The opinion
Case: 23-20281 Document: 71-1 Page: 1 Date Filed: 08/16/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
July 9, 2024
No. 23-20281
____________ Lyle W. Cayce
Clerk
Shanita Terrell,
Plaintiff—Appellant,
versus
Harris County; Michael Hines; Mark Cannon; Ed
Gonzalez,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-302
______________________________
ON PETITION FOR REHEARING
Before Barksdale, Southwick, and Graves, Circuit Judges.
James E. Graves, Jr., Circuit Judge:*
As neither a member of this panel, nor judge in active service,
requested that the court be polled on rehearing en banc, the petition for
rehearing en banc is DENIED. Fed. R. App. P. 35 and 5th Cir. R. 35.
We withdraw our previous opinion and substitute the following:
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Appellant Shanita Terrell alleged that two Harris County Sheriff’s
Office (“HCSO”) deputies forced her into a patrol car. Later, she alleged,
one of the deputies sexually assaulted her. The district court dismissed
Terrell’s claims against the deputy who is not accused of sexual assault along
with her claims against the county and its sheriff. We AFFIRM.
I. BACKGROUND
At this stage, we accept the following allegations as true and construe
them in the light most favorable to Terrell. Crane v. City of Arlington, 50 F.4th
453, 461 (5th Cir. 2022).
Terrell spent the evening of February 23, 2020, at The Address, a bar
in Houston where her cousin works. When she left, “there was visibly and
audibly something wrong with her and she was not in her usual state of
mind.” At some point, Terrell encountered off-duty HCSO Deputies
Michael Hines and Mark Cannon. Hines and Cannon worked side jobs at The
Address and were in HCSO uniforms. HCSO policy allows deputies to wear
their uniforms and use HCSO equipment and patrol vehicles while working
off-duty side jobs.
The deputies ordered Terrell into Hines’s patrol vehicle, telling her
they were going to take her home. Terrell initially protested but ultimately
got in, believing she was either under arrest or would be arrested if she
continued to resist. The complaint contains no allegations as to what
happened immediately afterward.
Terrell awoke the next morning at home and felt pain in her vaginal
area. She went to the hospital, where a rape kit was administered. A DNA
test revealed that semen in her underwear matched Hines. Terrell had no
memory of having sex with him. She suspects that someone slipped
Rohypnol, also known as “roofies,” into her drink at The Address. Roofies
are known to be used by sexual predators to incapacitate their victims.
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In August 2021, eighteen months after the incident, Hines was
charged with sexually assaulting Terrell.
Terrell sued Cannon, Hines, Harris County Sheriff Ed Gonzalez, and
Harris County under 42 U.S.C. § 1983. Hines was served but never
responded and Terrell later voluntarily dismissed her claims against him.
Terrell alleged that Cannon violated her constitutional rights by
forcing her into Hines’s patrol vehicle. She alleged that Gonzalez was liable
as the deputies’ supervisor and Harris County was liable for inadequately
training them.
The district court dismissed Terrell’s second amended complaint
with prejudice. This appeal followed.1
II. LEGAL STANDARD
Dismissal for failure to state a claim is reviewed de novo. Sw. Bell Tel.,
LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008).
A person whose constitutional rights are violated by an officer acting
under color of law may sue that officer for money damages. 42 U.S.C. § 1983.
But “[q]ualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
. . . constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The plaintiff has the
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1
In addition to the issues we address, Terrell argues that qualified immunity
“should no longer exist.” The law on qualified immunity is binding under decades of
Supreme Court precedent. We leave to the Supreme Court “the prerogative of overruling
its own decisions.” Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (citation
omitted).
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burden to show that her claim is not barred by qualified immunity. Cooper v.
Brown, 844 F.3d 517, 522 (5th Cir. 2016).
III. DISCUSSION
a. Qualified immunity
We may affirm the district court on either qualified immunity prong.
al-Kidd, 563 U.S. at 735. We start with Terrell’s prong-two argument that
Cannon’s actions were clearly established as unconstitutional.
To satisfy prong two, Terrell must point to legal precedent that puts
the wrongfulness of Cannon’s actions “beyond debate.” Id. Principally, she
points to Gomez v. Galman, 18 F.4th 769 (5th Cir. 2021). But Gomez was
decided in November 2021 so it could not have clearly established the
unconstitutionality of actions that allegedly occurred in February 2020. See
Anderson v. Valdez, 845 F.3d 580, 607 (5th Cir. 2016).
Alternatively, Terrell argues that Cannon’s actions were so obviously
unlawful no precedent is required. The Supreme Court has denied qualified
immunity in cases involving obvious violations, albeit rarely. See Hope v.
Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas, 592 U.S. 7, 8–9 (2020).
Terrell does not show that her allegations are within the scope of those cases.
Because prong two is not met, Terrell’s claim against Cannon was
correctly dismissed.
b. Supervisory liability
Next, Terrell seeks to hold Gonzalez liable for Hines’s actions as his
supervisor. To establish supervisory liability against an official, a plaintiff
must allege that “the failure to supervise or train amounted to deliberate
indifference to the plaintiff's constitutional rights.” Roberts v. City of
Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
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Terrell alleged that Gonzalez was aware that Hines was arrested for
sexually assaulting a child in 2018 and that Gonzalez “does not investigate
and/or discipline officers alleged of crimes if they are no-billed2 by a Grand
Jury.” To show deliberate indifference, allegations generally must infer “a
pattern of similar violations.” Id. Terrell alleged only one related incident. A
single incident may show deliberate indifference only if “the highly
predictable consequence of a failure to [supervise] would result in the specific
injury suffered.” Id. at 295. To be “highly predictable,” a result must be “so
predictable that” the failure to supervise “amounted to conscious disregard
for” the plaintiff’s rights. Connick v. Thompson, 563 U.S. 51, 71 (2011)
(emphasis in original). Terrell does not show that her allegations against
Gonzalez satisfy that test. Her supervisory claim was correctly dismissed.
c. Municipal liability
Last, Terrell accuses Harris County of a policy of failure to adopt
adequate training. To sustain that claim, she must allege, among other things,
the existence of a policy, custom, or practice. Hutcheson v. Dallas County, 994
F.3d 477, 482 (5th Cir. 2021). A custom or practice is a pattern “so persistent
and widespread as to practically have the force of law.” Peña v. City of Rio
Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quoting Connick, 563 U.S. at
61). The plaintiff cannot rely solely on the incident that caused her injury to
demonstrate such a pattern. Id. Here, however, Terrell relies only on the
incident that allegedly caused her injury. Id. Her municipal liability claim was
correctly dismissed.
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2
A Texas arrestee is “no-billed” when the grand jury votes against the
presentment of an indictment. Tex. Code Crim. Proc. Ann. Art. 20A.301.
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IV. CONCLUSION
We AFFIRM.
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