United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20107

____________

Jessica Banks, 

Plaintiff—Appellee, 

versus

Daniel Herbrich; Robin Williams; Linda Juarez; 

Michael Matchett, 

Defendants—Appellants. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:18-CV-2023

______________________________

Before Wiener, Willett, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge: 

This appeal arises out of the removal of R.B., then a four-year-old 

child, from the custody and care of his mother, Jessica Banks, without 

parental consent or a court order. After commencing an investigation 

premised on an anonymous report alleging neglect and abuse, the Texas 

Department of Family and Protective Services (DFPS) concluded that 

exigent circumstances existed justifying the emergency removal of R.B. 

Banks sued DFPS on behalf of herself and her minor son pursuant to 42 

U.S.C. § 1983 alleging violations of the Fourth and Fourteenth 

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2024

Lyle W. Cayce

Clerk

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Amendments. The district court denied DFPS’s motion for summary 

judgment, concluding that its employees were not entitled to qualified 

immunity because they violated clearly established law by removing R.B. 

without court order, parental consent, or exigent circumstances. We 

AFFIRM IN PART and REVERSE IN PART. 

I

A

On June 10, 2016, DFPS received an anonymous report alleging that 

Jessica Banks mistreated her four-year-old son, R.B. It specifically alleged

that Banks drank with her family and did drugs while R.B. was in the home,

had people in the home who used drugs, had hit R.B. on the back of his head 

with an open hand, and had threatened R.B., saying things like “give me my 

f’ing phone before I kill you.” It also alleged that Banks was a sex worker and

a stripper, and that it was unknown who cared for R.B. while she worked, as 

R.B. allegedly did not go to day care or school. In addition, the report noted

that R.B. was “not underweight or malnourished” and that there was “no 

known concern with gang involvement, weapons or domestic violence.” 

On June 15, 2016, Investigator Robin Williams was assigned to 

Banks’s case. Special Investigator Daniel Herbrich joined the investigation 

the next day. Linda Juarez and Michael Matchett, Investigation Supervisors, 

also assisted in the investigation.1

 

The investigation lasted from Wednesday, June 15 to Sunday, June 19, 

2016. Throughout the course of the investigation, Banks provided conflicting 

_____________________

1 DFPS did not appeal the denial of qualified immunity as to Matchett. 

Accordingly, we do not consider the district court’s ruling that Matchett had sufficient 

personal involvement to warrant the denial of qualified immunity. 

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information about where she and R.B. lived.2 However, when Williams 

spoke with Banks on June 16, 2016, she expressly denied the allegations in the 

anonymous report. She denied abusing R.B. She admitted that residents of 

the Berger Road Home had a history of drug use, but she was unaware of drug 

use occurring in R.B.’s presence. She also admitted that R.B. had been 

present for a fight between her mother, Shirley Banks, and Shirley’s 

boyfriend, Justin Muesse, that occurred outside the Berger Road Home, but 

that she told him to lock the front door and hide in a bedroom. Significantly, 

Banks passed a drug test administered that same day. 

On June 17, 2016, Herbrich gathered additional information on Banks 

from Fayette County Assistant Attorney (ADA) James Herbrich. He 

learned that Banks physically fought another woman at the Berger Road 

Home while R.B. was present and that Shirley Banks and Muesse were 

methamphetamine users with a history of multiple assaults. Based on the 

allegations in the anonymous report, Banks’s evasiveness as to where she 

lived, and the information provided by ADA Herbrich, Williams and 

Herbrich relayed their concerns about R.B.’s safety to Juarez and Matchett. 

Juarez then involved Child Protective Services Program Director Dora 

Montoya and Fayette County District Attorney Peggy Supak to discuss 

whether there were sufficient grounds to remove R.B. if Banks was unable to 

identify a Parental Child Safety Placement (PCSP)—a temporary, shortterm placement for R.B. Supak indicated that she believed there were 

sufficient grounds to remove R.B. 

_____________________

2 For example, Williams spoke to Banks outside a courthouse in La Grange, where 

she had been subpoenaed to testify before a grand jury. Banks informed him that she no 

longer lived at the Berger Road Home and had moved to Houston with her boyfriend, but 

she could not identify the address. Later that day, Banks was arrested for outstanding 

warrants and driving without a license, and at that time, told arresting officers she lived in 

Giddings, Texas. 

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After being unable to locate Banks and R.B. on June 17 and 18, 

Herbrich saw R.B. playing in the front yard of the Berger Road Home on 

Sunday, June 19. Shirley Banks and Muesse were at the Berger Road Home 

with R.B. Banks arrived home shortly after Herbrich called Williams and 

local deputies to assist. Banks identified several possible PCSPs, but 

Herbrich and Williams rejected each for drug use or criminal history. After 

several hours, Herbrich contacted Matchett, who advised that Banks had 

been given enough time to find an appropriate PCSP and that R.B. should be 

removed. Banks did not consent to DFPS removing R.B., and DFPS did not

get a court order because it was a Sunday. 

B

Individually and on behalf of her son, R.B., Banks brought this § 1983 

suit against Herbrich, Williams, Juarez, and Matchett, all DFPS employees

(referred to collectively as “DFPS” herein). DFPS moved to dismiss 

Banks’s Fourth and Fourteenth Amendment claims, arguing they were 

entitled to qualified immunity. 

In its initial ruling on the motion to dismiss, the district court denied 

qualified immunity, determining that the allegations in the anonymous 

report, denied by Banks, were not specific enough to suggest that R.B.’s 

alleged abuse or exposure to drugs were so recent and frequent to rise to the 

level of imminent danger. The district court further noted that there was no 

evidence that Herbrich and Williams learned any new information or 

witnessed any abusive conduct toward R.B.—beyond the allegations in the 

anonymous report—particularly on the day of removal. The district court 

stated that “[t]o the contrary, Herbrich and Williams found R.B. under the 

supervision of his grandmother playing in an age-appropriate manner without 

any indication of abuse, an altercation, or illegal drug use.” Accordingly, the 

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district court concluded that DFPS had violated Banks’s and R.B.’s 

constitutional rights. 

Relying on Gates v. Texas Department of Protective and Regulatory 

Services, 537 F.3d 404 (5th Cir. 2008), the district court further concluded 

that at the time of R.B.’s removal, the law was clearly established that it was 

a constitutional violation to remove children from their homes without 

consent, a court order, or exigent circumstances. The district court also 

relied on an “Urgent Legal Advisory” memo (“Gates Memo”) sent to all 

DFPS personnel outlining the higher threshold for emergency removals 

following the holding in Gates. 

DFPS then reurged qualified immunity in their motion for summary 

judgment. The district court again determined that the record did not reveal 

the kind of urgency or immediacy contemplated by either the Gates opinion 

or Gates Memo. Accordingly, the district court denied the motion for 

summary judgment and rejected qualified immunity to all named defendants

for the same reasons asserted in its order on the motion to dismiss. 

DFPS timely appealed the denial of qualified immunity as to Herbrich, 

Williams, and Juarez. We have jurisdiction over this appeal pursuant to 28 

U.S.C. § 1291. 

II

While a denial of summary judgment is not a final judgment, the 

Supreme Court has held that it is a collateral order capable of immediate 

review when “(1) the defendant is a public official asserting qualified 

immunity, and (2) ‘the issue appealed concerned, not which facts the parties 

might be able to prove, but, rather, whether or not certain given facts show a 

violation of clearly established law.’” Walsh v. Hodge, 975 F.3d 475, 480 (5th 

Cir. 2020) (quoting Johnson v. Jones, 515 U.S. 304, 311 (1995)).

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“A denial of summary judgment based on qualified immunity is 

reviewed de novo.” Wallace v. Cnty. of Comal, 400 F.3d 284, 288 (5th Cir. 

2005). Summary judgment is appropriate when “the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When assessing 

an interlocutory appeal for qualified immunity, however, we cannot review a 

district court’s conclusions that a genuine issue of fact exists concerning 

whether a defendant engaged in certain conduct.” Walsh, 975 F.3d at 481 

(citing Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc)). In 

other words, “we can review the materiality of any factual disputes, but not 

their genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). 

This analysis involves two steps: (1) we must determine whether the 

plaintiffs suffered a violation of their rights as a matter of law, and then (2) we 

must decide whether the right at issue was clearly established at the time of 

the alleged misconduct. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 

2019). 

III

Banks alleges that Herbrich and Williams violated the Fourth and 

Fourteenth Amendments. It is well established in this circuit that the Fourth 

Amendment regulates social workers’ civil investigations, Roe v. Tex. Dep’t 

of Protective & Regul. Servs., 299 F.3d 395, 401 (5th Cir. 2002), and protects 

against unreasonable seizures of children from their homes, Wooley v. City of 

Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000). Likewise, we have held that 

“[b]ecause a parent’s custody and control of her children is a fundamental 

liberty interest, the government may violate substantive due process [under 

the Fourteenth Amendment] when it takes away that right.” Romero v. 

Brown, 937 F.3d 514, 519 (5th Cir. 2019). “The procedures required for a 

constitutional search and seizure under the Fourth Amendment are adequate 

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to protect [parents’] procedural due process rights and liberty interest in 

directing the upbringing of their children.” Gates, 537 F.3d at 435. 

We first address the denial of qualified immunity as to DFPS agents 

Herbrich and Williams. We then address whether the district court properly 

denied qualified immunity to Juarez, an Investigation Supervisor.

A

The first prong of a qualified immunity analysis asks whether the 

plaintiff has suffered a constitutional violation. Walsh, 975 F.3d at 481. The 

Fourth and Fourteenth Amendments guarantee that “the government may 

not seize a child from his or her parents absent a court order, parental 

consent, or exigent circumstances.” Gates, 537 F.3d at 435. “Exigent 

circumstances in this context means that, based on the totality of the 

circumstances, there is reasonable cause to believe that the child is in 

imminent danger of physical or sexual abuse if he remains in his home.” Id.

at 429. “This is a flexible inquiry that considers all of the facts and 

circumstances with no one factor being dispositive.” Id. In Gates, we 

enumerated a non-exhaustive list of factors to consider in abuse cases. See id. 

We tailored those factors for cases of neglect in Wernecke v. Garcia, 591 F.3d 

386 (2009). Here, we consider the following Wernecke factors: 

(1) Available time to obtain a court order;

(2) Risk that a parent might flee with the child;

(3) Availability of less extreme solutions;

(4) Any harm to the child that might arise from his removal; 

(5) Nature of the danger facing the child (its severity, duration, 

frequency, and imminence);

(6) Strength of the evidence supporting immediate removal; and

(7) Presence or absence of parental supervision.

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Id. at 398. DFPS claims these factors support removal. Banks argues that the 

record supports a finding that no exigent circumstances warranted removal. 

In applying these factors to R.B.’s removal, we must view the summary 

judgment evidence in the light most favorable to Banks, as the non-moving 

party. See id. (citing Kinney, 367 F.3d at 350). The record before us shows no 

evidence whatsoever of exigent circumstances. 

 Consider our approach in Gates. There, we focused on the 

information known to defendants at the time they made the decision to 

remove the children from the home. 537 F.3d at 429. Applying the abuse 

factors, we found that there were allegations of recent (same day) physical 

abuse, corroborated by several of the children in the home. Id. at 430. There 

was no evidence that defendants could have gathered all this information 

before the courts closed that day, so it was not possible to obtain a court order 

in a timely fashion. Id. Further, defendants considered and ruled out less 

drastic options such as having the plaintiff father vacate the house or place 

the children with a family friend, but concluded he was unlikely to stay away. 

Id. We determined that the defendants did not violate the Fourth 

Amendment rights of plaintiffs by seizing the children without a court order 

because, though a “close call,” exigent circumstances existed. Id. 

Here, the information known to DFPS at the time of removal—June 

19—included anonymous allegations that were uncorroborated and expressly 

denied by Banks, unlike the corroborated abuse found in Gates. DFPS claims 

that it could not have sought a court order before June 19 because they had 

not seriously considered removal until June 17, when Williams and Herbrich 

learned some of the “most alarming” information about R.B.’s 

circumstances. However, DFPS knew most of the information on June 16, 

when Williams first met with Banks. At that time, Banks misrepresented her 

address, admitted her family had a history of drug use, and noted that she was 

subpoenaed to testify before a grand jury about a fight between Shirley and 

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Muesse. Thus, according to DFPS’s own timeline of events, they had

relevant information prior to Sunday, June 19, to seek a court order, a less 

extreme alternative. 

Similarly, in Wernecke, we found a Fourth Amendment violation after 

concluding that exigent circumstances to remove the children did not exist: 

Although several factors seem to weigh towards the 

reasonableness of the removal—(1) business hours were 

concluded and obtaining a court order would likely not be 

possible in a timely fashion, (2) the risk of flight was high as 

Mrs. Wernecke had already absconded with KW, and (3) 

[defendant] attempted to institute both a safety plan and a 

placement with extended family before placing the boys in 

state custody—the sum of the Werneckes’ facts does not 

indicate the existence of truly exigent circumstances. The 

presence of medications and syringes in the home, in 

childproof containers and under parental supervision, does not 

rise to the level of exigency. Nor does mere clutter in the 

home. In the light most favorable to the Werneckes, a 

reasonable person would not believe that an immediate danger 

would be posed by JW and JW remaining in the home. 

591 F.3d at 399. While drug use and violence in the home are unquestionably 

concerning, the evidence here does not establish exigent circumstances 

justifying R.B.’s removal. Notably, Banks passed a drug test administered the 

day she was located at the courthouse in La Grange. DFPS has put forth no 

evidence—or even alleged—that Shirley and Muesse had used 

methamphetamines while supervising R.B., simply claiming that their history 

of drug use was sufficient. When Williams interviewed Banks, however, she 

indicated that the allegations in the anonymous report were false and that she 

had no knowledge of anyone doing drugs around R.B. As to physical violence 

in the home, even DFPS admits that R.B. exhibited no signs of “physical[] 

injur[y].” Viewing the evidence in the light most favorable to Banks, a 

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reasonable person would not believe that an immediate danger was posed to 

R.B., who was playing in the front yard in an age-appropriate manner under 

the supervision of his grandmother when he was removed. 

Finally, contrary to DFPS’s assertion, Pate v. Harbers is not analogous 

to the instant case. See 667 F. App’x 487, 487 (5th Cir. 2016) (unpublished)

(affirming the district court’s grant of qualified immunity). In Pate, the 

district court weighed the Gates and Wernecke factors and concluded that 

there was no constitutional violation, as exigent circumstances existed, 

particularly where there was “significant evidence” of recent drug 

possession and use. Pate v. Harbers, 2015 WL 4911407, at *7 (W.D. Tex. Aug. 

17, 2015). Specifically, Pate admitted to using marijuana and subsequently 

tested positive for amphetamines. Id. at *8. At the time of the child’s 

removal, the totality of the circumstances warranted a finding of exigent 

circumstances. Pate left the child in the care of her boyfriend, who did not 

adequately supervise him, and the two-year-old was found by defendants 

with a diaper full of urine and pen marks on his body. Id. 

In contrast, Banks denied using drugs and tested negative for any illicit 

substances. DFPS does not include any allegation that Banks, Shirley, or 

Muesse, who supervised R.B. at various times, were using drugs around R.B. 

beyond the refuted allegations in the anonymous report. DFPS characterizes 

Banks and her family in the most inflammatory terms to elicit an emotional 

response, but there was insufficient evidence to support the conclusion that 

R.B.’s life and limb were in imminent danger. “The mere possibility of 

danger arising in the future is not enough.” McMurry v. Brunner, No. 21-

50888, 2022 WL 17493708, at *3 (5th Cir. Dec. 7, 2022) (citing Gates, 537 

F.3d at 429). Unsuitable as R.B.’s living situation may have been, it did not 

constitute exigent circumstances necessitating warrantless removal from his 

mother. Thus, the seizure of R.B. by DFPS violated the constitutional rights

of both R.B. and Banks.

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B

The second prong of a qualified immunity analysis asks whether the 

right at issue was clearly established at the time of the misconduct. Morrow, 

917 F.3d at 874. The focus of this prong “should be on ‘fair warning’: 

qualified immunity is unavailable ‘despite notable factual distinctions 

between the precedents relied on and the cases then before the Court, so long 

as the prior decisions gave reasonable warning that the conduct then at issue 

violated constitutional rights.’” Wernecke, 591 F.3d at 393 (quoting Hope v. 

Pelzer, 536 U.S. 730, 740 (2002)). 

DFPS argues that to overcome qualified immunity, Banks “had to 

identify caselaw holding an emergency child removal was unconstitutional 

under similar circumstances.” It claims she cannot do so because, although 

the Fifth Circuit has previously analyzed qualified immunity in the context 

of emergency child removals, “none of these cases dealt with the unique 

dangers present to R.B.” DFPS further faults the district court’s qualified 

immunity analysis as failing to identify on-point precedent, overemphasizing 

internal DFPS policies, and shifting the burden to DFPS to demonstrate that 

their conduct was constitutional. We address each argument below. 

Our precedent clearly establishes that removal of a child without 

parental consent, court order, or exigent circumstances violates the Fourth 

and Fourteenth Amendments. Gates, 537 F.3d at 438 (“[N]ow that we have 

clearly established the law in this area, we expect that [DFPS], law 

enforcement agencies, and their agents and employees will abide by these 

constitutional rules and seek to involve the state courts, who act as neutral 

magistrates in these complicated matters, as early in the process as is 

practicable.”); Wernecke, 591 F.3d at 399-401 (“Fifth Circuit law clearly 

established in June 2005 that the warrantless seizure of the Wernecke boys—

in the absence of any imminent danger—was a constitutional violation.”); 

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Romero, 937 F.3d at 521-22 (“It is thus clearly established that a court order 

or exigency is the predeprivation process that is due when social workers 

remove a child.”); McMurry, 2022 WL 17493708, at *4 (“Brunner’s actions 

violated the parents’ right to procedural due process under the Fourteenth 

Amendment, law that was clearly established as Gates placed officials ‘on 

notice that they violate procedural due process when they remove children 

without a court order or exigent circumstances.’”(citation omitted)). These 

cases have clearly established that R.B. and Banks had the right not to have 

their child-parent relationship invaded by government actors without court 

order, consent, or exigent circumstances. 

Contrary to DFPS’s claim, our precedent does not require that the 

district court identify caselaw holding that an emergency child removal was 

specifically unconstitutional under similar circumstances, nor does it require 

a case directly on point. “[I]t is not necessary that ‘the very action in 

question has previously been held unlawful.’” Austin v. City of Pasadena, 

Tex., 74 F.4th 312, 326 (5th Cir. 2023) (quoting Anderson v. Creighton, 483 

U.S. 635, 640 (1987)). “Instead, there can be notable factual distinctions 

between the precedents relied on . . . so long as the prior decisions gave 

reasonable warning that the conduct then at issue violated constitutional 

rights.” Id. (internal quotation marks and citation omitted). Accordingly, 

this argument lacks merit.

3

 

Further, “[w]e do not require a case directly on point, but existing 

precedent must have placed the statutory or constitutional question beyond 

debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. al-Kidd, 

_____________________

3 Even if this were required, the Wernecke court specifically found that an 

emergency child removal violated the Fourth and Fourteenth Amendments, so the district 

court did identify a case holding that an emergency child removal was unconstitutional. See 

Wernecke, 591 F.3d at 400-01. 

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563 U.S. 731, 741 (2011)). Here, there is no question, based on the ample 

precedent before us, that the constitutional rights of a child and his parents 

are violated when the government seizes the child absent consent, court 

order, and exigent circumstances. Moreover, exigent circumstances have 

been clearly defined at least since Gates in 2008 to require imminent danger 

of physical or sexual abuse. See Gates, 537 F.3d at 429. That evidence is 

entirely absent here. 

Turning to the district court’s reliance on the internal policies of 

DFPS, specifically the Gates Memo, we find no error.4 The district court 

permissibly consulted the Gates Memo in the context of notice and found 

that DFPS’s conduct contradicts it. See,e.g., Hope, 536 at744-45 (finding that 

a DOJ report buttressed its conclusion that respondents violated clearly 

established law). Under our current caselaw, violations of internal 

procedures or policies are insufficient to give rise to constitutional violations. 

See Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (stating 

that “even a negligent departure from established police procedure does not 

necessarily signal violation of constitutional protections”); Harris v. Payne, 

254 F. App’x 410, 416-17 (5th Cir. 2007) (unpublished) (per curiam) (finding 

no Fourth Amendment violation where, inter alia, defendants’ violation of 

internal policies “[did] not transform [plaintiff’s] claim into one of 

constitutional dimension”). But when properly supported by precedent,

_____________________

4 The district court referenced the Gates Memo, an internal DFPS document 

created in the aftermath of the Gates decision which requires DFPS employees to “obtain 

consent or file for a court order prior to removal of the child unless life or limb is in 

immediate jeopardy or sexual abuse is about to occur.” It further states that a “neglect 

case will rarely support an emergency removal without a court order” and that employees

“must have information that suggests that the child in question is in danger of harm now.”

It lists examples of neglect cases warranting emergency removal, including “an infant at 

home alone, a case of medical neglect that has become urgent, or a toddler found wandering 

in the street.” 

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these internal procedures bolster a finding that defendants had “fair and clear 

warning” of the clearly established right at issue. Hope, 536 U.S. at 745-46 

(“Even if there might once have been a question regarding the 

constitutionality of this practice, the Eleventh Circuit precedent . . . as well 

as the DOJ report condemning the practice, put a reasonable officer on 

notice. . ..”); Groh v. Ramirez, 540 U.S. 551, 564 (2004) (“In fact, the 

guidelines of petitioner’s own department placed him on notice that he might 

be liable. . ..”). Thus, the district court properly concluded that the Gates 

Memo undercut DFPS’s argument that exigent circumstances existed 

warranting removal. 

Finally, the district court did not improperly shift the burden onto 

DFPS, but appropriately addressed and relied on the correct standard 

concerning burdens of proof. DFPS cherry picks one statement made by the 

district court, in which it claimed that DFPS failed to offer any authority 

supporting the argument that a child’s prior exposure to drugs indicates that 

life or limb is in immediate jeopardy, supporting emergency warrantless 

removal. But, as Banks correctly argues, the district court was simply 

observing that DFPS did not point to any circumstances on June 19 to 

remotely suggest that R.B. was in imminent danger. 

In sum, relying on our ample precedent outlining the contours of the 

constitutional rights at issue, bolstered by DFPS’s own internal memo to its 

employees clarifying the higher burden for emergency removals following 

Gates, we conclude that DFPS’s conduct violated the clearly established 

rights of R.B. and Banks. This precludes the defense of qualified immunity 

at the summary judgment stage as to Herbrich and Williams. 

C.

Finally, DFPS argues that Linda Juarez, an Investigation Supervisor, 

was not meaningfully involved in R.B.’s removal because “she did not 

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conduct the investigation into R.B.’s situation, nor did she order his 

removal.” Banks argues that the evidence supports that Juarez was directly 

involved in the decision to remove R.B. 

The district court found that “[a]lthough Juarez was not the ultimate 

decisionmaker, it is clear that she was personally involved in the decision to 

remove R.B.” It considered her specific involvement, including staffing the 

case with Montoya, who decided on removal, and participating in the phone 

conference with ADA Supak, who also recommended removal. Therefore, 

the district court concluded that “Juarez’s actions were causally connected 

to the alleged constitutional violation,” and denied qualified immunity. We 

disagree. 

“[T]o state a cause of action under section 1983, the plaintiff must 

identify defendants who were either personally involved in the constitutional 

violation or whose acts are causally connected to the constitutional violations 

alleged.” DeMarco v. Davis, 914 F.3d 383, 390 (5th Cir. 2019) (quoting Woods 

v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (per curiam)). “A supervisory 

official is held to a standard of ‘deliberate indifference,’ which requires proof 

that the supervisor ‘disregarded a known or obvious consequence of his 

action.’” Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003) (quoting 

Southard v. Tex. Bd. of Crim. Just., 114 F.3d 539, 551 (5th Cir. 1997)). 

Juarez is entitled to qualified immunity because, like the supervisor in 

Wernecke, she was “neither the ultimate decision maker, nor was she actively 

involved in the decision to remove the [child].” See 591 F.3d at 401. Juarez 

neither conducted the investigation into R.B. nor ordered his removal; she 

even admitted her lack of authority to order R.B.’s removal. She merely 

escalated the case to Program Director Montoya and remained on the phone 

while Williams contacted ADA Supak. On the date of removal, it was 

Matchett, Montoya, and Supak who instructed R.B.’s removal—not Juarez. 

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Juarez was, at most, “merely a conduit for information between” the 

investigators and the program director. See Wernecke, 591 F.3d at 402. 

Though the dissent views Juarez as more than a conduit of information 

because she escalated the case to Montoya, the supervisor did the same in 

Wernecke and we nonetheless concluded that she was entitled to qualified 

immunity. Wernecke is not distinguishable based on the number or type of 

depositions in the record. We must instead look to what the available 

evidence shows. In Wernecke, the court evaluated the available record 

evidence and concluded that it showed that the supervisor was a mere 

conduit for information, lacked authority to order removal, and was thus 

entitled to qualified immunity. So too here. Even though the quantity of 

record evidence describing Juarez’s role in DFPS is greater here than in 

Wernecke, it nonetheless shows that Juarez, like the supervisor in Wernecke, 

lacked independent authority to order removal and was a conduit of 

information between Williams and the program director. Wernecke controls 

and Juarez is entitled to qualified immunity.

IV

For the foregoing reasons, we AFFIRM the district court’s denial of 

qualified immunity as to Williams and Herbrich and REVERSE the district 

court’s denial of qualified immunity as to Juarez. 

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Jacques L. Wiener, Jr., Circuit Judge, concurring in part and 

dissenting in part:

I concur in my colleague’s thoughtful qualified immunity analysis and 

agree that DFPS’s conduct violated the Plaintiffs–Appellees’ clearly 

established rights. However, I would further hold that no DFPS Defendant 

is entitled to qualified immunity—including Linda Juarez. I therefore 

respectfully dissent from Part III.C of the majority opinion.

I first highlight a few relevant facts. Robin Williams was the DFPS 

investigator assigned to the Banks case. Michael Matchett was Williams’s 

supervisor, but, because he was new on the job, Investigation Supervisor 

Linda Juarez “provided him with assistance and back up as needed.” As 

such, Williams went to Juarez with concerns about the Banks family. Juarez 

believed that the facts, recounted by Williams, were sufficiently serious as to 

require elevation to the Program Director, Defendant Dora Montoya, who 

ultimately approved R.B.’s removal. The district court denied wholesale 

DFPS’s motion for summary judgment, concluding that Juarez was 

personally involved in the alleged deprivation of Plaintiffs’ rights. I would 

affirm that wholesale denial of summary judgment.

To state a cause of action under 42 U.S.C. § 1983, a defendant must 

have been either “personally involved in the constitutional violation,” or 

their acts “causally connected” to the violation. Magnolia Island Plantation, 

L.L.C. v. Whittington, 29 F.4th 246, 251 (5th Cir. 2022) (quoting Anderson v. 

Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)). “[I]ndividual 

liability for a government official who violates constitutional rights . . . turns 

on traditional tort principles of ‘but-for’ causation.” Sims v. City of 

Madisonville, 894 F.3d 632, 639 (5th Cir. 2018); see also id. at 641 (focusing on 

whether the defendant “set in motion” the violation) (quoting Maestas v. 

Segura, 416 F.3d 1182, 1191 (10th Cir. 2005)). The final decisionmaker is not 

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the only defendant who can be held liable in a § 1983 case. Wernecke v. Garcia, 

591 F.3d 386, 401 (5th Cir. 2009) (holding that a defendant is personally 

involved when they are “the ultimate decisionmaker” or is “actively 

involved in the decision to remove the [child]”); see also Sims, 894 F.3d at 

639, 641 (“[S]omeone who is not a final decision maker and makes a 

recommendation that leads to the plaintiff being harmed can be liable . . . .”); 

Jett v. Dall. Indep. Sch. Dist., 798 F.2d 748, 758 (5th Cir. 1986) (affirming a 

defendant’s conviction even though “he only had recommending 

authority”).

Here, Juarez “set in motion” R.B.’s removal by deciding whether to 

“approve the worker’s [i.e., Williams’s] decisions or provide directions on 

changing them.” See Sims, 894 F.3d at 641. Had Juarez disagreed with 

Williams’s analysis of the Banks case, it never would have been brought to 

Montoya, the ultimate decisionmaker, and R.B. would not have been 

removed. This is not liability based on bare respondeat superior, see Evett v. 

DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003), or based on Juarez’s role as a 

supervisor, see Gates v. Tex. Dep’t of Protective & Reg. Servs., 537 F.3d 404, 

436 (5th Cir. 2008). It is instead based on Juarez’s personal decision to 

elevate the case to Montoya, which constitutes “an affirmative link between 

the incident and some act by the defendant.” Murphy v. Kellar, 950 F.2d 290, 

292 n.7 (5th Cir. 1992) (citing Rizzo v. Goode, 423 U.S. 362, 371 (1976)). 

The majority analogizes to Wernecke v. Garcia, in which we held that 

serving as a “conduit for information” was insufficient to establish personal 

involvement. 591 F.3d at 402. But the level of discretion and decision-making 

power enjoyed by Juarez goes beyond serving as a mere “conduit.” See id.

Unlike in Wernecke, in which no other record evidence linked the supervisor 

to the case, Williams’s deposition describes Juarez’s involvement. See id. at 

401 (“Notably, Mr. Wernecke’s affidavit does not mention Trainer . . . .”); 

id. at 402 (emphasizing that Trainer’s own deposition was “the only piece of 

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evidence in the record put forth by the Werneckes that contains any 

information about her knowledge and involvement”). Finally, as noted in the 

majority opinion, DFPS does not contest Matchett’s personal involvement; 

however, he did not become involved in the case at all until removal had 

already been approved. It is unclear how Matchett—but not Juarez—could

be personally involved in the alleged constitutional violation.

Especially given the stage in litigation, I would affirm the district court 

in its entirety, including the holding that Juarez was causally connected to the 

alleged constitutional deprivation. 

Case: 23-20107 Document: 00517020482 Page: 19 Date Filed: 01/03/2024