# Vodicka v. Ermatinger

> District Court, N.D. Texas · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10448517

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN B. AUBREY, et al., §
§
Plaintiffs, §
§
v. § CIVIL ACTION NO. 3:19-CV-0056-B
§
D MAGAZINE PARTNERS, L.P., et al., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Dallas County’s Motion to Dismiss Plaintiffs’ Third Amended
Complaint (Doc. 125), seeking dismissal of Plaintiffs’ claim based on the statute of limitations and
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below,
the Court GRANTS IN PART and DENIES IN PART the motion (Doc. 125). Though the Court
declines to dismiss the claim on statute-of-limitations grounds, the Court DISMISSES WITH
PREJUDICE Plaintiffs’ claim based on Plaintiffs’ failure to state a claim under Rule 12(b)(6).
Further, the Court DENIES Plaintiffs’ request to amend their complaint.

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I.
BACKGROUND1
A. Factual History

Plaintiffs, Steven B. Aubrey (Aubrey) and Brian E. Vodicka (Vodicka), are a married couple
that lived in Dallas, Texas, when the following events occurred. Doc. 121, Third Am. Compl.
(TAC), ¶¶ 27 (5), 38 (6). On May 13, 2016, Ira Tobolowsky died in a suspicious early morning fire
at his home. Id. ¶ 28 (5). Thereafter, Detectives Robert L. Ermatinger, Jr. and Scott Robert Sayers
allegedly obtained search warrants to investigate Plaintiffs in relation to the murder. See id. ¶¶ 43–44
(7). As part of this investigation, Plaintiffs allege that representatives of the City of Dallas and Dallas
County executed search warrants that permitted them “only to examine, photograph, and fingerprint

Plaintiffs.” See id. ¶¶ 105 (23), 184 (42). Yet, Plaintiffs allege, these representatives instead “decided
to assault Plaintiffs with deadly force and risk Plaintiffs’ lives without cause.” Id. ¶ 188 (43).
Specifically, Plaintiffs allege that the City and County employees “ambushed” Plaintiffs as they
attempted to back out of their driveway by blocking Plaintiffs’ vehicle, drawing firearms, and pointing
them at Plaintiffs. Id. ¶ 190 (43–44). Subsequently, Plaintiffs explain, Aubrey had a gun pointed at
his head, while Vodicka was pinned to the ground. Id. (44).

Plaintiffs allege that the arresting individuals did not have the authority to arrest Plaintiffs,
because the warrant was only for the “examination, photographing and fingerprinting [of] Plaintiffs.”
Id. ¶ 193 (44). Furthermore, Plaintiffs allege that the Dallas Police Department (DPD) and Dallas

1 Only pertinent facts for this Motion to Dismiss have been included for the sake of brevity. The third
amended complaint consists of 487 paragraphs spanning 110 pages. Because the third amended complaint
consists of inconsistent paragraph numbering, the Court cites the paragraph to which it refers, followed by
the page number in parentheses, throughout this order.
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County have policies “concerning the use of deadly force [to] examine, photograph and fingerprint,”
which “allows deputies to violate citizens’ constitutional rights under the Fourth Amendment . . . .”
Id. ¶¶ 362 (81), 363 (82). Moreover, Plaintiffs assert that the failure of DPD, as well as Dallas
County,2 to properly train their employees was the proximate cause of Plaintiffs’ injuries. Id. ¶ 195

(46). The actions by DPD and Dallas County, Plaintiffs contend, led to an unlawful arrest that
violated their “constitutional rights to be free from unreasonable search and seizures, cruel and
unusual punishment.” Id. ¶ 203 (47).
B. Procedural History
Plaintiffs originally filed a complaint in the Southern District of Florida on May 17, 2018. See
Complaint, Aubrey v. D Magazine Partners, L.P., No. 18-CV-61117 (S.D. Fla. Nov. 8, 2018), ECF

No. 1. The district court dismissed the complaint due to a lack of personal jurisdiction on November
8, 2018. See Omnibus Order, Aubrey v. D Magazine Partners, L.P., No. 18-CV-61117 (S.D. Fla. Nov.
8, 2018), ECF No. 122.3
Thereafter, Plaintiffs filed their complaint in this Court on January 8, 2019, bringing claims
against Defendants D Magazine Partners, L.P.; Allison Media, Inc.; Jamie L. Thompson; Robert L.
Ermatinger, Jr.; Scott Robert Sayers; Judge Eric Vaughn Moyé; City of Dallas; Dallas County; and

2 Plaintiffs often refer to “Sheriff Valdez,” rather than Dallas County, because Plaintiffs allege that
Sheriff Valdez is the final policymaker for Dallas County. See id. ¶ 199 (47). For the sake of clarity, the Court
simply refers to Sheriff Valdez as “Dallas County.”
3 Since the date on which Plaintiffs’ complaint was dismissed in the Southern District of Florida is
relevant to the Court’s statute-of-limitations analysis, the Court must clarify this date. The order dismissing
Plaintiffs’ claims is dated November 8, 2018, but the order was not entered on the Southern District of
Florida’s electronic filing system until November 9, 2018. See id. Because Plaintiffs could not have received
notice of the order prior to November 9, 2018, this is the date the Court relies upon in considering Dallas
County’s statute-of-limitations argument.
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Does 1-20.4 See Doc. 3, Compl. One day later, Plaintiffs filed an amended complaint. See Doc. 4,
Notice of Correction. In response to Plaintiffs’ amended complaint, all named Defendants filed
motions to dismiss. See Doc. 21, Mot. to Dismiss; Doc. 29, Mot. to Dismiss; Doc. 31, Mot. to

Dismiss; Doc. 32, Mot. to Dismiss. Subsequently, Plaintiffs sought to amend their operative
complaint. See Doc. 47, Pls.’ Mot. for Leave to File Am. Compl. Three days later—before this Court
ruled on Plaintiffs’ motion—Plaintiffs filed another motion for leave to amend the complaint, which
Defendants opposed. See Doc. 50, Pls.’ Mot. for Leave to File Second Am. Compl., 1–2. The Court
granted Plaintiffs’ motion, and Plaintiffs then filed their second amended complaint. See Doc. 52,
Electronic Order; Doc. 54, Pls.’ Second Am. Compl.
Subsequently, all Defendants moved to dismiss the claims in the operative complaint. See

Doc. 63, Mot. to Dismiss; Doc. 65 Mot. to Dismiss; Doc. 67, Mot. to Dismiss; Doc. 71, Mot. to
Dismiss; Doc. 72, Mot. to Dismiss; Doc. 73, Mot. to Dismiss. On June 20, 2019, the Court dismissed
all claims against Defendant Judge Moyé. See Doc. 92, Mem. Op. & Order.
Thereafter, Plaintiffs sought leave to file a third amended complaint. See Doc. 102, Pls.’ Mot.
for Leave to File Third Am. Compl. The Court granted leave to amend only “insofar as they [sought]
to include allegations of six newly-discovered search-warrant affidavits.” Doc. 114, Order, 10. Thus,

the third amended complaint (Doc. 121) is now the operative complaint in this case.
Dallas County filed its motion to dismiss on December 31, 2019. See Doc. 125, Mot. to
Dismiss. Plaintiffs filed a response to this motion on January 21, 2020. See Doc. 133, Pls.’ Resp.

4 The Court hereinafter refers to Defendants City of Dallas, Robert L. Ermatinger, Jr., and Scott
Robert Sayers collectively as “the City Defendants.” Further, the Court refers to Defendants D Magazine
Partners, L.P., Allison Media, Inc., and Jamie L. Thompson collectively as “the Media Defendants.”
-4-
Finally, on January 31, 2020, Dallas County submitted its reply brief in support of the motion. See
Doc. 142, Def.’s Reply. Accordingly, the motion is now ripe for review.
II.

LEGAL STANDARD
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.
8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim
upon which relief can be granted.” Id. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss,
“[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “The court’s review

[under 12(b)(6)] is limited to the complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central to the claim and referenced by the
complaint.” Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th Cir. 2019)
(emphasis added) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010) (citation omitted)).
To survive a motion to dismiss, a plaintiff must plead “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). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
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When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but
it has not shown—that the pleader is entitled to relief.” Id. at 679 (cleaned up). And “[a]lthough
dismissal under [R]ule 12(b)(6) may be appropriate based on a successful affirmative defense, that

defense must appear on the face of the complaint.” Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir.
2017).
III.
ANALYSIS
Plaintiffs bring one claim against Dallas County: a 42 U.S.C. § 1983 claim based on the use
of deadly force. See Doc. 121, TAC, ¶¶ 361–63 (81–82). Dallas County moves to dismiss the claim
based on two grounds: (1) statute of limitations, and (2) failure to state a claim. See Doc. 125, Mot.

to Dismiss, 6, 14. The Court addresses each ground below, ultimately dismissing Plaintiffs’ claim
against Dallas County based on Plaintiffs’ failure to state a claim upon which relief may be granted.
Thereafter, the Court turns to Plaintiffs’ request for leave to amend their complaint, which the Court
denies in light of the history of this case.
A. Whether the Applicable Statute of Limitations Bars Plaintiffs’ Claim
The Court declines to hold, at the motion-to-dismiss stage of proceedings, that Plaintiffs’

claims are time-barred by the applicable statute of limitations. Plaintiffs do not dispute that the Texas
statute of limitations of two years applies to this case. See Doc. 125, Mot. to Dismiss, 6–8; Doc. 133,
Pls.’ Resp., 6.5 Further, Dallas County explains, and Plaintiffs fail to contest, that the accrual date

5 “The statute of limitations for a suit brought under § 1983 is determined by the general statute of
limitations governing personal injuries in the forum state.” Piotrowski v. City of Houston, 237 F.3d 567, 576
(5th Cir. 2001) (citation omitted). Texas has a two-year statute of limitations for personal-injury claims. See
TEX. CIV. PRAC. & REM. CODE § 16.003.
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of Plaintiffs’ cause of action is May 19, 2016. See Doc. 125, Mot. to Dismiss, 6; Doc. 133, Pls.’ Resp.,
6. Because Plaintiffs filed this case on January 8, 2019—over two years and seven months after the
date of accrual—Dallas County raises a statute-of-limitations affirmative defense under Federal Rule

of Civil Procedure 8(c)(1), contending that the two-year statute of limitations bars Plaintiffs’ claim.
Doc. 125, Mot. to Dismiss, 8.
But Plaintiffs argue that Texas Civil Practice & Remedies Code § 16.064 allows the statute
of limitations to toll for sixty days since they filed the “same original claim in the U.S. District Court,
Southern District of Florida” within the two-year limitations period. See Doc. 133, Pls.’ Resp., 6.
Under § 16.064, the applicable statute of limitations is suspended:
for the period between the time one action is dismissed and the time the same action
is re-filed in a different jurisdiction if (1) the original action was dismissed for lack of
jurisdiction, and (2) the second action was commenced in the proper jurisdiction no
later than the 60th day following the dismissal.
Mathers Family Tr. ex rel. Mathers v. Cagle, 2013 WL 3455489, at *5 (N.D. Tex. July 8, 2013) (citing
TEX. CIV. PRAC. & REM. CODE § 16.064(a)). But the statute of limitations is not suspended under
§ 16.064 “if the adverse party has shown in abatement that the first filing was made with intentional
disregard of proper jurisdiction.” TEX. CIV. PRAC. & REM. CODE § 16.064(b).
Here, Plaintiffs re-filed in the Northern District of Texas sixty days after the dismissal in the
Southern District of Florida for lack of personal jurisdiction,6 thus satisfying both elements of
§ 16.064(a). See TEX. CIV. PRAC. & REM. CODE § 16.064(a). Nevertheless, Dallas County argues that
Plaintiffs filed in Florida with “intentional disregard of proper jurisdiction.” Doc. 125, Mot. to

6 The district court dismissed Plaintiffs’ claims on November 9, 2018. See supra at 3 n.3. Plaintiffs filed
suit in this Court on January 8, 2019. See Doc. 1, Compl. Thus, Plaintiffs filed suit on the sixtieth day
following dismissal.
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Dismiss, 10-11 (citing TEX. CIV. PRAC. & REM. CODE § 16.064(b)). Specifically, Dallas County
contends that Plaintiffs “made a strategic decision to file suit in the wrong jurisdiction” and “had full
knowledge that all of Defendants’ actions alleged occurred in Dallas, Texas.” Id. at 11.
In response, Plaintiffs explain that they originally filed suit in Florida based upon one
defendant’s alleged minimum contacts with the forum state. Doc. 133, Pls.’ Resp., 6 (citing Int’l Shoe
Co. v. State of Wash. Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)).
Specifically, Plaintiffs state that because the actions giving rise to Plaintiffs’ claims against D
Magazine, another Defendant in this case, took place while Plaintiffs resided in Florida, Plaintiffs had
a “solid basis” for jurisdiction in Florida over D Magazine. Id. at 8. And based on this jurisdictional
theory, Plaintiffs brought their claims against “all Defendants in Florida in good faith... .” Id.
Nonetheless, Dallas County suggests that “a mistake of law would not allow Plaintiffs the
benefit of the tolling provision... because all persons are presumed to know the law... .” Doc. 125,
Mot. to Dismiss, 11. In support of this assertion, Dallas County points to two Texas cases. Id. at
10-11 (citing Parker v. Cumming, 216 S.W.3d 905 (Tex. App.—Eastland 2007, pet. denied) and
French v. Gill, 252 S.W.3d 748 (Tex. App.—Texarkana 2008, pet. denied)).
The Court rejects Dallas County’s proposition that a mistake of law precludes the application
of the tolling provision. In doing so, the Court first turns to the law governing this dispute. Second,
the Court distinguishes the cases upon which Dallas County relies.
The Supreme Court of Texas has clarified that “a mistake of law may be a sufficient excuse”
to satisfy a plaintiff's burden of demonstrating that “he did not intentionally disregard proper
jurisdiction when filing the case.” See In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 312-13 (Tex.
2010) (citation omitted).
8.

Further, Section 16.064 “is to be given a liberal construction to effectuate ‘its manifest
objective—relief from penalty of limitation bar to one who has mistakenly brought his action “in the
wrong court.”’” Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App.—Fort Worth 1997, pet.

denied) (emphasis in original) (quoting Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ.
App.—Austin 1944, writ ref’d w.o.m.)). Following this objective, Texas courts have noted that “a
mistake of law may be a sufficient excuse under [§] 16.064 . . . because capable lawyers often make
good faith mistakes about the jurisdiction of Texas courts . . . .” Integrity Glob. Sec., LLC v. Dell Mktg.
L.P., 2019 WL 2147622, at *9 (Tex. Civ. App.—Austin May 17, 2019) (quotation marks omitted)
(citing In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 312 (Tex. 2010)). In contrast, § 16.064 “does
not protect a plaintiff who misfiles as a part of a ‘strategic decision to seek relief’ from a court that

lacked jurisdiction.” Id. (citing In re United Servs. Auto. Ass’n, 307 S.W.3d at 313).
In this case, Plaintiffs assert that they mistakenly relied on Florida’s long-arm statute to confer
personal jurisdiction over all Defendants since one Defendant, D Magazine, harmed them while
Plaintiffs lived in Florida. Doc.133, Pls.’ Resp., 8. The Court notes that this could constitute a good-
faith mistake of law—rather than a strategic decision. See Integrity Glob. Sec., LLC, 2019 WL
2147622, at *9.

Moreover, the Court finds the cases upon which Dallas County relies to be distinguishable
from the case at hand. In the first case, Parker v. Cumming, the plaintiff filed a personal-injury lawsuit
as an adversary proceeding in her federal bankruptcy case. 216 S.W.3d at 908. When her claims were
later dismissed, she sought to invoke the tolling provision of § 16.064 in state court. Id. But the trial
court found that she intentionally disregarded proper jurisdiction when she filed her adversary
proceeding in her bankruptcy case. See id. Thus, she could not invoke the tolling provision of
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§ 16.064, and the trial court granted summary judgment in favor of the defendants on statute-of-
limitations grounds. See id.
On appeal, the Eastland Court of Appeals in Parker affirmed. Id. at 912–13. The Parker court

reasoned that “even assuming every statement and allegation in [the plaintiff’s] complaint is taken
as true, that pleading affirmatively establishes that the bankruptcy court did not have jurisdiction.”
Id. at 910. “[T]he very bankruptcy statute [the plaintiff] cited,” the court noted, “makes clear that
the bankruptcy court had no jurisdiction to hear [the plaintiff’s] personal injury suit.” Id. Further,
the court noted that “whether [the plaintiff] was conscious of this is immaterial” because “[a]ll
persons are presumed to know the law and are charged with knowledge of statutory provisions.” Id.
at 911 (citing Virtual Healthcare Servs., Ltd. v. Laborde, 193 S.W.3d 636, 644 (Tex. App.—Eastland

2006)).
Here, however, Plaintiffs’ actions are distinguishable from those of the plaintiff in Parker. In
Parker, the plaintiff filed a personal-injury suit in a bankruptcy court, id.—a court with jurisdiction
over matters far different than that of a federal district court. Compare 28 U.S.C. § 157(b) (federal
bankruptcy court jurisdiction) with 28 U.S.C. § 1331; 28 U.S.C. § 1332; 28 U.S.C. § 1367 (federal
district court jurisdiction). In contrast, here, Plaintiffs filed suit in the wrong federal district, but they

still filed in a federal district court, which has subject-matter jurisdiction over the types of claim
alleged. See 28 U.S.C. § 1331 (conferring original jurisdiction over claims arising under federal law);
28 U.S.C. § 1332 (conferring original jurisdiction over certain claims made by citizens of one state
against citizens of another state); 28 U.S.C. § 1367 (conferring supplemental jurisdiction over claims
related to those over which the district court has original jurisdiction). Additionally, the court in

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Parker ruled on a motion for summary judgment—not a motion to dismiss. See Parker, 216 S.W.3d
at 908.7
Likewise, the second case upon which Dallas County relies, French v. Gill, is distinguishable

from the case at hand. See 252 S.W.3d at 748. In French, the plaintiffs amended their complaint in
federal district court to add parties that defeated diversity jurisdiction under 28 U.S.C. § 1332. Id.
at 751–52. The amended complaint stated: “There will no longer be diversity of citizenship between
the parties to this [federal] civil action . . . .” Id. at 751 (alteration in original). After the federal
district court did not permit this amendment, the plaintiffs filed suit in state court, relying upon the
tolling provision of § 16.064 to sustain their claim. See id. at 750.
But the Texarkana Court of Appeals, reviewing the plaintiffs’ claim in French, rejected this

argument and affirmed the trial court’s granting of summary judgment in favor of the defendants. See
id. at 757. The court concluded that the plaintiffs’ amended complaint, “[o]n its face,” demonstrated
an intentional disregard of proper jurisdiction. Id. at 755. Regardless of whether the plaintiffs’ counsel
intended to defeat jurisdiction, the court reasoned, “[t]he only evidence on point”—the amended
complaint’s “unequivocal and clear statement that adding the new players would defeat
jurisdiction”—amounted to an “intentional disregard of proper jurisdiction.” Id. at 755, 757.

Unlike the plaintiffs in French, however, Plaintiffs here have not made any “unequivocal and
clear statement” indicating that jurisdiction was improper in Florida. See id. at 755. Rather, Plaintiffs’
original complaint in the Southern District of Florida premised personal jurisdiction upon the

7 The difference in procedural posture is significant: “Whereas a motion to dismiss challenges a
complaint’s legal sufficiency, a post-discovery motion for summary judgment evaluates whether a genuine
issue of material fact remains after considering both sides’ proffered evidence.” Rader v. Cowart, 543 F. App’x
358, 361 (5th Cir. 2013) (per curiam).
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contacts of one defendant with the state of Florida. See Doc. 133, Pls.’ Resp., 8. Though this reliance
was misplaced, this Court cannot conclude it amounted to intentional disregard like that of the
plaintiffs in French. Accordingly, the Court finds neither case offered by Dallas County to be

analogous to the case before the Court.
Because the Court lacks clear evidence that Plaintiffs filed suit in Florida in intentional
disregard of jurisdiction, the Court declines to dismiss Plaintiffs’ claim against Dallas County based
on the statute of limitations at the motion-to-dismiss stage. Cf. Parker, 216 S.W.3d 905; French, 252
S.W.3d 748.
B. Whether Plaintiffs Sufficiently Pled Their § 1983 Monell Claim
The Court holds that Plaintiffs have not sufficiently pled their § 1983 Monell claim against

Dallas County. Plaintiffs allege that Dallas County, along with the City of Dallas and John Doe
defendants, violated Plaintiffs’ Fourth Amendment rights by using excessive force in violation of 42
U.S.C. § 1983. Doc. 121, TAC, ¶¶ 361–81 (81–88) (Count IV). Dallas County,8 however, argues
that Plaintiffs failed to plead enough facts to sustain their claim. Doc. 125, Mot. to Dismiss, 14.
This Court agrees. Section 1983 provides a federal cause of action against “[e]very person
who, under the color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes

to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws . . . .” 42 U.S.C. § 1983. “To state a claim under [§] 1983, a plaintiff must:
(1) allege a violation of rights secured by the Constitution or laws of the United States, and (2)

8 Dallas County does not clearly include other Defendants in its motion to dismiss. See Doc. 125,
Mot. to Dismiss, 1. Consequently, the Court considers the Motion under the assumption that it pertains only
to Dallas County as a municipality.
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demonstrate that the alleged deprivation was committed by a person or entity acting under color of
state law.” Mohamed for A.M. v. Irving Indep. Sch. Dist., 300 F. Supp. 3d 857, 874 (N.D. Tex. 2018)
(citations omitted).

But “a local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, municipal
liability under § 1983 “results if a deprivation of constitutional rights was inflicted pursuant to official
custom or policy.” Piotrowski, 237 F.3d at 579. This theory of liability is commonly referred to as a
“Monell claim.” See, e.g., Ramirez v. Abreo, 2010 WL 11565455, at *1 (N.D. Tex. May 27, 2010).
To establish a Monell claim, “a plaintiff must show that (1) an official policy (2) promulgated
by the municipal policymaker (3) was the moving force behind the violation of a constitutional

right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (citation omitted).“The
ultimate question” in assessing a motion to dismiss a Monell claim is “whether [the plaintiff] has
alleged facts to show that a policymaker promulgated or ratified an unconstitutional policy that
resulted in injury to [the plaintiff.]” Mohamed for A.M., 300 F. Supp. 3d at 875.9
For purposes of municipal liability under Section 1983, “[o]fficial policy usually exists in the
form of written policy statements, ordinances, or regulations, but it may also arise in the form of a

widespread practice that is ‘so common and well-settled as to constitute a custom that fairly
represents municipal policy.’” Davenport v. City of Garland, 2010 WL 1779620, at *2 (N.D. Tex.

9 Here, Plaintiffs identify the Dallas County Commissioners Court and the Dallas County Sheriff as
alleged policymakers. See Doc. 121, TAC, ¶ 363 (82). The Court will hereinafter refer to Dallas County’s
alleged policymakers as simply “Dallas County.”
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Apr. 9, 2010), adopted by 2010 WL 1779619, at *1 (N.D. Tex. Apr. 30, 2010) (quoting Piotrowski,
237 F.3d at 579; Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).
Additionally, the “official policy” supporting a § 1983 claim may be either an

“unconstitutional official policy” or “a facially innocuous policy. . . .” Piotrowski, 237 F.3d at 579. The
latter, however, only “support[s] liability if it was promulgated with deliberate indifference to the
‘known or obvious consequences’ that constitutional violations would result.” Id. (citation omitted).
Due to these nuances, “each and any policy which allegedly caused constitutional violations
must be specifically identified by a plaintiff, and it must be determined whether each one is facially
constitutional or unconstitutional.” Id. at 579–80.
Here, Plaintiffs allege that four different policies contributed to the alleged violation of their

Fourth Amendment rights: (1) use of deadly force to examine, photograph, and fingerprint;
(2) failure to “knock and announce”; (3) inadequate training; and (4) inadequate discipline and
supervision. See Doc. 121, TAC, ¶¶ 363–65 (82–83), 379 (87). The Court will consider policies (1)
and (2) together, followed by policies (3) and (4) together. Because Plaintiffs have not sufficiently
alleged a policy or custom to support their § 1983 claim, the Court dismisses this claim.
1. Use of deadly force and failure to knock and announce

Plaintiffs allege that Dallas County has a policy “concerning the use of deadly force [to]
examine, photograph and fingerprint,” which “allows deputies to violate citizens’ constitutional rights
. . . .” Id. ¶ 363 (82). Moreover, Plaintiffs also contend that employees of Dallas County
“disregard[ed] . . . Plaintiffs’ right to knock-and-announce . . . .” Id. ¶ 188 (43). Dallas County, on
the other hand, suggests that Plaintiffs have not sufficiently pled that a “Dallas County policymaker
promulgated or ratified an unconstitutional policy.” Doc. 125, Mot. to Dismiss, 15.
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As a preliminary matter, the Court must first determine which definition of “official policy”
Plaintiffs rely upon. See Davenport, 2010 WL 1779620, at *2. In describing Dallas County’s policies,
Plaintiffs allege that Dallas County has similar policies to those of DPD and cites to DPD policies as

the official policies of Dallas County. Doc. 121, TAC, ¶¶ 171–80 (40–42). But Plaintiffs do not argue
that these officially adopted and promulgated policies created the alleged constitutional violation.
Instead, Plaintiffs argue that the force used to examine, photograph, and fingerprint them was
excessive, and the circumstances did not warrant the use of force authorized by the written policies.
Compare id. ¶¶ 177–80 (41–42) (identifying policies stating that deadly force and drawing a firearm
require a degree of threat) with ¶¶ 191–92 (44) (alleging that Plaintiffs did not pose the requisite
threat to justify deadly force and the drawing of weapons). And Plaintiffs do not suggest that Dallas

County’s alleged failure to “knock and announce” its presence resulted from any official policy. Thus,
Plaintiffs’ claim against Dallas County rests upon the second definition of official policy: a widespread
practice or custom.
To establish a custom, Plaintiffs must demonstrate “a pattern of abuses that transcends the
error made in a single case.” Piotrowoski, 237 F.3d at 582 (citation omitted). Prior incidents used to
establish a pattern “must have occurred for so long or so frequently that the course of conduct

warrants the attribution to the governing body of knowledge that the objectionable conduct is the
expected, accepted practice of [municipality] employees.” Webster, 735 F.2d at 842. Further, the
prior incidents alleged “cannot simply be for any and all ‘bad’ or unwise acts, but rather must point
to the specific violation in question. That is, notice of a pattern of similar violations is required.”
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)

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(emphasis in original) (citations omitted); see also Peterson, 588 F.3d at 851 (5th Cir. 2009) (“A
pattern requires similarity and specificity[.]”).
Further, “[i]t is generally accepted that a single incident does not show a policy or custom,

nor is a single incident sufficient to infer a policy based on customary practice.” Moreno v. City of
Dallas, 2015 WL 3890467, at *8 (N.D. Tex. June 18, 2015) (citation omitted).
In their complaint, Plaintiffs cite to seven separate incidents of excessive force allegedly
committed by DPD, but they fail to cite to any incidents that involved Dallas County—except for
that alleged in Plaintiffs’ case. See Doc. 121, TAC, ¶¶ 189 (43), 194 (44–46). Accordingly, even
examining the pleadings in a light most favorable to Plaintiffs, the Court holds that Plaintiffs
insufficiently pled Dallas County’s alleged custom of using deadly force when examining,

photographing, and fingerprinting suspects.
Likewise, with respect to Dallas County’s alleged custom of failing to knock and announce,
see Doc. 121, TAC, ¶ 365 (82), Plaintiffs do not allege any other instances—aside from their
encounter with Dallas County employees—of such a failure. Thus, the Court cannot infer that Dallas
County has a custom of “ignor[ing] the constitutional knock-and-announce requirement, ” see Doc.
133, Pls.’ Resp., 15, and the Court holds that Plaintiffs insufficiently pled the existence of such a
custom.10

10 Because Plaintiffs have not sufficiently alleged an official policy or custom of (1) deadly force or
(2) failing to knock and announce, the Court need not consider the remaining elements of Plaintiffs’ Monell
claim based on these theories.
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In sum, Plaintiffs have not sufficiently alleged that Dallas County has an “official policy or
custom” of either: (1) using deadly force to examine and fingerprint, or (2) failing to knock and
announce. See Piotrowski, 237 F.3d at 579.

The Court acknowledges that a single incident of unconstitutional activity may be sufficient
to impose Monell liability where “the actor or actors involved had been given official policy-making
authority.” Renfro v. City of Kaufman, 27 F. Supp. 2d 715, 717 (N.D. Tex. 1998) (citation omitted).
But Plaintiffs do not allege that an official policymaker was involved in Dallas County’s alleged
violations of Plaintiffs’ rights. See Doc. 121, TAC, ¶ 188 (43). Rather, Plaintiffs repeatedly assert that
Dallas County employees utilized excessive force against Plaintiffs. See, e.g., Doc. 133, Pls.’ Resp,
13–14; Doc. 121, TAC, ¶ 188 (43). To the extent Plaintiffs also allege that the Dallas County

Sheriff, an alleged final policymaker, “reached an agreement” to conduct the stakeout of Plaintiffs’
home, see Doc. 121, TAC, ¶ 187 (43), this allegation is conclusory and lacks any factual
substantiation. See Pinedo v. City of Dallas, 2015 WL 221085, at *6 (N.D. Tex. Jan. 15, 2015)
(requiring the plaintiff’s allegations of a policy or custom to “contain specific facts”) (citations
omitted). Thus, Plaintiffs’ attempt to invoke the single-incident exception fails. See Doc. 133, Pls.’
Resp., 14.

Accordingly, the Court proceeds to examine Plaintiffs’ next theory of Monell liability: failure
to train.

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2. Failure to train11
Plaintiffs also allege in their Monell claim that Dallas County failed to train its officers on the
use of: (1) detention and seizure procedures; (2) excessive and deadly force; (3) de-escalation tactics

and “less deadly means”; and (4) cover and pursuit of a suspect. Doc. 121, TAC, ¶ 368 (83).
Plaintiffs suggest that “Dallas County’s use of deadly weapons, risking Plaintiffs’ lives, and arresting
them without an arrest warrant while they posed no threat to the safety of any person, for purposes
of obtaining fingerprints and photographs, indicates the obvious need for additional or different
training.” Doc. 133, Pls.’ Resp., 15. But Dallas County argues that these allegations are conclusory
and that Plaintiffs fail to sufficiently allege, among other elements of their claim, that Dallas County
had inadequate training procedures. Doc. 125, Mot. to Dismiss, 16.

The Court agrees with Dallas County. “The failure to train municipal employees may . . .
constitute a ‘policy,’ but only when it ‘reflects a “deliberate” or “conscious” choice by a
municipality.’” Thomas v. City of Galveston, 800 F. Supp. 2d 826, 841 (S.D. Tex. 2011) (citation
omitted). “To prevail on a ‘failure-to-train theory’ a plaintiff must demonstrate: (1) that the
municipality’s training procedures were inadequate, (2) that the municipality was deliberately
indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused

11 Plaintiffs also allege that Dallas County failed to adequately supervise and discipline its officers. See
Doc. 121, TAC, ¶ 379 (87). “The same elements” for a failure-to-train claim “apply to claims based upon
failure-to-supervise or failure-to-discipline theories.” E.G. v. Bond, 2017 WL 129019, at *3 (N.D. Tex. Jan.
13, 2017) (citation omitted). Namely, “a claim based on a failure to act” requires Plaintiffs to allege: “(1)
inadequacy of identified procedures, (2) deliberate indifference in adopting identified policies, and (3) a direct
causal link between the identified policy and alleged injuries.” E.G. by Gonzalez v. Bond, 2017 WL 3493124,
at *4 (N.D. Tex. June 29, 2017) (citations omitted). Thus, for the same reasons Plaintiffs fail to a state claim
for failure to train, see infra Section III.B.2, they fail to state a claim for failure to supervise or discipline.
Namely, just as Plaintiffs have not sufficiently alleged inadequate training, they have not sufficiently alleged
inadequate supervision or discipline. Consequently, Plaintiffs’ failure-to-discipline and failure-to-supervise
claims fail, too.
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the violations in question.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010)
(citation omitted). “A municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Further,

“[d]efects in a particular training program must be specifically alleged.” Quinn v. Guerrero, 863 F.3d
353, 365 (5th Cir. 2017) (citation omitted). A complaint “typically” does so “by alleging facts related
to the locality’s actual training program.” Speck v. Wiginton, 606 F. App’x 733, 736 (5th Cir. 2015)
(per curiam).
Here, the Court holds that Plaintiffs have not sufficiently alleged inadequate training by
Dallas County. In their complaint, Plaintiffs allege in conclusory terms that Dallas County “fail[ed]
to provide proper training . . . .” See Doc. 121, TAC, ¶ 364 (82); see also id. ¶ 366 (83). Though

Plaintiffs list areas in which they believe Dallas County has “an inadequate policy of training,” see
id. ¶ 368 (83), they fail to allege Dallas County’s training procedures—or lack thereof—with respect
to each of these areas. Thus, they “provide[] no factual allegations about the content of [Dallas
County’s] training or how thorough or cursory it may have been.” Speck, 606 F. App’x at 736.
Likewise, though Plaintiffs suggest Dallas County has a “longstanding record[] of not providing
officers . . . with adequate training,” and that Dallas County’s officers “were trained by individuals

with little or no experience working in the field,” Plaintiffs do not provide any factual support for
these allegations. See Doc. 121, TAC, ¶¶ 371 (84), 373 (84). Rather, Plaintiffs are essentially “asking
[this Court] to make the inference that a single alleged incident of misconduct means officers are
inadequately trained.” See Speck, 606 F. App’x at 736; see also Doc. 133, Pls.’ Resp., 15–16
(reiterating the facts of Plaintiffs’ encounter with Dallas County in an effort to demonstrate “specific

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facts” supporting their failure-to-train claim). The Court will not make such an unwarranted
inference and thus DISMISSES Plaintiffs’ Monell claim against Dallas County.12
C. Whether to Grant Leave to Amend

In their response to Dallas County’s motion to dismiss, Plaintiffs ask the Court for leave to
amend their complaint in the event that the Court finds the operative complaint deficient. Doc. 133,
Pls.’ Resp., 17. Nonetheless, as Dallas County points out, Plaintiffs failed to attach their proposed
amended complaint—a requirement for a motion for leave to amend under Northern District of
Texas Local Rule 15.1(b). Indeed, Plaintiffs do not even “state any material facts [they] would have
included in the [proposed] amended complaint.” See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009) (citation omitted).

Additionally, Plaintiffs have now had five chances to sufficiently plead their claims over the
course of one year and eight months: They filed one complaint in the Southern District of Florida
and four different complaints with this Court. See supra Section I.B. Under these circumstances, it
is clear that Plaintiffs “ha[ve] already pleaded [their] ‘best case.’” Brewster, 587 F.3d at 768 (citation
omitted).13 Moreover, given that one year and eight months have passed since Plaintiffs filed this
lawsuit in the Southern District of Florida, the Court finds that Plaintiffs have unduly delayed in

seeking to add new allegations, and a sixth bite at the apple would unduly prejudice the remaining

12 Because Plaintiffs failed to sufficiently allege Dallas County’s training procedures, the Court need
not consider the remaining elements of Plaintiffs’ failure-to-train claim.
13 Not only have Plaintiffs had five opportunities to plead their claim, but through two previous
motions to dismiss, Dallas County has pointed out the same deficiencies that this Court finds in Plaintiffs’
claim. See Doc. 29, Mot. to Dismiss, 11 (stating that “nowhere in the complaint do Plaintiffs identify a Dallas
County policy of any kind”); Doc. 65, Mot. to Dismiss, 18 (contending that Plaintiffs fail to allege that Dallas
County’s “training policy procedures were inadequate”).
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Defendants. See Hinds v. Orix Capital Mkts., L.L.C., 2003 WL 21350210, at *3 (N.D. Tex. June 10,
2003) (citation omitted) (instructing district courts to consider “undue delay” and “undue prejudice
to the opposing part[ies]” in deciding whether to grant leave to amend). For all of these reasons, the
Court DENIES Plaintiffs’ request for leave to amend.
IV.
CONCLUSION
The Court declines to dismiss Plaintiffs’ claim on statute-of-limitations grounds. Thus, to the
extent Dallas County seeks dismissal of Plaintiffs’ claim on this basis, the Court DENIES its motion.
Nonetheless, the Court concludes that Plaintiffs have not sufficiently pled facts to support their
§ 1983 Monell claim. Accordingly, the Court GRANTS Dallas County’s motion (Doc. 125) on this
basis and DISMISSES WITH PREJUDICE Plaintiffs’ § 1983 Monell claim against Dallas County.
Finally, for the reasons already stated, the Court DENIES Plaintiffs leave to amend.

SO ORDERED.
SIGNED: March 26, 2020.

UMMTED ST S DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448517. Public record. Not legal advice.