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Guerrero, v. Taylor County

United States District Court, N.D. Texas, Abilene Division

February 23, 2018

IRIS R. GUERRERO, as next friend for J.M.R., Jr., S.V.R., and V.A.R., and as representative of the Estate of Cynthia Ann Cortez, deceased, Plaintiff,
TAYLOR COUNTY, TEXAS, et al, Defendants.



         Before the Court are several motions to dismiss filed by Defendants the City of Abilene (the Abilene Police Department) and Christopher Milliorn. These Defendants originally filed motions to dismiss Plaintiffs First Amended Complaint on July 3, 2017. In response, Plaintiff filed a Second Amended Complaint on August 3, 2017, that-among other changes-substituted the Abilene Police Department for the City of Abilene as a proper Defendant. The City of Abilene (City) and Milliorn then filed their motions to dismiss the Second Amended Complaint on August 17, 2017.

         On December 22, 2017, the United States Magistrate Judge filed his Report and Recommendation. The Magistrate Judge recommended that the motions seeking dismissal of Plaintiffs First Amended Complaint should be denied as moot and that the motions to dismiss the Second Amended Complaint should both be granted. Plaintiff filed three "Partial Objections" on January 5, 2018, and the City and Milliorn both filed responses to those objections on January 19, 2018.

         I. BACKGROUND

         This civil action arises from the death of Cynthia Ann Cortez on April 17, 2015. Cortez was arrested on outstanding felony warrants by Officers Christopher Milliorn and Thomas Horton of the Abilene Police Department during a traffic stop on the afternoon of April 16, 2015. Cortez apparently consumed a large amount of methamphetamine at the time of the traffic stop in order to avoid being found with the drugs. She was transported to the Taylor County Detention Center following her arrest, where Plaintiff alleges that she was improperly screened for possible intoxication or drug overdose. In the early morning hours of April 17, Cortez was exhibiting symptoms of a drug overdose and other inmates reported her poor condition to jailers. She was transported by ambulance to the hospital, where she ultimately died from a methamphetamine overdose.

         Plaintiff Iris R. Guerrero, as next friend for Cortez's minor children and as representative of Cortez's estate, brought this lawsuit against a host of Defendants, including the City of Abilene and Christopher Milliorn. Plaintiffs Second Amended Complaint raises a variety of claims under 42 U.S.C. § 1983 and Texas tort law. Defendants Milliorn and the City now move to dismiss all claims asserted against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         II. STANDARDS

         The Court conducts a de novo review of those portions of the Magistrate Judge's report or specified proposed findings or recommendations to which a timely objection is made. 28 U.S.C. § 636(b)(1)(C). Portions of the report or proposed findings or recommendations that are not the subject of a timely objection will be accepted by the Court unless they are clearly erroneous or contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed.R.Civ.P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. King v. U.S. Dept. Of Veteran's Affairs, 728 F.3d 410, 413 (5th Cir. 2013). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Ballew v. Cont'l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which maybe in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).

         A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The court must accept all factual allegations in a complaint as true and draw all reasonable inferences in the plaintiffs favor. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). In reviewing a motion to dismiss under Rule 12(b)(6), a district court must generally examine only the complaint and any attachments to the complaint. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). But a court may consider extrinsic documentary evidence if (1) the document is attached to a defendant's motion to dismiss, (2) the document is referred to in the plaintiffs complaint, and (3) the document is "central" to the plaintiffs claim. Id. at 498-99. To survive a 12(b)6) motion to dismiss, a complaint must contain enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when it asserts facts that allow 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). This determination is context-specific and requires the court to draw upon its own experience and common sense. Id.


         A. Plaintiff's Partial Objections

         Plaintiff raises three objections to the Magistrate Judge's findings and conclusions. The Court conducts a de novo review of these portions of the Report and Recommendation and addresses each objection in turn.

         1. Claims for violation of Cortez's right to reasonable medical care

         Plaintiff first objects to the Magistrate Judge's recommendation "that claims against the movants [Defendants Milliorn and the City] for violation of Cynthia Cortez' (sic) 14th Amendment right to reasonable medical care be dismissed." The Magistrate Judge correctly concluded that, for the purposes of ruling on the motions to dismiss, only the allegations contained in the Second Amended Complaint must be considered (as opposed to supplemental factual allegations raised by Plaintiff in response to the motions to dismiss). The Magistrate Judge, considering only those allegations, then determined that the Second Amended Complaint failed to state a claim for this cause of action against Defendants Milliorn and the City because it fails to allege that these Defendants acted with deliberate indifference (either subjective or objective). Plaintiff objects that the Magistrate Judge required a higher standard of pleading than plausibility when examining the allegations as to this cause of action and asserts that it is reasonable to infer, based on the factual allegations in the pleading, that the Abilene police officers wantonly disregarded Cortez's serious medical needs. The Court disagrees.

         As a preliminary matter, the Magistrate Judge found that Plaintiff had alleged Officers Milliorn and Horton "observed Cortez ingest methamphetamine." R&R 6. The Court's de novo review of the Second Amended Complaint leads the undersigned to disagree with that conclusion. The factual allegations contained in the Second Amended Complaint state only that "Ms. Cortez consumed an overdose of methamphetamine at the time of the ... traffic stop to avoid being found with methamphetamine in her possession." Pl.'s Second Am. Compl. ¶ 29. The complaint goes on to say that "Ms. Cortez was a known user of methamphetamine to Defendants" and exhibited "obvious signs of drug intoxication, " but there is no specific factual allegation anywhere in the complaint that Officers Milliorn or Horton actually witnessed Cortez ingest the methamphetamine during the traffic stop or otherwise had any knowledge that she had ingested the drugs.[1]See Pl.'s Second Am. Compl. ¶ 29. It is true that Plaintiff later states, while attempting to plead a cause of action under the Eighth Amendment, that "Defendants were deliberately indifferent to Ms. Cortez' (sic) medical needs as indicated by facts including but not necessarily limited to observation of Cortez' (sic) drug consumption[.]" Pl.'s Second Am. Compl. ¶ 44. The Magistrate Judge was presumably referencing this pleading when he stated that the complaint "alleges in plain text that the officers watched Cortez swallow the meth." R&R 7. But the Court notes that this is only a vague, conclusory allegation that lumps all eighteen Defendants into a collective group; it fails to reach the level of a plausible pleading because it does ...

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