United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-50102 

____________ 

Shanon Edmiston, Individually; Helen Holman, as dependent 

administrator of, and on behalf of, LISA WILLIAMS a/k/a LISA 

SCHUBERT, E.S., J.S. #1, J.S. #1; Shanon Edmiston, the 

ESTATE OF JOHN ROBERT SCHUBERT, JR., and JOHN 

ROBERT SCHUBERT, JR.’s heirs-at-law, 

Plaintiffs—Appellees, 

versus

Oscar Borrego, Sr.; Oscar E. Carrillo; Peter E. 

Melendez, 

Defendants—Appellants. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 3:21-CV-132 

______________________________ 

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge: 

This opinion is rendered contemporaneously with the opinion for the 

appeal in 22-10360, Crandel v. Hall, consolidated on appeal with 22-10361, 

Crandel v. Hastings. The two opinions concern the suicides by two pretrial 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 1, 2023 

Lyle W. Cayce 

Clerk 

Case: 22-50102 Document: 00516841270 Page: 1 Date Filed: 08/01/2023
No. 22-50102 

2 

detainees in two Texas jails and, inter alia, failure-to-protect claims. 

Moreover, the same counsel for plaintiffs appear in each appeal. 

At hand is an interlocutory appeal contesting the denial of motions to 

dismiss asserting qualified immunity against failure-to-protect claims 

concerning the pretrial detainee. Primarily at issue is whether the complaint 

plausibly alleges the three appellants possessed subjective knowledge of a 

substantial risk of suicide by detainee John Robert Schubert, Jr. This action 

under 42 U.S.C. § 1983 arises out of his death while in pretrial detention in 

the Culberson County, Texas, Jail. Plaintiffs fail to plausibly allege appellants 

possessed the requisite subjective knowledge. VACATED and 

RENDERED. 

I.

 Plaintiffs assert claims in district court under § 1983 against Oscar 

Borrego, Sr., Sheriff Oscar E. Carrillo, Deputy Peter E. Melendez, Adelaida 

Zambra, and Ernesto Diaz for failing to protect Schubert, claiming violations 

of the Eighth and Fourteenth Amendments. They also have claims against 

individual defendants under a theory of bystander liability, and a claim 

against the Sheriff for supervisory liability. And, against Culberson County, 

plaintiffs assert a claim under § 1983 and Monell v. Department of Social 

Services of New York City, 436 U.S. 658 (1978), on the basis that its policies 

related to jail-suicide prevention caused a violation of Schubert’s 

constitutional rights. But, this interlocutory appeal concerns only the failureto-protect claims against Borrego, Sheriff Carrillo, and Deputy Melendez 

(appellants). 

A. 

Because denial of a motion to dismiss is at issue, the following 

recitation of fact is, unless otherwise noted, based on plaintiffs’ operative 75-

page complaint. As done in the complaint, approximate times are used. And, 

Case: 22-50102 Document: 00516841270 Page: 2 Date Filed: 08/01/2023
No. 22-50102 

3 

for the statements, including by appellants, obtained on 7 July 2019, and 

contained in the Texas Rangers’ report, discussed infra, the district court 

relied on the statements in the report as included in the complaint; therefore, 

we do not distinguish between the report and the complaint. 

On 6 July 2019, in Van Horn, Texas, Borrego, a jailer with the jail, 

received a series of calls concerning a male—later identified as Schubert—

needing assistance. In the first call, at 11:05 p.m., the male caller asserted 

someone was trying to kill him. In the second call, at 11:09 p.m., an off-duty 

trooper stated a man was at his door saying someone was trying to kill him. 

And, in the third and final call, at 11:12 p.m., someone at the El Capitan Hotel 

in Van Horn said a man told the hotel clerk someone was trying to kill him. 

Schubert, who had been wandering around Van Horn, was both the initial 

unknown caller and the subject of the second and third calls. 

Borrego directed Culberson County Sheriff’s Deputy Melendez to 

respond. The Deputy was dispatched initially to a location in Van Horn 

regarding Schubert’s knocking on a resident’s door, but Schubert was not 

present when the Deputy arrived. After being notified of the third call, the 

Deputy located Schubert at 11:15 p.m. at the El Capitan Hotel. 

The Deputy spoke with Schubert, later providing in a statement 

(included in the complaint) that Schubert “appeared nervous and said that 

people were trying to kill [him]”. The Deputy said Schubert: accurately 

stated the day of the week, the approximate time, and his location in Van 

Horn; provided his name and date of birth; but gave an incorrect year. 

The Deputy took Schubert to a Border Patrol Station to obtain 

information to identify him correctly. In doing so, the Deputy learned 

Schubert had an active warrant for parole violation. 

Case: 22-50102 Document: 00516841270 Page: 3 Date Filed: 08/01/2023
No. 22-50102 

4 

Based on the warrant, the Deputy arrested Schubert and transported 

him to the jail. They arrived at 12:14 a.m. on 7 July, and Schubert was placed 

in the booking area. 

Culberson County Sheriff Carrillo heard Borrego’s dispatch to 

Deputy Melendez and followed up to check on the situation involving 

Schubert. After learning that the Deputy arrested Schubert, the Sheriff 

“decided to go to the jail and check on [Schubert] and jail personnel”. 

Arriving at the jail after 12:59 a.m., the Sheriff was advised Schubert had a 

warrant for parole violation. 

With Borrego present, Schubert told the Sheriff: “he had hitchhiked 

from El Paso and was in a half-way house in Horizon, Texas”; “he had left 

the Horizon facility without permission and was not allowed to stay at the 

facility once he returned”; and “they were mean to him at the facility, 

and . . . he had had enough”. Throughout the interview, Schubert was not 

wearing a shirt, because, as he explained, it was wet. 

Schubert appeared to be cooperative and truthful in his responses. 

Borrego and the Sheriff did not complete a “Screening Form for Suicide and 

Medical/Mental/Developmental Impairments”, which plaintiffs allege is 

required by the Texas Commission on Jail Standards (TCJS). 

After the Sheriff spoke with Schubert, Borrego, at 1:35 a.m., provided 

Schubert jail-issued clothing pursuant to the Sheriff’s instruction. Deputy 

Melendez and Borrego escorted Schubert to a cell at 1:42 a.m. Schubert 

repeated to the Deputy that someone was trying to kill him. Borrego, 

pursuant to the Sheriff’s instruction, provided Schubert with a mattress. He 

was not placed on suicide watch. 

The Sheriff and Borrego left the jail at 1:48 a.m. The Deputy went 

back on patrol at about the same time. 

Case: 22-50102 Document: 00516841270 Page: 4 Date Filed: 08/01/2023
No. 22-50102 

5 

When Borrego went to the dispatch office at 1:48 a.m. to clock out, he 

asked Zambra, another jail employee, to run a driver’s-license and criminalhistory check on Schubert. (Zambra, a defendant in this action, is not a party 

to this interlocutory appeal on qualified immunity. The district court granted 

her motion to dismiss, based on such immunity.) 

Zambra printed a copy of Schubert’s driver’s license and criminal 

history at 2:17 a.m.; and, at 2:28 a.m., she requested a medical-history report: 

a “Continuity of Care Query” (CCQ). It was later noted by the TCJS, in its 

8 August 2019 report (a copy of the report summary is included in the body 

of the complaint), that the CCQ came back as “no match”. 

At 2:42 a.m., Zambra “manually” checked on the jail’s detainees. 

When she checked Schubert’s cell, she could see him “half-kneeling with a 

white sheet mangled on his neck and tied to a top grey shelf”. She went to 

the “catwalk hallway” to get a better view of Schubert and called out to him 

through the jail bars, but he did not respond. Next, she “called Deputy 

Melendez and Sheriff Carrillo [at 2:44 a.m.] and asked that they come to the 

jail as soon as possible”. 

The Sheriff, after hearing Zambra’s radio call at 2:47 a.m., arrived first 

and removed the sheet from Schubert’s neck, laid him on a bunk, and began 

CPR. Upon the Sheriff’s instruction, Zambra called the rescue team at 2:50 

a.m. EMTs were dispatched at 2:56 a.m., and arrived at the jail at 2:59 a.m. 

Upon their arrival, Schubert was not breathing and did not have a pulse. He 

was pronounced dead, with his autopsy report listing his cause of death as 

suicide through asphyxia due to hanging. 

B. 

This action was filed in June 2021. Although additional claims were 

added, at issue in this interlocutory appeal, as discussed supra, are only 

plaintiffs’ claims under § 1983 against Borrego, Sheriff Carrillo, and Deputy 

Case: 22-50102 Document: 00516841270 Page: 5 Date Filed: 08/01/2023
No. 22-50102 

6 

Melendez for failure to protect, in violation of the Eighth and Fourteenth 

Amendments. All individual defendants filed motions to dismiss, asserting 

qualified immunity. 

The district court in January 2022 denied in part appellants’ motions, 

concluding they were not entitled to qualified immunity against the failureto-protect claims. In doing so, the court concluded the complaint plausibly 

alleged: each of the appellants possessed the requisite subjective knowledge 

of a risk of suicide or serious harm; and, they failed to take action to abate 

that risk. The court concluded the “risk was obvious”, based on: Schubert’s 

fragile psychological state; his statements regarding an unidentified assailant; 

and appellants’ knowledge about the risk of jail suicides. The court further 

concluded it is clearly established that, when an official is subjectively aware 

of the risk of suicide and responds by giving the detainee loose bedding, an 

obvious ligature, he acts with deliberate indifference and is not entitled to 

qualified immunity. 

Regarding plaintiffs’ other claims, the district court, inter alia, 

dismissed the bystander-liability claims against the three appellants and the 

supervisory-liability claim against the Sheriff. 

II. 

This interlocutory appeal by Borrego, the Sheriff, and the Deputy 

(again, appellants) followed. Such an appeal from the denial of qualified 

immunity is permitted pursuant to the collateral-order doctrine. E.g., Club 

Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). Along that line, 

our court has jurisdiction to “review a district court’s order denying a motion 

to dismiss on the basis of qualified immunity only to the extent that the appeal 

concerns the purely legal question of whether the defendants are entitled to 

qualified immunity on the facts”. Bevill v. Fletcher, 26 F.4th 270, 274 (5th 

Cir. 2022) (alteration omitted) (citation omitted). 

Case: 22-50102 Document: 00516841270 Page: 6 Date Filed: 08/01/2023
No. 22-50102 

7 

 “On interlocutory appeal, we review [de novo the] denial of a qualifiedimmunity-based motion to dismiss . . . .” Benfield v. Magee, 945 F.3d 333, 336 

(5th Cir. 2019). At this stage, we must “accept all well-pleaded facts as true, 

drawing all reasonable inferences in the nonmoving party’s favor”. Id. “We 

do not, however, accept as true legal conclusions, conclusory statements, or 

naked assertions devoid of further factual enhancement.” Id. at 336–37 

(alteration omitted) (citation omitted). 

“A plaintiff seeking to overcome a motion to dismiss because of 

qualified immunity . . . must plead facts that allow the court to draw the 

reasonable inference that the defendant is liable for the harm alleged.” Bevill, 

26 F.4th at 274 (citation omitted). That is, “a plaintiff must plead factual 

allegations that, if true, ‘raise the right to relief above the speculative level’”, 

meaning that the relief is “plausible, not merely possible”. Benfield, 945 F.3d 

at 337 (first quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); then 

citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

Plaintiffs, in response to questioning at oral argument, submitted a 

Federal Rule of Appellate Procedure 28(j) letter maintaining that, under 

Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010), we may 

consider documents attached to a dismissal motion that “are referred to in 

the plaintiff’s complaint and are central to the plaintiff’s claim”. This is an 

exception to the general rule that, in reviewing a motion to dismiss, the court 

may not go outside the complaint and any attachments to it. Collins v. Morgan 

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ. 

P. 12 (b)(6)). Sullivan relies on our decision in Scanlan v. Texas A&M 

University, 343 F.3d 533 (5th Cir. 2003). Scanlan in turn relied on Collins, 

which promulgated this “limited exception” for when our court may go 

outside the complaint, including attachments to it, in reviewing a motion to 

dismiss. Scanlan, 343 F.3d at 536; see Collins, 224 F.3d 496. 

Case: 22-50102 Document: 00516841270 Page: 7 Date Filed: 08/01/2023
No. 22-50102 

8 

We need not consider this narrow exception’s application vel non, 

however, because, as noted supra and explained below, the district court 

relied on the statements as included in the complaint. In denying dismissal, 

the court stated: “All facts are taken as true from the allegations in Plaintiffs’ 

Complaint. . . . Defendants Borrego, Zambra, Melendez, Diaz, and Carrillo 

attached their sworn statements to their respective Motions. . . . These 

statements are effectively identical to those alleged in the Complaint upon 

which the Court relies.” (Emphasis added.) Cf. Scanlan, 343 F.3d at 536 

(citing Collins, 224 F.3d at 496) (explaining that, in Collins, our court 

“approved the district court’s consideration of documents attached to the motion 

to dismiss” and “that the plaintiffs did not object to, or appeal, the district 

court’s consideration of those documents was central to this Court’s 

approval of that practice” (emphasis added)). 

“Qualified immunity protects officers from suit unless their conduct 

violates a clearly established [statutory or] constitutional right.” Converse v. 

City of Kemah, 961 F.3d 771, 774 (5th Cir. 2020) (quoting Mace v. City of 

Palestine, 333 F.3d 621, 623 (5th Cir. 2003)). In our court, plaintiffs assert, 

solely for the purpose of preserving the issue for further review, that qualified 

immunity should be “abolished or modified so that it is inapplicable here”. 

For this appeal, we proceed with the qualified-immunity doctrine intact. 

When, as in this instance, defendants assert qualified immunity as a 

basis for dismissing a complaint, “plaintiff seeking to overcome qualified 

immunity must [plead facts allowing us to draw a reasonable inference]: ‘(1) 

that the official violated a statutory or constitutional right, and (2) that the 

right was clearly established at the time of the challenged conduct’”. Id.

(quoting Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)); Bevill, 26 

F.4th at 274. We have discretion to elect which of the two prongs for this 

analysis should be addressed first. E.g., Pearson v. Callahan, 555 U.S. 223, 

236 (2009). 

Case: 22-50102 Document: 00516841270 Page: 8 Date Filed: 08/01/2023
No. 22-50102 

9 

For this first prong, in order “[t]o overcome [appellants’] qualified 

immunity defense, [p]laintiffs must first demonstrate that each official 

violated [Schubert]’s statutory or constitutional right”. Converse, 961 F.3d 

at 775. “[T]he Fourteenth Amendment protects pretrial detainees’ right to 

medical care and to ‘protection from known suicidal tendencies’”. Baldwin 

v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020) (emphasis added) (quoting Garza 

v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019)); see also Converse, 961 

F.3d at 775 (“We have repeatedly held that pretrial detainees have a 

Fourteenth Amendment right to be protected from a known risk of suicide.” 

(emphasis added)). 

Where the claimed violation of that Fourteenth Amendment right 

turns on alleged acts or omissions of an official, as in this action, the question 

is whether the “official breached his constitutional duty to tend to the basic 

human needs of persons in his charge”. Hare v. City of Corinth, 74 F.3d 633, 

645 (5th Cir. 1996) (en banc) (explaining difference in episodic and 

conditions-of-confinement claims); see also Cope v. Cogdill, 3 F.4th 198, 206–

07 (5th Cir. 2021), cert. denied, 142 S. Ct. 2573 (2022). Officials breach their 

constitutional duty, violating a detainee’s rights, when “they had gained 

actual knowledge of the substantial risk of suicide and responded with 

deliberate indifference”. Converse, 961 F.3d at 775 (emphasis added) 

(quoting Hare, 74 F.3d at 650). It is undisputed that “[d]eliberate 

indifference is an extremely high standard to meet”. Domino v. Tex. Dep’t of 

Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). 

Accordingly, an “official will not be held liable if he merely ‘should 

have known’ of a risk”. Converse, 961 F.3d at 775. Rather, to satisfy this high 

standard, plaintiff must plausibly allege both that the official was “aware of 

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

serious harm exist[ed]” and that he “also [drew] the inference”. Id. at 775–

76 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). An official with 

Case: 22-50102 Document: 00516841270 Page: 9 Date Filed: 08/01/2023
No. 22-50102 

10 

such knowledge “shows a deliberate indifference to that risk ‘by failing to 

take reasonable measures to abate it’”. Id. (quoting Hare, 74 F.3d at 648). 

Plaintiffs, however, maintain this court should instead apply the 

objective-unreasonableness standard the Court adopted in Kingsley v. 

Hendrickson for claims of excessive force (not failure to protect) by officers against 

a pretrial detainee. 576 U.S. 389 (2015). But, we are bound by our rule of 

orderliness. E.g., Def. Distrib. v. Platkin, 55 F.4th 486, 495 n.10 (5th Cir. 

2022) (“The rule of orderliness means that one panel of our court may not 

overturn another panel’s decision, absent an intervening change in law, such 

as by statutory amendment, or the Supreme Court, or our en banc court.” 

(citation omitted)). This rule renders this objective-unreasonableness 

assertion meritless. See Cope, 3 F.4th at 207 n.7 (explaining Kingsley “did not 

abrogate [this court’s] deliberate-indifference precedent”); Alderson v. 

Concordia Par. Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017) (“Because 

the Fifth Circuit has continued to rely on Hare and to apply a subjective 

standard post-Kingsley, this panel is bound by our rule of orderliness.”). 

Regarding the second prong of the qualified-immunity analysis, for a 

right to be “clearly established” it must be “sufficiently clear that every 

reasonable official would have understood that what he is doing violates that 

right”. Est. of Bonilla v. Orange Cnty., 982 F.3d 298, 306 (5th Cir. 2020) 

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Critically, courts 

“must not ‘define clearly established law at a high level of generality’”; 

rather, we must undertake the inquiry “in light of the specific context of the 

case”. Cope, 3 F.4th at 204 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). 

Pursuant to our above-discussed discretion to begin our two-prong 

qualified-immunity analysis with either prong, we elect to begin with the first. 

For the reasons that follow, plaintiffs fail to plausibly allege a violation of a 

Case: 22-50102 Document: 00516841270 Page: 10 Date Filed: 08/01/2023
No. 22-50102 

11 

statutory or constitutional right. Therefore, we do not reach the second 

prong (whether clearly-established). 

To overcome appellants’ motions to dismiss based on qualified 

immunity, plaintiffs must, as stated supra, have pled facts permitting our 

court to draw a reasonable inference that Borrego, Sheriff Carrillo, and 

Deputy Melendez “(1) had subjective knowledge of a substantial risk of 

serious harm and (2) responded to that risk with deliberate indifference”. Id.

at 210 (citation omitted). In the context of detainee suicide, the requisite 

substantial risk of serious harm must be specific; plaintiffs must allege 

defendants “were aware of a substantial and significant risk that the detainee 

might kill himself”. Id. at 207 (alteration omitted) (citation omitted). 

For the reasons that follow, plaintiffs fail to plausibly allege appellants 

had the requisite subjective knowledge of a substantial risk of suicide. 

Accordingly, whether they responded to that putative risk with deliberate 

indifference does not come into play. 

A. 

We first address plaintiffs’ blanket allegation that appellants “were 

aware of the excessive risk of [Schubert’s] health and safety and were aware 

of facts from which an inference could be drawn of serious harm, suffering 

and death. Moreover, they in fact drew that inference”. As stated supra, we 

must carefully discern factual allegations from legal conclusions in plaintiffs’ 

complaint. This statement about appellants’ state-of-mind merely restates 

the standard required to demonstrate the requisite subjective knowledge; 

therefore, we do not accept it as a well-pleaded allegation when evaluating 

the sufficiency of the complaint. See Doe v. Robertson, 751 F.3d 383, 388 (5th 

Cir. 2014) (observing allegation that defendants “exhibited deliberate 

indifference” was “merely a legal conclusion”, even if it “might have ‘been 

couched as a factual allegation’” (quoting Iqbal, 556 U.S. at 678)). 

Case: 22-50102 Document: 00516841270 Page: 11 Date Filed: 08/01/2023
No. 22-50102 

12 

Regarding plaintiffs’ well-pleaded allegations concerning the lack of 

mental-health screening, plaintiffs allege appellants ignored TCJS’ 

instructions and put Schubert at risk. These allegations fail. Our court has 

acknowledged there is no independent constitutional right to suicide 

screening. E.g., Est. of Bonilla, 982 F.3d at 307 (citing Taylor v. Barkes, 575 

U.S. 822, 826 (2015)) (“No decision of this Court establishes a right to 

proper implementation of adequate suicide prevention protocols. No 

decision of this Court even discusses suicide screening or prevention 

protocols.”). 

The well-pleaded allegations do not give rise to a plausible inference 

that Schubert had previously experienced suicidal tendencies, nor that he 

acted in a way to alert officials of a substantial risk of suicide. Further, 

plaintiffs do not allege he had documented instances of mental illness, as the 

earlier-discussed CCQ came back as “no match”. (Therefore, even if 

plaintiffs could assert a right to suicide screening, allegations “of inadequate 

screening or a violation of facility procedure would not raise an issue of 

deliberate indifference” without additional allegations plausibly 

demonstrating appellants subjectively knew Schubert was at risk for suicide. 

Id. at 305.) 

Additionally, plaintiffs allege the following. Culberson County had 

been previously cited by the TCJS for violating jail standards relating to the 

completion of the screening form and prevention of jail suicides. The TCJS 

had also cited the county’s jail for being non-compliant with various 

requirements, including requirements to ensure that all jailers were up-todate on their licensing, that only jailers with the proper training perform 

inmate-classification duties, that jailers make sure to log that they have 

searched for whether the inmate has previously received mental-health 

treatment, and that jailers attend the required suicide-prevention training. 

Plaintiffs further allege a prior suicide at the jail put appellants “on notice”. 

Case: 22-50102 Document: 00516841270 Page: 12 Date Filed: 08/01/2023
No. 22-50102 

13 

In response to Schubert’s death, the TCJS, in its above-referenced 8 August 

2019 report, stated the jail: exhibited two violations of minimum standards; 

and was issued a notice of non-compliance. 

B. 

With these general allegations considered, we turn to specific 

allegations regarding appellants’ entitlement vel non to qualified immunity. 

When, as here, multiple government actors are defendants and assert 

qualified immunity, we “evaluate each officer’s actions separately, to the 

extent possible”. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 

2012). 

Again, because motions to dismiss are under review, we must consider 

the well-pleaded allegations in the complaint. For the reasons that follow, we 

hold plaintiffs “have failed to [allege] that [Schubert’s] tendencies were 

known to anyone—let alone [appellants]”. Est. of Bonilla, 982 F.3d at 305. 

1. 

Borrego, a jailer for the Culberson County Jail, received the three 911 

calls, one in which a male (later identified as Schubert) stated an unknown 

person was trying to kill him and two in which others reported a man was 

going around saying that someone was trying to kill him. Borrego also, with 

Sheriff Carrillo, witnessed Schubert’s explaining his history of drug abuse 

and his leaving a halfway house. Borrego did not complete a mental-health 

screening form for Schubert. 

Plaintiffs also allege Borrego “formed the opinion . . . that [Schubert] 

was mentally ill and needed immediate mental health treatment” and that 

“[Schubert] did not need to be jailed”. We do not accept this “conclusory 

statement”, however, because it amounts to a “naked assertion[] devoid of 

Case: 22-50102 Document: 00516841270 Page: 13 Date Filed: 08/01/2023
No. 22-50102 

14 

further factual enhancement”. Benfield, 945 F.3d at 336–37 (citation 

omitted). 

Accepting the well-pleaded allegations as true and drawing reasonable 

inferences in plaintiffs’ favor, we consider whether Borrego “had the 

requisite knowledge of a substantial risk”. Farmer, 511 U.S. at 842; Benfield, 

945 F.3d at 336. Our court has repeatedly held officials have the requisite 

subjective knowledge when circumstantial evidence directs an official to the 

specific risk of suicide. E.g., Cope, 3 F.4th at 207–08 (official witnessed 

decedent attempt suicide the day before incident in question); Converse, 961 

F.3d at 776, 778–79 (official was present when decedent was pulled off bridge 

while he attempted to jump and where official heard decedent express that 

he should have jumped and would make another attempt to do so when 

released); Hyatt v. Thomas, 843 F.3d 172, 178 (5th Cir. 2016) (even though 

decedent stated he did not want to kill himself, official knew decedent 

suffered from depression, had recently attempted suicide, and his wife 

believed him to be suicidal). 

Plaintiffs do not plausibly allege Schubert did or said anything to 

indicate he was suicidal or otherwise intended to harm himself. The 

allegations that Schubert told Borrego he had recently left a half-way house 

and may have abused drugs did not automatically impute knowledge to 

Borrego of a substantial risk of suicide. E.g., Est. of Bonilla, 982 F.3d at 305 

(“[T]he fact of [the decedent’s] intoxication would not indicate that [the 

defendant] inferred [he] was a suicide risk”.). Additionally, the allegations 

do not plausibly show that Schubert’s prior or active drug use demonstrated 

to Borrego that Schubert faced a substantial risk of suicide. E.g., id. 

Because plaintiffs fail to allege sufficient facts to plausibly show 

Borrego was subjectively aware of the risk of suicide, their allegations do not 

Case: 22-50102 Document: 00516841270 Page: 14 Date Filed: 08/01/2023
No. 22-50102 

15 

state a failure-to-protect claim against him. Cf. Converse, 961 F.3d at 778–80. 

Accordingly, Borrego is entitled to qualified immunity against the claim. 

2. 

Sheriff Carrillo was monitoring the radio when he heard the dispatch 

to Deputy Melendez. The Sheriff learned Schubert had been taken into 

custody after three 911 calls, one in which Schubert (again, unidentified at 

the time) called to say that an unknown person was trying to kill him and two 

others called to report that a man (Schubert) was going around saying that 

someone was trying to kill him. After Schubert was transported, the Sheriff 

“decided to go to the jail and check on [Schubert] and jail personnel”. 

Plaintiffs allege that, while interviewing Schubert, the Sheriff, as did 

Borrego, learned Schubert had a history of drug abuse and had recently left a 

halfway house. Although plaintiffs allege Schubert was cooperative and 

appeared truthful in his responses, plaintiffs also allege: the Sheriff was still 

required to conduct a mental-health screening form in accordance with 

TCJS; and, because “the form had not been completed”, the Sheriff “had to 

operate on the belief that [Schubert] was suicidal” and “was required to put 

[Schubert] on suicide watch”. 

Our court requires, as stated supra, defendant have “actual knowledge 

of the substantial risk of suicide”. Id. at 775. Plaintiffs fail to allege Schubert 

did or said anything to indicate he was suicidal. 

Because plaintiffs fail to allege sufficient facts to plausibly show the 

Sheriff was subjectively aware of the risk of suicide, their allegations do not 

state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly, 

Sheriff Carrillo is entitled to qualified immunity against the claim. 

Case: 22-50102 Document: 00516841270 Page: 15 Date Filed: 08/01/2023
No. 22-50102 

16 

3. 

The following allegations concern the third and final appellant, 

Deputy Melendez. He was dispatched to respond to the 911 calls in which 

Schubert was the subject. Borrego directed the Deputy to a location in Van 

Horn regarding an individual—unknown at the time—stating someone was 

trying to kill him. Upon the Deputy’s locating Schubert at the El Capitan 

Hotel at 11:13 p.m., he spoke with Schubert and described him as appearing 

nervous. Schubert also reiterated that “there was someone trying to kill 

him”. Schubert was oriented regarding time and place. He also “provided 

his correct name and a date of birth which was correct other than . . . off by 

two years”. 

The Deputy took Schubert to a Border Patrol station in order to 

identify him. After further investigation, the Deputy was able to identify 

Schubert and learned he “allegedly had an active warrant for an alleged 

parole violation”. Pursuant to the warrant, the Deputy took Schubert to the 

jail. 

The Deputy was dispatched to another call shortly after arriving at the 

jail with Schubert, but he later returned and assisted Borrego in escorting 

Schubert to his cell. During this time, Schubert repeated that someone was 

trying to kill him, but did not provide a name or description. 

Plaintiffs allege the Deputy “was well aware that [Schubert] was not 

in his right mind. He knew that [Schubert] was mentally ill. He likewise 

formed the belief that [Schubert] was a danger to himself and/or others”. 

Again, these are “naked assertions devoid of further factual enhancement”, 

and they do not plausibly allege the requisite subjective knowledge. Benfield, 

945 F.3d at 336–37 (citation omitted). 

The key distinction between the Deputy and the other two appellants 

is plaintiffs’ assertion that the Deputy erred in his means and method of 

Case: 22-50102 Document: 00516841270 Page: 16 Date Filed: 08/01/2023
No. 22-50102 

17 

taking Schubert into custody. Texas Health and Safety Code Chapter 573 

permits officers to take an individual into custody without a warrant if, inter 

alia, they “ha[ve] reason to believe and do[] believe that the person is a 

person with mental illness; and because of that mental illness there is a 

substantial risk of serious harm to the person or to others unless the person 

is immediately restrained”. TEX. HEALTH & SAFETY CODE § 573.001(a)(1). 

Plaintiffs concede that a violation of Chapter 573 is not per se a constitutional

violation; accordingly, they offer any alleged violation as evidence that a 

constitutional violation occurred. 

In this court, plaintiffs maintain they alleged Schubert was taken into 

custody pursuant to this provision. Plaintiffs’ assertion stretches the bounds 

of the complaint. 

The complaint does not allege Schubert was taken into custody under 

this statute; rather, it alleges the Deputy “should have transported [Schubert] 

to the nearest-inpatient mental health facility” pursuant to Chapter 573. 

(Emphasis added.) Additionally, to the extent plaintiffs allege the Deputy 

was required to take Schubert into custody under Chapter 573, that chapter 

is permissive, not mandatory. See § 573.001(a) (“A peace officer, without a 

warrant, may take a person into custody . . . .” (emphasis added)). 

Accordingly, this allegation is without merit. 

We next consider whether the allegations about the facts known to the 

Deputy at the time plausibly provided the requisite subjective knowledge of 

a substantial risk of suicide. In addition to his initial knowledge from the 

dispatch, Schubert, while escorted to his cell, reiterated to the Deputy that 

someone was trying to kill him. Again, plaintiffs’ assertions do not plausibly 

allege the Deputy had actual knowledge that Schubert posed a substantial risk 

of suicide. E.g., Converse, 961 F.3d at 775. 

Case: 22-50102 Document: 00516841270 Page: 17 Date Filed: 08/01/2023
No. 22-50102 

18 

Because plaintiffs fail to allege sufficient facts to plausibly show the 

Deputy was subjectively aware of the risk of suicide, their allegations do not 

state a failure-to-protect claim against him. Cf. id. at 778–80. Accordingly, 

Deputy Melendez is entitled to qualified immunity against the claim. 

III. 

For the foregoing reasons, the district court’s denying Borrego, 

Sheriff Carrillo, and Deputy Melendez’ motions to dismiss the failure-toprotect claims is VACATED and judgment is RENDERED for them.

Case: 22-50102 Document: 00516841270 Page: 18 Date Filed: 08/01/2023