MARIA RAMIREZ, as Representative of the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez; PEDRO RAMIREZ, as Representative of the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez, Plaintiffs-Appellees,
RUBEN ESCAJEDA, JR., Defendant-Appellant.
from the United States District Court for the Western
District of Texas
HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
E.SMITH, CIRCUIT JUDGE
officials are often entitled to qualified immunity
("QI") from liability for civil damages for
performing their discretionary duties. See, e.g.,
Romero v. City of Grapevine, 888 F.3d 170, 176 (5th
Cir. 2018). And when a district court denies QI, we may
immediately review the denial. Rich v. Palko, No.
18-40415, 2019 U.S. App. LEXIS 9856, at *7 (5th Cir. Apr. 3,
2019). But "we have jurisdiction only to decide whether
the district court erred in concluding as a matter of law
that officials are not entitled to [QI] on a given set of
facts." Id. at *7-8 (alteration in original,
citation omitted). We may not "review the simple denial
of a motion to dismiss for failure to state a claim."
Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008).
Because the defendant here has abandoned the former and
presses only the latter, we dismiss the appeal.
Ramirez called 911 the evening of June 23, 2015, saying that
her son Daniel was threatening to hang himself and needed
help. Maria insists that she "did not tell dispatch that
[Daniel] had a weapon because he did not." Ruben
Escajeda, Jr., an El Paso Police Department officer,
responded to the call, which he maintains was "a
call-out regarding a suicidal subject with a weapon." He
arrived at the Ramirezes' house and went to the backyard
to look for Daniel.
dusk when Escajeda arrived, and the parties dispute exactly
what he was able to see. The Ramirezes allege that Escajeda
"immediately saw Daniel in the process of hanging
himself from a basketball net." But "Daniel was
clearly still alive," they maintain, and "was
grabbing the rope around his neck and touching the ground
with his tiptoes-trying to save his own life." The
Ramirezes continue that "[t]here were sufficient
lighting conditions for Esca-jeda to observe that Daniel was
alive," that his hands were on the basketball net, that
he had no weapon, and that he "was not a threat."
Escajeda counters that he saw Daniel but "was barely
able to make out the deceased through the near dark" and
could not see that Daniel was attempting to hang himself.
the lighting conditions allowed him to see, Escajeda contends
that he repeatedly asked Daniel to show his hands. And when
Escajeda was "unable to see . . . the subject's
hands" "after multiple demands," he warned
Daniel "that he would tase him if he did not raise his
hands." Because Escajeda still could not see
Daniel's hands, "he deployed his taser."
Escajeda insists that even though he used the taser because
he did not see Daniel raise his hands, he "was unable to
see that [Daniel] was hanging himself."
Ramirezes allege that the taser hit Daniel in his chest and
abdomen and that his body immediately went limp. Then
Escajeda approached Daniel and discovered that he "was
hanging himself during the encounter." Escajeda removed
Daniel from the basketball net and began CPR. Daniel was
transported to a hospital and soon pronounced dead. Police
did not recover a weapon.
and her husband Pedro sued Escajeda in his personal capacity
under 42 U.S.C. § 1983,  alleging that "use of a
taser was not necessary nor justified" and was "an
objectively unreasonable and excessive amount of force"
in violation of their son's Fourth and Fourteenth
Amendment rights. Escajeda moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6), asserting QI and stressing
that plaintiffs had not met the plausibility standard for
pleading. The district court denied the motion, holding that
Escajeda was not entitled to QI based on well-pleaded facts
in the complaint.
officer sued under § 1983 may claim QI, and once he
does, the plaintiff must rebut by establishing (1) that the
officer "violated a federal statutory or constitutional
right" and (2) that "the unlawfulness of the
conduct was 'clearly established at the time.'"
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (citation omitted). If a defendant raises QI and the
district court denies it, we have jurisdiction on
interlocutory appeal to review the denial de novo.
Brown, 519 F.3d at 236. But our review is
"restricted to determinations of questions of law and
legal issues." Club Retro, L.L.C. v. Hilton,
568 F.3d 181, 194 (5th Cir. 2009) (cleaned up). "[W]e do
not consider the correctness of the plaintiff's version
of the facts." Id. (internal quotation marks
and citation omitted).
Escajeda styles this appeal as a challenge to the denial of
QI, he makes no attempt to show that, taking well-pleaded
facts as true, he did not violate Daniel's
clearly-established constitutional rights. "Questions
posed for appellate review but inadequately briefed are
considered abandoned." Dardar v. Lafourche Realty
Co., 985 F.2d 824, 831 (5th Cir. 1993). By presenting