      Case: 15-50119          Document: 00513674270          Page: 1   Date Filed: 09/12/2016




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

                                                                                   FILED
                                                                             September 12, 2016
                                          No. 15-50119
                                      Cons. w/ No. 15-50665                     Lyle W. Cayce
                                                                                     Clerk


ROSWITHA M. SAENZ, Individually and on the behalf of the estate of
Daniel Saenz,

                 Plaintiff - Appellee

v.

JOSE FLORES,

                  Defendant - Appellant
----------------------------------------------------------
Consolidated With
Case No. 15-50665

ROSWITHA M. SAENZ, Individually and on the behalf of the estate of
Daniel Saenz,

                 Plaintiff - Appellee

v.

ALEJANDRO ROMERO, also known as John Doe,

                 Defendant - Appellant




                      Appeals from the United States District Court
                            for the Western District of Texas
                                 USDC No. 3:14-CV-244


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
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                         No. 15-50119 Cons. w/ No.15-50665
PER CURIAM:*
       This is a consolidated appeal of two cases arising out of Daniel Saenz’s
(“Saenz”) shooting death while in police custody. Saenz’s mother Roswitha
Saenz (“Roswitha”) 1 sued multiple defendants, including Appellants Jose
Flores (“Flores”), the El Paso police officer who shot Saenz, and Alejandro
Romero (“Romero”), an employee of a private security company who was
assisting in the transport of Saenz. The district court denied in part Flores and
Romero’s respective motions to dismiss on the grounds that, inter alia, neither
was protected by qualified immunity—though for different reasons. The
district court found that, with regard to Flores, Roswitha’s pleadings satisfied
the well-established two-prong test necessary to overcome an invocation of
qualified immunity. In Romero’s case, the district court found that Romero
failed to adequately invoke qualified immunity in the first place. Both Flores
and Romero filed interlocutory appeals of the denial of qualified immunity. We
AFFIRM as to Flores, but REVERSE and REMAND as to Romero.
                                             I
       The district court has recounted the facts of this case on prior occasions.
See Saenz v. G4S Secure Solutions (USA) Inc., No. 14-244, Dkt. No. 132, slip
op. at 3-5 (W.D. Tex. July 6, 2015); Saenz v. City of El Paso, No. 14-244, Dkt.
No. 86, slip op. at 2-4 (W.D. Tex. Jan. 28, 2015).
                                            II
       A denial of a motion to dismiss based on a defense of qualified immunity
is a collateral order capable of immediate review. Club Retro, L.L.C. v. Hilton,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       Because the decedent (Daniel Saenz) and plaintiff (Roswitha Saenz) share a last
       1

name, we refer to the plaintiff by her first name throughout.
                                             2
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                       No. 15-50119 Cons. w/ No.15-50665
568 F.3d 181, 194 (5th Cir. 2009). “Our jurisdiction, however, is severely
curtailed: we are restricted to determinations of question[s] of law and legal
issues, and we do not consider the correctness of the plaintiff’s version of the
facts.” Id. (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th
Cir. 2005)) (alteration in original) (internal quotation marks and citations
omitted). Within this limited jurisdiction, this court reviews defendants’
invocations of qualified immunity de novo. Id. This court must “accept all well-
pleaded facts as true, draw all inferences in favor of the nonmoving party, and
view all facts and inferences in the light most favorable to the nonmoving
party.” Id. To survive a motion to dismiss, plaintiff must plead “enough facts
to state a claim for relief that is plausible on its face.” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
                                         III
      The district court found that, although Flores did adequately invoke
qualified immunity, Roswitha’s pleadings satisfied the well-established two-
prong test necessary to overcome qualified immunity. See Club Retro, 568 F.3d
at 194. The district court concluded that Roswitha’s deprivation of life and
excessive force claims adequately alleged violations of Saenz’s Fourteenth
Amendment rights, and that said rights were clearly established at the time of
the alleged conduct. We agree that Roswitha pled sufficient facts to survive a
motion to dismiss based on qualified immunity. See, e.g., Webster v. City of
Houston, 735 F.2d 838, 845 (5th Cir. 1984) (en banc) (“The victim of a wrongful
shooting by a police officer also has a claim . . . for redress of substantive
constitutional violations such as the use of excessive force during an
arrest . . . or the taking of life without due process of law.”); Gutierrez v. City of
San Antonio, 139 F.3d 441, 452 (5th Cir. 1998) (noting that the Fourteenth
Amendment protects pretrial detainees from excessive force); Bazan ex rel.


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                      No. 15-50119 Cons. w/ No.15-50665
Bazan v. Hidalgo Cty., 246 F.3d 481, 487-88 (5th Cir. 2001) (holding that
“[d]eadly force is a subset of excessive force”).
      Regarding Romero’s appeal, the district court, sua sponte, denied
Romero qualified immunity in part because it found that, outside the narrow
context of his use of handcuffs, Romero failed to adequately invoke qualified
immunity in his pleadings. We disagree. Romero alleged that he was acting in
the scope of his employment with a private security company under its contract
with the City of El Paso when he assisted in transporting Saenz to jail. He also
noted that Roswitha’s own pleadings stated that Romero’s responsibilities in
transporting prisoners had traditionally been the exclusive province of the
state, and that he was therefore in a “position of interdependence” with the
City of El Paso. In addition, Romero’s pleadings explicitly stated that he was
entitled to qualified immunity with respect to Roswitha’s 42 U.S.C. § 1983
claims on multiple occasions. Taken together, these assertions are sufficient to
invoke the defense of qualified immunity, and the district court erred in
holding that Romero failed to do so. We stress, however, that we do not rule
here on whether Romero, as an employee of a private contractor, is entitled to
qualified immunity as a threshold matter. The district court should determine
on remand whether Romero is entitled to qualified immunity in the first
instance.
                                        IV
      We AFFIRM the judgment of the district court as to Flores, and
REVERSE and REMAND for further proceedings as to Romero.




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