Benfer v. City of Baytown

Case: 23-20543 Document: 58-1 Page: 1 Date Filed: 11/01/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 1, 2024

No. 23-20543 Lyle W. Cayce

____________ Clerk

Benjamin Benfer,

Plaintiff—Appellant,

versus

City of Baytown, Texas; Barry Calvert, Individually,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-2196

______________________________

Before Jones, Smith, and Ho, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Officer Barry Calvert pulled over Benjamin Benfer and his wife for

allegedly running a red light and because their vehicle appeared to match the

description of a car that had been reported as stolen. As Calvert exited his

patrol car, Benfer and his wife also exited their vehicle. A confrontation

ensued, ending with Calvert’s siccing his K-9 on Benfer. Benfer and his wife

were arrested and prosecuted for resisting arrest and interference with public

duties, though all charges were dismissed.

Case: 23-20543 Document: 58-1 Page: 2 Date Filed: 11/01/2024

No. 23-20543

Benfer sued Calvert and the City of Baytown under 42 U.S.C. § 1983

and state law, asserting myriad claims relating to the encounter. The district

court granted Calvert and the City’s motion to dismiss, finding that Calvert

had not violated Benfer’s constitutional rights, that Benfer’s state tort claims

were not cognizable under Texas law, and that Benfer had pleaded insuffici-

ent facts to support his Monell claims. We affirm.

I.

On the night of February 14, 2021, Calvert was on patrol when he

received an alert to look for a stolen silver 2020 Toyota RAV4. 1 At 10:42 pm,

he spotted a vehicle that appeared to match the description of the stolen

vehicle, so he followed it into an apartment complex’s parking lot and

engaged his emergency lights. The car was Benfer’s silver 2020 Mitsubishi

Crossover, not the stolen RAV4, but the angle of Calvert’s headlights and

the lack of natural light made it difficult for Calvert to see the exact make and

model of the car he was stopping.

After pulling Benfer over, Calvert immediately exited his patrol car.

Benfer also got out of his car and walked toward Calvert, ignoring commands

to stop. As Benfer neared Calvert, Calvert tried to restrain him, but Benfer

repeatedly broke free of Calvert’s grasp and ignored even more commands.

During their tussle, Calvert warned Benfer that he had a dog that would bite

Benfer if he continued to resist.

During their struggle, Mrs. Benfer began approaching Calvert. At that

time, and in a move to subdue Benfer, Calvert pushed him to the ground.

Mrs. Benfer reacted by rushing toward and pushing Calvert. Calvert pushed

her off, shouted at her to “back up,” and called for an assist from his K-9.

_____________________

1

The alert did not provide the license plate number.

2

Case: 23-20543 Document: 58-1 Page: 3 Date Filed: 11/01/2024

No. 23-20543

The K-9 bit and subdued Benfer while Calvert handcuffed Mrs.

Benfer. Then, after handcuffing Mrs. Benfer, Calvert returned to his car for

a second pair of handcuffs before walking over to Benfer. Held by Calvert’s

K-9, Benfer had fallen to the ground. But, when Calvert attempted to hand-

cuff Benfer, Benfer struggled, putting his hands behind his back. Calvert’s

bodycam footage does not make clear whether Benfer resisted, or whether

the K-9’s biting Benfer’s arm impeded his movement. 2 While attempting to

handcuff Benfer, Calvert commanded his K-9 to release its bite, but the K-9

maintained its hold. Instead, after finally handcuffing Benfer, Calvert had to

pull the K-9 off of him.

Benfer was charged with resisting arrest, but the charge was later

dropped. 3 Benfer sued Calvert in federal court under state law and § 1983,

averring that Calvert (1) stopped him without reasonable suspicion; (2) ar-

rested him without probable cause; (3) instituted prosecution against him

without probable cause; (4) used excessive force; and (5) assaulted him. Ben-

fer also sued the City of Baytown under § 1983, averring that its policies

governing the use of K-9s were unconstitutional and that it had failed to train

its officers properly.

Calvert and the City moved to dismiss for failure to state a claim. The

district court granted that motion, finding that Calvert had not violated Ben-

_____________________

2

“In reviewing a motion to dismiss, we consider ‘only the facts alleged in the

pleadings, documents attached as exhibits or incorporated by reference in the pleadings,

and matters of which the judge may take judicial notice.’” Allen v. Hays, 65 F.4th 736, 742

n.3 (5th Cir. 2023) (quoting 2 James Wm. Moore et al., Moore's Federal

Practice § 12.34[2], at 12-94 (3d ed. 2022)). Because the expert report, which is

incorporated into Benfer’s complaint, refers to Calvert’s dash cam and bodycam footage,

we may consider the footage at this stage.

3

In Baytown, police officers, not the district attorney, initiate misdemeanor

criminal proceedings.

3

Case: 23-20543 Document: 58-1 Page: 4 Date Filed: 11/01/2024

No. 23-20543

fer’s constitutional rights, that Benfer’s state tort claim was not cognizable

under Texas law, and that Benfer had pleaded insufficient facts to support

municipal liability for the City. Benfer timely appealed, challenging each

dismissal.

II.

“We review a Rule 12(b)(6) dismissal de novo.” Hodge v. Engleman,

90 F.4th 840, 843 (5th Cir. 2024). “To survive a motion to dismiss, a com-

plaint must contain sufficient factual matter, accepted as true, to state a claim

that is plausible on its face.” 4 Facial plausibility is satisfied “when the plain-

tiff pleads factual content that allows the court to draw the reasonable infer-

ence that the defendant is liable for the misconduct alleged.” Terwilliger,

4 F.4th at 279. “These standards are the same when a motion to dismiss is

based on qualified immunity.” Id. at 279–80 (citation omitted). So, a com-

plaint survives dismissal if it “pleads facts that, if true, would permit the

inference that defendants are liable under § 1983 and would overcome their

qualified immunity defense.” Id. at 280 (cleaned up). Thus, “[i]t is the plain-

tiff’s burden to demonstrate that qualified immunity is inappropriate.” Id.

To determine whether a government official is entitled to qualified

immunity, we ask “(1) whether the undisputed facts and disputed facts,

accepting the plaintiffs’ version of the disputed facts as true, constitute a

violation of a constitutional right, and (2) whether the defendant’s conduct

was objectively reasonable in light of clearly established law.” 5 So, Benfer

“must show (1) ‘a violation of an actual constitutional right,’ and (2) that

_____________________

4

Terwilliger v. Reyna, 4 F.4th 270, 279 (5th Cir. 2021) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

5

Harmon v. Dall. Cnty., 927 F.3d 884, 892 (5th Cir. 2019) (per curiam) (quoting

Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)).

4

Case: 23-20543 Document: 58-1 Page: 5 Date Filed: 11/01/2024

No. 23-20543

‘the right was clearly established at the time of violation.’” 6 Because Benfer

does not plausibly allege any violations of his constitutional rights, we do not

address whether they were clearly established.

III.

A.

Benfer posits that Calvert violated his clearly established rights under

the Fourth and Fourteenth Amendments by pulling him over without rea-

sonable suspicion. The district court found that the pleaded facts provided

Calvert with reasonable suspicion to stop Benfer, and, accordingly, that Ben-

fer had failed to allege plausibly that Calvert stopped him unconstitutionally.

We agree.

“The stopping of a vehicle and detention of its occupants constitutes

a ‘seizure’ under the Fourth Amendment.” United States v. Brigham,

382 F.3d 500, 506 (5th Cir. 2004) (en banc). Such stops comport with the

Constitution if they are supported by reasonable suspicion. See United States

v. Walker, 49 F.4th 903, 906–07 (5th Cir. 2022). “An alert or be on the look-

out report may provide the reasonable suspicion necessary to justify an

investigatory stop.” Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013)

(cleaned up). Any stop must be “justified at its inception” and, if so justified,

“the officer’s subsequent actions [must be] reasonably related in scope to the

circumstances that justified the stop.” Brigham, 382 F.3d at 506 (citing Terry

v. Ohio, 392 U.S. 1, 88 (1968)).

Calvert’s stop was justified at its inception. Calvert had received an

alert to look for a stolen silver 2020 Toyota RAV4, and Benfer was driving a

_____________________

6

Escobar v. Montee, 895 F.3d 387, 393 (5th Cir. 2018) (quoting Cooper v. Brown,

844 F.3d 517, 522 (5th Cir. 2016)).

5

Case: 23-20543 Document: 58-1 Page: 6 Date Filed: 11/01/2024

No. 23-20543

similar-looking Mitsubishi Crossover. 7 Calvert saw Benfer’s car through the

rain, at night, and the decreased visibility made it difficult for Calvert to know

that he had stopped the wrong kind of car.

Because Benfer’s vehicle bore sufficient similarity to the silver RAV4

Calvert was instructed to look for and the conditions in which the stop

occurred prevented Calvert from realizing his mistake, the stop was reason-

ably warranted and justified at its inception.

The stop was also reasonable in duration because Calvert’s “subse-

quent actions were reasonably related in scope to the circumstances that

justified the stop.” Brigham, 382 F.3d at 506. Calvert had barely exited his

patrol car when Benfer left his vehicle, walked towards Calvert, and resisted

arrest. Mrs. Benfer also left their vehicle and approached Calvert. The

remainder of the stop was focused on subduing Benfer and his wife—Calvert

never had a chance to verify that Benfer’s vehicle was not the stolen RAV4.

Therefore, the stop “last[ed] no longer than [was] necessary to effectuate

[its] purpose . . . .” Id. at 507.

Benfer failed to allege plausibly that Calvert’s stop violated his consti-

tutional rights, so the district court properly dismissed that claim.

B.

Benfer contends that Calvert violated his clearly established rights

under the Fourth and Fourteenth Amendments by arresting him without

probable cause. The district court found that Calvert had probable cause to

_____________________

7

Calvert avers that he also had reasonable suspicion to stop Benfer because Benfer

ran a red light. The relevant dash cam footage, however, does not show any traffic viola-

tion. Thus, at the motion-to-dismiss stage, it is plausible that the stop may not have been

justified if Benfer committed no traffic violation. But Calvert’s reasonable belief that Ben-

fer was driving the stolen RAV4 provided reasonable suspicion to justify the stop.

6

Case: 23-20543 Document: 58-1 Page: 7 Date Filed: 11/01/2024

No. 23-20543

arrest Benfer for resisting arrest. We agree.

“An arrest is unlawful unless it is supported by probable cause.”

Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (citation omitted).

“Probable cause exists when the totality of facts and circumstances within a

police officer’s knowledge at the moment of arrest are sufficient for a reason-

able person to conclude that the suspect had committed or was committing

an offense.” United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996) (citation

omitted).

Benfer was arrested for resisting arrest. “A person” resists arrest “if

he intentionally prevents or obstructs a person he knows is a peace officer . . .

from effecting an arrest . . . by using force against the peace officer . . . .”

Tex. Pen. Code § 38.03(a). “It is no defense . . . that the arrest or search

was unlawful.” Id. at § 38.03(b). That means, “[i]n Texas, the act of resist-

ing can supply probable cause for the arrest itself . . . .” Ramirez v. Martinez,

716 F.3d 369, 376 (5th Cir. 2013). And “[t]he great weight of Texas authority

indicates that pulling out of an officer’s grasp is sufficient to constitute resist-

ing arrest.” Id. (collecting cases).

The video unambiguously shows Benfer repeatedly pulling out of Cal-

vert’s grasp. Those acts of resisting supplied probable cause for the arrest.

Benfer has not plausibly pleaded that Calvert violated his constitu-

tional rights when arresting him for resisting arrest, so the district court prop-

erly dismissed that claim.

C.

Benfer avers that Calvert violated his clearly established rights under

the Fourth and Fourteenth Amendments by prosecuting him for resisting

arrest. The district court dismissed the § 1983 claim for malicious prosecu-

tion, finding that there was probable cause to charge Benfer with resisting

7

Case: 23-20543 Document: 58-1 Page: 8 Date Filed: 11/01/2024

No. 23-20543

arrest. We agree.

“[T]he gravamen of the Fourth Amendment claim for malicious pro-

secution . . . is the wrongful initiation of charges without probable cause.” 8

Meaning, if Calvert had probable cause to charge Benfer, then Benfer’s claim

must fail.

As discussed above, Calvert’s bodycam shows Benfer repeatedly

breaking free of Calvert’s grasp and refusing to comply with Calvert’s com-

mands. That video indisputably showed Benfer “preventing a peace officer

from effecting an arrest by using force.” Tex. Pen. Code § 38.03(a)

(cleaned up). Thus, there was probable cause to institute criminal proceed-

ings against Benfer for resisting arrest.

Therefore, Benfer has not pleaded that Calvert violated his constitu-

tional rights by instituting criminal process against him for resisting arrest.

The district court correctly dismissed that claim.

D.

Benfer avers that Calvert’s use of his K-9 constituted excessive force

in violation of the Fourth and Fourteenth Amendments. Specifically, Benfer

claims that Calvert violated his clearly established rights by (1) releasing the

dog and (2) allowing the dog to bite him until he was handcuffed. The district

court found that Calvert’s release and use of his K-9 did not violate Benfer’s

clearly established rights. We agree.

“To establish a Fourth Amendment violation in this context,” Benfer

“must establish (1) an injury (2) which resulted directly and only from a use

of force that was clearly excessive, and (3) the excessiveness of which was

_____________________

8

Hughes v. Garcia, 100 F.4th 611, 619 (5th Cir. 2024) (quoting Thompson v. Clark,

596 U.S. 36, 43 (2022)).

8

Case: 23-20543 Document: 58-1 Page: 9 Date Filed: 11/01/2024

No. 23-20543

clearly unreasonable.” Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir.

2020) (cleaned up). Calvert’s K-9 undisputedly bit Benfer, so only the sec-

ond and third prongs are at issue here: Benfer must plausibly allege that Cal-

vert’s release and use of his dog was a “clearly excessive” use of force that

was “clearly unreasonable.”

Claims of excessive force in “seizing” a suspect are governed by an

objective standard of reasonableness focusing on the facts of a particular case.

See Graham v. Connor, 490 U.S. 386, 396 (1989). When reviewing ‘the total-

ity of the circumstances,’ “we pay particular attention to the Graham factors,

i.e. ‘the severity of the crime at issue, whether the suspect poses an immedi-

ate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.’” 9 And we must

always judge the force used “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Escobar, 895 F.3d

at 394.

1. Calvert’s decision to release his K-9 was a constitutional use of force.

An officer did not use excessive force when he released a K-9 on a

suspect who “ignored [the officer’s] instructions, and retreated further

under [a] home, preventing [the officer] from determining whether he was

armed.” Shumpert v. City of Tupelo, 905 F.3d 310, 323 (5th Cir. 2018). In

contrast, releasing a dog violates the Fourth Amendment where there are no

“attempts to subdue [the suspect] without the use of a dog bite, [or to] pro-

vid[e] [the suspect] any warning,” and where the suspect “was not suspected

of any crime; did not pose an immediate safety threat to officers or others;

and was in need of emergency medical intervention due to self-harm and was

_____________________

9

Escobar, 895 F.3d at 394 (quoting Darden v. City of Fort Worth, 880 F.3d 722, 728-

29 (5th Cir. 2018)).

9

Case: 23-20543 Document: 58-1 Page: 10 Date Filed: 11/01/2024

No. 23-20543

not attempting to flee the officers.” Sligh v. City of Conroe, 87 F.4th 290, 299

(5th Cir. 2023) (per curiam) (cleaned up). 10

Benfer repeatedly resisted arrest and walked away from Calvert. Ben-

fer ignored Calvert’s warning that he had a dog who would bite Benfer if he

continued to resist. Importantly, Calvert deployed the dog only after Mrs.

Benfer made physical contact with him while he was trying to restrain Benfer.

Calvert was outnumbered. He faced one individual who had resisted

his many attempts to use lesser force and another who made aggressive con-

tact with him—near his gun belt—while he attempted to restrain the first.

From the perspective of a reasonable officer on the scene, Calvert’s use of a

K-9 to subdue Benfer while he dealt with Mrs. Benfer was a measured and

ascending use of reasonable force. See Shumpert, 905 F.3d 323.

Therefore, Calvert’s decision to release his K-9 was not clearly exces-

sive under the circumstances, and Benfer has not plausibly alleged that that

decision violated his right to be free from excessive force.

2. Calvert’s use of the K-9 to subdue Benfer until he was handcuffed was

a constitutional use of force.

Our court first addressed the reasonableness of using a police dog to

subdue a suspect in Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016). There, an

officer pulled Cooper over on suspicion of driving under the influence. Id.

at 521. After failing a breath test, Cooper fled on foot into a residential neigh-

borhood. Id. The initial officer then alerted other officers in the area to

Cooper’s flight, including Brown and his K-9, Sunny. Id. Despite having no

reason to believe that Cooper had a weapon, Brown deployed Sunny to search

_____________________

10

Sligh post-dated the events here and is relevant only to the existence of a consti-

tutional violation, not whether that violation was clearly established.

10

Case: 23-20543 Document: 58-1 Page: 11 Date Filed: 11/01/2024

No. 23-20543

for him. Id. Shortly thereafter, Sunny found Cooper and bit him on the leg

“for one to two minutes.” Id. Brown did not order Sunny to release until

after handcuffing Cooper. Id. Applying the Graham factors, we held that

“[u]nder the facts in th[e] record, permitting a dog to continue biting a com-

pliant and non-threatening arrestee is objectively unreasonable.” Id. at 524.

Years later, in Escobar, our court again addressed the reasonableness

of using a police dog to subdue a suspect. But this time, in contrast with

Cooper, we held that it was “objectively reasonable to permit [a K-9] to con-

tinue biting Escobar until he was fully handcuffed and subdued,” despite that

he laid flat on the ground, his hands were visible, and he was compliant with

the officer’s commands. Escobar, 895 F.3d at 394. Why? Because the officer

“had reason to believe he still posed a threat.” Id. at 395. “The chase was at

night; Escobar had hidden from the police for twenty minutes[;]” Escobar’s

mother had warned the police that he “would not go without a fight; and [a]

knife remained within Escobar’s reach . . . .” Id. at 394. Thus, the officer had

“reason to doubt [Escobar’s] compliance” and that his “surrender was not

genuine.” Id. at 395. Applying the Graham factors, we held that “it was

objectively reasonable to permit [the K-9] to continue biting Escobar until he

was fully handcuffed and subdued.” Id. at 396.

Because, under the totality of the circumstances, Benfer posed an

objective threat to Calvert, the Graham factors favor a finding that Calvert’s

use of his K-9 was objectively reasonable:

The first factor—the severity of the offense—favors Calvert.

“[I]nterfering with the duties of a public servant[,]” such as resisting arrest,

is a serious offense. Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). Here,

Calvert’s bodycam shows Benfer repeatedly breaking free of Calvert’s grasp

and refusing to comply with Calvert’s commands—simply put, Benfer was

resisting arrest.

11

Case: 23-20543 Document: 58-1 Page: 12 Date Filed: 11/01/2024

No. 23-20543

The second factor—whether Benfer posed a threat—is a closer call,

but it ultimately favors Calvert. Benfer had disobeyed several of Calvert’s

commands and resisted arrest. Calvert was outnumbered. Mrs. Benfer, only

moments earlier, had made aggressive contact with Calvert—near his gun

belt—while he was struggling with Benfer, and although handcuffed, she

remained in the general vicinity. The arrest took place on a rainy night. Cf.

Escobar, 895 F.3d at 394. And there was no indication that Benfer would

comply with Calvert’s instructions if Calvert released the K-9. Though Ben-

fer did not appear to be armed, in the face of such facts, a reasonable police

officer would have had reason to doubt Benfer’s compliance and conclude

that he posed a threat.

Benfer disagrees that he posed a threat and that our analysis of his case

should begin and end with Cooper. In his telling, he was “compliant and non-

threatening” by the time Calvert went to handcuff him. And because his

behavior matched Cooper’s, “permitting a police dog to continue biting

[him] is objectively unreasonable.” See Cooper, 844 F.3d at 524. But we see

several distinctions between Benfer’s and Cooper’s behaviors: Calvert had

repeatedly “attempt[ed] to negotiate” with Benfer before calling his K-9 to

assist. Contra id. at 523. Calvert was outnumbered, and Mrs. Benfer had

made aggressive contact with Calvert while he struggled to arrest Benfer.

And Benfer and his wife escalated the situation by repeatedly disobeying Cal-

vert’s commands and resisting arrest. Under those circumstances, a reasona-

ble officer could conclude that Benfer’s surrender was not genuine and that

Benfer posed a threat.

And, finally, we have already determined that Benfer resisted arrest,

so the third Graham factor—whether Benfer was resisting or attempting to

flee—favors Calvert.

12

Case: 23-20543 Document: 58-1 Page: 13 Date Filed: 11/01/2024

No. 23-20543

Even if Benfer had demonstrated that he posed no objective or sub-

jective threat to Calvert or that he would not resist arrest or flee if the K-9

was released, Calvert attempted to release the K-9’s grip on Benfer before

finishing handcuffing him. Thus, unlike in Cooper, where “Brown permitted

the attack to continue for one to two minutes,” Id. at 524 n.6 (emphasis

added), Calvert did not permit the K-9 to continue biting Benfer. Calvert

attempted to cease the use of force, albeit unsuccessfully.

Based on all the circumstances, Calvert’s use of his K-9 to subdue

Benfer until he was handcuffed was an objectively reasonable use of force that

was not clearly excessive under the circumstances, and Benfer has not plaus-

ibly alleged that Calvert’s decision violated his right to be free from excessive

force. So, the district court was correct to dismiss his claim.

E.

In addition to his claims under § 1983, Benfer sued Calvert for assault

under Texas tort law. The district court dismissed that claim, finding that

Calvert was statutorily immune under Texas law. The district court was

correct.

The Texas Tort Claims Act (TTCA) “provides a limited waiver of

immunity for certain tort claims against the government.” Tex. Adjutant

Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013). Under the TTCA,

“recovery against an individual employee is barred” but it “may be sought

against the governmental unit only in three instances: . . . (3) when suit is filed

against an employee whose conduct was within the scope of his or her

employment and the suit could have been brought against the governmental

unit.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.

2008). The TTCA allows municipalities to be held liable “for damages

arising from . . . police and fire protection and control.” Tex. Civ. Prac.

& Rem. Code § 101.0215(a)(1).

13

Case: 23-20543 Document: 58-1 Page: 14 Date Filed: 11/01/2024

No. 23-20543

That all means a plaintiff seeking to sue a police officer for conduct

undertaken within the scope of that officer’s employment must sue the muni-

cipality, not the officer individually. Alexander v. Walker, 435 S.W.3d 789,

792 (Tex. 2014) (per curiam).

“The TTCA defines the term ‘scope of employment’ as ‘the per-

formance for a governmental unit of the duties of an employee’s office or

employment. . . .’” Id. (quoting Tex. Civ. Prac. & Rem. Code

§ 101.001(5)). And a police officer’s “conduct in the course of arresting” a

suspect is “within the general scope of the officers’ employment.” Id.

Benfer’s assault claim stems from actions Calvert took when arresting

Benfer. Thus, Benfer has sued Calvert for conduct well within the scope of

his employment. And that claim could have been brought against the City of

Baytown because the TTCA explicitly allows cities to be held liable for dam-

ages “arising from . . . police” activities. Tex. Civ. Prac. & Rem. Code

§ 101.0215(a)(1). Therefore, Benfer had to bring his tort claim against the

City of Baytown, not Calvert individually.

Benfer resists that conclusion by noting, correctly, that the TTCA

does not apply to a claim “arising out of assault . . . or any other intentional

tort . . . .” Tex. Civ. Prac. & Rem. Code § 101.057(2). Benfer has a

point: The text of § 101.057(2) appears to prevent a governmental entity

from being held liable for the intentional torts of its employees. If the gov-

ernmental entity cannot be held liable, then the TTCA allows an employee

to be sued individually, even if they were acting within the scope of their

employment. See Garcia, 253 S.W.3d at 657.

The Texas Supreme Court, however, rejected that argument in Wal-

ker. There, as here, “Walker brought suit . . . alleging assault . . . stemm[ing]

from the officers’ conduct incident to Walker’s arrest . . . .” 435 S.W.3d

at 790. Still, the court held that “[t]he allegations in Walker’s petition . . .

14

Case: 23-20543 Document: 58-1 Page: 15 Date Filed: 11/01/2024

No. 23-20543

[were] based on conduct within the general scope of the officer’s employ-

ment” and “could have been brought under the TTCA against the govern-

ment.” Id. at 792 (citations omitted).

We are bound to apply Texas law as construed by the Texas Supreme

Court, so we affirm the dismissal of Benfer’s assault claim against Calvert as

indistinguishable from Walker. Because Benfer did not amend his complaint

and bring his claim against the City, the district court was correct to dismiss

the claim. 11

F.

Benfer also sued the City under § 1983, averring that it (1) had

inadequate written policies concerning the use of police dogs; (2) had a pat-

tern and/or custom of using police dogs to inflict injuries on non-threatening

suspects; (3) failed to train its officer’s adequately in the use of police dogs;

and (4) ratified Calvert’s conduct. The district court dismissed those claims,

finding that Benfer had failed to identify a particular policy, failed to show

sufficiently numerous instances of K-9 encounters to establish a custom, and

failed to support its other claims with anything more than “conclusory allega-

tions.” We agree.

1. Benfer failed to plead sufficient facts to support his claim that the City

of Baytown had an unconstitutional policy or custom concerning police

dogs.

A municipality may be liable under § 1983 if the execution of one of its

_____________________

11

When the TTCA requires the plaintiff to sue the governmental entity, “the suit

against the employee shall be dismissed unless the plaintiff files amended pleadings dis-

missing the employee and naming the governmental unit as defendant on or before the 30th

day after the date the motion is filed.” Tex. Civ. Prac. & Rem. Code § 101.106(f).

15

Case: 23-20543 Document: 58-1 Page: 16 Date Filed: 11/01/2024

No. 23-20543

customs or policies causes the deprivation of a constitutional right. 12 “To

establish municipal liability, a plaintiff must show ‘(1) an official policy (or

custom), of which (2) a policy maker can be charged with actual or construc-

tive knowledge, and (3) a constitutional violation whose ‘moving force’ is

that policy (or custom).’” Newbury v. City of Windcrest, 991 F.3d 672, 680

(5th Cir. 2021) (quoting Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir.

2002)).

At the motion-to-dismiss stage, a plaintiff need not “allege the specific

identity of the policymaker,” but must “allege facts that show an official pol-

icy, promulgated or ratified by the policymaker, under which the municipal-

ity is said to be liable.” Groden v. City of Dall., 826 F.3d 280, 283–84 (5th Cir.

2016) (emphasis omitted). Benfer has failed to do so. His amended com-

plaint does not identify anything that could be considered an official policy of

the City of Baytown. Benfer’s Monell claim premised on an unconstitutional

policy must fail when he cannot even articulate what official policy Baytown

has adopted governing police dogs.

A municipality, however, may still be liable under § 1983 in the

absence of an official policy if there is an employee practice that is so wide-

spread and common that it constitutes a custom representing the policies of

the municipality. See Piotrowski v. City of Hous., 237 F.3d 567, 581 (5th Cir.

2001).

A plaintiff proves the existence of a custom by showing “a pattern of

abuses that transcends the error made in a single case.” Id. at 582. “A suc-

cessful showing of such a pattern requires similarity and specificity; prior

indications cannot simply be for any and all bad or unwise acts, but rather

must point to the specific violation in question.” Hicks-Fields v. Harris Cnty.,

_____________________

12

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

16

Case: 23-20543 Document: 58-1 Page: 17 Date Filed: 11/01/2024

No. 23-20543

860 F.3d 803, 810 (5th Cir. 2017) (cleaned up). “In addition to similarity and

specificity, a pattern must be comprised of ‘sufficiently numerous prior inci-

dents’ rather than merely ‘isolated instances.’” 13 “Showing a pervasive pat-

tern is a heavy burden.” Sanchez v. Young Cnty., 956 F.3d 785, 793 (5th Cir.

2020) (citation omitted).

Benfer’s amended complaint identifies five instances of Baytown

police allegedly using dogs to apprehend suspects impermissibly. But Benfer

fails to provide the needed factual context for four of those incidents—his

threadbare complaint notes only the existence of K-9 encounters that re-

sulted in bites. He does not detail the facts surrounding those encounters or

make any attempt to show the needed “similarity and specificity” between

events. See Hicks-Fields, 860 F.3d at 810.

Those five instances also occurred over the span of four years (2019–

2022). Five incidents of excessive force over four years in a city as large as

Baytown 14 is not enough to meet the heavy burden of showing that Baytown

had a custom of allowing officers to use police dogs unconstitutionally. Cf.

Davidson v. City of Stafford, 848 F.3d 384, 396–97 (5th Cir. 2017) (noting that

three incidents over three-and-a-half years were insufficient to establish a

pattern of constitutional violations).

Therefore, the district court did not err in finding that Benfer had

failed plausibly to allege that the City of Baytown had inadequate written pol-

icies concerning the use of police dogs or had a pattern/custom of using

police dogs to inflict injuries on non-threatening suspects.

_____________________

13

Fuentes v. Nueces Cnty., 689 F. App’x 775, 778 (5th Cir. 2017) (per curiam) (quot-

ing McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989)).

14

Baytown had a population of 83,701 according to the 2020 census.

17

Case: 23-20543 Document: 58-1 Page: 18 Date Filed: 11/01/2024

No. 23-20543

2. Benfer failed to plead sufficient facts to support his claim that the City

of Baytown failed to train its officers on the proper use of police dogs.

“A municipality’s failure to train its police officers can without ques-

tion give rise to § 1983 liability.” Edwards v. City of Balch Springs, 70 F.4th

302, 312 (5th Cir. 2023) (cleaned up). To succeed, the plaintiff must show

“(1) the city failed to train or supervise the officers involved; (2) there is a

causal connection between the alleged failure to supervise or train and the

alleged violation of the plaintiff's rights; and (3) the failure to train or super-

vise constituted deliberate indifference to the plaintiff’s constitutional

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

Benfer’s complaint falters on that first requirement. “In order for lia-

bility to attach based on an inadequate training claim, a plaintiff must allege

with specificity how a particular training program is defective.” Zarnow v.

City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010) (internal quotation

marks and citation omitted). Benfer alleged only that the City of Baytown

failed to retrain Calvert after his involvement in a previous K-9 incident. He

made no attempt to identify a specific training program, point out particular

deficiencies in that program, or explain why any lack of a formalized training

program was constitutionally problematic. Benfer has merely “styl[ed] [his]

complaint[] about the specific injury suffered as a failure to train claim.” Rob-

erts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).

Thus, the district court did not err in finding that Benfer had failed to

allege plausibly that the City of Baytown was liable under a “failure-to-train”

theory.

3. Benfer has failed to plead sufficient facts to support his claim that the

City of Baytown ratified Calvert’s conduct.

Ratification “provides another way of holding a city liable under

§ 1983.” Allen v. Hays, 65 F.4th 736, 749 (5th Cir. 2023). “[R]atification can

18

Case: 23-20543 Document: 58-1 Page: 19 Date Filed: 11/01/2024

No. 23-20543

suffice for Monell liability only if the authorized policymakers approve a sub-

ordinate’s decision and the basis for it.” Id. at 749 n.10 (internal quotation

marks and citation omitted).

Benfer’s complaint averred that “[t]he City of Baytown condoned and

ratified the actions of Calvert by failing to discipline or retrain him.” But

ratification requires the approval of a policy maker, not their mere acquies-

cence, and Benfer has failed to allege any facts even suggesting that any

authorized policymaker approved of Calvert’s actions. Nor does he provide

any support for his apparently novel tactic of merging his failure-to-train

claim with his ratification claim. The district court did not err in dismissing

Benfer’s ratification claim against the City of Baytown.

* * * *

For the foregoing reasons, the judgment of dismissal is AFFIRMED.

19