d 925, 941 (5th Cir. 1995).

In response to Defendants' motions to dismiss, Plaintiffs cite to various provisions of the Texas Human Resources Code in an attempt to establish Ms. Macias's entitlement to the continued care of DFPS. See Tex. Hum. Res. Code §§ 48.004, 48.152. To determine whether statutes or regulations create a protected property interest, a court asks whether they place “substantive limitations on official discretion.” Ridgely, 512 F.3d at 735 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)). As discussed in the Report and Recommendation, “[t]he sections of the Texas Human Resources Code cited by Plaintiffs do not.” (R&R, docket no. 49, page 39).

Section 48.004 merely directs the executive commissioner to develop and maintain risk assessment criteria to be used in determining whether an elderly person with a disability is in imminent risk of abuse or neglect and lists the various factors to be considered in making such an assessment. Tex. Hum. Res. Code § 48.004. Section 48.152 addresses the process of interviewing the elderly person alleged to be at risk of abuse and any other person the department deems necessary. Id. at § 48.152. Yes, it is possible that risk assessment criteria might not have been developed or properly considered in responding to reports of Fernando's delusions and concerns about Ms. Macias's safety. But even if that were true, that does not mean Plaintiffs have demonstrated that Ms. Macias was entitled to the continued care of DFPS or any specific process before her case was closed, which is what is required to that implicate the Due Process Clause of the Constitution.

Id. For these and the additional reasons set forth by the Magistrate Judge, Plaintiffs have failed to state a plausible claim for denial of a property interest under the Fourteenth Amendment.

IT IS THEREFORE ORDERED that the Report and Recommendation of United States Magistrate Judge (docket no. 49) is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1) such that Defendants' Motion to Dismiss for Lack of Capacity or, in the Alternative, for Failure to Join Necessary Parties (docket no. 9) is DISMISSED WITHOUT PREJUDICE to refiling in state court following remand. Defendants' Motions to Dismiss (docket nos. 11, 12, 26, 41, 42, & 43) are GRANTED IN PART as follows:

• The Court finds that Plaintiffs have standing to assert their various claims against the DFPS Defendants but lack standing to pursue their requested injunctive relief.

• Plaintiffs' 42 U.S.C. § 1983 claims against DPS, DFPS, and any Defendant sued in an official capacity are DISMISSED because these Defendants are not “persons” subject to suit under 42 U.S.C. § 1983.

• The Court concludes that although Plaintiffs have pleaded a plausible Fourth Amendment violation against the DPS Officer Defendants sued in their individual capacities pursuant to 42 U.S.C. § 1983, these Defendants are nonetheless entitled to qualified immunity.

• Plaintiffs' 42 U.S.C. § 1983 claim against the DPS Officer Defendants arising under the Fourteenth Amendment for a violation of substantive due process is DISMISSED because the Fourth Amendment provides a specific avenue to redress Plaintiffs' claimed constitutional injuries.

• Plaintiffs' 42 U.S.C. § 1983 claim against DPS Director Steven McCraw is DISMISSED because Plaintiffs have failed to plead a claim based on McCraw's failure to train or supervise his subordinates.

• Plaintiffs' 42 U.S.C. § 1983 claims against DFPS Defendants Whitman, Weimer, and Cornevin are DISMISSED because Plaintiffs have failed to plead a claim based on these Defendants' failure to train or supervise their subordinates.

Plaintiffs' 42 U.S.C. § 1983 claims against Defendants DFPS Director Kez Wold and DPS Officer Jason Evans are DISMISSED sua sponte for failure to prosecute. Having dismissed all of Plaintiffs' federal claims, Plaintiffs' state-law claims (wrongful death, survivorship, negligence, and gross negligence) are REMANDED to the 407th Judicial District Court of Bexar County, Texas.

IT IS FURTHER ORDERED that the Clerk of Court shall send a certified copy of this Order Accepting Report and Recommendation of United States Magistrate Judge and Order of Remand to the state court from which this case was removed.

IT IS FINALLY ORDERED that motions pending with the Court, if any, are Dismissed as Moot and this case is CLOSED.

It is so ORDERED.

FRED BIERY, UNITED STATES DISTRICT JUDGE