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Ramirez v. Escajeda

United States Court of Appeals, Fifth Circuit

April 16, 2019

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,
v.
RUBEN ESCAJEDA, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.

          JERRY E.SMITH, CIRCUIT JUDGE

         Government 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.

         I.

         Maria 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.

         It was 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.

         Whatever 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."

         The 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.

         Maria and her husband Pedro sued Escajeda in his personal capacity under 42 U.S.C. § 1983, [1] 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.

         II.

         An 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).

         III.

         Though 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 but ...


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