Police v. Navarro College

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL POLICE, §

§

Plaintiff, §

§

v. § Civil Action No. 3:22-cv-00712-E

§

NAVARRO COLLEGE and §

OFFICER DAVID ARNETT. §

§

Defendants. §

Order and Memorandum Opinion

Plaintiff Michael Police filed this suit against Defendant Navarro College and Defendant

Officer David Arnett of the Navarro College Department of Public Safety. Plaintiff asserts against

both Defendant Officer David Arnett and Defendant Navarro College: (1) various claims under

Texas state law; and (2) a claim under 42 U.S.C. § 1983 for the alleged violation of his

constitutional rights. Both defendants moved to dismiss the claims against them under Rule

12(b)(6). (Doc. 12; Doc. 13). On March 31, 2023, the Court issued a separate Order, (Doc. 28),

that: (1) granted in part and denied in part Defendant David Arnett’s Motion to Dismiss Plaintiff’s

Original Complaint, (Doc. 12); and (2) granted Defendant Navarro College’s Motion to Dismiss

Plaintiff’s Original Complaint. The Order stated that “[a]n opinion containing the grounds for the

Court’s decision is forthcoming.” (Doc. 28). Hereunder, the Court explains its reasoning for the

Court’s decision.

I. BACKGROUND

This action arises out of an interaction between Plaintiff Michael Police (“Plaintiff”) and

David Arnett (“Arnett”)—an officer with the Navarro College Department of Public Safety

(”NCDPS”). The following facts are alleged in Plaintiff’s Original Complaint (the “Complaint”),

(Doc. 1), and, at this stage, must be accepted by the Court as true.1 See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“[F]or the purposes of a motion to dismiss [courts] must take all of the factual

allegations in [a] complaint as true[.]”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, at 555

(2007)).

On March 28, 2020, Plaintiff, an African-American male, was a nineteen-year-old student

living in a dormitory on the campus of Navarro College in Corsicana, Texas. As alleged on that

day, Plaintiff and his friend Drewshard Bell (“Bell”), also an African-American male, walked

down a street and then sat outside of an apartment complex outside of the College. The apartment

complex was near the College. Plaintiff was smoking a cigar when Arnett stopped his patrol car

and allegedly “ordered” Plaintiff and Bell to walk towards his car. Plaintiff alleges that, based on

“information and belief, Defendant Arnett has a history of targeting African-American male

students at Navarro College[,]” and—despite “awareness of Defendant Arnett’s history”—the

college has not only retained Arnett but promoted him. (Doc. 1, pg. 3, ¶ 9).

Plaintiff and Bell walked from the apartment complex stairwell to Arnett’s car and

identified themselves by giving their names and dates of birth. “Plaintiff was casually smoking a

cigar in full view of Arnett, [making] no attempt to conceal it.” (Doc. 1, pg. 3, ¶ 9). Arnett “asked

Plaintiff if he could search him after accusing [Plaintiff and Bell] of smoking marijuana.” (Doc. 1,

1 In deciding both Arnett’s and the College’s motions to dismiss under Rule 12(b)(6), the Court construes the Original

Complaint in the light most favorable to Plaintiff, accepts as true all well-pleaded factual allegations, and draws all

reasonable inferences in his favor. See, e.g., Lovick v. Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004).

pg. 4, ¶ 10). Plaintiff acknowledges in his Complaint that he consented to the search. (Doc. 1, pg.

4, ¶ 10). Arnett searched Plaintiff’s person by patting him down and reaching into his pockets. In

one of Plaintiff’s pant pockets, Arnett found a “clear empty cylinder tube.” (Doc. 1, pg. 4, ¶ 11).

Arnett told Plaintiff and Bell that “he could smell a faint odor of marijuana emanating from the

tube,” but Arnett did not find any marijuana residue in or around the tube. (Doc. 1, pg. 4, ¶ 12).

Plaintiff told Arnett that the tube was the packaging for a “CBD cigarette,” which may be legally

marketed, sold, and purchased in the State of Texas.

Arnett then asked Bell, “Do you mind if a search you?” (Doc. 1, pg. 4, ¶ 13). Bell

responded, “Yes.” (Doc. 1, pg. 4, ¶ 13). Arnett searched Bell, but Bell denied giving consent after

the search was completed. Arnett then handcuffed Bell, saying that Bell “looked nervous.” (Doc.

1, pg. 4, ¶ 13). Arnett then, according to the Complaint, “commanded” Plaintiff and Bell to

accompany Arnett to the outdoor stairwell of the apartment complex, where Plaintiff and Bell had

been originally seated. (Doc. 1., pg. 5, ¶ 14). Arnett searched the stairwell area for marijuana and

repeatedly asked the two students where the marijuana was. The search of the area around the

stairwell turned up no marijuana or evidence of criminal activity whatsoever.

After finding no marijuana or other contraband in the area around the stairwell, Arnett

asked Plaintiff and Bell whether he could search their dormitory rooms on the College campus.

Both students declined to give consent to a search of their respective College dormitories. Arnett,

the Complaint alleges, responded by telling the students, “That’s okay, I’m going to search [them]

anyway.” (Doc. 1, pg. 5, ¶ 15). Arnett then, according to Plaintiff’s Complaint, “demanded” that

both Plaintiff and Bell accompany Arnett to their College dormitory rooms, where he conducted a

search of each student’s dormitory room with two other safety and welfare College employees.

(Doc. 1, pg. 5, ¶ 16). Arnett did not obtain a warrant for the search of the dormitories. Before

conducting the search of Plaintiff’s dormitory room, according to the Complaint, Arnett “stated to

Plaintiff and Bell that since they had denied consent to search their dormitory rooms, that any

contraband or evidence of a crime would not be prosecuted in a criminal court of law but could be

used against them in a college administrative punishment proceeding.” (Doc. 1, pg. 5, ¶ 15).

Plaintiff was present in his College dormitory during the search. Arnett continued to ask

Plaintiff where the marijuana was located, and Plaintiff continued to deny having any marijuana

in his dormitory room. The search of Plaintiff’s dormitory room revealed no marijuana or

contraband. The search of Bell’s dormitory also revealed no marijuana or contraband. Arnett wrote

and issued both Plaintiff and Bell citations for possession of marijuana paraphernalia based on the

cylindrical tube Arnett found on Plaintiff’s person. Local prosecutors took the charges against

Plaintiff to trial, and Plaintiff was eventually acquitted.

On March 3, 2022, Plaintiff filed suit against both Arnett and the College. (Doc. 1).

Plaintiff’s Complaint asserts the following claims against Arnett: (1) a state-law claim for

malicious prosecution; (2) a state-law claim for both assault and battery; (3) a state-law claim for

false imprisonment; (4) a state-law claim for intrusion on seclusion; and (5) a federal-law claim

for the alleged violation of Plaintiff’s constitutional rights under 42 U.S.C. § 1983. The Complaint

also asserts the following claims against the College: (1) a state-law claim for malicious

prosecution; and (2) a federal-law for governmental liability for the alleged violations of Plaintiff’s

constitutional rights under 42 U.S.C. § 1983.

On May 5, 2022, Arnett filed his Motion to Dismiss Plaintiff’s Original Complaint

(“Arnett’s Motion”), asserting a defense of qualified immunity. (Doc. 12). On May 6, 2022, the

College filed its Motion to Dismiss Plaintiff’s Original Complaint (“the College’s Motion”). (Doc.

13). Both motions have been fully briefed and are ripe for consideration. For the reasons discussed

below, the Court partially grants and partially denies Arnett’s Motion and grants the entirety of

College’s Motion.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), 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.” FED. R. CIV. P. 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) (internal

quotation marks and citations omitted). “The court’s review 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.” 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 Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. A claim is facially plausible if 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 . . . asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. Thus, a claim “is implausible on its face when ‘the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct.’” Harold H. Huggins

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see

also Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019).

III. ANALYSIS

A. Defendant Arnett’s Motion to Dismiss Is Granted in Part and Denied in Part

For the reasons discussed below, the Court grants in part and denies in part Arnett’s

Motion. (Doc. 12). Specifically, the Court grants in part the motion with respect to Plaintiff’s state-

law claims against Arnett and dismisses those claims with prejudice. However, the Court denies

in part the motion with respect to Plaintiff’s § 1983 claims against Arnett based on the alleged

violation of Plaintiff’s Fourth Amendment right to be free from unreasonable searches and

seizures.

1. State-Law Claims

In his Original Complaint, Plaintiff asserts the following state-law claims against Arnett:

(1) malicious prosecution; (2) assault and battery; (3) false imprisonment; and (4) intrusion on

seclusion. (see Doc. 1, pgs. 8-9, ¶¶ 28-33). In his motion to dismiss, Arnett argues that these claims

are barred by § 101.106 of the Texas Tort Claims Act (“TTCA”). (Doc. 12, pgs. 9-11). “The

[TTCA] provides a limited waiver of immunity for certain suits against governmental entities and

caps recoverable damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655

(Tex. 2008). Section 101.106 of the TTCA—entitled “Election of Remedies”—requires plaintiffs,

at the time a suit is filed, to decide whether they are going to sue a governmental unit or the

governmental employee who allegedly committed the tortious act. Id. at 656. Section 101.106(f)

states:

If a suit is filed against an employee of a governmental unit based on conduct within

the general scope of that employee's employment and if it could have been brought

under this chapter against the governmental unit, the suit is considered to be against

the employee in the employee's official capacity only. On the employee's motion,

the suit against the employee shall be dismissed unless the plaintiff files amended

pleadings dismissing 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) (emphasis added).

In response, Plaintiff abandoned the state-law claims against Arnett, stating that the “state[-

]law causes of action . . . will not be pursued against Defendant Arnett[.]” (Doc. 19, pg. 15).

Plaintiff also stated that he would “timely amend his Complaint and name only Defendant Navarro

College on any or all such causes of action.” (Doc. 19, pg. 15). Arnett filed his motion to dismiss

on May 5, 2022. (Doc. 12). As of the issuance of this order and memorandum opinion, Plaintiff

has not amended his Original Complaint. Because Plaintiff has affirmatively abandoned his state-

law claims against Arnett, the Court GRANTS IN PART Arnett’s Motion with respect to those

state-law claims and dismisses them with prejudice. Terry Black's Barbecue, L.L.C. v. State Auto.

Mut. Ins. Co., 22 F.4th 450, 459 (5th Cir. 2022) (“A plaintiff abandons claims when it fails to

address the claims or oppose a motion challenging those claims.”); see Kovac v. Wray, 363 F.

Supp. 3d 721, 747 (N.D. Tex. 2019) (“When a party fails to pursue a claim or defense beyond the

party's initial complaint, the claim is deemed abandoned or waived.”).

2. Section 1983 Claims

Plaintiff alleges that Arnett “acted willfully, deliberately, maliciously, or with reckless

disregard for Plaintiff’s clearly established constitutional rights” in violation of 42 U.S.C. § 1983.

(Doc. 1, pg. 8, ¶ 27). The Complaint alleges: (1) excessive force stemming from Arnett’s search

of Plaintiff’s person; (2) malicious prosecution; (3) unreasonable seizure in the form of illegal

detention stemming from Arnett’s stopping Plaintiff and Bell; (4) unreasonable search of both

Plaintiff’s person and dormitory. (Doc. 1, pg. 8, ¶ 27). In his motion to dismiss, Arnett raises the

affirmative defense of qualified immunity. (Doc. 12, pgs. 7-9).

To state a claim under § 1983, plaintiffs must allege: (1) “some person has deprived [them]

of a federal right” guaranteed by the United States Constitution or federal law; and (2) “the person

who deprived [them] of that right acted under color of state or territorial law.” Gomez v. Toledo,

446 U.S. 635, 640 (1980). While § 1983 claims “implicating qualified immunity are subject to the

same Rule 8 pleading standard set forth in Twombly and Iqbal as all other claims[,]” the doctrine

of qualified immunity does “add[] a wrinkle to § 1983 pleadings when [it] is relevant.” Arnold v.

Williams, 979 F.3d 262, 267 (5th Cir. 2020) (citations omitted). “Qualified immunity gives

government officials breathing room to make reasonable[,] but mistaken judgments, and protects

all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 571 U.S.

3, 5 (2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)) (internal quotation marks

omitted). The Fifth Circuit has explained that:

[B]ecause qualified immunity is “not simply immunity from monetary liability” but

also “immunity from having to stand trial,” there is an interest in qualified

immunity entering a lawsuit “at the earliest possible stage of litigation.” Westfall v.

Luna, 903 F.3d 534, 542 (5th Cir. 2018) (quoting Brown v. Glossip, 878 F.2d 871,

874 (5th Cir. 1989)).

This immunity-from-suit interest does not require that the plaintiff's original

complaint exceed the short-and-plain-statement standard of Rule 8. [Anderson v.

Valdez, 845 F.3d 580, 589–90 (5th Cir. 2016)]. Rather, “a plaintiff seeking to

overcome qualified immunity must plead specific facts that both [(1)] allow the

court to draw the reasonable inference that the defendant is liable for the harm he

has alleged and [(2)] that defeat a qualified immunity defense with equal

specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). That is, a plaintiff

must plead qualified-immunity facts with the minimal specificity that would satisfy

Twombly and Iqbal.

Arnold, 979 F.3d at 267.

Thus, to overcome a defense of qualified immunity, a complaint must allege facts that—if

true—establish that: (1) an official’s conduct violated a statutory or constitutional right of the

plaintiff; and (2) the right was “clearly established” at the time of the violation. See Saucier v.

Katz, 533 U.S. 194, 200-01 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

The second step of the qualified immunity analysis “turns on the ‘objective legal reasonableness’

of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was

taken.” Wilson v. Layne, 526 U.S. 603, 614 (quoting Anderson v. Creighton, 483 U.S. 635, 639

(1987)). The two steps of the qualified immunity inquiry may be performed in any order. Pearson,

555 U.S. at 236. “A court may rest its analysis on either prong,” Dyer v. Houston, 964 F.3d 374,

380 (5th Cir. 2020) (citation omitted).

As an initial matter, Plaintiff has satisfied the “under color of law” element of his § 1983

claim. He alleges that, at all relevant times, “Defendant[] Arnett . . . [was] acting under the color

of the laws and regulations of the State of Texas.” (Doc. 1, pg. 7, ¶ 23). Thus, the Court must

consider whether Plaintiff has (1) plausibly alleged that Arnett violated Plaintiff’s constitutional

rights and (2) alleged sufficient facts to defeat Arnett’s defense of qualified immunity.

Two of Plaintiff’s four constitutional claims should be dismissed. First, Plaintiff has

affirmatively abandoned his excessive force claim against Arnett in his corresponding response.

(Doc. 19, pg. 10) (“Plaintiff does not intend to pursue his claim his claim for excessive force.”).

Plaintiff has also abandoned his malicious prosecution claim insofar as he makes no mention of it

in his response despite Arnett specifically addressing it in his motion to dismiss. See In re Dallas

Roadster, Ltd., 846 F.3d 112, 126 (5th Cir. 2017) (finding that plaintiff abandoned his malicious

civil prosecution claim where he failed to respond to defendant's arguments in motion to dismiss);

Black v. North Panola School Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding that plaintiff's

failure to defend her retaliatory abandonment claim in response to defendant's motion to dismiss

“constituted abandonment”). Moreover, even if Plaintiff had addressed the malicious prosecution

claim in his response, the Court would be compelled to conclude that Plaintiff has not stated a

viable claim under 42 U.S.C. § 1983 because—as the Fifth Circuit has repeatedly explained—

“there is no free standing right under the Constitution to be free from malicious prosecution.”

Arnold, 979 F.3d at 270 (citing Morgan v. Chapman, 969 F.3d 238, 246 (5th Cir. 2020)).2 “Rather,

facts amounting to malicious prosecution are properly alleged as part of an actual Fourth

Amendment claim, such as unreasonable search or seizure.” Id.

Nevertheless, Plaintiff maintains his claims of unreasonable seizure and unreasonable

search in his response to Arnett’s Motion. (Doc., 19, pgs. 10-14). Hereunder, the Court addresses

each of these claims in the context of the alleged Fourth Amendment constitutional violations—

considering: (1) the initial stop of Plaintiff; (2) the initial search of Plaintiff’s person; (3) the search

of the apartment complex area; and (4) the search of the College dormitory.

(i) Arnett’s Motion to Dismiss is Denied with Respect to Plaintiff’s Unreasonable

Seizure Claim

The Court now considers whether Plaintiff has adequately alleged a claim under 42 U.S.C.

§ 1983 for the violation of his Fourth Amendment right to be free from unreasonable seizure. For

the reasons discussed below, the Court concludes that: (1) Plaintiff has, in part, sufficiently alleged

that Arnett violated Plaintiff’s constitutional right to be free from unreasonable seizures in the form

of an illegal detention; and (2) Plaintiff has alleged sufficient facts to defeat Arnett’s defense of

qualified immunity. Thus, Arnett’s Motion to Dismiss Plaintiff’s Original Complaint, (Doc. 12),

is DENIED IN PART with respect to Plaintiff’s unreasonable seizure claim.

(a) Whether Any Constitutional Violation Occurred

The Fourth Amendment provides that “the right of people to be secure in the persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S.

CONST. amend. IV. “[T]he Supreme Court has recognized three distinct levels or tiers of police-

citizen contact within the context of the [F]ourth [A]mendment.” United States v. Hanson, 801

2 See also Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (“[T]he federal Constitution does not include a

“freestanding” right to be free from malicious prosecution.”); Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir.

2003) (en banc) (“No . . . freestanding constitutional right to be free from malicious prosecution exists.”).

F.2d 757, 760-61 (5th Cir. 1986). First, is mere “communication between police and citizens

involving no coercion or detention and therefore [outside the scope of] the Fourth Amendment[.]”

United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982). Second, is an investigative

detention—also known as a Terry stop—in which “[a]n officer may, consistent with the Fourth

Amendment, temporarily detain a person when the officer has a reasonable, articulable suspicion

that a person has committed or is about to commit a crime.” United States. v. Chavez, 281 F.3d

479, 485 (5th Cir. 2022) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)); see also United States v.

Massi, 761 F.3d 512, 520 (5th Cir. 2014 (quoting United States v. Zukas, 843 F.2d 179, 181 (5th

Cir. 1988)). “Finally, the third tier is a full-scale arrest which must be supported by probable

cause.” Massi, 761 F.3d at 520. (citing Zukas, 843 F.2d at 181-82) (citations and internal quotation

marks omitted) (alterations incorporated). “This three-tiered approach presents . . . court[s] with

two questions: when [was] the [person] ‘seized’ and which tier does that seizure occupy?” Hanson,

801 F.2d at 761. “A seizure has occurred if ‘in view of all the circumstances surrounding the

incident, a reasonable person would have believed he was not free to leave.’” Id. (quoting United

States v. Mendenhall, 446 U.S. 544, 554 (1980)).

For the reasons discussed below, the Court concludes: (1) a Terry stop occurred when

Arnett handcuffed Bell and commanded Plaintiff and Bell to accompany him to the apartment

stairwell; (2) Arnett had reasonable suspicion to support initiating the Terry stop; but (3) the stop

was nevertheless unreasonable as alleged because it exceeded the scope of the circumstances

justifying its initiation in the first place.

(1) Whether a Seizure Occurred

The Court first assesses Plaintiff’s contention that Arnett’s “initial police action” of

requesting Plaintiff and Bell approach his patrol car was unreasonable seizure. (Doc. 19, pg. 10).

Plaintiff’s argument regarding the initial encounter is two-fold. First, Plaintiff argues that Arnett’s

action of “pulling up in a marked police vehicle and immediately demanding Plaintiff and Bell . .

. stop what they were doing and come to his presence” constituted an investigatory stop under the

Fourth Amendment. (Doc. 19, pg. 10). Second, Plaintiff argues the investigative stop was

unreasonable because “Arnett did not have reasonable suspicion that a crime was being

committed.” (Doc. 19, pg. 10). The Court concludes the allegations contained in the Complaint

about this initial encounter—taken as true—do not state a claim for the violation of Plaintiff’s

constitutional rights because the encounter—as alleged—did not amount to a Terry stop.

As noted above, the first tier of police-citizen contact is “mere communications between a

citizen and an officer, involving no element of detention or coercion[,]” which does not implicate

the Fourth Amendment. Hanson, 801 F.2d at 761 (citing Terry, 392 U.S. at 19, n. 16). The Supreme

Court has stated that its “cases make it clear that a seizure does not occur simply because a police

officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434

(1991). An “encounter is consensual and no reasonable suspicion is required” so long as “a

reasonable person would feel free ‘to disregard the police and go about his business[.]’” Id.

(quoting California v. Hodari, 499 U.S. 621, 628 (1991)). “Only when [an] officer, by means of

physical force or show of authority, has in some way restrained the liberty of a citizen may [courts]

conclude that a ‘seizure’ has occurred.” Terry, 392 U.S. at 19, n. 16; see e.g., Florida v. Royer,

460 U.S. 491 (1983) (plurality opinion) (“law enforcement officers do not violate the Fourth

Amendment by merely approaching an individual on the street or in another public place, by asking

him if he is willing to answer some questions, by putting questions to him if the person is willing

to listen”).

Plaintiff does not plead any facts demonstrating that Arnett’s initial act of calling Plaintiff

and Bell over to his patrol car constituted a Terry stop. The Complaint states that Arnett “stopped

his patrol car . . . and ordered Plaintiff and Bell to walk over towards him.” (Doc. 1, pg. 3, ¶ 9).

Plaintiff voluntarily walked toward the patrol car and voluntarily gave Arnett his name and date

of birth. At this stage of the interaction, Plaintiff does not allege that Arnett used coercion, physical

force, or any show of authority, other than Plaintiff’s allegation that Arnett “ordered” Plaintiff and

Bell to walk towards Arnett. Plaintiff does not allege that, during this portion of the interaction, he

(1) did not feel free to disregard Arnett and go about his business or (2) felt as though he was

restrained in some way. Under these circumstances, the Court concludes that a reasonable person

would have felt free to terminate the encounter and, thus, Plaintiff has not alleged that this initial

encounter was an illegal Terry stop unsupported by reasonable suspicion. See Bostick, 501 U.S. at

434 (“[A] seizure does not occur simply because a police officer approaches an individual and asks

a few questions.”); see also United States v. Wolfe, 983 F.2d 232 (5th Cir. 1993) (concluding that

no Terry stop occurred when police officer stopped his patrol car, backed it up to see what was

going on, yelled questions to five men as they waked across the street, and gave no indication that

they were not free to leave).

The Court next considers whether an unreasonable seizure occurred when Arnett

handcuffed Bell and allegedly “commanded” Plaintiff and Bell to accompany Arnett to the outdoor

apartment stairwell at which they were initially seated. By this point, Plaintiff had consented to a

search of his person while standing next to Arnett’s patrol car. It is uncontested that Arnett found

a cylindrical container in Plaintiff’s pocket, which Arnett claimed smelled of marijuana. Arnett

then asked Bell if he consented to being searched. After an allege miscommunication,3 Arnett

3 Plaintiff alleges that Arnett asked this question in the negative to elicit an unclear response. (Doc. 1, pg. 4, ¶ 13).

searched and handcuffed Bell, stating that “he looked nervous.” Plaintiff does not allege that Arnett

ever placed him in handcuffs. Arnett then, according to the Complaint, demanded the two young

men accompany him to the outdoor stairwell at which they were originally sitting while Arnett

searched the area surrounding the stairwell for marijuana.

The Court concludes that, based on the well-plead facts in the Complaint, Plaintiff has

alleged a Terry stop occurred when Arnett handcuffed Bell and commanded Plaintiff and Bell to

move from next to the patrol car to the stairwell. In determining whether a police-citizen encounter

constitutes a Terry stop, courts must determine whether a seizure has occurred in light of Bostick

and Terry. Taking as true the well-pled facts in the Complaint, the Court concludes that, while

Plaintiff was not himself handcuffed, a reasonable person in Plaintiff’s position would have

believed he was not free to leave after Arnett handcuffed Bell and commanded that Plaintiff and

Bell relocate themselves so that Arnett could conduct a search of the area around the apartment

complex stairwell. See Bostick, 501 U.S. at 434. Thus, the Court concludes Plaintiff has adequately

alleged that a seizure occurred under the Fourth Amendment.

(2) Whether the Seizure Was Legal

Having concluded that Arnett initiated a Terry stop once he handcuffed Bell and ordered

Bell and Plaintiff to relocate to the stairwell, the Court must next assess the legality of the

investigative stop. Such an analysis is two-pronged. United States v. Pack, 612 F.3d 341, 349-50

(5th Cir. 2010). First, the Court considers whether Arnett’s “decision to make the stop was justified

at its inception.” United States v. Bass, 996 F.3d 729, 737 (5th Cir. 2021) (citing Pack, 612 F.3d

at 350). Second, the Court considers whether Arnett’s “subsequent actions were reasonably related

in scope to the circumstances that caused him to [initiate the Terry stop] in the first place.” Id.

(citing Pack, 612 F.3d at 350). For the reasons discussed below, the Court concludes: (1) Arnett

was justified in initiating a Terry stop in the first place; but (2) Arnett’s subsequent actions were

not reasonably related to the circumstances justifying the stop because Arnett extended the

Plaintiff’s detention beyond its initial purpose and without additional reasonable suspicion.

First, the well-pled facts in the Complaint support the conclusion that Arnett was justified

in initiating the Terry stop. A Terry stop must be supported by reasonable suspicion, which “has

been described as a particularized and objective basis for suspecting the person stopped of criminal

activity.” Chavez, 281 F.3d at 485 (internal quotation marks omitted) (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)). “While ‘reasonable suspicion’ is a less demanding standard than

probable cause and requires a showing considerably less than preponderance of the evidence, the

Fourth Amendment requires at least a minimal level of objective justification for making the stop.”

Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). “Reasonable suspicion exists when the detaining

officer can point to specific facts that, when taken together with rational inferences from those

facts, reasonably warrant the search and seizure.” United States. v. Estrada, 459 F.3d 627, 631

(5th Cir. 2006) (citing United States v. Santiago, 310 F.3d 336, 338-39 (5th Cir. 2002)). The

determination of whether reasonable suspicion exists to justify an investigatory detention “must

be based on the totality of the circumstances and the collective knowledge and experience of the

officer[.]” Id. (citing United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000)).

The Court concludes, based on the well-pled facts in Plaintiff’s Complaint, Arnett had

reasonable suspicion of criminal activity when Arnett initiated the Terry stop. Arnett’s search of

Plaintiff’s person resulted in Arnett finding a clear cylindrical tube that Arnett claimed smelled of

marijuana. Plaintiff alleges Arnett did not find any residue in or around the tube; Plaintiff also

alleges he informed Arnett that the tube was the original package for a legal CBD cigarette.

Nonetheless, the Court concludes Arnett’s ability to smell what Arnett perceived to be the odor

marijuana emanating from the tube found on Plaintiff’s person provided the basis for a reasonable

suspicion that Plaintiff had engaged in criminal activity—namely, the criminal possession of

marijuana, and/or possession of drug paraphernalia, both of which are crimes in Texas. See TEX.

HEALTH & SAFETY CODE §§ 481.121 (possession of marijuana), 481.125 (possession of drug

paraphernalia); see also United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1988) (smell of burnt

marijuana alone justified the warrantless search of a vehicle).4 Thus, the Court concludes that—

taking the well-pled facts as true—Arnett was justified in initiating the Terry stop.

Next, the Court considers whether Arnett’s subsequent actions were reasonably related in

scope to the circumstances justifying the investigative detention. In evaluating an officer’s

subsequent actions after the initiation of a Terry stop, courts must evaluate whether “both the scope

and the length of the officer’s investigation [was] reasonable in light of the facts articulated as

having created the reasonable suspicion of criminal activity.” Pack, 612 F.3d at 357. “[I]f

additional reasonable suspicion arises in the course of the stop and before the initial purpose of the

stop has been fulfilled, then the detention may continue until the new reasonable suspicion has

been dispelled or confirmed.” United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005).

The Court considers the reasonableness of Arnett’s subsequent actions in two parts: (1) Arnett’s

search of the area around the stairwell at which Plaintiff and Bell were originally seated; and (2)

Arnett’s alleged demand that Plaintiff and Bell accompany Arnett to Plaintiff and Bell’s dormitory

rooms after the stairwell search turned up no evidence of criminal activity.

4 See United States v. Villareal, 565 F.2d 932, 937 (5th Cir. 1978) (smell of marijuana furnished officer with probable

cause to search the trunk of a vehicle); Bazan v. Whitfield, 754 F. App’x 280, 281 (5th Cir. 1978) (smell of marijuana

provided sufficient probable cause to justify warrantless search of a vehicle); United States v. Alberti, No. 3:14-cr-

0007-L, 2014 WL 2159259, at *7 (N.D. Tex. May 23, 2014) (smell of marijuana from a vehicle gave officers, at

minimum, reasonable suspicion to support investigatory stop).

The Court concludes Arnett’s initial actions after moving Plaintiff and Bell to the stairwell

was reasonably related to his reasonable suspicion that the two young men either were or had been

in possession of marijuana and/or drug paraphernalia. Here, Arnett allegedly ordered both Plaintiff

and Bell accompany Arnett to the apartment stairwell where they were initially seated. According

to the Complaint, Arnett “searched the area of the stairwell and repeatedly asked Plaintiff and Bell

where the marijuana was.” (Doc. 1, pg. 5, ¶ 14). Arnett’s search of the area surrounding the

apartment stairwell turned up neither marijuana nor other contraband. Nevertheless, Arnett’s

actions in searching the apartment stairwell were reasonably related to the circumstances justifying

the Terry stop. That is, Arnett believed Plaintiff and Bell either were or had recently been in

physical possession of marijuana and/or drug paraphernalia; therefore, Arnett’s search of Plaintiff

and Bell’s persons as well as Arnett’s search of the area in which they had been sitting for evidence

to confirm his suspicion that a crime had been committed was proper. Thus, the Court concludes

Arnett’s acts relating to the stairwell portion of the interaction was not unreasonable.

However, the Court nonetheless concludes—in light of the facts alleged in Plaintiff’s

Complaint—Plaintiff has adequately alleged Arnett violated Plaintiff’s right to be free from

unreasonable seizure when Arnett extended Plaintiff’s detention without additional, articulable

reasonable suspicion. With respect to whether an officer’s actions following a legitimate Terry

stop are reasonable, the Fifth Circuit has explained that:

[W]e require that an officer’s actions after a legitimate stop be “reasonably related

to the circumstances that justified the stop, or to dispel[] his reasonable suspicion

[that] developed during the stop.” [United States v. Brigham, 382 F.3d 500, 506 (5th

Cir. 2004)]. A reasonable detention “must be temporary and last no longer than is

necessary to effectuate the purpose of the stop, unless further reasonable suspicion,

supported by articulable facts, emerges.” Id.

Johnson v. Thibodaux City, 887 F.3d 726, 734 (5th Cir. 2018) (second and third alteration in

original). While “[t]here is no ‘constitutional stopwatch’ on investigatory stops[,]” the Court

“must assess whether [Arnett] ‘diligently pursued a means of investigation that was likely to

confirm or dispel [his] suspicions quickly.’” Bass, 995 F.3d at 738 (quoting Brigham, 382 F.3d at

511). The Court concludes Plaintiff has stated a plausible claim for unreasonable seizure because

the well-pled facts indicate Arnett: (1) detained Plaintiff for longer that was necessary to confirm

or dispel his suspicion that Plaintiff was or had been in possession of marijuana and/or possession

of drug paraphernalia; and (2) extended Plaintiff’s detention without additional reasonable

suspicion.

It is undisputed the stairwell search did not turn up any evidence of a crime. Thus, once

Arnett completed the stairwell search, the “purpose of the stop”—to confirm or obtain evidence of

a crime relating to possession of marijuana and/or drug paraphernalia—was completed. Royer, 460

U.S. at 500. At that point, the reasonable suspicion justifying Arnett’s initiation of a Terry stop

was dispelled. Yet, Arnett extended his detention of Plaintiff. As noted above, a seizure occurs

when an officer, “by means of physical force or show of authority, has in some way restrained the

liberty of a citizen[.]” Terry, 392 U.S. at 19, n. 16. Based on the well-pled facts in the Complaint,

the Court concludes Arnett continued his detention of Plaintiff by a show of authority when he (1)

told Plaintiff that he would search Plaintiff’s dormitory even though Plaintiff did not give his

consent to do so and (2) “demanded” that Plaintiff accompany Arnett to Plaintiff’s dormitory so

Arnett could conduct further investigation. The Court concludes that, based on the facts alleged,

Arnett had no legal justification to detain Plaintiff longer than Arnett already had.

The Supreme Court has explained that “a person may not be detained even momentarily

without reasonable, objective grounds for doing so.” Royer, 460 U.S. at 498 (emphasis added). For

Arnett to continue Plaintiff’s detention, additional reasonable suspicion—supported by articulable

facts—would have had to emerged during the stairwell search. Brigham, 382 F.3d at 506; see also

Lopez-Moreno, 420 F.3d at 431. Based on the well-pled facts in the Complaint, the stairwell search

did not turn up any objective grounds for Arnett’s further detention of Plaintiff to see if Plaintiff

had marijuana and/or drug paraphernalia in his dormitory. Thus, Arnett’s continued detention of

Plaintiff by ordering Plaintiff to accompany Arnett to Plaintiff’s dormitory was not supported by

any additional reasonable suspicion. Consequentially, the Court concludes Plaintiff has alleged

sufficient facts in his Complaint to support the reasonable inference that Arnett’s continued

detention of Plaintiff was unreasonable under the Fourth Amendment. See Johnson, 887 F.3d at

734 (an investigative detention that “lasted longer than necessary to effect the purpose of the stop”

was unlawful); United States v. Valdez, 267 F.3d 395, 398 (5th Cir. 2001) (“[O]nce an officer’s

suspicions have been verified or dispelled, the detention must end unless there is additional

articulable, reasonable suspicion.”); Emesowem v. Cruz, 756 F. App’x 374, 379 (5th Cir. 2018)

(detaining plaintiff handcuffed in the back of a squad car believing plaintiff was attempting to

burglarize a car despite law enforcement knowing the car belonged to plaintiff was unreasonable

under the Fourth Amendment).

In sum, the Court concludes Plaintiff has adequately alleged that Arnett violated Plaintiff’s

Fourth Amendment right to be free from unreasonable seizures in the form of illegal detention.

Plaintiff has adequately alleged Arnett initiated an investigatory detention of Plaintiff when Arnett

handcuffed Bell and ordered the two young men to relocate from next to the patrol car to the

stairwell. Arnett had reasonable suspicion to justify initiating this detention, and Arnett’s initial

act of searching the stairwell area was reasonably related to that originally reasonable suspicion.

However, the well-pled facts in the Complaint indicate that Arnett’s detention of Plaintiff lasted

longer than was necessary to effectuate its original purpose—to determine whether Plaintiff was

or recently had been in possession of marijuana and/or drug paraphernalia. See Johnson, 887 F.3d

at 734. Once Arnett found no evidence of either possession of marijuana or drug paraphernalia in

the stairwell area, his initially reasonable suspicion was dispelled, and his detention of Plaintiff

should have ended. See Valdez, 267 F.3d at 398. However, Plaintiff has adequately alleged that

Arnett continued Plaintiff’s detention despite lacking additional reasonable suspicion to do so. See

Lopez-Moreno, 420 F.3d at 431. Thus, taking as true the facts alleged in the Complaint, Plaintiff

has plausibly alleged that Arnett violated the Fourth Amendment right to be free from

unreasonable seizures.

(b) Whether a Violation of Clearly Established Law Occurred

Having determined that Plaintiff has adequately pled his unreasonable seizure claim to

survive a Rule 12(b)(6) challenge, the Court must next determine whether Arnett’s conduct—as

alleged in the Complaint—violated a constitutional right that clearly established at the time of the

incident. Saucier, 533 U.S. at 200-01. In its unpublished but persuasive opinion in Emesowum v.

Cruz, the Fifth Circuit explained:

It was clearly established at the time of this incident that “an investigative detention

must be temporary and last no longer than is necessary to effectuate the purpose of

the stop.” Royer, 460 U.S. at 500, 103 S.Ct. 1319; see also Turner v. Lieutenant

Driver, 848 F.3d 678, 693–95 (5th Cir. 2017) (reversing grant of motion to dismiss

on qualified immunity grounds where detention amounted to warrantless arrest);

Freeman v. Gore, 483 F.3d 404, 413–14 (5th Cir. 2007) (affirming denial of

summary judgment based on qualified immunity in § 1983 suit for unlawful arrest);

[Brigham, 382 F.3d at 510] (collecting cases holding that continued questioning

when “there remained no reasonable suspicion of wrongdoing” unconstitutionally

prolonged detentions).

756 F. App’x at 379.5 While the Fifth Circuit’s opinion in Emesowum is not itself controlling

precedent, each of the decisions the Fifth Circuit cited in support of its conclusion that the officer

in Emesowum violated plaintiff’s clearly established rights are published opinions and therefore

5 “An unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be persuasive authority.”

Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).

constitute controlling precedent that place the instant “constitutional question beyond debate.” al-

Kidd, 563 U.S. at 741.

Plaintiff alleges Arnett “acted willfully, deliberately, maliciously, or with reckless

disregard for Plaintiff’s clearly established constitutional rights,” including the right to be free

from the unreasonable seizure of his person. (Doc. 1, pgs. 7-8, ¶ 25-27). Based on the facts alleged,

the Court concludes Plaintiff has pled facts with sufficient specificity to “defeat a qualified

immunity defense.” Backe, 691 F.3d at 648. When Arnett ordered Plaintiff to accompany Arnett

to Plaintiff’s dormitory on the College campus, no reasonable officer could have concluded that

the Fourth Amendment permitted such a continued detention of Plaintiff—because Arnett’s

reasonable suspicion of a crime (that Plaintiff was or had been in possession of marijuana and/or

drug paraphernalia) had already been dispelled. See Valdez, 267 F.3d at 398 (detention became

unlawful once suspicion was dispelled); see also Emesowum, 756 F. App’x at 379-80 (detention

became unlawful after officer uncovered evidence plaintiff owned the car the officer had

previously believed plaintiff was attempting to burgle). Accordingly, Plaintiff has adequately pled

facts allowing the Court to draw the reasonable inference that not only that Arnett is liable for the

conduct alleged but also that Plaintiff can defeat Arnett’s defense of qualified immunity. See

Backe, 691 F.3d at 648. As such, Arnett’s Motion to Dismiss Plaintiff’s Original Complaint, (Doc.

12), is DENIED IN PART with respect to Plaintiff’s claim under 42 U.S.C. § 1983 that Arnett

violated Plaintiff’s Fourth Amendment right to be free from unreasonable seizure in the form of

illegal detention.

(ii) Arnett’s Motion to Dismiss is Denied in Part with Respect to Plaintiff’s

Unreasonable Search Claim

The Court next considers whether Plaintiff has adequately alleged a claim under 42 U.S.C.

§ 1983 for the violation of his Fourth Amendment right to be free from unreasonable searches. For

the reasons discussed below, the Court concludes Plaintiff has, in part, alleged an unreasonable

search claim. Thus, Arnett’s Motion to Dismiss Plaintiff’s Complaint, (Doc. 12), is DENIED IN

PART with respect to Plaintiff’s unreasonable search claim.

(a) Whether Any Constitutional Violation Occurred

“The Fourth Amendment provides in relevant part that the ‘right of the people to be secure

in their persons, their houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated.’” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting U.S. CONST. amend. IV).

“Simply put, warrantless searches are per se unreasonable, and therefore unconstitutional, unless

they fall into one of the few specifically established and well-defined exceptions to the general

rule.” United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995) (citing Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973). Thus, warrantless searches violate the Fourth Amendment unless “they

fall within a specific exception to the warrant requirement.” Bass, 996 F.3d at 738. Plaintiff bases

his unreasonable search claim on: (1) Arnett’s search of Plaintiff’s person after Arnett called him

over to the squad car; and (2) Arnett’s search of Plaintiff’s dormitory. (see Doc. 1, pgs. 3-4, ¶¶ 8-

11; Doc. 1, pgs. 5-6, ¶¶ 15-16). For the reasons discussed below, Plaintiff has partly, adequately

alleged that Arnett violated his Fourth Amendment right to be free from unreasonable searches.

(1) Search of Plaintiff’s Person

The Court first considers whether Plaintiff stated an unreasonable search claim based on

Arnett’s search of Plaintiff’s person. Based on the well-plead facts in the Complaint, Plaintiff

failed to allege that Arnett’s search of his person violated Plaintiff’s Fourth Amendment rights.

“[O]ne of the specifically established exceptions to the requirements of both a warrant and

probable cause is a search that is conducted pursuant to consent.” Schneckloth, 412 U.S. at 219.

However, consent to a warrantless search must be validly given. See United States v. Jenson, 462

F.3d 399, 406 (5th Cir. 2006). “To determine whether consent was validly given, [courts] ask[:]

(1) whether consent was voluntary[;] and (2) whether it was an independent act of free will.” Id.

(citing Santiago, 310 F.3d at 342).

Plaintiff admits in his Complaint that he consented to the search of his person. Plaintiff

alleges however, Plaintiff consented to the search because, “[a]s a young African American male

acutely aware of the rash of recent high profile police killings of unarmed African Americans that

quickly escalated from minor encounters[,]” he wanted “the encounter to end as quickly as

possible[.]” (Doc. 1, pg. 4, ¶ 10). Plaintiff makes the conclusory argument—without citation to

any underlying facts—that Arnett unlawfully “parlayed” his “intimidation power” into “obtaining

the ‘consent’ of Plaintiff to search his person.” (Doc. 19, pg. 11). Plaintiff also appears to argue

that the search of his person constituted an unconstitutional Terry pat down. (Doc. 19, pg. 11). In

reply, Arnett argues that Plaintiff’s consent was validly given because: (1) Plaintiff does not

expressly plead that his consent was involuntary; and (2) an alleged general knowledge of fear of

police violence—even though Plaintiff does not specifically plead that that he feared such violence

from Arnett—is insufficient to render Plaintiff’s consent involuntary. (Doc. 24, pg. 3). The Court

agrees with Arnett on both counts.

Courts use a multi-factor test to determine whether consent was voluntary. The Fifth

Circuit has explained those factors in the context of a motion to suppress evidence in a criminal

case:

(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive

police procedures; (3) the extent and level of the defendant's cooperation with the

police; (4) the defendant's awareness of his right to refuse consent; (5) the

defendant's education and intelligence; and (6) the defendant's belief that no

incriminating evidence will be found. United States v. Wise, 877 F.3d 209, 221–22

(5th Cir. 2017) (citing United States v. Williams, 365 F.3d 399, 406–07 (5th Cir.

2004)). “Although all six factors are relevant, no single factor is dispositive.”

United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993).

United States v. Perales, 886 F.3d 542, 546 (5th Cir. 2018). Upon careful consideration of these

factors, the Court concludes—even viewing the facts alleged in the Complaint in the light most

favorable to Plaintiff—Plaintiff has not alleged that his consent to the search of his person was

involuntary.

First, Plaintiff was not in custody when he consented to the search of his person. Plaintiff

consented to Arnett’s search after Arnett called Plaintiff and Bell over to his patrol car and before

Arnett handcuffed Plaintiff and ordered the two young men to relocate from next to the patrol car

to the stairwell. “Voluntariness of custodial status turns on whether a reasonable person in the

defendant's position would feel free to terminate the encounter.” United States v. Soriano, 976

F.3d 450, 455 (5th Cir. 2020) (citing United States v. Cavitt, 550 F.3d 430, 439 (5th Cir. 2008)).

As discussed above, Plaintiff was not in custody when he walked to the patrol car from the stairwell

because a reasonable person in Plaintiff’s situation would have felt free to terminate the encounter

with Arnett. See supra III.A.2.i.a. Thus, this factor weighs Arnett’s favor.

Second, Plaintiff does not plead any facts from which the court can infer the presence of

coercive police procedures at the time Plaintiff consented to the search. At that point of the

interaction, Arnett had only called the young men over to his squad car. The only potentially

coercive police procedure the Court can deduce from the Complaint is Arnett’s act of placing Bell

in handcuffs; however, that conduct took place after Plaintiff had already consented to the search

of his person. Plaintiff alleges that he consented to the search because he was aware of a “recent

rash of high-profile police killings of unarmed African Americans that quickly escalated from

minor encounters[.]” (Doc. 1, pg. 4, 10). However, Plaintiff does not allege he was fearful of

violence, nor does he allege any facts from which the Court can conclude that a reasonable person

would have been fearful of violence. As Arnett correctly notes, general nervousness during an

encounter with police does not render consent to a search involuntary. See United States v.

Galberth, 846 F.2d 983, 988 (5th Cir. 1988) (“Galberth’s nervousness . . . does not preclude a

finding of voluntariness[.]”); United States v. Martinez, 410 F. App’x 759, 764 (5th Cir. 2011)

(holding that “the mere presence of armed officers does not render a situation coercive” when

officers were merely standing and engaging in a “relatively polite conversation”); United States v.

Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988) (holding that, even though defendant was not

free to leave the inspection area, consent to search was voluntary when there was no evidence that

officers “employed coercion, tricks, or threats” to induce consent). Thus, the second factor weighs

in Arnett’s favor.

The third factor weighs in Arnett’s favor as well because Plaintiff was cooperative with

Arnett insofar as he voluntarily walked from the stairwell to the squad car and allowed Arnett to

search his person. See United States v. Olivarria, 781 F. Supp. 2d 387, 395 (N.D. Miss. 2011)

(defendant was cooperative with police during a roadside encounter when defendant voluntarily

allowed officer to examine defendant’s cell phone), aff'd, 495 F. App'x 512 (5th Cir. 2012) The

fourth factor also weighs in Arnett’s favor. Plaintiff does not plead any facts that—if true—would

establish Plaintiff believed he did not have the right to deny consent to the search. Plaintiff does

not plead that Arnett informed him that he had the right to refuse consent. However, even if

Plaintiff had done so, an officer’s failure to inform a suspect of their right to deny consent does

not, alone, preclude a finding that consent was voluntarily given. See Schneckloth, 412 U.S. at

248-49 (“while the subject’s knowledge of a right to refuse is a factor to be taken into account”

when determining the voluntariness of consent, it is not “a prerequisite to establishing a voluntary

consent”); Galberth, 846 F.2d at 988 (“The district court’s finding of a valid consent to be searched

is not outweighed by the fact that Galberth was never told that she had the right to withhold her

consent[.]”).

The fifth factor also weighs in Arnett’s favor. At the time of the incident, Plaintiff was a

nineteen-year-old college student and Plaintiff neither alleges he was susceptible to coercion due

to a lack of education, nor does Plaintiff allege he has anything other than ordinary intelligence.

See Mendenhall, 446 U.S. at 558 (holding that a twenty-two-year-old woman who had not

graduated high school could voluntarily consent to a search); United States v. Michalik, 5 F.4th

583, 590 (5th Cir. 2021) (education and intelligence factor weighed in favor of finding voluntary

consent for forty-year-old defendant who possessed a high school education).

Finally, the sixth factor weighs in Arnett’s favor. “An awareness or belief that no

incriminating evidence will be found weighs in favor of a finding of voluntariness.” Soriano, 976

F.3d at 458. Plaintiff states in his Complaint that he “knew he did not possess anything illegal and

he was hoping to satisfy . . . Arnett so the encounter would end without physical harm or worse.”

(Doc. 1, pg. 4, ¶ 10). Moreover, after Arnett found the cylindrical tube from which he claimed a

“faint odor of marijuana” was emanating, Plaintiff alleges he told Arnett that “the tube was the

original package used to store a CBD cigarette” and that it was the type of CBD product that can

be legally bought and sold in Texas. (Doc. 1, pg. 4, ¶ 12). Thus, the Court concludes, based on the

facts alleged, Plaintiff did not believe any incriminating evidence would be found during the search

of his person. As such, all six factors weigh in Arnett’s favor, and the Court must conclude Plaintiff

voluntarily gave his consent for Arnett to search his person.

The second prong of the valid consent analysis is whether consent was given as “an

independent act of free will.” Jenson, 462 F.3d at 406 (citation omitted). The purpose of this

inquiry is “to determine whether there was a ‘break in the causal chain’ between the constitutional

violation and the consent; that is to say, consent cannot be the product of the illegal detention.” Id.

(citation Santiago, 310 F.3d at 343). As discussed above, the Court has already concluded—based

on the facts alleged—Plaintiff was not detained at the time he gave his consent to search his person.

See supra III.A.2.i.a. Thus, Plaintiff has not alleged facts from which the Court can reasonably

infer Plaintiff’s consent for Arnett to search him was invalid.

Finally, in response to Arnett’s Motion, Plaintiff appears to argue that he has stated a claim

for unreasonable search because the search of his person constituted an illegal Terry pat-down.

(see Doc. 19, pg. 11) (arguing that an officer may—for the protection of himself and others—only

conduct a carefully limited search of a person’s outer clothing for weapons when the officer has a

reasonable suspicion of criminal activity and that the person may be armed and dangerous, which

Plaintiff argues Arnett lacked) (citing Florida v. J.L., 529 U.S. 266, 269 (2000) (citing, in turn,

Terry, 392 U.S. at 30)). However, Arnett’s search of Plaintiff was not a Terry pat-down because it

was consensual. See Terry, 392 U.S. at 7-8; see also United States v. Jackson, 390 F.3d 393, 399

(5th Cir.2004), vacated on other grounds, 544 U.S. 917 (2005) (concluding that an initially

consensual encounter did not become a Terry stop until the officer patted down the defendant

without consent); United States v. Berry, 25 F. Supp. 3d 931, 944 (N.D. Tex. 2014) (“Unless a pat-

down is consensual, before it can be conducted, a police officer must have reasonable suspicion

that criminal activity may be afoot.”) (emphasis added) (citing Terry, 392 U.S. at 7-8; Jackson,

390 F.3d at 399).

In sum, the Court concludes Plaintiff has not plausibly alleged that Arnett’s search of his

person was unreasonable and thus violative of Plaintiff’s Fourth Amendment rights. Thus, the

Court grants Arnett’s motion to dismiss as it relates to Plaintiff’s claims regarding an unreasonable

search of Plaintiff’s person.

(2) Search of Plaintiff’s Dormitory Room

Next, the Court considers whether Plaintiff has adequately alleged that Arnett’s

warrantless, non-consensual search of Plaintiff’s dormitory room violated the Fourth Amendment.

The Court concludes that Plaintiff has. “Physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407 U.S. 297,

313 (1972). “It is ‘a basic principle of Fourth Amendment law that searches and seizures inside a

home without a warrant are presumptively unreasonable.’” Brigham City v. Stuart, 547 U.S. 398,

403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)). However, “because the ultimate

touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to

certain exceptions.” Stuart, 547 U.S. at 403 (citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999)

(per curiam); Katz v. United States, 389 U.S. 347, 357 (1967)). The Fifth Circuit has explained

that “a student who occupies a college dormitory room enjoys the protections of the Fourth

Amendment.” Piazzola v. Watkins, 442 F.2d 274, 289 (5th Cir. 1971).

It is undisputed that Arnett searched Plaintiff’s dormitory room without a warrant.

However, Arnett argues that his warrantless search of the dormitory did not violate Plaintiff’s

Fourth Amendment rights because Arnett expressly informed Plaintiff that any contraband or

evidence of a crime that might be obtained during the search of Plaintiff’s dormitory would not be

used in any subsequent criminal prosecution of Plaintiff. (Doc. 12, pg. 19). Arnett argues that

because the subsequent criminal prosecution of Plaintiff did not involve anything discovered

during the warrantless search, Plaintiff cannot state a claim under § 1983 for a Fourth Amendment

violation based on the search of Plaintiff’s dorm. (Doc. 12, pg. 19).

Arnett relies on the Fifth Circuit’s decision in Piazzola. 442 F.2d 274 (5th Cir. 1971).

Arnett argues that Piazzola stands for the proposition that universities have “broad supervisory

powers” over campus dormitories, which—Arnett claims—empowers university officials to

conduct warrantless searches of dormitories without complying with the Fourth Amendment

warrant requirement so long as the searches are not conducted for the “primary purpose of a

criminal prosecution.” (Doc. 12, pg. 12) (citing Piazzola, 442 F.2d at 289). Reviewing the Fifth

Circuit’s reasoning in Piazzola, as well as cases from other courts considering the constitutionality

of warrantless dormitory searches, the Court is unconvinced that Arnett can escape the Fourth

Amendment’s requirements by informing Plaintiff that evidence potentially gathered from the

search of Plaintiff’s dormitory would not be used in any subsequent criminal prosecution of

Plaintiff.

In Piazzola, two Troy State University students were convicted of possession of marijuana

and sentenced to prison after police searched their dormitories without a warrant after the fruits of

those searches were used in subsequent criminal prosecutions of the students. Piazzola, 442 F.2d

at 285-86. The searches in Piazzola were pursuant to university regulations empowering the

university to: (1) enter dormitory rooms for inspection purposes; and (2) search dormitories and

students’ personal effects if the administration deemed such a search necessary. Id. at 286. The

Fifth Circuit affirmed the district court’s granting habeas corpus relief and the district court’s

ordering the release of the prisoners after holding the dormitory searches violated the Fourth

Amendment. Id. at 289. The Fifth Circuit explained:

[T]he University retains broad supervisory powers which permit it to adopt the

regulation heretofore quoted, provided that regulation is reasonably construed and

is limited in application to further the University’s function as an educational

institution. The regulation cannot be construed or applied so as to give consent to

a search for evidence for the primary purpose of a criminal prosecution. Otherwise,

the regulation itself would constitute an unconstitutional attempt to require a

student to waive his protection from unreasonable search and seizure as a

condition to his occupancy of a college dorm.

Id. (emphases added). In other words, Piazzola indicates the following: (1) college dormitory

residents retain Fourth Amendment protections over their domiciles; (2) college policies and

regulations that allow college personnel to search students’ dormitory rooms constitute the

students’ consent to such searches; and (3) such consent is only valid if: (a) the searches are tied

to the institution’s educational purpose; (b) the dormitory residents are aware of the regulations;

and (c) the searches are not conducted primarily for the purposes of criminal prosecution. See id.

The pleadings before the Court contain no Navarro College policy or regulation allowing

College personnel to conduct warrantless searches of the students’ dormitory rooms. The

Complaint contains no reference to any such policy and neither Arnett nor the College has provided

the Court with evidence of any such policy as an attachment to their respective motions to dismiss.6

Nevertheless, Arnett argues that his warrantless search of Plaintiff’s dormitory without Plaintiff’s

consent did not violate the Fourth Amendment merely because he told Plaintiff any evidence

gathered would not be used in any subsequent criminal prosecution.

The Fifth Circuit has not revisited the question of warrantless dormitory searches since its

decision in Piazzola. Arnett has not identified, nor can the Court find, any case standing for the

proposition that—in the absence of regulations authorizing dormitory searches—university

personnel may escape the requirements of the Fourth Amendment and perform warrantless

searches of students’ dormitories without a warrant by merely informing students stating that any

evidence found will not be used in any subsequent criminal prosecution of the students. Every

6 The Court notes here that its review of a Rule 12(b)(6) motions 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.” Lone Star Fund V (U.S.), 594 F.3d at 387. Thus, had the Complaint referenced any such policy and

Arnett or the College attached evidence of such policy to their respective motions, the Court could properly consider

the policy without converting the motions to dismiss into motions for summary judgment.

pertinent case the Court found addressing warrantless dormitory searches involves, at the very

least, regulations empowering such searches. See, e.g., Medlock v. Trustees of Indiana University,

738 F.3d 867 (7th Cir. 2013) (holding that: (1) plaintiff consented to warrantless search by resident

advisors inspecting for health and safety violations when plaintiff agreed to the university’s

housing policy; and (2) the subsequent search by police officers was supported by a warrant that

was issued after the Court found probable cause once the university’s resident advisors informed

officer they saw marijuana in plaintiff’s dorm room); Wagner v. Holtzapple, 101 F. Supp. 3d 462

(M.D. Pa. 2015) (holding that university students consented in advance to dormitory searches by

agreeing to university housing policy handbook, but that students sufficiently alleged that

university defendants did not comply with contents of the university’s handbook when conducting

the dormitory search at issue); Morale v. Grigel, 422 F. Supp. 988 (D. N.H. 1976) (holding that

college personnel could perform administrative searches of dormitories for health and safety

violations pursuant to college policy because such regulations were tied to educational purpose but

intrusive searches for stolen property violated the Fourth Amendment even though evidence

obtained was only used in internal disciplinary proceedings and not in any subsequent criminal

prosecution of students); Smyth v. Lubbers, 398 F. Supp. 777 (W.D. Mich. 1975) (holding that the

dormitory housing contract to which plaintiff agreed allowed college personnel to enter

dormitories when, inter alia, they have “reasonable cause to believe students are continuing to

violate federal, state, or local laws or College regulations” was unconstitutional even though

evidence obtained was only used for internal disciplinary purposes because college personnel were

searching specifically for evidence plaintiff was violating the law); Devers v. Southern University,

97-0259 (La. App. 1 Cir. 4/8/29); 712 So.2d 199, 204-07 (holding that university policy allowing

police to conduct random sweeps of students’ dormitories was unconstitutional because it was not

tied to university’s educational purpose). Each of these cases analyzed the issue of warrantless

dormitory searches pursuant to a university or college’s housing policy as turning on consent—

that is, courts consider a student’s agreement to dormitory policies allowing university or college

personnel to conduct searches of their dormitory as advanced consent to such searches.

Without a Navarro College policy allowing campus personnel to search College dormitory

rooms, and without any indication that Plaintiff was aware of such policy, the Court cannot

conclude Plaintiff gave advanced consent to a warrantless search of Plaintiff’s dormitory room.7

Moreover, the Court has found no basis for concluding that Arnett’s act of informing Plaintiff that

any evidence gathered from the warrantless search of Plaintiff’s dormitory would not be used in

any subsequent criminal prosecution of Plaintiff makes Arnett’s search of Plaintiff’s dormitory

room lawful.8 As such, the Court must conclude that Plaintiff has adequately alleged Arnett

7 The Court notes, however, that the mere existence of a policy allowing for warrantless searches of the College’s

dormitory rooms may not, on its own, overcome Plaintiff’s Fourth Amendment right to privacy in his dormitory. In

Devers v. Southern University, the First Circuit Court of Appeals of Louisiana explained that, in the context of

eliminating weapons and drugs from the educational environment:

[L]aw enforcement agencies do not have the authority to sweep entire residential areas without a

warrant. This is the very essence of the Fourth Amendment protection.

. . . .

We agree with the court in Morale v. Grigel, 422 F. Supp. 988, that a check of a student's dormitory

room is unreasonable under the Fourth Amendment unless Southern University can show that the

search furthers its functioning as an educational institution. Southern University's housing

regulation, as written, clearly authorizes unconstitutional searches. The search must further an

interest that is separate and distinct from that served by Louisiana's criminal laws. See Morale v.

Grigel, 422 F. Supp. at 998.

We reject Southern University's argument that by agreeing to the provisions of the housing contract,

students consent to the dormitory sweeps. The state, in operating a public school system of higher

education, cannot condition attendance at one of its schools on the student's renunciation of his

constitutional rights. Robinson v. Board of Regents of Eastern Kentucky University, 475 F.2d 707,

709 (6th Cir. 1973).

Devers, 712 So.2d at 206-07.

8 Criminal prosecution notwithstanding, Arnett informed Plaintiff that results of the dormitory search “could be used

against them in a college administrative punishment proceeding.” Here, there is nothing in the pleadings that would

support an administrative search of the dormitory beyond a general desire to eliminate drugs from the educational

environment as discussed in Devers. See Devers, 712 So. 2d at 206–07. In other words, nothing in the pleadings

supports reasonable suspicion or an administrative search of the dormitory for either (1) evidence of a possession

crime or (2) drugs in the educational environment.

violated Plaintiff’s Fourth Amendment right to be free from unreasonable searches based on

Arnett’s search of Plaintiff’s dormitory room without either a search warrant or Plaintiff’s consent.

(b) Whether a Violation of Clearly Established Law Occurred

Having determined Plaintiff has adequately pled his unreasonable search, the Court must

next determine whether Arnett’s conduct—as alleged in Plaintiff’s Complaint—violated a

constitutional right that was clearly established at the time of the incident at issue. Saucier, 533

U.S. at 200-01. As discussed at length above, the Fifth Circuit has explained that “a student who

occupies a college dormitory room enjoys the protections of the Fourth Amendment.” Piazzola,

442 F.2d at 289.

Plaintiff alleges Arnett “acted willfully, deliberately, maliciously, or with reckless

disregard for Plaintiff’s clearly established constitutional rights,” including Plaintiff’s right to be

free from unreasonable searches. (Doc. 1, pgs. 7-8, ¶ 25-27). Based on the facts alleged in the

Complaint, the Court concludes Plaintiff has pled facts with sufficient specificity to “defeat a

qualified immunity defense with equal specificity.” Backe, 691 F.3d at 648. At the time Arnett

searched Plaintiff’s dormitory without either a search warrant or without Plaintiff’s consent, no

reasonable officer could have concluded Plaintiff was not entitled Fourth Amendment protection

as a dormitory resident. See Piazzola, 442 F.2d at 289. Accordingly, Plaintiff has pled sufficient

facts allowing the Court to draw the reasonable inference not only that Arnett is liable for the

conduct alleged but also that Plaintiff can defeat Arnett’s defense of qualified immunity if such

facts are true. See Backe, 691 F.3d at 648. As such, Arnett’s Motion to Dismiss Plaintiff’s Original

Complaint, (Doc. 12), is DENIED IN PART with respect to Plaintiff’s 42 U.S.C. § 1983 claim

that Arnett violated Plaintiff’s Fourth Amendment right to be free from unreasonable searches

based on the search of Plaintiff’s dormitory room.

B. Defendant Navarro College’s Motion to Dismiss is Granted

For the reasons discussed below, the Court grants the College’s Motion. (Doc. 13).

Specifically, the Court grants the motion with respect to Plaintiff’s state-law claim against the

College and dismisses this claim with prejudice. The Court grants Plaintiff’s § 1983 claim against

the College and dismisses this claim without prejudice.

1. State-Law Claims

In the Complaint, Plaintiff asserted a state-law claim for malicious prosecution against the

College. (See Doc. 1, pg. 8, ¶ 29). The College moved to dismiss this claim under the TTCA. (see

Doc. 13, pgs. 32-34). In his response, Plaintiff affirmatively abandoned the claim. (Doc. 20, pg.

20) (“Plaintiff does not intend to pursue his state-law claims against Defendant Navarro College.”).

Because Plaintiff has affirmatively abandoned his state-law claims against the College, the Court

grants the College’s Motion with respect to that state-law claim and dismisses it with prejudice.

Terry Black's Barbecue, 22 F.4th at 459; Kovac, 363 F. Supp. 3d at 747.

2. Section 1983 Claims

The Court now turns to Plaintiff’s claim under 42 U.S.C. § 1983 against the College. As

noted above, to state a claim under § 1983, Plaintiffs must allege: (1) “some person has deprived

him of a federal right” guaranteed by the United States Constitution or federal law; and (2) “the

person who deprived him of that right acted under color of state or territorial law.” Gomez, 446

U.S. at 640 (1980). The existence of a constitutional violation is a “threshold” requirement in any

claim § 1983 claim. Peterson v. City of Fort Worth, 588 F.3d 838, 844 (5th Cir. 2009). “[W]ithout

an underlying constitutional violation, there can be no § 1983 liability[.]” Becerra v. Asher, 105

F.3d 1042, 1047 (5th Cir. 1997) (emphasis in original).

The Supreme Court has explained that a governmental entity—such as a public community

college—may not be held liable under § 1983 “unless action pursuant to official municipal policy

of some nature caused the constitutional tort.” Monell v. New York City Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978) (emphasis added). While governmental entities “can be sued directly under

§ 1983, Monell establishes that they ‘cannot be found liable on a theory of vicarious liability or

respondeat superior.’” Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019) (quoting

Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017) (citing,

in turn, Monell, 436 U.S. at 690-91))). “In other words, ‘the unconstitutional conduct must be

directly attributable to the municipality through some sort of official action or imprimatur; isolated

actions by municipal employees will almost never trigger liability.” Id. (quoting Piotrowski v. City

of Houston, 237 F.3d 567, 578 (5th Cir.2001)). Thus, to assert claim for liability under Monell, a

plaintiff must allege that “(1) an official policy (2) promulgated by the municipal policymaker (3)

was the moving force behind the violation of a constitutional right.” Peterson, 588 F.3d at 847

(citing Piotrowski, 237 F.3d at 578)).

Plaintiff alleges the College violated his Fourth and Fourteenth Amendment rights by using

excessive force. (Doc. 1, pg. 7, ¶ 25). Plaintiff also alleges he was unconstitutionally “detained,

interrogated, searched, assaulted, . . . and maliciously and baselessly prosecuted.” (Doc. 1, pgs. 7-

8, ¶ 25). Plaintiff alleges the College’s “policies and/or customs” violated Plaintiff’s clearly

established rights under the United States Constitution. (Doc. 1, pg. 7, ¶ 25). The Complaint makes

the following allegations relating to the College’s policies and customs:

The exercise of established custom of and/or policy by Defendant Navarro College

violated Plaintiff’s clearly established rights under the U.S. Constitution against the

racial profiling, unlawful detention, illegal search and interrogation, baseless

criminal prosecution, and physical assault against him. (Doc. 1, pg. 7, ¶ 22).

At all times Defendants Arnett and Navarro College were acting under the color of

the laws and regulations of the State of Texas. Defendant Navarro College had a

policy and/or custom in place that enabled its agents and employees to act with

indifference to the constitutional rights of individuals. Such policies and/or customs

included tolerating misconduct by police officers and encouraging misconduct by

failing to adequately supervise, discipline, or train such officers. Such policies

and/or customs include the use of excessive force, false arrests and fictious charges,

retaliation against citizens who complain of improper police conduct, racial

profiling, discrimination based on race and abuse of proper police and prosecutorial

standards.

(Doc. 1, pg. 7, ¶¶ 22-23). Thus, Plaintiff bases his Monell claim against the College on theories of:

(1) policy liability; (2) failure to train or supervise; and (3) ratification. While Plaintiff “need not

provide proof of [these] allegations at this stage, he must still plead facts that plausibly support”

each element of a Monell claim under any of these theories. Peña v. City of Rio Grande City, 879

F.3d 613, 621 (5th Cir. 2018). For the reasons discussed below, Plaintiff’s Complaint fails to do

so and, as such, the Court concludes Plaintiff’s 42 U.S.C.§ 1983 claim against the College must

be dismissed.

(i) Constitutional Violations

Plaintiff’s Complaint asserts four constitutional claims: (1) excessive force; (2) malicious

prosecution; (3) unreasonable seizure by way of illegal detention; and (4) unreasonable search.

(Doc. 1, pgs. 7-8, ¶¶ 25-26). Additionally, the Complaint makes vague reference to a retaliation

claim under the First Amendment and an equal protection claim under the Fourteenth Amendment.

(see Doc. 1, pg. 7, ¶ 23).

As with the excessive force claim against Arnett, Plaintiff has affirmatively abandoned his

excessive force against the College. (Doc. 20, pg. 10) (“Plaintiff does not intend to pursue his

claim for excessive force against Defendant Navarro College). Plaintiff has also abandoned his

malicious prosecution claim and his Fourteenth Amendment equal protection claim—to the extent

he attempted to assert it—against the College by virtue of his failure to respond to the College’s

arguments as to those claims in its motion to dismiss. See In re Dallas Roadster, Ltd., 846 F.3d at

126; Black, 461 F.3d at 588 n.1. Finally, aside from Plaintiff’s vague reference to a policy of

“retaliation against citizens who complain of improper police conduct,” Plaintiff makes no factual

allegations whatsoever to supporting any potential First Amendment retaliation claim. Thus,

Plaintiff’s Monell claim against the College cannot be predicated on a claim of excessive force,

malicious prosecution, equal protection, or retaliation. See Peterson, 588 F.3d at 844; Becerra,

105 F.3d at 1047.

As detailed above, the Court concludes Plaintiff has plausibly alleged Arnett violated

Plaintiff’s Fourth Amendment right to be free from unreasonable searches and seizures. See supra

Section III.A.2(i)-(ii). Thus, these claims could potentially underpin a § 1983 claim against the

College. However, for the reasons discussed below, the Court concludes Plaintiff has failed to state

a § 1983 claim against the College because the Compliant does not plead facts which—if true—

would establish that such violations were the result of: (1) an unconstitutional policy or custom;

(2) a constitutionally inadequate policy for the training or supervision of Navarro College

Department of Public Safety (“NCDPS”) officers; or (3) the College’s ratification of

unconstitutional practices.

(ii) Plaintiff’s Policy Liability Theory

Plaintiff has failed to state a § 1983 claim against the College under a theory of policy

liability. The Fifth Circuit has explained that, for the purposes of § 1983, an official policy is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted

and promulgated by the [governmental entity’s] lawmaking officers or by an

official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of [the entity’s] officials or employees, which,

although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents [entity]

policy. Actual or constructive knowledge of such custom must be attributable to the

governing body of the municipality or to an official to whom that body had

delegated policy-making authority. Actions of officers or employees do not render

the municipality liable under § 1983 unless they execute official policy as above

defined.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam), on reh’g, 739 F.2d

993 (5th Cir. 1984) (en banc). Thus, to state a claim a § 1983 against a governmental entity based

on a theory of policy liability, a plaintiff must plead sufficient facts that—if true—establish that

the “challenged policy [or custom] was promulgated or ratified” by the governmental entity’s final

policymaker. Groden v. City of Dallas, 826 F.3d 280, 285 (5th Cir. 2016).

Pleadings asserting a policy liability claim under § 1983 are sufficient “when they make

specific factual allegations that allow a court to reasonably infer that a policy or practice exists and

that the alleged policy or practice was the moving force” behind the alleged constitutional

violation. Balle v. Nueces County, 962 F.3d 552, 559 (5th Cir. 2017) (citation omitted). To survive

a motion to dismiss, a complaint’s “description of a policy or custom and its relationship to the

underlying constitutional violation . . . cannot be conclusory; it must contain specific facts.” Spiller

v. City of Texas City, Police Dep’t., 130 F.3d 162, 167 (5th Cir. 1997) (citations omitted). An

action asserting municipal policy liability under § 1983 cannot “proceed past the pleadings stage”

if the complaint does not meet the requirements set forth in Spiller. Peña, 879 F.3d at 622 (citing

Spiller, 130 F.3d at 167). Here, Plaintiff has neither identified a “policy statement, ordinance,

regulation, or decision” of the College nor a “persistent, widespread practice” that is so pervasive

at the College “as to as to constitute a custom that fairly represents [official] policy” and therefore

fails to state a § 1983 claim against the College. Webster, 735 F.3d at 841.

As an initial matter, the Complaint does not make any factual allegations regarding a

written policy statement, ordinance, or decision regarding the search and seizure of College

students that is allegedly unconstitutional. As such, to state a § 1983 claim against the College

under a theory of policy liability for the constitutional violations Plaintiff has plausibly alleged,

the Complaint must contain facts that—if true—establish “‘a persistent, widespread practice of

[College] officials or employees which, although not authorized is so common and well-

established as to fairly represent [College] policy.” Piotrowski, 237 F.3d at 579 (quoting Webster,

735 F.2d at 841).

Just as merely alleging, in a conclusory manner, that official written policy exists will not

do, “[t]he description of . . . custom and its relationship to the underlying constitutional violation

. . . cannot be conclusory; it must contain specific facts.” Spiller, 130 F.3d at 167. “Actual or

constructive knowledge of such a custom” must be attributable to the final policymaker of a

governmental entity or to “an official to whom that [policymaker] has delegated policy-making

authority” Webster, 735 F.2d at 841. Plaintiff neither pleads specific facts describing a widespread,

persistent practice of unconstitutional searches and seizures nor any facts whatsoever establishing

that College policymakers had any knowledge—either actual or constructive—of those supposed

customs.

Aside from Plaintiff’s conclusory allegations—excerpted above—that the College has a

policy and/or custom of unlawful detentions and illegal searches, the only specific facts in the

Complaint relating to unreasonable searches and seizures are those describing Arnett’s detention

of Plaintiff and search of Plaintiff’s person and dormitory room. In Peña v. City of Rio Grande

City, the Fifth Circuit explained that:

[To plausibly] plead a practice “so persistent and widespread as to practically have

the force of law,” [Connick v. Thompson, 563 U.S. 51, 61 (2011)], a plaintiff must

do more than describe the incident that gave rise to his injury. In Spiller, 130 F.3d

at 167, we rejected, as “vague and conclusory,” a claim by a black motorist, arrested

without probable cause, that his arrest resulted from the police department's general

policy of “disregard[ing] ... the rights of African American citizens” and of

“engag[ing] [African Americans] without regard to probable cause to arrest.”

Though Peña characterizes the relevant policy with greater particularity, her

allegations are equally conclusional and utterly devoid of “factual enhancements.”

Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 557, 127 S.Ct.

1955).

Peña 879 F.3d at 622 (first and second alterations added). As in Spiller and Peña, Plaintiff does

not plead any specific facts describing an allegedly unconstitutional custom or practice other than

the facts of the interaction between Plaintiff and Arnett on March 28, 2020. The Complaint

contains no facts whatsoever relating to any other instances of allegedly unconstitutional searches

and seizures by College officials or employees. While Plaintiff alleges that Arnett has a “history

of targeting and harassing African[-]American male students at Navarro College for accusations,

arrests, searches, and/or detentions,” Plaintiff’s conclusory allegation—without any factual

support—is insufficient to establish the existence of a custom or practice of unreasonable searches

and seizures. Compare Spiller, 130 F.3d at 167 (vague and conclusory allegation about police

department targeting African-Americans and disregarding their rights was insufficient to plead a

custom or practice) with Harvey v. Montgomery County, 881 F. Supp. 2d 785, 798 (S.D. Tex.

2012) (allegations describing several specific incidents of excessive force and asserting that there

had been hundreds of complaints against the police department for excessive force and unlawful

detentions in a ten-year span were sufficient to plead a custom or practice). As the Fifth Circuit

explained in Webster:

If actions of [governmental] employees are to be used to prove a custom for which

the [governmental entity] is liable, those actions 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, and accepted,

practice of [government] employees.”

Webster, 735, F.2d at 842. Plaintiff’s facts, as alleged in his Complaint, describing the encounter

between Plaintiff and Arnett at issue in this case does not suffice to identify a “persistent,

widespread practice” that is “so common and well settled as to constitution a custom that fairly

represents [College] policy.” Piotrowski, 237 F.3d at 579 (citations omitted).

Courts in this circuit have routinely dismissed Monell policy liability claims based on the

failure to identify a pattern of unconstitutional behavior similar to the incident giving rise to the

claim. See, e.g., Peña, 879 F.3d at 623 (affirming dismissal of pleadings that failed to identify a

pattern of tasing non-suspect minors); Spiller, 130 F.3d at 167 (affirming dismissal of pleading

that failed to identify a pattern of unlawful arrests); Self v. City of Mansfield, 369 F. Supp. 3d 684,

702-03 (N.D. Tex. 2019) (dismissing complaint that, inter alia, failed to plausibly allege a “pattern

of repeated constitutional violations” or “persistent, repeated, and constant violations rights by

virtue of [an] alleged failure to train”); Harvey, 881 F. Supp. 2d at 798 (dismissing First

Amendment claims for failure to allege a pattern of similar violations); Monacelli v. City of Dallas,

No. 3:21-cv-2640-L, 2022 WL 4668054, *6-8 (N.D. Tex. Sep. 30, 2022) (dismissing complaint

after finding, inter alia, no alleged pattern of police officers using excessive force against peaceful

protestors and journalists aside from two incidents, separated by two years); Pinedo v. City of

Dallas, No. 3:14-cv-958-D, 2015 WL 5021393, at *5 (“To establish a custom, a plaintiff must

demonstrate (and, at the pleading stage, must plausibly plead) ‘a pattern of abuses that transcends

the error made in a single case.’”) (quoting Piotrowski, 237 F.3d at 582). Like the courts in those

cases, the Court concludes Plaintiff’s Complaint does not plausibly allege a custom or practice of

constitutional violations because Plaintiff does not plead any facts beyond the incident giving rise

to this suit.

Plaintiff’s Complaint also fails § 1983’s “policymaker prong.” As the Fifth Circuit

explained in Peña:

In Groden v. City of Dallas, 826 F.3d 280, 286 (5th Cir. 2016), we clarified that,

because the identity of the policymaker is a legal question, courts should not “grant

motions to dismiss for failing to plead [a] specific identity.” Rather, “the complaint

need only allege facts that show an official policy, promulgated or ratified by the

policymaker, under which the municipality is said to be liable.” Id. at 284. The

plaintiff in Groden carried his burden of connecting the policy to the city council

by alleging that the city “publicly announced” the policy and that its “spokesman”

gave “media interviews describing the new policy.” Id. at 286.

A city cannot be liable for an unwritten custom unless “[a]ctual or constructive

knowledge of such custom” is attributable to a city policymaker. [Hicks-Fields v.

Harris County, 860 F.3d 803, 808 (5th Cir. 2017)]. Peña's complaint invites no

more than speculation that any particular policymaker, be it the chief of police or

the city commission, knew about the alleged custom. Without more, her allegation

fails the second prong of § 1983 as well.

Peña, 879 F.3d at 622-23. Under Texas law, the final policymaker for a Texas community college

is its board of trustees. See generally TEX. EDUC. CODE §§ 130.082, 130.084; Saenz v. Dallas

County Cmty. Coll. Dist., No. 3:10-cv-742-O, 2011 WL 1935742, at *4 *N.D. Tex. May 16, 2011).

Thus, to state a § 1983 claim against the College, Plaintiff must plead facts that—if true—

sufficiently connect the College’s board of trustees, or an official to whom the board of trustees

delegated relevant policy-making authority, to the allegedly unconstitutional practices of illegal

searches and seizures by NCDPS officers for the Court to conclude that the policymakers had

actual or constructive knowledge of such practices. Webster, 735 F.2d at 841. As with the

complaint in Peña, Plaintiff’s Complaint invites no more than mere speculation that any

policymaker had knowledge—be it actual or constructive—of the alleged practices. Without more,

Plaintiff’s allegations fail the “policymaker” prong of § 1983. Thus, the Court must conclude

Plaintiff has failed to state a § 1983 claim against the College based on a policy liability theory.

(iii) Plaintiff’s Failure to Train or Supervise Theory

The Court next turns to Plaintiff’s failure to train or supervise theory. The failure to train

or supervise government employees “may fairly be said to represent a policy for which [a

governmental entity] is responsible, and for which [the entity] may be liable if it actually causes

injury.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). However, a governmental entity’s

failure to train or supervise its employees regarding their obligation to respect constitutional rights

only constitutes an “official policy” if it “amounts to deliberate indifference.” Id. at 388;

Culbertson v. Lykos, 790 F.3d 608, 625 (5th Cir. 2015); Madden v. Gribbon, No. 3:21-CV-1168-

S, 2022 WL 4360558, at *5 (N.D. Tex. Sept. 20, 2022).

“Defects in the particular training [or supervision] program must be specifically alleged.”

Quinn v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017) (citing Roberts v. City of Shreveport, 397

F.3d 287, 293 (5th Cir. 2005)). The training or supervision inadequacies must be “closely related

to the [constitutional] injury” underpinning the Monell claim. Pineda v. City of Houston, 291 F.3d

325, 332 (5th Cir. 2002). The deliberate indifference standard is not satisfied by showing

negligence or even gross negligence. Instead, it is a “stringent standard, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” Valle v. City of

Houston, 613 F.3d 536, 547 (5th Cir. 2010). Generally, just as with establishing a custom or

practice, establishing deliberate indifference “requires a showing ‘of more than a single instance

of the lack of training or supervision causing a violation of constitutional rights.” Burge v. St.

Tammany Parish, 336 F.3d 363, 390 (5th Cir. 2003) (quoting Thompson, 245 F.3d at 459). “Rather,

deliberate indifference generally requires that a plaintiff demonstrate at least a pattern of similar

violations” that are “so clearly inadequate as to be obviously likely to result in a constitutional

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

The Court concludes Plaintiff has failed to plausibly allege a § 1983 claim against the

College based on a failure to train or supervise theory for much the same reason that Plaintiff has

failed to state a claim based on a policy liability theory—Plaintiff has not pled facts establishing a

pattern of similar violations to support the conclusory allegations in Plaintiff’s Complaint. Plaintiff

only alleges that the College’s “policies and/or customs included tolerating misconduct by police

officer and encouraging misconduct by failing to adequately supervise, discipline, or train such

officers.” (Doc. 1, pg. 7, ¶ 23). This allegation is entirely conclusory and is supported neither by

any facts describing the training or supervision of NCDPS officers nor any assertion of how such

training or supervision is closely related to the alleged violation of Plaintiff’s Fourth Amendment

rights. Thus, Plaintiff fails to state a § 1983 claim against the College under a failure to train or

supervise theory.

Plaintiff also adduces no facts which, if true, would establish a pattern of alleged violations

of the constitutional rights of the College’s students to be free from unreasonable searches and

seizures. While—in narrow circumstances—“a single incident with proof of the possibility of

recurring situations that present an obvious potential for violation of constitutional rights,” may

support a finding of deliberate indifference, that narrow exception does not apply here. Garza v.

City of Conna, 922 F.3d 626, 637-38 (5th Cir. 2019) (internal quotations omitted); see Little v.

Houston Indep. Sch. Dist., 894 F.3d 616, 627 (5th Cir. 2018) (“Without a pattern of constitutional

violations, deliberate indifference can be inferred only in narrow and extreme circumstances.”).

The narrow “single-incident exception” is “generally reserved for those cases in which the

government actor was provided no training whatsoever.” Peña, 879 F.3d at 624 (citing Brown v.

Bryan County, 219 F.3d 450, 453-54, 462 (5th Cir. 2000)). However, Plaintiff makes no allegation

that Arnett was not trained whatsoever in how not to violate students’ Fourth Amendment rights.

As such, the incident giving rise to this suit—the encounter between Plaintiff and Arnett—cannot

form the basis for concluding that the College either consciously chose, or was deliberately

indifferent to, an inadequate policy of training and supervision with respect to unreasonable

searches and seizures by NCDPS officers. Accordingly, the Court must conclude Plaintiff has

failed to state a facially plausible claim that the College is liable under § 1983 on a failure to train

or supervise theory.

(iv) Plaintiff’s Ratification Theory

The Court next turns to Plaintiff’s ratification theory. A governmental entity can be liable

for a constitutional violation via ratification “[i]f the authorized policymakers approve a

subordinate’s decision and the basis for it[.]” City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988). In Peterson v. City of Fort Worth, a case in which a police chief determined that a police

officer’s knee strike to a handcuffed person complied with department policy, the Fifth Circuit

discussed the limits of the ratification theory. 588 F.3d at 848. There, the Fifth Circuit found—

while the knee strike amounted to the use of excessive force—the chief’s approval of the strike

did not amount to ratification for the purposes of imposing § 1983 liability on the city because:

[O]ur precedent has limited the theory of ratification to “extreme factual

situations.” See Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.1998). Under that

precedent, we cannot say that this case presents an extreme factual situation.

Compare Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985) (finding

ratification in case in which officers “poured” gunfire onto a truck and killed

innocent occupant), with Snyder, 142 F.3d at 798 (refusing to find ratification in

case in which officer shot fleeing suspect in the back). Moreover, we have also

explained that a policymaker who defends conduct that is later shown to be

unlawful does not necessarily incur liability on behalf of the municipality. See Coon

v. Ledbetter, 780 F.2d 1158, 1161–62 (5th Cir.1986) (precedent “does not stand for

the broad proposition that if a policymaker defends his subordinates and if those

subordinates are later found to have broken the law, then the illegal behavior can

be assumed to have resulted from an official policy”). Our precedent thus forecloses

ratification liability in this case.

Id. Plaintiff’s ratification theory fails for two reasons: (1) Plaintiff has not plead facts establishing

that the College ratified either Arnett’s previous allegedly unconstitutional behavior or Arnett’s

behavior at issue in this case; and (2) even if Plaintiff did plead facts establishing that the College

ratified Arnett’s behavior in this case, Arnett’s behavior does not amount to the sort of “extreme

factual situation” contemplated by the Fifth Circuit.

With respect to Plaintiff’s allegation that the College promoted Arnett despite having

knowledge of his “history of targeting and harassing African[-]American male students,” Plaintiff

pleads no facts establishing any previous constitutional violations by Arnett. Moreover, even if

Plaintiff’s Complaint did include such facts, the Complaint does not include any facts establishing

that any policymaker—whether the College’s board of trustees or an official to whom the

College’s board delegated relevant policymaking authority—ever approved of unconstitutional

conduct by Arnett and the basis for that conduct. Accordingly, Plaintiff’s allegations regarding

Arnett’s alleged history of past constitutional violations cannot underpin Plaintiff’s ratification

theory.

Moreover, the constitutional violations that the Court has concluded Plaintiff adequately

alleged in his Complaint also cannot underpin Plaintiff’s ratification theory because the Complaint

contains no facts regarding the College’s response to Arnett’s actions that are at issue here. While

a policymaker’s silence on unconstitutional conduct can amount to ratification, such conduct must

constitute extreme “incompetence and catastrophic performance[.]” Grandstaff, 767 F.2d at 171.

Plaintiff pleads no such facts to establish that a College policymaker ratified Arnett’s conduct at

issue in this case. Fifth Circuit case law makes clear the Court cannot conclude Arnett’s conduct

constitutes the sort of “extreme factual situation” required for the College’s silence to amount to

ratification. See Peterson, 588 F.3d at 848; Snyder, 142 F.3d at 798; Grandstaff, 767 F.2d at 161.

As such, the Court must conclude Plaintiff has failed to state a § 1983 claim against the College

based on a theory of ratification.

In sum, taking all non-conclusory facts as true and drawing all reasonable inferences in

favor of Plaintiff, as the Court is required to do at this stage, the Court concludes the Complaint

has failed to plausibly allege facts from which the Court can infer the College is liable for the

constitutional violations Plaintiff has adequately alleged. Plaintiff has also failed to adequately

plead: (1) the College has a policy, custom, or practice of unreasonable searches and seizures; and

(2) the College has a constitutionally inadequate training and supervision program that led to the

unreasonable search and seizure violations alleged by Plaintiff; or (3) the College has ratified

Arnett’s allegedly unconstitutional behavior. As such, the Court must conclude Plaintiff has failed

to state a facially plausible claim that the College is liable under § 1983. For these reasons, the

Court grants the College’s Motion, (Doc. 13), with respect to Plaintiff’s § 1983 claim and

dismisses that claim without prejudice.

IV. CONCLUSION

For the foregoing reasons, the Court (1) grants in part and denies in part Defendant Arnett’s

Motion to Dismiss Plaintiff’s Original Complaint, (Doc. 12), and (2) grants Defendant Navarro

College’s Motion to Dismiss Plaintiff’s Original Complaint, (Doc. 13). Specifically, the Court

grants in part Arnett’s Motion with respect to Plaintiff’s state-law claims against Arnett for: (1)

malicious prosecution; (2) assault and battery; (3) false imprisonment; and (4) intrusion on

seclusion. These claims are hereby dismissed with prejudice. The Court denies in part Plaintiff’s

§ 1983 claim against Arnett for the alleged violation of Plaintiff’s Fourth Amendment right to be

free from unreasonable searches and seizures. The Court grants the College’s Motion with respect

to Plaintiff’s state-law claim of malicious prosecution claim against the College. This claim is

dismissed with prejudice. Finally, the Court grants the College’s Motion with respect to Plaintiff’s

§ 1983 claim against the College. This claim is dismissed without prejudice.

SO ORDERED: May 10, 2023.