    Case: 18-50125    Document: 00514917622     Page: 1   Date Filed: 04/16/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                 No. 18-50125
                                                                       FILED
                                                                   April 16, 2019
                                                                  Lyle W. Cayce
                                                                       Clerk

MARIA RAMIREZ, as Representative of
 the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez;
PEDRO RAMIREZ, as Representative of
 the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez,

            Plaintiffs–Appellees,

versus

RUBEN ESCAJEDA, JR.,

            Defendant–Appellant.




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




Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Government officials are often entitled to qualified immunity (“QI”) from
liability for civil damages for performing their discretionary duties. See, e.g.,
Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018). And when a
district court denies QI, we may immediately review the denial. Rich v. Palko,
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                                 No. 18-50125
No. 18-40415, 2019 U.S. App. LEXIS 9856, at *7 (5th Cir. Apr. 3, 2019). But
“we have jurisdiction only to decide whether the district court erred in con-
cluding as a matter of law that officials are not entitled to [QI] on a given set
of facts.” Id. at *7−8 (alteration in original, citation omitted). We may not
“review the simple denial of a motion to dismiss for failure to state a claim.”
Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008). Because the defendant here
has abandoned the former and presses only the latter, we dismiss the appeal.

                                       I.
      Maria Ramirez called 911 the evening of June 23, 2015, saying that her
son Daniel was threatening to hang himself and needed help. Maria insists
that she “did not tell dispatch that [Daniel] had a weapon because he did not.”
Ruben Escajeda, Jr., an El Paso Police Department officer, responded to the
call, which he maintains was “a call-out regarding a suicidal subject with a
weapon.” He arrived at the Ramirezes’ house and went to the backyard to look
for Daniel.

      It was dusk when Escajeda arrived, and the parties dispute exactly what
he was able to see. The Ramirezes allege that Escajeda “immediately saw Dan-
iel in the process of hanging himself from a basketball net.” But “Daniel was
clearly still alive,” they maintain, and “was grabbing the rope around his neck
and touching the ground with his tiptoes—trying to save his own life.” The
Ramirezes continue that “[t]here were sufficient lighting conditions for Esca-
jeda to observe that Daniel was alive,” that his hands were on the basketball
net, that he had no weapon, and that he “was not a threat.” Escajeda counters
that he saw Daniel but “was barely able to make out the deceased through the
near dark” and could not see that Daniel was attempting to hang himself.

      Whatever the lighting conditions allowed him to see, Escajeda contends
that he repeatedly asked Daniel to show his hands. And when Escajeda was
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                                        No. 18-50125
“unable to see . . . the subject’s hands” “after multiple demands,” he warned
Daniel “that he would tase him if he did not raise his hands.” Because Escajeda
still could not see Daniel’s hands, “he deployed his taser.” Escajeda insists that
even though he used the taser because he did not see Daniel raise his hands,
he “was unable to see that [Daniel] was hanging himself.”

      The Ramirezes allege that the taser hit Daniel in his chest and abdomen
and that his body immediately went limp. Then Escajeda approached Daniel
and discovered that he “was hanging himself during the encounter.” Escajeda
removed Daniel from the basketball net and began CPR. Daniel was trans-
ported to a hospital and soon pronounced dead.                  Police did not recover a
weapon.

      Maria and her husband Pedro sued Escajeda in his personal capacity
under 42 U.S.C. § 1983, 1 alleging that “use of a taser was not necessary nor
justified” and was “an objectively unreasonable and excessive amount of force”
in violation of their son’s Fourth and Fourteenth Amendment rights. Escajeda
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting QI
and stressing that plaintiffs had not met the plausibility standard for pleading.
The district court denied the motion, holding that Escajeda was not entitled to
QI based on well-pleaded facts in the complaint.

                                              II.
      An officer sued under § 1983 may claim QI, and once he does, the plain-
tiff must rebut by establishing (1) that the officer “violated a federal statutory
or constitutional right” and (2) that “the unlawfulness of the[] conduct was
‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018) (citation omitted). If a defendant raises QI and the district court


      1   The Ramirezes also sued the police department, but it is not a party to this appeal.
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                                      No. 18-50125
denies it, we have jurisdiction on interlocutory appeal to review the denial
de novo. Brown, 519 F.3d at 236. But our review is “restricted to determina-
tions of questions of law and legal issues.”            Club Retro, L.L.C. v. Hilton,
568 F.3d 181, 194 (5th Cir. 2009) (cleaned up). “[W]e do not consider the cor-
rectness of the plaintiff’s version of the facts.” Id. (internal quotation marks
and citation omitted).

                                            III.
       Though Escajeda styles this appeal as a challenge to the denial of QI, he
makes no attempt to show that, taking well-pleaded facts as true, he did not
violate Daniel’s clearly-established constitutional rights. “Questions posed for
appellate review but inadequately briefed are considered abandoned.” Dardar
v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993). By presenting but
failing to brief it, Escajeda has abandoned the issue whether the district court
erred in denying QI. 2

       And Escajeda raises no other issue that we may consider in this limited
appeal. His sole contention is that the district court erred in denying the
motion to dismiss because the Ramirezes have not pleaded “a claim [to] relief
that is plausible on its face.” Club Retro, 568 F.3d at 194 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). He attacks the credibility of the
facts pleaded, averring that “there were no witnesses present during the inci-
dent,” so “[t]he Plaintiffs have no idea what [he] saw, heard, felt, or thought.”
He concludes by urging us to “determine whether the Plaintiffs [sic] allegations
move across the line from possible to plausible based entirely on supposition
and make-believe.”


       2That abandonment is only for purposes of this appeal. Nothing constrains Escajeda
from asserting QI at an appropriate, later stage of this litigation, including any motion for
summary judgment or trial.
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                                       No. 18-50125
       That is “merely an attack on the district court’s denial of his motion to
dismiss for failure to state a claim.” Brown, 519 F.3d at 238. We lack jurisdic-
tion to consider that challenge at this early facet of the proceedings. Id. 3

       Escajeda insists that in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court
rejected the idea that a reviewing court lacks jurisdiction to consider the suf-
ficiency of the pleadings in an interlocutory appeal from the denial of QI. He
misses the mark. We may review “whether the facts pleaded establish” “a vio-
lation of clearly-established law.” Id. at 673. That is a legal issue fully within
our jurisdiction on interlocutory appeal. But Iqbal does not allow us to ques-
tion the credibility of the facts pleaded, which is what Escajeda asks us to do.
Iqbal, instead, tells us to “assume the[] veracity” of “well-pleaded factual alle-
gations” and “determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679.

       The appeal is DISMISSED for want of jurisdiction. 4




       3  See also Burnside v. Kaelin, 773 F.3d 624, 626 n.1 (5th Cir. 2014) (“We have no
jurisdiction over arguments unrelated to the denial of [QI] or over factual disputes . . . .”).
Escajeda conspicuously fails to address Brown, in which the defendant official ostensibly
appealed the denial of QI but contended only that the plaintiff had failed sufficiently to plead
a 42 U.S.C. § 1985 claim. See Brown, 519 F.3d at 238. We held that we lacked jurisdiction
to decide the sufficiency of the pleadings. Id.
       4Because we have no jurisdiction to entertain the appeal, we have no authority to hint
as to what is the proper outcome of this litigation. Nothing in this opinion should be con-
strued to do so.
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