Bond v. Nueces Cty ( 2022 )

Case: 20-40050 Document: 00516491399 Page: 1 Date Filed: 09/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 30, 2022
No. 20-40050 Lyle W. Cayce
Clerk
Diana Bond, as Representative/Heir of the Estate of Tami Bond and as next
friend for A.R.B., a minor child,
Plaintiff—Appellant,
versus
Nueces County, Texas; John Doe #1, Individually; John Doe
#2, Individually; Jane Doe #1, Individually; Jane Doe #2,
Individually; Elizabeth Alvardo; Jasmine Drake; Michael
Alvarez; Anthony Munoz; Jose Rodriguez; Luis Rivera;
Jose Aguayo; Chris Gomez; Wellpath L.L.C.; Jackie
Blevins,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CV-43
Before Higginbotham, Smith, and Dennis, Circuit Judges.
James L. Dennis, Circuit Judge:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Plaintiff Diana Bond, as representative of the estate of her deceased
daughter, Tami Bond, sued Nueces County under 42 U.S.C. § 1983. Bond
claimed that employees of the Nueces County Jail had violated Tami’s
constitutional rights by failing to provide her with necessary emergency
medical treatment following her ingestion of two bags containing a substance
believed to be amphetamine or methamphetamine. After the district court
granted Bond leave to file two amended complaints, it dismissed her claim
against Nueces County and rejected her third amended complaint for futility,
concluding that she had failed to allege facts sufficient to establish municipal
liability under Monell v. Department of Social Services of City of New York, 436
U.S. 658 (1978). Bond appeals these rulings, challenging both the dismissal
and the district court’s denial of leave to amend.
I.
A. Background
The following allegations are taken from Bond’s second amended
complaint. 1 Although a wholly different version of events may ultimately be
proven as the case progresses, we must accept them as true at this stage of
the litigation. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). Thus, for purposes of this appeal, we assume as follows:
On or about February 6, 2017, police officers arrested Tami Bond,
charged her with possession of a controlled substance and tampering with
evidence, and took her to the Nueces County Jail. At an unspecified time
prior to or during her arrest, Tami swallowed two baggies containing
amphetamine or methamphetamine. It is unclear from the face of the
complaint whether jail officials knew that Tami had ingested the baggies.
1
For the sake of clarity, we refer in this opinion to Diana Bond, Tami’s mother, as
“Bond,” and to Tami Bond as “Tami.”
2
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However, the complaint alleges that the “[d]efendants are aware that during
each and every shift of every single day, that the possibility that someone
(especially someone that is accused of tampering with evidence by ingestion)
could very well have complications associated with the use/ingestion of
same.” Intake officials were aware of the ingestion, and other jail officials
responding to her sickness searched her cell for drugs. We therefore can infer
that both the intake officials and other jail officials had knowledge that she
had consumed drugs, and that her erratic behavior and sickness resulted from
that consumption.
During her initial booking, Tami was calm, coherent, and not
exhibiting any cause for medical concern. She answered “no” when the
nurse responsible for inmate care asked whether she had any medical issues.
Soon after, however, Tami’s condition began to rapidly deteriorate, and she
became uncooperative. Because she was unwilling or unable to follow verbal
commands, jail authorities halted the booking process and placed Tami in a
holding cell to “cool down.” In the cell, Tami lay down on the floor in
apparent distress, and over the next few hours, she required assistance from
other inmates to stand, use the toilet, and wipe sweat from her face.
Throughout this time and during the events that followed, Tami and the
inmates assisting her repeatedly requested medical attention for her
worsening condition, but the jail employees did not provide it.
Tami’s actions became increasingly erratic, and when she began
grabbing at unseen objects in the air, guards entered the holding cell and
searched it for narcotics. During the search, Tami displayed clear indications
that she was no longer lucid, sweating profusely and talking incoherently.
The signs of discomfort persisted following the search, with Tami’s
continuing to lie on the floor clutching her stomach and head in pain and
requiring assistance from other inmates to use the toilet. Officers eventually
removed Tami from the cell in order to complete her booking. They observed
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that Tami had seemingly become extremely intoxicated, stumbling and
slurring her speech, but the officers did not have Tami medically reassessed
or otherwise address the signs of a possible narcotics overdose.
After the officers returned Tami to the holding cell, she continued to
hold her stomach and behave strangely, including by pacing, searching the
cell for an unknown object, tearing up toilet paper, “smoking” an unseen
object, and attempting to sit on a pregnant inmate’s stomach and to kiss other
inmates. This eventually led the officers to move Tami to a second holding
cell and then, when the problems persisted, to an isolation cell. Although the
jail’s policy required that inmates in isolation cells be placed on a “15-minute
watch” to monitor their condition, no watch was conducted. The officers
knew that Tami was hallucinating and incoherent, but they did not provide
her with medical treatment. While in the isolation cell and in full view of jail
officials, Tami slid off the bench where she sat, fell to the ground, and lay
twitching and mumbling while covered in sweat and urine. She died of an
overdose early the following morning.
B. Procedural History
On February 5, 2019, Diana Bond, Tami’s mother, filed her original
complaint in the United States District Court for the Southern District of
Texas, asserting, inter alia, a § 1983 claim against Nueces County, Texas,
based on her daughter’s alleged wrongful death. 2 Following a series of
2
Bond also initially asserted a claim under the Americans with Disabilities Act,
which she voluntarily dismissed in her second amended complaint, and § 1983 claims
against various individual jail officials. Bond identified the jail officials as John and Jane
Does in her initial complaint and did not amend the complaint to allege their actual
identities until the two-year Texas statute of limitations applicable to § 1983 claims had
run. Because an amended complaint to substitute an individual for a John Doe defendant
does not relate back to the date of the original complaint under this court’s decision in
Jacobsen v. Osborne, 133 F.3d 315, 320–21 (5th Cir. 1998), and because the district court
found that Bond had not diligently pursued her rights as required for equitable tolling of
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amendments, Bond’s complaint alleged that Nueces County had caused
Tami’s death by maintaining a series of customs, practices, policies, or
procedures related to not providing timely medical care to in-custody
individuals.
Nueces County moved to dismiss Bond’s second amended complaint,
arguing that she failed to allege facts sufficient to establish that a municipal
policy or custom had caused Tami’s death, as is required for municipal
liability under Monell. 436 U.S. at 690. On September 5, 2019, the district
court entered an order granting the motion. The district court concluded that
Bond had failed to allege enough specific facts about prior incidents to
demonstrate that Nueces County maintained the no-medical-care customs
and policies she had alleged or that those practices were the moving force
behind the purported constitutional violations that led to Tami’s death.
In its order dismissing the claims, the court granted Bond permission
to file a renewed motion for leave to amend her complaint with a proposed
third amendment included as an attached exhibit. Accordingly, on
September 5, 2019, Bond moved for leave to file a third amended complaint.
In the attached proposed complaint, Bond repeated the factual allegations
regarding Tami’s death detailed above. Bond then added to her allegations
regarding the policies maintained by Nueces County that caused Tami’s
death. She emphasized that the policies she alleged did not concern a
complete denial of medical care, but rather “failures to provide timely and/or
immediate medical treatment” when needed and a practice of instead waiting
until “death is near . . . . well-after medical treatment should have been
the limitations period, the court dismissed Bond’s claims against the individual defendants
as time barred. Bond does not appeal this ruling, and no claims against the individual
defendants are at issue in this appeal.
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provided” (Emphases in original). Specifically, she alleged that Nueces
County maintained the following policies or customs:
1) ignoring the serious medical needs of those entrusted to its
care based either on expedience or ignorance to the
consequences,
2) maintaining and encouraging a custom and practice of
denying and/or paying little regard for
inmates’/detainees’/arrestees’ necessary adequate and
immediate (instead of consistently slow and inefficient)
medical care and treatment for serious medical conditions by
failing to properly and adequately enforce policies and
procedures mandated by the Texas Commission on Jail
Standards concerning same and/or in completely failing to
have policies concerning same,
3) failing to have, enforce and/or train concerning medical
reassessments for inmates/detainees/arrestees when serious
medical conditions arise,
4) maintaining and encouraging a custom or practice of
delaying medical necessary treatment/care for a serious
medical condition exhibited by inmates/detainees/arrestees
until such time as it is too late for treatment at all,
5) maintaining and encouraging a custom or practice of
processing and accepting inmates/detainees/arrestees for
incarceration at the booking stage when such person(s) should
have been immediately transferred for medical treatment to a
health care facility,
6) failing to adopt or enforce policies and procedures and
maintaining and encouraging a custom and practice that
Nueces County knows or should know because of the
numerous complaints and incidents reported to Defendant
Nueces County from victims of being denied adequate medical
treatment for serious medical needs or having their serious
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medical needs unreasonably delayed while under the custody
and control of Defendant Nueces County,
7) failing to investigate and/or discipline those persons whom
are found to have ignored the medical needs of such
individuals,
8) failing to adequately supervise and/or observe its
inmates/detainees/arrestees,
9) failing to provide adequate man power to supervise and/or
observe inmates/detainees/arrestees (an “overcrowding”
problem that has persisted for years and has resulted in
guard/inmate ratios in violation of Texas Jail Standards and the
cause of several medical concerns, including many suicides),
10) failing to provide adequate staff to handle situations
stemming from the medical needs of
inmates/detainees/arrestees,
11) failing to impose proper and sufficient policies and/or
procedures as to the screening and/or reassessment of
inmates/detainees/arrestees in regard to their medical needs
that arise,
12) failing to act in compliance with and failing to enforce the
policy (of Texas Jail Standards) concerning proper and timely
cell checks of inmates/detainees/arrestees exhibiting
symptoms such as Tami did and/or in failing to enforce, train
or even have policies that provide for what medical attention to
provide in such circumstances when such becomes more life-
threatening,
13) failing to train and/or discipline those employees whom are
found to have violated any of the above-noted policies,
14) failing to train concerning medical reassessments for
inmates/detainees/arrestees who – even while initially may not
have signs of obvious medical problems – begin to exhibit
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obvious signs of medical problems, including but not limited to,
those stemming from the use of illicit drugs, and
15) failing to train and/or implement any policies concerning
what signs are indicative of extreme drug use and/or to be
aware of and what actions to take when someone is exhibiting
such obvious signs of medical problems stemming from the use
of illicit drugs.
(Cleaned up and line breaks added.) Bond further alleged, regarding the
second policy or custom, that the Nueces County Jail failed to properly and
adequately enforce policies and procedures mandated by the Texas
Commission on Jail Standards. Specifically, they failed to implement and
adequately enforce “37 Tex. Admin. Code § 273.2 (requiring any facility—
including the Nueces County Jail—to provide, inter alia, procedures for
“efficient and prompt care for acute and emergency situations” that arise).”
Though Bond argued that providing examples of previous injuries caused by
the policies was “unnecessary for purposes of pleading,” her proposed
complaint nonetheless detailed, in a series of footnotes, seventeen specific
incidents in the preceding five years in which officials at the Nueces County
Jail allegedly failed to provide adequate medical care to inmates, five suicides
that had occurred in the jail due to a purported lack of medical care, and one
previous drug overdose that occurred after an inmate swallowed a lethal dose
of cocaine.
On November 8, 2019, the district court entered an order denying
Bond’s motion for leave to file a third amended complaint, concluding that it
would be futile to grant the motion because the proposed complaint still did
not allege sufficient facts to give rise to municipal liability. Bond v. Nueces
Cnty., No. 2:19-cv-43 (S.D. Tex. Nov. 8, 2019). The court stated that Bond
had failed to allege that purported policies five (processing inmates for
incarceration who should immediately receive medical attention) and nine
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(failing to provide sufficient manpower to monitor inmates) had any causal
connection to Tami’s death, reasoning that Tami was not exhibiting cause
for medical concern at the time of her initial booking and that Bond had not
asserted that inadequate staffing had contributed to Tami’s failing to receive
medical care. Id. at 8. The court concluded that policies two (failing to
provide immediate medical care as called for under the Texas Jail Standards)
and twelve (failing to follow Texas Jail Standards regarding periodic cell
checks of patients displaying overdose symptoms) detailed violations of state
law, which could not support a § 1983 claim for the violation of federal rights.
Id. at 8–9. Regarding the remaining alleged policies, the court found that the
specific examples cited in the proposed complaint were insufficient to
establish a persistent widespread pattern or practice. Id. at 11–12. It stated
that Bond had not pleaded the incidents “similarly and specifically” as
required in this circuit, citing Peterson v. City of Fort Worth, 588 F.3d 838,
850–51 (5th Cir. 2009). Id. at 11. And even if the incidents had been pleaded
with adequate specificity to show similarity between them, the court
continued, they would not demonstrate a persistent practice because Bond
did not provide any statistics regarding how many total inmates are booked
and complain of inadequate medical care or how this proportion compares to
other jails or prisons. Id. at 12–13.
Because Bond did not provide “enough context to allow the Court to
draw a reasonable inference that” the examples “were more than isolated
events and amount to a pattern rising to the level of a policy,” the district
court concluded that she failed to allege the official policy or custom required
to support municipal liability. Id. at 13–14. Finding that Bond had ample
opportunity to amend her complaint to add additional facts, the court
concluded that she had “pled her best case” and denied leave to amend,
ordering that the claims against Nueces County remain dismissed. Id. at 14–
15. Bond timely appealed.
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II.
This court reviews “motions to dismiss pursuant to Rule 12(b)(6) de
novo, accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Balle v. Nueces Cty., Texas, 952 F.3d
552, 556 (5th Cir. 2017) (quoting Ibe v. Jones, 836 F.3d 516, 524 (5th Cir.
2016)) (internal quotes omitted). And while the denial of a motion to amend
is generally reviewed for abuse of discretion, Fahim v. Marriott Hotel Servs.,
Inc., 551 F.3d 344, 347 (5th Cir. 2008), where, as here, the denial is based
solely on futility, this court instead applies a de novo standard of review
“identical, in practice, to the standard used for reviewing a dismissal under
Rule 12(b)(6).” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th
Cir. 2010).
III.
A. Bond’s Second Amended Complaint
The district court dismissed Bond’s second amended complaint and
denied her leave to file a third amended complaint in large part because it
believed she had failed to adequately allege facts regarding specific previous
incidents in which jail officials had failed to provide timely medical treatment
when needed. Bond argues that this was error, as “boilerplate” allegations
regarding the existence of an official policy are sufficient to survive the
pleading stage under the Supreme Court’s decision in Leatherman v. Tarrant
Cnty. Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993). In
Leatherman, the Supreme Court considered the propriety of the Fifth
Circuit’s “heightened pleading standard” for § 1983 cases against
municipalities, which the Court described as “more stringent than the usual
pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.”
507 U.S. at 164. However, since Twombly and Iqbal, this court has resumed
applying the rule that a plaintiff must plead specific past instances to allege
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municipal liability. See, e.g., Ratliff v. Aransas Cnty., Texas, 948 F.3d 281, 285
(5th Cir. 2020); Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir.
2018). Thus, while Bond’s second amended complaint alleged that Nueces
County maintained ten specific policies that caused jail officials to take or
refrain from taking specific actions in particular situations, because it did not
provide past examples of harm caused by these alleged policies, the complaint
was deficient under binding circuit precedent. Because the district court did
not err by dismissing Bond’s second amended complaint for failing to state a
claim, we AFFIRM.
B. Bond’s Proposed Third Amended Complaint
Bond’s proposed third amended complaint, however, contained
allegations of twenty-three specific prior incidents. As discussed supra, at this
stage, Bond’s proposed third amended complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).
Although Bond may be required to provide more detail regarding the alleged
incidents to prove that a pattern exists after she has had the benefit of
discovery, that question is not before us today. Accordingly, we determine
that she stated a plausible claim that a municipal policy or custom was the
moving force behind the alleged constitutional violations that led to Tami’s
death and conclude that the district court’s denying leave to amend based on
futility was error.
In determining the amendment would be futile, the district court
found that the twenty-three specific examples listed by Bond in the proposed
complaint failed to provide enough information such that the district court
could determine whether the past incidents were like Tami’s death. In doing
so, the court cited Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th
Cir. 2009), which in turn quoted Estate of Davis ex rel. McCully v. City of North
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Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005) for the rule that “a pattern
requires similarity and specificity” and “[p]rior indications cannot simply be
for any and all ‘bad’ or unwise acts, but rather must point to the specific
violation in question” (alteration in original). Both Peterson and Davis,
however, were cases that considered what is required to prove that a
municipal policy or custom exists at the summary judgment stage, not what
must be alleged at the pleading stage; both cases explicitly discussed what
“evidence” must be introduced to prove a pattern, not what must be alleged
to plausibly claim that a pattern exists. See Davis, 406 F.3d at 375.
Moreover, the discrepancies between the pattern evidence and the
plaintiff’s allegations in Davis were far greater than any differences that
existed between the various incidents described in Bond’s complaint. 3 In
Davis, the court found that evidence a police officer had frequently
indecently exposed himself in photographs and had yelled and acted
disrespectfully in a traffic stop did not show a pattern of using excessive force
where the estate of the plaintiff argued the officer had improperly shot and
killed the plaintiff. Id. at 383–84. By contrast, here, Bond’s proposed
complaint noted that each of the cited incidents involved inmates who were
refused timely medical attention when it was requested or the need was
shown, resulting in injury or death—the precise basis of Bond’s complaint
regarding Tami’s treatment.
The crux of Bond’s proposed complaint is that Nueces County
maintained a series of customs, practices, policies, or procedures related to
“not providing timely and/or immediate medical care” that increased the
magnitude of injury to in-custody individuals. While Tami’s injury resulted
3
Peterson simply cited Davis in dictum discussing the rule and ultimately did not
determine that the prior incidents of excessive force demonstrated in that case were
insufficiently similar. 588 F.3d at 851.
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in death, not all circumstances that lead to preventable injuries had medical
attention been timely provided are “life-threatening,” nor does that
articulation fairly represent Bond’s proposed complaint (“[W]hat Plaintiff is
alleging is that Defendants did not and do not provide immediate medical
care when a significant medical situation arises and wait instead until such
situation reaches a critical stage”). Taking reasonable inferences in favor of
Bond, as we must at this stage, see Lovick v. Ritemoney Ltd., 378 F.3d 433, 437
(5th Cir. 2004), one can surmise that the alleged incidents are adequately
similar to Tami’s death because, like Tami, these individuals suffered injury
due to the defendants’ ignoring the significant medical needs of those
entrusted to its care. Bond may be required to provide more detail regarding
the prior incidents to prove that a pattern exists as the case continues, after
she has had the benefit of discovery. See Anderson v. Liberty Lobby, 477 U.S.
242, 252 (1986). At this stage, however, Bond has provided a series of
examples with sufficient similarity to infer a pattern.
In determining the amendment would be futile, the district court also
found that there was insufficient context within Bond’s allegations because
Bond did not provide any statistics regarding how many inmates were booked
and received inadequate medical care or how this proportion compares to
other jails or prisons. Though the court acknowledged that “not any one
statistic is mandatory to include in the complaint,” it appeared to fault Bond
for “not includ[ing] any such statistics” and did not credit her statement that
the listed incidents “represent only a small portion of the complaints and/or
concerns with medical care at/in the Nueces County Jail.” Aside from non-
binding district court cases, however, the district court below and Nueces
County on appeal relied only on circuit precedent that discussed the evidence
that must be introduced at the summary judgment stage, not what must be
alleged in an initial pleading. See Peterson, 588 F.3d at 851; Pineda v. City of
Houston, 291 F.3d 325 (5th Cir. 2002).
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In Peterson, for example, the court found that evidence of twenty-
seven excessive force incidents over the course of four years was not
sufficient to establish that the City of Fort Worth had a policy of condoning
excessive force at summary judgment absent “context as to the overall
number of arrests or any comparisons to other cities.” 588 F.3d at 851 n.4.
The court repeatedly stated that what it was considering was evidence that a
pattern, custom, or policy existed. See id. at 851. Specifically, the court stated
that:
The incidents allege use of force that, if true, would be
emphatically excessive. Nevertheless, assuming their truth, the
incidents do not, on the basis of this record, tell us that the City
maintained an official policy of condoning excessive force. The
failure of the evidence is that the plaintiffs have failed to
provide context that would show a pattern of establishing a
municipal policy.
Id. at 851–52. The court in Peterson assumed the truth of allegations
supported by the evidence—the 27 complaints of excessive force that had
been filed between 2002 and 2005—and concluded that there was
insufficient evidence to show the context of the purported municipal policy.
Indeed, the court held, based upon the evidence in the record, that “[n]o
reasonable jury could conclude based on Peterson’s evidence that the City
had established a municipal policy of using or condoning excessive force.”
Peterson, 588 F.3d at 851 n.4. Concluding that the plaintiff’s failure to
contextualize the excessive force incidents contained within the record by
showing “evidence of the department’s size or the number of its arrests” was
fatal at summary judgment is not another way of saying that allegations of a
widespread custom of excessive force cannot establish a plausible inference
of a constitutional violation at the hands of a municipality at the pleading
stage. Id. at 852.
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Similarly, the court’s holding in Pineda that “[e]leven incidents each
ultimately offering equivocal evidence of compliance with the Fourth
Amendment cannot support a pattern of illegality in one of the Nation's
largest cities and police forces” does not mean a plaintiff is required to allege
context in the form of precise numbers to state a claim against a municipality.
291 F.3d at 329 (emphasis added). There, the court concluded “the sample
of alleged unconstitutional events is just too small[]” to create a genuine issue
of material fact. Id. at 329. The court said “sample” because out of the “500
narcotics and search-related instances in 5000 offense reports” of allegedly
unconstitutional searches produced by the City during discovery and
provided to the parties’ expert witnesses, “the district court considered only
[the expert opinion evidence] accompanied by offense reports in the
summary judgment record.” Id. at 329, 331. That whittled the number down
to thirteen, and the district court relied upon eleven of those thirteen reports.
Id. at 329. Thus, the evidence in the record at the time of summary
judgment—11 reports out of an initial 5,000—placed the plaintiff’s
allegations in context when the size of the city and force were taken into
consideration.
Moreover, “[w]e have criticized defendants for arguing that cases
dismissed on summary judgment supported dismissal of their cases at the
pleadings stage.” Converse v. City of Kemah, Texas, 961 F.3d 771, 776 n.3 (5th
Cir. 2020) (citing Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 629 n.8
(5th Cir. 2018); Drake v. City of Haltom City, 106 F. App’x 897, 900 (5th Cir.
2004)); see also Parker v. Blackwell, 23 F.4th 517, 524, n.3 (5th Cir. 2022)
(noting that the defendant relied on cases which were dismissed at the
summary judgment stage, and reiterating that “at the Rule 12 stage. . . a
plaintiff’s burden is to simply allege ‘sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its face.’” (internal citations
omitted)). The question here is whether Bond has alleged enough to create a
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reasonable inference that a policy exists, or that there exists a failure to have
any pertinent policy. In contrast, the court in both Peterson and Pineda was
concerned with what a “reasonable jury could conclude” based on the
evidence introduced by a plaintiff after a reasonable opportunity for
discovery. Peterson, 588 F.3d at 851 n.4. These cases do not support a
requirement that to state a claim, a plaintiff must explicitly provide a
denominator against which the allegations are weighed to determine the
existence of a pattern. Indeed, in Peterson, the court said it was “assuming
[the] truth” of the records (i.e., evidence) presented by plaintiff, rather than
the truth of the allegations made in the complaint. 588 F.3d at 851.
A recent published decision of this court, Balle v. Nueces County,
Texas, 952 F.3d 552, 559 (5th Cir. 2017), confirms that it is not necessary for
a plaintiff to include statistics to sufficiently plead a claim for municipal
liability. In Balle, the plaintiff alleged that jail officials in Nueces County did
not provide him with medical care for his diabetes and back problems after
he was kicked in the back during his arrest, nor during his subsequent six-day
detention, notwithstanding his repeated requests for treatment and multiple
apparent indications of medical concern. Id. at 555–56. The denial of medical
care in that case, it was alleged, ultimately lead to the plaintiff undergoing
surgery and losing the ability to walk. Id. There is no indication that the Balle
plaintiff provided any statistics regarding the overall jail population in
comparison to other jails, but this court affirmed that he had stated a claim
for municipal liability by alleging a “pattern of failures” that occurred over
the course of his time in custody. Id. at 560. Thus, even if we read cases like
Peterson and Pineda to establish a requirement that the incidents alleged in a
complaint constitute an appreciable portion of official conduct, Balle
confirms that this fact can be reasonably inferred without being explicitly
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alleged in an initial pleading—at least in a jail serving an area the size of
Nueces County. 4
Even if Bond had alleged statistics or a number of potential incidents,
the twenty-three examples provided, “known only because of individual
contact by such individuals with [Bond’s attorney],” would still “represent
only a small portion of the complaints and/or concerns with medical care
at/in the Nueces County Jail.” Tami’s experience does not stand alone in
the proposed complaint; to dismiss the case without permitting Bond the
opportunity to seek records in defendant’s possession that reflect a more
accurate picture is to hold Bond to a standard too high at this stage of
litigation when she has pleaded numerous alleged incidents of inadequate
medical care.
The district court’s remaining rationales for discounting several of the
specific policies Bond alleged in her proposed third amended complaint are
also flawed. The court stated that purported policies five (processing inmates
for incarceration who should immediately receive medical attention) and
nine (failing to provide sufficient manpower to monitor inmates) did not have
any causal connection to Tami’s death because Tami was not exhibiting
cause for medical concern at the time of her initial booking and Bond did not
assert that inadequate staffing contributed to Tami’s failing to receive
4
This case concerns only the population of a jail—not the whole county—in a
county with a total population of only about 360,000 people. See United States Census
Bureau, Quick Facts – Nueces County, https://www.census.gov/quickfacts/
nuecescountytexas. This is a considerably smaller denominator than was at issue at the
summary judgment stage in Peterson and Pineda. Cf. Peterson, 588 F.3d at 851 (discussing
police activity in Fort Worth, which had a population of approximately 900,000, see United
States Census Bureau, Quick Facts – Fort Worth City, Texas,
https://www.census.gov/quickfacts/fact/table/fortworthcitytexas) and Pineda, 291 F.3d
at 329 (discussing police activity in Houston, which had a population of approximately
2,300,000, see United States Census Bureau, Quick Facts – Houston City, Texas,
https://www.census.gov/quickfacts/fact/table/houstoncitytexas).
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No. 20-40050
medical care. But one can infer that jail officials were aware that Tami had
swallowed the baggies when they conducted her initial booking—and thus
that their alleged decision to incarcerate her rather than provide her
emergency medical care contributed to her death—from the facts that Tami
was arrested for tampering with evidence by ingesting narcotics, that guards
entered the holding cell and searched it for narcotics, and that officers knew
she was hallucinating and displaying other concerning symptoms. Bond also
alleged that jail officials did not conduct the 15-minute-watch monitoring that
the Texas Jails Standards prescribed for inmates in isolation, and one can
infer that such a failure to comply with the Standards caused or contributed
to Tami’s death.
The district court also concluded that policies two (failing to provide
immediate medical care as called for under the Texas Jail Standards) and
twelve (failing to follow Texas Jail Standards regarding periodic cell checks
of patients displaying overdose symptoms) detailed violations of state law,
and therefore could not support a § 1983 claim for the violation of federal
rights. But this misconstrues Bond’s allegations. Bond does not assert that
she is entitled to relief simply because jail officials disregarded Texas state
law. Rather, Bond argues that jail officials had a custom of disregarding state
law that was so persistent and widespread as to constitute a municipal policy,
and their adherence to this “policy” of disregarding state law was the
“moving force” behind a violation of Tami’s federal constitutional rights.
Monell, 436 U.S. at 694; cf. Balle, 952 F.3d at 560 (finding that jail officials’
pattern of defying state law that required them to implement procedures to
provide medical treatment to inmates efficiently and promptly in acute and
emergency situations constituted a policy for purposes of § 1983 municipal
liability claim). That the allegations involve violations of state law is
incidental; the salient question is whether Bond has alleged a practice “so
common and well-settled as to constitute a custom that fairly represents
18
Case: 20-40050 Document: 00516491399 Page: 19 Date Filed: 09/30/2022
No. 20-40050
municipal policy.” Peterson, 588 F.3d at 847; cf. Louise B. v. Coluatti, 606 F.2d
392, 399 (3d Cir. 1979) (“To put the matter more bluntly, where a state
violates federal law, it is no better off because it also violates its own law.”).
Twombly and Iqbal require us to discount conclusory allegations in a
complaint that amount to a recitation of the elements of the legal claim, then
consider whether the facts that remain state a plausible claim for relief.
Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 680. Here, that means removing
from our consideration of Bond’s proposed third amended complaint any
bare statements that jail officials acted in accordance with a policy maintained
by Nueces County when they allegedly violated Tami’s constitutional rights.
But a wealth of factual allegations regarding acts attributable to Nueces
County remain when these statements are excised from Bond’s proposed
third amended complaint, including that County jail officials routinely failed
to identify or address the medical needs of inmates in a timely manner, that
they had decided not to implement the Texas Commission on Jail Standards’
recommendations for providing efficient and prompt medical care in acute
and emergency situations, that the County provided no official training on
how to identify and address inmates exhibiting cause for medical concern,
that persistent inadequate staffing had led to insufficient monitoring of
inmates and their medical needs, and a host of other alleged widespread
patterns or practices. And the proposed complaint alleged that Nueces
County had failed to act to correct these patterns or customs despite the
County’s being aware that they had caused injury or death on at least twenty-
three specific past occasions. These allegations are “enough to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555. Accordingly,
the district court erred by denying Bond leave to amend on the ground that
amendment would be futile.
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No. 20-40050
IV.
Based on the foregoing, we AFFIRM the dismissal of Bond’s Second
Amended Complaint, VACATE the district court’s denial of leave to amend,
and REMAND the case for further proceedings consistent with this opinion.
We express no view as to what decisions the district court should make on
remand.
20