MEMORANDUM OPINION AND ORDER – PAGE 1 

 IN THE UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

SHAWNA McKINNEY, et al., § 

 § 

 Plaintiffs, § 

 § 

v. § Civil Action No. 3:22-CV-2264-N 

 § 

JOHNSON COUNTY, TEXAS, et al., § 

 § 

 Defendants. § 

 MEMORANDUM OPINION AND ORDER

 This Order addresses Defendants Johnson County, Adam King, David Blankenship, 

Bryan Gordy, Ashley Lawrence, Michal Tunnel, Aimee Fuller, Brittany Frias, Kristi 

Roden, Abel Flores, MacKensie Young, and Nelida Arevalo-Braddick’s (collectively 

“Defendants”) motion to dismiss [22]. For the following reasons, the Court grants in part 

and denies in part the motion. 

I. ORIGINS OF THE DISPUTE

 Plaintiffs Shawna McKinney, Mary Garcia, and Chayce McKinney (collectively 

“Plaintiffs”) filed this lawsuit in response to Donald Eugene McKinney’s death while in 

custody. Plaintiffs seek relief under 42 U.S.C. § 1983 and section 71.002 of the Texas 

Civil Practice and Remedies code against Johnson County and several individual 

defendants. Plaintiffs allege that Defendants violated McKinney’s constitutional right to 

adequate medical care and were deliberately indifferent to his serious medical needs. 

Defendants filed the instant motion to dismiss seeking dismissal of all claims against all 

defendants. 

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MEMORANDUM OPINION AND ORDER – PAGE 2 

 When McKinney first arrived at Johnson County jail, he had already been diagnosed 

with HIV and pulmonary fibrosis, but consistently took medications that kept his health 

stable and had a prognosis to live for years if treated properly. Pls.’ Second Am. Compl. 

¶ 3 [19].1

 McKinney was arrested for a probation violation when he triggered the alcohol 

interlock on his automobile. Pls.’ Second Am. Compl. ¶ 27. As a result of this probation 

violation, Judge Bridewell in the 249th District Court of Texas sentenced McKinney to two 

years of confinement, minus credit for 456 days. Id.; Ex A. McKinney was incarcerated 

in the Johnson County Jail starting January 24, 2022. Id. at ¶ 28. On February 1, 2022, 

McKinney submitted a grievance that the prison withheld 14 doses of his needed 

medications. Id. at ¶ 31 (citing Ex. B). At the request of McKinney’s attorney, the day 

after filing the grievance, Judge Bridewell held an emergency hearing and ordered the jail 

to administer McKinney’s medications. Id. (citing Ex. A, C). Despite the court order, over 

the next six weeks McKinney submitted twelve separate grievances and requests 

documenting the failures of the prison staff to follow the court order and provide his 

medication. Id. (citing Ex. B-N). In this documentation, McKinney described his 

worsening condition due to missing many consecutive doses, jail staff substituting his 

medication in defiance of the court order, his pleading to jailers and nurses to provide him 

with medication, and his genuine fears that he would die if this treatment continued. Id. 

McKinney was released on April 7, 2022, and admitted to Southwest Hospital on April 20, 

2022. Id. at ¶ 35. For approximately two weeks McKinney received urgent treatment at 

1

 In the context of a motion to dismiss, the Court takes well-pled facts in the complaint as 

true. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012). 

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MEMORANDUM OPINION AND ORDER – PAGE 3 

the hospital, but the doctors determined that McKinney’s condition was terminal and he 

died on May 13, 2022. Id. at ¶ 35. 

 McKinney’s death marks the fourth death since 2011 at the Johnson County Jail in 

connection to inadequate medical care while in custody. Id. at ¶ 4. In the years preceding 

McKinney’s incarceration, Johnson County Jail was managed by LaSalle Corrections. 

Cite. However, five months before McKinney’s incarceration, Johnson County terminated 

its management contract with LaSalle Corrections. Id. at ¶ 2. LaSalle Corrections 

managed several other jails and prisons where more inmates suffered from inadequate 

medical care. Id. at ¶ 5. Plaintiffs allege that regardless of Johnson County taking back 

management of the Johnson County Jail, LaSalle’s “established pattern and practice of 

neglecting the medical needs of inmates continued as an embedded practice [in the Johnson 

County Jail], either intentionally or as the result of a failure to adopt proper procedure and 

supervision.” Id. at ¶ 2. Defendants now move to dismiss all claims against them. 

II. RULE 12(B)(6) LEGAL STANDARD

 When ruling on a Rule 12(b)(6) motion to dismiss, a court must determine whether 

the plaintiff asserted a legally sufficient claim for relief. Blackburn v. City of Marshall, 42 

F.3d 925, 931 (5th Cir. 1995). A viable complaint must include “enough facts to state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). To meet this standard, a plaintiff must “plead[] factual content that allows 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). A court generally accepts well-pled facts as 

true and construes the complaint in the light most favorable to the plaintiff. Gines, 699 

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MEMORANDUM OPINION AND ORDER – PAGE 4 

F.3d at 816. But a court does “not accept as true conclusory allegations, unwarranted 

factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th 

Cir. 2007). A plaintiff must provide “more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 

“Factual allegations must be enough to raise a right to relief above the speculative 

level . . . on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact).” Id. (internal citations omitted). 

 In ruling on a Rule 12(b)(6) motion, a court generally limits its review to the face 

of the pleadings, accepting as true all well-pleaded facts and viewing them in the light most 

favorable to the plaintiff. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). 

However, a court may also consider documents outside of the pleadings if they fall within 

certain limited categories. First, a “court is permitted . . . to rely on ‘documents 

incorporated into the complaint by reference, and matters of which a court may take judicial 

notice.’” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Second, a “written 

document that is attached to a complaint as an exhibit is considered part of the complaint 

and may be considered in a 12(b)(6) dismissal proceeding.” Ferrer, 484 F.3d at 780. 

Third, a “court may consider documents attached to a motion to dismiss that ‘are referred 

to in the plaintiff’s complaint and are central to the plaintiff’s claim.’” Sullivan v. Leor 

Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010) (quoting Scanlan v. Tex. A & M Univ., 

343 F.3d 533, 536 (5th Cir. 2003)). Finally, “[i]n deciding a 12(b)(6) motion to dismiss, a 

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MEMORANDUM OPINION AND ORDER – PAGE 5 

court may permissibly refer to matters of public record.” Cinel v. Connick, 15 F.3d 1338, 

1343 n.6 (5th Cir. 1994). 

III. SHAWNA MCKINNEY HAS STANDING TO SUE 

AS EXECUTRIX OF MCKINNEY’S ESTATE

 Plaintiffs bring a wrongful death claim under section 71.002 of the Texas Civil 

Practice and Remedies code. Section 71.004 specifies that the surviving spouse, children, 

or parents are beneficiaries of the act and have the power to bring a cause of action in a 

wrongful death claim seeking their personal damages for, e.g., loss of companionship, 

physical pain, and mental anguish, from the decedent’s death. TEX. CIV. PRAC. & REM.

CODE § 71.004; Cunningham v. Haroona, 382 S.W.3d 492, 508 (Tex. App.—Fort Worth 

2012, pet. Denied) (citing In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009). 

As sister to McKinney, Shawna McKinney is not a beneficiary of the act and does not have 

standing to sue in her individual capacity. However, “[i]f none of the individuals entitled 

to bring an action have begun the action within three calendar months after the death of the 

injured individual, his executor or administrator shall bring and prosecute the action [for 

the benefit of the individuals] unless requested not to by all those individuals.” TEX. CIV. 

PRAC. & REM. CODE § 71.004. Shawna McKinney filed the Original Complaint five 

months after Donald McKinney’s death as Independent Executrix of his estate. Shawna 

McKinney satisfies the requirements for standing to sue under the wrongful death statute 

as executrix of the estate. 

 As noted above, although Shawna McKinney has standing to bring wrongful death 

claims as executrix of Donald McKinney’s estate on behalf of the statutory beneficiaries, 

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MEMORANDUM OPINION AND ORDER – PAGE 6 

she does not have standing to bring a survival claim2

 in an individual capacity. Under 

Texas law the representative of an estate can bring a survival action when “the actionable 

wrong is that which the decedent suffered before his death for which he would have been 

able to bring an action had he lived.” Id. § 71.021; Gantt v. Harris Cnty., 674 S.W.3d 553, 

560 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (citing Russell v. Ingersoll-Rand Co., 

841 S.W.2d 343, 345 (Tex. 1992); In re Jindal Saw Ltd., 264 S.W.3d 755, 765–66 (Tex. 

App.—Houston [1st Dist.] 2008, orig. proceeding)). But the damages recoverable in a 

survival action “are those which [the decedent] himself sustained while he was alive and 

not any damages claimed independently by the survival action plaintiffs.” Russell, 841 

S.W.2d at 345. Shawna McKinney individually does not bring a traditional survival claim. 

Instead, in her response to this motion, Shawna McKinney asserts individual standing for 

the personal wrongs she experienced under the theories of bystander liability and 

intentional infliction of emotional distress, which are not acceptable theories of recovery 

under a survival action. See Pls.’ Resp. 8-9 [25]. 

 Furthermore, Plaintiffs pled no facts alleging these theories of harm in any of their 

Complaints. See Pls.’ Original Compl, [1]; Pls.’ First Am. Compl. [5]; Pls.’ Second Am. 

Compl. “Generally, a new claim or legal theory raised in response to a dispositive motion 

should be construed as a request for leave to amend the complaint, and the district court 

2

 Plaintiffs do not mention a survival claim in their briefing for this motion or in any of 

their complaints. See. Pls.’ Resp.; Pls.’ Original Compl, [1]; Pls.’ First Am. Compl. [5]; 

Pls.’ Second Am. Compl. Nevertheless, the Court seeks to clarify what damages are 

recoverable under either a wrongful death claim or under a survival claim and who are the 

proper parties to bring either action as the Plaintiffs muddle the two claims. 

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should determine whether leave should be granted.” Pierce v. Hearne Indep. Sch. Dist., 

600 F. App’x 194, 200 (5th Cir. 2015) (citing Stover v. Hattiesburg Pub. Sch. Dist., 549, 

F.3d 985, 989 n.2 (5th Cir. 2008)). Plaintiffs amended their complaint twice without 

adding Shawna’s bystander liability and intentional infliction of emotional distress claims. 

See Pls.’ Original Compl.; Pls.’ First Am. Compl.; Pls.’ Second Am. Compl. Now it is too 

late to amend. See Jones v. Robinson Prop. Grp., 427 F.3d 987, 994 (5th Cir. 2005) 

(“[R]epeated failures to cure deficiencies by amendments previously allowed” supports a 

court’s denial of a party’s request for leave to amend.). Furthermore, an amendment is 

futile because Johnson County maintains sovereign immunity over these state law claims 

and the Texas Tort Claims Act (“TTCA”) bars these claims against the individual 

defendants, as detailed below in Section VII. In conclusion, Shawna McKinney does not 

have standing to assert claims in her individual capacity but maintains standing as 

Independent Executrix of the Estate of Donald Eugene McKinney. 

IV. CHAYCE MCKINNEY AND MARY GARCIA HAVE 

STANDING TO SUE ONLY IN THEIR INDIVIDUAL CAPACITIES

 The Second Amended Original Complaint adds as named plaintiffs, Chayce 

McKinney, son of decedent, and Mary Garcia, mother of decedent. See generally Pls.’ 

Second Am. Compl. Chayce McKinney and Mary Garcia have standing to bring a 

wrongful death claim in their individual capacities under section 71.004 as surviving 

mother and son. They do not have standing to sue on behalf of the Estate of Donald Eugene 

McKinney because Shawna McKinney, as “the estate’s personal representative[,] generally 

has the exclusive rights to bring such suits” and no exceptions to this general rule applies 

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MEMORANDUM OPINION AND ORDER – PAGE 8 

to this case. Jordan v. Lyles, 455 S.W.3d 785, 790 (Tex. App.—Tyler 2015, no pet.) (citing 

Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998); Protho v. Zapata, 157 S.W.3d 

832, 839 (Tex. App.—Fort Worth 2005, no pet.)) 

V. PLAINTIFFS PLED SUFFICIENT FACTS AGAINST INDIVIDUAL 

DEFENDANTS TO OVERCOME QUALIFIED IMMUNITY 

 “Qualified immunity is a defense available to public officials performing 

discretionary functions ‘. . . insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person should have known.’” 

Noyola v. Texas Dep’t of Human Resources, 846 F.2d 1021, 1024 (5th Cir. 1988) (quoting 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This doctrine balances two interests: 

“the need to hold public officials accountable when they exercise power irresponsibly and 

the need to shield officials from harassment, distraction, and liability when they perform 

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Because 

qualified immunity is designed to shield from civil liability ‘all but the plainly incompetent 

or those who knowingly violate the law,’” denial of qualified immunity is appropriate only 

in rare circumstances. Brady v. Ford Bend Cty., 58 F.3d 173, 173 (5th Cir. 1995) (quoting 

Malley v. Briggs, 475 U.S. 335, 341 (1986)). Once a defendant raises the defense of 

qualified immunity, the plaintiff bears the burden to demonstrate that it does not apply. 

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); McClendon v. City of 

Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). 

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A. An Inmate’s Constitutional Right to 

Adequate Medical Care While in Custody 

 To state a claim against an individual under section 1983, a plaintiff must allege 

facts showing how that individual defendant participated in the alleged deprivation of a 

person’s constitutional rights. Palm v. Marr, 174 F. Supp. 2d 484, 488 (N.D. Tex. 2001) 

(citing Lonzano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)). A prison or jail official can 

be found liable under the Fourteenth Amendment for acting with deliberate indifference to 

a pretrial detainee’s medical needs. Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019). 

Following sentencing, an inmate maintains their right to not have their medical needs met 

with deliberate indifference under the Eighth Amendment’s ban on cruel and unusual 

punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 

825, 832 (1994). A prison or jail official acts with deliberate indifference if “the official 

knows of and disregards an excessive risk to inmate health or safety; the official must both 

be aware of facts from which the inference could be drawn that a substantial risk of serious 

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 

 1. Plaintiffs Pled Sufficient Facts That the Defendants Involved With the 

Grievance Review Process Were Deliberately Indifferent to McKinney’s Medical Needs. 

– Plaintiffs’ second amended complaint outlines the series of grievances and requests 

submitted from February 1, 2022 to March 14, 2022. Pls.’ Second Am. Compl. ¶ 31 (citing 

Ex. B-N). In his first grievance, McKinney states that he had his “medication with held 

[sic] for 14 treatment doses” and “the abrubt [sic] stop is caus[ing him] nausea, dizziness, 

diareah [sic], shortness of breath, cough with blood clotting and migraines.” Id. (citing 

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MEMORANDUM OPINION AND ORDER – PAGE 10 

Ex. B). The day after this grievance, the sentencing Judge in Johnson County held an 

emergency hearing and ordered the jail to administer McKinney’s medications to him. Id.

(citing Ex. A (specifically instructing McKinney receive 100mg of OFEV 2 times a day, 

Symtuza once a day, and his Breo inhaler)). Despite this court order, over a six-week 

period, the prison staff failed to administer McKinney’s medication to him with any 

regularity. Id. In subsequent requests and grievances McKinney documented the missed 

doses, incorrectly substituted medicine, and his worsening condition. Id. He states in three 

separate grievances that he will die without the consistent administration of his medication. 

Id. (citing Ex. H, I, K). 

 Defendants Bryan Gordy, Kristi Roden, Ashley Lawrence,3

 MacKenzie Young, and 

Nelida Arevalo-Braddick were all named “users” in the documentation of the jail’s 

processing of McKinney’s grievances and requests. Id. (citing Ex. B-N). Each individual 

user marked a grievance as “closed” despite McKinney’s persistent follow-up grievances 

that he had not received his court ordered medication with any regularity. Id. These factual 

allegations against the above-named Defendants are specific enough to state a plausible 

claim that each Defendant possessed the requisite awareness of the risk of harm and 

exhibited deliberate indifference to McKinney’s constitutional rights. Accordingly, the 

Court denies the motion to dismiss the section 1983 claims against Defendants Bryan 

3

Though Ashley Lawrence was never a listed “user,” she signed off on several internal notes saying 

“your medications have been ordered and you are receiving them” in response to user Kristi Roden 

changing the status of McKinney’s grievances to closed. See Ex. F-H, K. 

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MEMORANDUM OPINION AND ORDER – PAGE 11 

Gordy, Kristi Roden, Ashley Lawrence, MacKenzie Young, and Nelida Arevalo-Braddick 

in their individual capacities. 

 2. Plaintiffs Pled Sufficient Facts to Establish a Claim That Michal Tunnel and 

Abel Flores, as Jailers, Were Deliberately Indifferent to McKinney’s Medical Needs. – 

A jailer’s refusal to administer medical care amounts to deliberate indifference. See

Perniciaro v. Lea, 901 F.3d 241, 258 (5th Cir. 2018) (A “plaintiff must show that officials 

refused to treat him, ignored his complaints, intentionally treated him incorrectly, or 

engaged in any similar conduct that would clearly evince a wanton disregard for any 

serious medical needs.” (internal quotation marks omitted)). The complaint alleges that 

McKinney verbally complained to jailers that he was not receiving his medication or at 

least not receiving it consistently as required by court order. Pls.’ Second Am. Compl. 

¶ 30. Plaintiffs allege that these repeated complaints to the jailers establish that Michal 

Tunnel and Abel Flores “actually knew that McKinney was in dire need of medical 

assistance but failed to follow through and correct the inactivity of other jail employees.” 

Id. ¶¶ 15, 19. These factual allegations are specific enough to state a plausible claim that 

Defendants Tunnel and Flores possessed the requisite awareness of the risk of harm and 

exhibited deliberate indifference to McKinney’s constitutional rights. Accordingly, the 

Court denies the motion to dismiss the section 1983 claims against Defendants Tunnel and 

Flores. 

3. Plaintiffs Pled Sufficient Facts That Aimee Fuller and Brittany Frias, as 

Medical Staff, were Deliberately Indifferent to McKinney’s Medical Needs. – The 

complaint alleges that Aimee Fuller “had actual knowledge of the specific medication 

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MEMORANDUM OPINION AND ORDER – PAGE 12 

ordered to be given to McKinney by the presiding judge, advised that this was not going to 

be done and that instead they were searching for a cheaper alternative.” Id. at ¶ 28. 

Additionally, the complaint alleges that Brittany Frias “actually knew that McKinney was 

in dire need of medical assistance but failed to follow through and correct the inactivity of 

other Jail employees, thereby exhibiting deliberate indifference to his serious medical 

condition.” Id. Furthermore, in the documented grievances, McKinney named both Nurse 

Fuller and Nurse Frias and his efforts to inform them of his medical needs and deteriorating 

condition, demands for consistent administration of medication, and insistence that the jail 

staff follow the court order for said medication. Id. at ¶ 31 (citing Ex. B, E-L). These 

factual allegations against Defendants Fuller and Frias are specific enough to state a 

plausible claim that each of them possessed the requisite awareness of the risk of harm and 

exhibited deliberate indifference to McKinney’s constitutional rights. Accordingly, the 

Court denies the motion to dismiss the section 1983 claims against Defendants Fuller and 

Frias. 

B. The Standard for Supervisory Liability 

 “Liability under Section 1983 for a supervisor may exist based either on ‘(1) his 

personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 

between the supervisor’s wrongful conduct and the constitutional violation.’” Mesa v. 

Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (quoting Thompkins v. Belt, 828 F.2d 298, 304 

(5th Cir. 1987)). Absent “overt personal participation” in the events that give rise to the 

alleged constitutional violations, a plaintiff must show that “(1) the supervisor either failed 

to supervise or train the subordinate official; (2) a causal link exists between the failure to 

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train or supervise and the violation of the plaintiff’s rights; and (3) the failure to train or 

supervise amounts to deliberate indifference.” Id. at 274 (quoting Estate of Davis v. City 

of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005)). Deliberate indifference is a 

“‘conscious’ choice to endanger constitutional rights.” Id. (quoting Snyder v. Trepagnier, 

142 F.3d 791, 799 (5th Cir. 1998)). In general, proof of deliberate indifference requires a 

showing of “more than a single instance of the lack of training or supervision causing a 

violation of constitutional rights.” Id. (quoting Burge v. St. Tammany Parish, 336 F.3d 

363, 370 (5th Cir. 2003)). “To satisfy the deliberate indifference prong, a plaintiff usually 

must demonstrate a pattern of violations and that the inadequacy of the training [or 

supervision] is ‘obvious and obviously likely to result in a constitutional violation.’” 

Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (quoting Thompson v. Upshur County, 

245 F.3d 447, 459 (5th Cir. 2001)). 

1. Plaintiffs Failed to Plead Sufficient Facts to Establish Supervisory Liability 

Claims Against Sheriff Adam King and Chief Deputy David Blankenship in Their 

Individual Capacity. – Plaintiffs did not plead that Defendants King and Blankenship were 

overtly involved in McKinney’s medical care. Instead, Plaintiffs allege that Defendant 

King “negligently and carelessly delegated responsibility for administration of medication 

and provision of adequate medical care to persons under his direct control and supervision 

but failed and refused to supervise.” Pls.’ Second Am. Compl. ¶ 28. Plaintiffs allege that 

this failure to supervise included failure to receive notifications through the grievance 

procedure. Id. As for Defendant Blankenship, Plaintiffs allege that he “is the Chief Deputy 

reporting directly to Defendant King, thereby assuming the same responsibilities as King 

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for, among other matters, overall supervisions of personnel providing medical care for 

inmates,” but “did absolutely nothing to assure compliance with the judicial directive to 

provide necessary medications for McKinney.” Id. Though Plaintiffs state specific facts 

to allege that King and Blankenship failed to supervise and there was a causal connection 

between the failure to supervise and the constitutional violation, the complaint does not 

allege a pattern of sufficiently similar constitutional violations. Plaintiffs allege that there 

have been three inmate deaths at Johnson County Jail between 2011–2015 resulting from 

inadequate medical care, but the complaint does not allege facts showing Defendants failed 

to provide an inmate with their court order medical care beyond the incident giving rise to 

this lawsuit. Therefore, the Court dismisses Plaintiffs’ claims for failure to supervise 

against Defendants King and Blankenship. 

2. Plaintiffs Pled Sufficient Facts to Establish Supervisory Liability Claims 

Against Captain Brian Gordy and Ashley Lawrence in Their Individual Capacity. –

Plaintiffs allege that, like Defendants King and Blankenship, Defendant Gordy 

“supervised, and oversaw the administration and management of the Johnson County 

employees . . . and was responsible for ensuring the presence and implementation of proper 

policies, procedures, and training of the medical staff, as evidenced by his signature on the 

official Medical Policies and Procedures Manual for Johnson County.” Id. Furthermore, 

as evidenced by his managing of several of McKinney’s grievances, Defendant Gordy was 

personally aware of and involved in the jail’s failure to provide McKinney with his court 

ordered medication and the risk of harm associated with inconsistent and delayed 

administration of the medication. Id. Despite his role as supervisor and personal 

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MEMORANDUM OPINION AND ORDER – PAGE 15 

knowledge of nurses “Fuller and Frias’s defiance and disobedience of the court order,” 

Defendant Gordy “failed and refused to have this corrected,” amounting to deliberate 

indifference. Id. Plaintiffs plead sufficient facts to establish that defendant Gordy had 

personal involvement in the constitutional violation and was deliberately indifferent to 

rectifying McKinney’s harm. Therefore, the Court denies the motion to dismiss the 

supervisory liability claim against Defendant Gordy in his individual capacity. 

 Similarly, Plaintiffs allege that Defendant Ashley Lawrence as the Health Services 

Administrator was “in charge of supervising and administering the procedures and 

implementation of delivery of medical services for the inmates of the Johnson County 

Jail . . . and oversees and supervises the delivery of nursing and other medical care in the 

Jails, including standards of medical care and utilization review.” Id. at ¶ 14. Furthermore, 

Plaintiffs allege Lawrence showed “careless and reckless disregard for health and safety of 

inmates,” including McKinney and failed to “supervise properly the nurses, nurse aides, 

and medical assistants working under her” and failed to monitor grievances submitted by 

McKinney to ensure medical staff performed properly. Id. ¶ 28. Plaintiffs pled sufficient 

facts to establish that Defendant Lawrence had personal involvement in the constitutional 

violation and was deliberately indifferent to rectifying McKinney’s harm. Therefore, the 

Court denies the motion to dismiss the supervisory liability claim against Defendant 

Lawrence. 

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C. The Court Declines to Dismiss 

Claims Against Unserved Defendants 

 Defendants argue that “when one defending party establishes that the plaintiff has 

no cause of action, this defense generally inures also to the benefit of other similarly 

situated defendants.” Doggins v. Green, 2020 WL 6482981, at *3 n.4 (E.D. Tex. Aug. 17, 

2020) (citing Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001). Because the Court 

determines that Plaintiffs pled sufficient facts to support allegations against nine individual 

Defendants, the claims against unserved defendants remain. Accordingly, the Court denies 

dismissal of claims against unserved Defendants. 

VI. PLAINTIFFS PLED SUFFICIENT FACTS TO STATE A CLAIM 

FOR MONELL LIABILITY AGAINST JOHNSON COUNTY

 Section 1983 does not permit vicarious liability for municipalities. A “municipality 

cannot be held liable solely because it employs a tortfeasor — or, in other words, a 

municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell 

v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978) (emphasis 

in original). Municipality or corporate liability under section 1983 requires proof of three 

elements: “a policymaker; an official policy; and a violation of constitutional rights whose 

‘moving force’ is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 

(5th Cir. 2001) (citing Monell, 436 U.S. at 694). 

A. Plaintiffs Adequately Pled a Custom 

or Policy with Respect to Johnson County 

 There are two ways of defining an “official custom or policy” for the purposes of 

Monell liability: 

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1. A policy statement, ordinance, regulation, or decision that is officially 

adopted and promulgated by the municipality’s lawmaking officers or by 

an official to whom the lawmakers have delegated policy-making 

authority; or 

2. A persistent, widespread practice of city officials or employees, which, 

although not authorized by officially adopted and promulgated policy, is 

so common and well settled as to constitute a custom that fairly represents 

municipal policy. Actual or constructive knowledge of such custom must 

be attributable to the governing body of the municipality or to an official 

to whom that body had delegated policy-making authority. 

Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). Plaintiffs do not allege any official 

statement or regulation. Instead, Plaintiffs allege a widespread custom of deliberate 

indifference to prisoners’ medical needs. Pls.’ Second Am. Compl. ¶ 4. 

 A single act or incident is not a custom. “There must be a ‘persistent and widespread 

practice’” to establish a custom. Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 

2002) (quoting Piotrowski, 237 F.3d at 581). Plaintiffs have plausibly alleged a pattern of 

conduct among Johnson County’s staff constituting a failure to provide necessary medical 

treatment resulting in unnecessary deaths to three additional inmates in Johnson County 

Jail from 2011–2015. Pls.’ Second Am. Compl. ¶4. Defendants argue these allegations 

are insufficient to establish the existence of a custom or policy in 2022 because the previous 

deaths are not recent and occurred when the jail was operated by an outside company. 

Defs.’ Mot. to Dismiss 28 [22]. Plaintiffs respond that the previous operation of the jail by 

a private company established a de facto custom of deliberate indifference to prisoner’s 

medical needs and this de facto custom carried over when Johnson County took control of 

operations, continuing the same pattern of deliberate indifference to inmate medical needs 

as established by the private company. Pls.’ Second Am. Compl. ¶¶ 37-38. Even if these 

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MEMORANDUM OPINION AND ORDER – PAGE 18 

incidents would ultimately be insufficient to establish liability, the Court holds the 

allegations are sufficient at the motion to dismiss stage to allow the Court to draw a 

reasonable inference that Johnson County is liable for the misconduct alleged. Therefore, 

Plaintiffs’ allegations of custom are sufficient to survive a motion to dismiss if the 

complaint alleges actual or constructive knowledge of this pattern of conduct by an 

identifiable governing body or policymaker. 

B. Plaintiffs Stated Sufficient Facts to Plausibly 

Allege Policymakers Knew of the Custom 

The precise identity of a policymaker is a question of law, but a plaintiff must still 

allege that “‘[a]ctual or constructive knowledge of such custom’ is attributed to 

a . . . policymaker” to hold a municipality liable. Peña v. City of Rio Grande City, 879 

F.3d 613, 623 (5th Cir. 2018) (quoting Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 

(5th Cir. 2017)); see also Blanchard-Daigle v. Greers, 802 F. App’x 113, 117 (5th Cir. 

2020) (“Indeed, we said that naming the entity that acted under the policy was 

fundamental.” (citing Groden v. City of Dallas, 826 F.3d 280, 284 n.4 (5th Cir. 2016))). 

 Plaintiffs name four people they allege are policymakers: Defendants Adam King, 

David Blankenship, Bryan Gordy, and Ashley Lawrence. It is undisputed that Defendant 

King, as Sheriff, is a policymaker. Plaintiffs allege Defendants Blankenship, Gordy, and 

Lawrence are also policymakers with respect to the operations of the jails and delivery and 

operation of medical care for inmates, but that “Plaintiff is unable to determine at this time, 

before any discovery, which aspects of the jail each of these three is primarily responsible 

over.” Pls. Resp. 36-37. Defendants argue that “Plaintiffs’ bare allegations that 

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MEMORANDUM OPINION AND ORDER – PAGE 19 

Blankenship, Gordy, and Lawrence had ‘supervisory responsibility’ or oversaw the dayto-day operation of the jail is not the equivalent of having final policymaking authority.” 

Defs.’ Mot. to Dismiss 23. But at the pleading stage, Plaintiffs are not required to “supply 

an answer to the legal question of the specific identity of the city’s policymaker under the 

relevant statutory scheme.” Groden, 826 F.3d at 282. Plaintiffs are required to plead some 

“facts [that] establish that the challenged policy was promulgated or ratified by the city’s 

policymaker.” Id. 

 Plaintiffs allege King, as Sheriff, Blankenship, as Chief Deputy, and Gordy, as 

Captain, were in charge of supervising and managing all Johnson County employees and 

were “responsible for ensuring the presence and implementation of proper policies, 

procedures, and training of the medical staff, as evidence by his signature to the official 

Medical Policies and Procedures Manual for Johnson County.” Pls.’ Second Am.Compl. 

¶¶ 11-13. As Health Services Administrator, Lawrence supervised and managed the 

medical services delivered to inmates and was “responsible for establishing and ha[d] final 

approval on implementation and performance of the official policies, procedures, and 

practices” for the Johnson County medical staff. Id. ¶ 14. The Complaint also alleges 

enough facts, such as other specific inmate deaths at the Johnson County facility, to 

plausibly claim these officials had actual or constructive knowledge of the widespread 

practice. These allegations are sufficient to plead this element of municipal liability with 

respect to Johnson County, the entity that directly employs King, Blankenship, Gordy, and 

Lawrence. Therefore, the Court denies the motion to dismiss as to the section 1983 Monell

claims against Johnson County. 

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MEMORANDUM OPINION AND ORDER – PAGE 20 

VII. THE COURT DISMISSES PLAINTIFFS’

 STATE COMMON LAW CLAIMS 

 Johnson County retains its sovereign immunity for state common law torts claims. 

“Unless the Texas Tort Claims Act waives immunity, a municipality is immune from suit 

and from tort liability for its own acts or the acts of its agents for its governmental 

functions.” Gipson v. City of Dallas, 247 S.W.3d 465, 469 (Tex. App.—Dallas 2008, pet. 

denied) (citing Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)). 

The TTCA provides that a governmental unit is liable for: 

(1) property damage, personal injury, and death proximately caused by the 

wrongful act or omission or the negligence of an employee acting within 

his scope of employment if: 

(A) the property damage, personal injury, or death arises from the 

operation or use of a motor driven vehicle or a motor driven 

equipment; and 

(B) the employee would be personally liable to the claimant according 

to Texas law; and 

(2) personal injury and death so caused by a condition or use of tangible, 

personal or real property if the governmental unit would, where it a private 

person, be liable to the claimant according to Texas law. 

TEX. CIV. PRAC. & REM. CODE § 101.021. Plaintiffs assert no set of facts that fall within 

the parameters of these exceptions for liability for either their negligence, gross negligence, 

or bystander liability claims against the county. Furthermore, the TTCA does not apply to 

claims arising from intentional torts, effectively precluding Plaintiff Shawna McKinney’s 

individual claim of intentional infliction of emotional distress against the county. 

Id. § 101.057(2) (“This chapter does not apply to a claim . . . arising out of assault, battery, 

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MEMORANDUM OPINION AND ORDER – PAGE 21 

false imprisonment, or any other intentional tort . . . .”); Benefit Realty Corp. v. City of 

Carrollton, 141 S.W.3d 346, 349 (Tex. App. — Dallas 2004, pet. denied). 

 Defendants correctly assert that it is irrelevant if Plaintiffs’ expressly state they are 

not pursing any claims under the TTCA. The TTCA still applies to common law assertions 

of negligence, gross negligence, bystander liability, and intentional infliction of emotional 

distress. The Texas Supreme Court reached this conclusion “because the TTCA [is] the 

only avenue for common-law recovery against a governmental unit, all tort claims against 

such units [are] assumed to be ‘under this chapter’ for purposes of § 101.106.” Bustos v. 

Martini Club, 599 F.3d 458, 463 (5th Cir. 2010) (quoting Mission Consol. Indep. Sch. Dist. 

V. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). 

 Regarding the individual defendants, section 101.106 provides: 

(a) The filing of a suit under this chapter against a governmental unit 

constitutes an irrevocable election by the plaintiff and immediately and 

forever bars any suit or recovery by the plaintiff against any individual 

employee of the governmental unit regarding the same subject 

matter. . . . 

(e) If a suit is filed under this chapter against both a governmental unit and 

any of its employees, the employees shall immediately be dismissed on 

the filing of a motion by the governmental unit. 

TEX. CIV. PRAC. & REM. CODE § 101.106(a), (e). Because Plaintiffs named Johnson 

County as a defendant, Plaintiffs cannot recover against any of the individual employees 

of the County for claims involving the same subject matter. 

 Plaintiffs are correct that the TTCA does not provide immunity to the Defendants 

for the section 1983 claims. See Monell, 436 U.S. at 690-91 (municipal liability); Dibrell 

v. Huber, 2006 WL 14570 at *3 (S.D. Tex. 2006) (individual employee of government unit 

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MEMORANDUM OPINION AND ORDER – PAGE 22 

liability). Nevertheless, the holdings in the cited cases have no bearing on the Plaintiff’s 

state common law claims of negligence, gross negligence, bystander liability, and 

intentional infliction of emotional distress. For the above reasons, the Court dismisses 

these claims in their entirety against both the County and the individual defendants. 

VIII. PLAINTIFFS PLED SUFFICIENT FACTS FOR PUNITIVE 

DAMAGES CLAIMS AGAINST INDIVIDUAL DEFENDANTS

Punitive damages are allowed “in order to punish the wrongdoer for some 

extraordinary misconduct, and to serve as an example or warning to others not to engage 

in such conduct.” Smith v. Wade, 461 U.S. 30, 33 (1983). To award punitive damages, 

Plaintiffs must show that Defendants’ conduct amounts to “a reckless or callous disregard 

of, or indifference to, the rights or safety of others.” Id. Plaintiffs alleged knowing and 

conscious deliberate indifference to McKinney’s court-ordered medical needs that 

ultimately resulted in his death. At the pleadings stage, Plaintiffs’ allegations are sufficient 

to establish a claim for punitive damages against the individual defendants. Accordingly, 

the Court denies Defendants’ motion to dismiss the claims for punitive damages against 

individual defendants. 

CONCLUSION

 The Court concludes that Plaintiffs’ Second Amended Complaint validly states 

section 1983 claims: 

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MEMORANDUM OPINION AND ORDER – PAGE 23 

1. against Defendants Gordy, Lawrence, Tunnel, Fuller, Frias, Roden, Flores, 

Young, Arevalo-Braddick for their deliberate indifference to McKinney’s 

medical needs; 

2. against Defendants Lawrence and Gordy for their failure to supervise; and 

3. against Johnson County for its de facto custom of deliberate indifference to 

inmate’s medical needs. 

In addition, the court denies dismissal of Plaintiffs’ claim for punitive damages. The court 

dismisses section 1983 claims against Defendants King and Blakenship for failure to allege 

a pattern of sufficiently similar constitutional violations. The Court also dismisses all state 

law claims of negligence, gross negligence, and intentional infliction of emotional distress 

against all defendants. The Court therefore grants in part and denies in part Defendants’ 

motions in accordance with these conclusions. 

 

 Signed December 19, 2023. 

 ___________________________ 

 David C. Godbey 

 United States District Judge 

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