Kelson v. City of Dallas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER KELSON, §

DAKOTA KELSON, RYLIE KIMBRELL, §

AND ESTATE OF §

HIRSCHELL FLETCHER, JR., §

§

Plaintiffs, §

§

v. § Civil Action No. 3:18-CV-03308-E

§

CITY OF DALLAS, §

a Municipal Corporation, §

OFFICER GEORGE MORALES, §

OFFICER CHRISTOPHER TODD, §

OFFICER NICHOLAS MORRIS, §

OFFICER JAMES HERNANDEZ, and §

DSO WARREN, each in their §

individual capacities §

§

Defendants. §

ORDER AND MEMORANDUM OPINION

Plaintiffs Christopher Kelson, Dakota Kelson, Rylie Kimbrell, and the Estate of Hirschell

Fletcher, Junior (referred as “Kelson”) filed this suit against Defendants City of Dallas (the “City”)

and Officers George Morales, Christopher Todd, Nicholas Morris (referred as “DPD Officers”),

and James Hernandez and DSO Warren (referred as “CDC Officers”) in their individual capacities

(all collectively “Defendants”) under 42 U.S.C. § 1983. Specifically, Kelson asserts claims for (1)

false arrest, (2) denial of medical treatment, (3) failure to treat, (4) Monell1 policy and custom, and

(5) wrongful death. On August 4, 2020, Defendants filed a Motion for Summary Judgment, (ECF

No. 111), seeking dismissal of all claims against them under the doctrine of qualified immunity.2

1 See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

2 Kelson’s failure to treat claim is against the DFR Paramedics, who are not parties to this Motion, and thus, the

Motion is not seeking dismissal of this claim.

Having carefully considered the parties’ briefing; appendices; and the applicable law, for reasons

that follow, the Court hereby GRANTS the Defendants Motion, thereby dismissing all of

Plaintiff’s claims against Defendants.

I. BACKGROUND

This case arises out of the arrest of Hirschell Fletcher, Junior (“Fletcher”) in the early

evening hours of December 30, 2016. At approximately 5:30 p.m. on December 30, 2016, Fletcher

was assaulted twice outside the Stewpot—a daytime shelter for the homeless in Dallas, Texas.

(ECF No. 34 at 5-6). Both of these assaults and the events leading up to the assaults were captured

on the Stewpot’s external surveillance cameras. (ECF No. 114, Exs. 1-A, 1-B). After the first

assault, Fletcher fled the scene but returned shortly thereafter where he was then assaulted again.

(ECF No. 34 at 6). During this second assault, Fletcher was punched in the head, causing him to

fall and hit his head. (ECF No. 34 at 6). He fell to the sidewalk where he lay motionless for close

to an hour without receiving help from anyone. (ECF No. 114, Exs. 1-B at 2:20-39:30, 1-C at 2:30-

52:30).

DPD Officer George Morales (“Morales”) was driving a marked police car on routine

patrol at approximately 7:40 that evening. (ECF No. 111 at 3). As he drove by the Stewpot shortly

after the second assault on Fletcher, a bystander flagged him down. (ECF No. 34 at 6). Morales

approached Fletcher, and as alleged, he noticed a wound on Fletcher’s head and that Fletcher’s

pants were covered in feces from the waist down. (ECF No. 111 at 4). After speaking with Fletcher

for a moment, Morales nudged Fletcher awake, and pointed toward the end of the street. (ECF No.

114, Ex. 1-C at 55:11-55:54). At this time, Morales called two other DPD Officers—Todd and

Morris—as well as DFR Paramedics—Clark and Cox—to the scene. (ECF No. 34 at 6). It is

undisputed that Fletcher had a wound on the back of his head. (ECF No. 34 at 6; ECF No. 111 at

3-4). As heard in DPD Officer Morris’s bodycam video, one of the officers’ states “that is a pretty

big bump” when examining Fletcher’s head. (ECF No. 114, Ex. 1-D at 1:30). However, it is

disputed whether Fletcher made statements to the DPD Officers and DFR Paramedics that he hurt

his head and needed medical attention, and whether he stated that he had been drinking beer. (ECF

No. 34 at 6; ECF No. 111 at 5). It is also disputed whether Fletcher had slurred speech, bloodshot

eyes, and breath smelling of alcohol. (ECF No. 111 at 4).

All DPD Officers and DFR Paramedics assumed Fletcher to be drunk, although the

reasoning behind this conclusion is disputed. (ECF No. 34 at 6; ECF No. 111 at 3-5). The DPD

Officers and DFR Paramedics congregated around Fletcher for approximately 10 minutes, asking

him a series of questions. (ECF No. 34 at 6; ECF No. 120, Exs. 1-B, 1-C; ECF No. 114, Ex. 1-D).

Fletcher’s answers are somewhat obscured, but when the sound is clear, Fletcher’s words are

slurred and difficult to make out. (ECF No. 120, Exs. 1-B, 1-C; ECF No. 114, Ex. 1-D). Officer

Morris’s body camera and the in-car cameras both depict the DPD Officers and DFR Paramedics

laughing and joking throughout the examination and arrest. (ECF No. 120, Exs. 1-B, 1-C; ECF

No. 114, Ex. 1-D).

Thereafter, Fletcher was arrested for public intoxication and taken to the Detention Facility

at around 8:00 p.m. on December 30, 2016. (ECF No. 34 at 7). It is once again disputed whether

Fletcher made statements that his head hurt, and whether he requested medical attention while in

transit. (ECF No. 34 at 7; ECF No. 111 at 5). Defendants Morales, Todd, Morris, and another

officer, Harry Bradfield, booked Fletcher in the Detention Facility. (ECF No. 34 at 7). As alleged,

Fletcher stated to Bradfield that he was mentally ill and/or mentally retarded. (ECF No. 34 at 8).

Fletcher spent much of the time at the Detention Center lying unresponsive underneath a

mattress in the cell. (ECF No. 34 at 8). As alleged, the CDC Officers intermittently walked by the

cells—including Fletcher’s—without actually checking on the physical condition of the detainees.

(ECF No. 34 at 8). At 5:00 a.m. on December 31, 2016, Fletcher was found unresponsive in his

cell at the Detention Facility. (ECF No. 34 at 8). He was then rushed to the hospital, where he died

later that evening. (ECF No. 34 at 8).

On August 2, 2019, Kelson filed his Second Amended Complaint, asserting five counts

under 42 U.S.C. § 1983: (1) false arrest against the DPD Officers in their individual capacities; (2)

denial of medical treatment against both the DPD Officers and the CDC Officers, both in their

individual capacities; (3) failure to treat against the DFR Paramedics; (4) Monell liability against

the City of Dallas; and (5) wrongful death against all defendants. (ECF No. 34). On August 4,

2020, Defendants City of Dallas, James Hernandez, George Morales, Nicholas Morris, Christopher

Todd, and DSO Warren filed their Motion for Summary Judgment to dismiss Kelson’s claims on

the grounds of qualified immunity. (ECF No. 111). The Individual Defendants filed their Brief in

Support of the Motion for Summary Judgment, (ECF No. 112), and the City of Dallas filed their

Brief in Support, (ECF No. 115-1). Additionally, the Defendants filed an Appendix to their Motion

for Summary Judgment. (ECF No. 114). Plaintiffs responded to Defendants’ Motion for Summary

Judgment on August 25, 2020. (ECF No. 117). Plaintiffs filed their Brief in Support in Response

to the Individual Defendants, (ECF No. 119), and their Brief in Support in Response to the City,

(ECF No. 118). Additionally, Plaintiffs filed an Appendix to their Response to the Motion for

Summary Judgment. (ECF No. 12). On September 16, 2020, the Individual Defendants filed a

reply, (ECF No. 125), along with the City of Dallas, (ECF No. 124). Thus, the Motion has been

fully briefed and is ripe for determination.

II. LEGAL STANDARD

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to summary judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A dispute of a material fact is “genuine”

if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.

Anderson, 477 U.S. at 248. The moving party bears the burden of showing that summary judgment

is appropriate. Celotex Corp., 477 U.S. at 323. The moving party meets its burden by informing

the Court of the basis of its motion and by identifying the portions of the record which reveal there

are no genuine material fact issues. FED. R. CIV. P. 56; Celotex Corp., 477 U.S. at 323.

When reviewing the evidence on a motion for summary judgment, the Court must decide

all reasonable doubts and inferences in the light most favorable to the non-movant. See Matsushita

Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The Court cannot make a credibility

determination in light of conflicting evidence or competing inference. Anderson, 477 U.S. at 255.

As long as there appears to be some support for the disputed allegations such that “reasonable

minds could differ as to the import of the evidence,” the motion for summary judgment must be

denied. Anderson, 477 U.S at 250.

B. Qualified Immunity

Under 42 U.S.C. § 1983, private citizens may sue public officials for violations of their

federal statutory or constitutional rights. See Monroe v. Pape, 365 U.S. 167, 1717 (1961).

However, public officials are shielded from civil liability under § 1983 under the doctrine of

qualified immunity “so long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577

U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “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) (internal quotation marks

omitted).

The affirmative defense of qualified immunity has two prongs: (1) whether an official’s

conduct violated a statutory or constitutional right of the plaintiff, and (2) whether the right was

“clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200-01 (2001),

overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). 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).

The “clearly establish[ed]” prong of the qualified immunity analysis “‘is better understood

as two separate inquiries: [(1)] whether the allegedly violated constitutional rights were clearly

established at the time of the incident; and, if so, [(2)] whether the conduct of the defendants was

objectively unreasonable in light of that then clearly established law.’” Tarver v. City of Edna, 410

F.3d 745, 750 (5th Cir. 2005) (quoting Felton v. Polles, 315 F.3d 470, 477 (5th Cir. 2002)). “For

a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Turner v. Lieutenant

Driver, 848 F.3d 678, 685 (5th Cir. 2017) (alteration in original) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). “For conduct to be objectively unreasonable in light of clearly

established law, there need not be a case directly on point, but ‘existing precedent must have placed

the statutory or constitutional question beyond debate.’” Tucker v. City of Shreveport, 998 F.3d

165 (5th Cir.) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)), cert. denied sub nom. Tucker v.

City of Shreveport, Louisiana, 211 L. Ed. 2d 388, 142 S. Ct. 419 (2021). “Thus, when considering

whether a defendant is entitled to qualified immunity, [] court[s] ‘must ask whether the law so

clearly and unambiguously prohibited his conduct that every reasonable official would understand

that what he is doing violates [the law].” Turner, 848 F.3d at 685-86 (emphasis and third alteration

in original) (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)). “To answer

that question in the affirmative, [a court] must be able to point to controlling authority—or a

‘robust consensus of persuasive authority’—that defines the contours of the right question with a

high degree of particularity.” Morgan, 659 F.3d at 371-72.

An officer’s invocation of the qualified immunity defense “alters the usual summary

judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010); see also

Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). Where, as here, a defendant has properly

asserted qualified immunity, “the plaintiff has the burden of negating the application of the

doctrine.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016). The plaintiff must “rebut the

defense by establishing that the official’s allegedly wrongful conduct clearly violated clearly

established law and that genuine issues of material fact exist regarding the reasonableness of the

official’s conduct.” Gates v. Texas Dep’t. of Protective and Regul. Servs., 537 U.S. 404, 419 (5th

Cir. 2008).

While the invocation of qualified immunity alters the typical burden of proof, the Fifth

Circuit has explained that:

At the summary judgment stage . . . all inferences are still drawn in the plaintiff's

favor. [Brown, 623 F.3d] at 253. This is true “even when ... a court decides only the

clearly-established prong of the [qualified immunity] standard.” Tolan v. Cotton,

572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). Likewise, “under

either [qualified immunity] prong, courts may not resolve genuine disputes of fact

in favor of the party seeking summary judgment.” Id. at 656, 134 S.Ct. 1861.

“Accordingly, courts must take care not to define a case's ‘context’ in a manner that

imports genuinely disputed factual propositions.” Id. at 657, 134 S.Ct. 1861; see,

e.g., Tarver, 410 F.3d at 754 (dismissal at summary judgment phase inappropriate

because determining whether officer's conduct was objectively unreasonable in

light of clearly established law required factfinding and credibility assessments).

Tucker, 998 F.3d at 173. While a plaintiff’s version of the facts is generally accepted as true in a

motion for summary judgment based on qualified immunity, a “narrow exception” to this approach

exists where “video evidence undeniably contradicts the plaintiff’s version of the facts such that

no reasonable jury could believe it.” Chacon v. Copeland, 577 F. App’x 355, 358 (5th Cir. 2014)

(citing Scott v. Harris, 550 U.S. 372, 380 (2007)). When such video evidence exists, the Fifth

Circuit has said that courts “need not rely on the plaintiff’s description of the facts . . . but instead

consider ‘the facts in the light depicted by the videotape.’” Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011) (quoting Scott, 550 U.S. at 381).

Finally, whether every reasonable officer would consider a defendant’s conduct to violate

clearly established law is an “objective (albeit fact-specific) question.” Creighton, 483 U.S. at 641.

Thus, “[w]hen evaluating a qualified immunity defense, [courts] ‘consider[] only the facts that

were knowable to the defendant officers.’” Tucker, 998 F.3d at 173 (quoting White, 580 U.S. at

77). Accordingly, a defendant’s subjective state of mind has no bearing on whether he or she is

entitled to qualified immunity. Creighton, 483 U.S. at 641.

III. ANALYSIS

Kelson asserts five counts of constitutional violations under 42 U.S.C. § 1983. First, Kelson

asserts a claim of false arrest under the Fourth and Fourteenth Amendments against the DPD

Officers: Morales, Todd, and Morris, in their individual capacities. Second, Kelson asserts a claim

of denial medical treatment under both the Eighth and Fourteenth Amendments against the DPD

Officers: Morales, Todd, and Morris; and the CDC Officers: Hernandez and Warren. Third, Kelson

asserts a claim of failure to treat against the DFR Paramedics: Cox and Clark. They are not a party

to the motion for summary judgment, and thus this claim will not be addressed. Fourth, Kelson

asserts a Monell claim against the City of Dallas. Fifth, Kelson asserts a wrongful death claim

against all defendants. This claim was abandoned at the motion to dismiss stage—thus it will not

be addressed. The Court will first address Kelson’s false arrest claim.

A. Count One—False Arrest

Kelson asserts a false arrest claim against the DPD Officers under both the Fourth and

Fourteenth Amendments. Kelson’s argument under the Fourteenth Amendment fails as a matter

of law because “[w]here a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that Amendment, not

the mere generalized notion of substantive due process, must be the guide for analyzing such a

claim.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (citation and quotation marks omitted). “We

do hold that substantive due process, with its scarce and open-ended guideposts, can afford him

no relief.” Albright, 510 U.S. at 273 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).

Thus, we need only address Kelson’s false arrest claim under the Fourth Amendment.

The DPD Officers argue that they are entitled to qualified immunity on Kelson’s false

arrest claim because Kelson failed to establish or raise a genuine dispute that the DPD Officers

lacked probable cause (or arguable probable cause) to arrest Fletcher for public intoxication. (ECF

No. 112 at 13). The Court agrees and concludes that the DPD Officers are entitled to qualified

immunity on the false arrest claim as both prongs of the affirmative defense of qualified immunity

fail: (1) their conduct did not violate a constitutional right of Kelson’s, (2) nor was such right

clearly established at the time of the alleged violation. The Court will discuss both prongs,

beginning with the constitutional violation analysis.

1. Constitutional Violation

Individuals possess a “Fourth Amendment right to be free from false arrest.” Dent v.

Methodist Health Sys., No. 3:20-CV-00124-S, 2021 WL 75768, at *4 (N.D. Tex. Jan. 8, 2021).

The Fifth Circuit has held this right is clearly established. Dent, 2021 WL 75768, at *4; see Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009). To establish that the DPD Officers

violated Kelson’s Fourth Amendment rights by arresting him, Kelson must show that the DPD

Officers lacked probable cause for the arrest. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.

2009).

“A warrantless arrest must be based on probable cause.” Resendiz v. Miller, 203 F.3d 902,

903 (5th Cir. 2000). “Probable cause exists when the totality of facts and circumstances within a

police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an offense.” Resendiz, 203 F.3d at

903; Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether [the] arrest was constitutionally valid

depends [ ] upon whether . . . the officers had probable cause to make it—whether at that moment

the facts and circumstances within their knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the [suspect] had committed

or was committing an offense.”). “The probable cause analysis only requires that we find a basis

for an officer to believe to a fair probability that a violation occurred.” Piazza v. Mayne, 217 F.3d

239, 246 (5th Cir. 2000). “Authority in this Circuit holds that once probable cause exists, the

collateral bad or evil motive of the arresting officer is immaterial.” Graham v. Dallas Area Rapid

Transit, 288 F. Supp. 3d 711, 739 (N.D. Tex. 2017); see Hunter v. Clardy, 558 F.2d 290, 292 (5th

Cir. 1977).

“When qualified immunity is raised, ‘the plaintiff must show that the officers could not

have reasonably believed that they had probable cause to arrest the plaintiff for any crime.’”

Sarabia v. Hockenberry, No. 5:10-CV-006-C, 2010 WL 11561761, at *4 (N.D. Tex. Oct. 25, 2010)

(quoting O’Dwyer v. Nelson, 310 Fed.Appx. 741, 745 (5th Cir. 2009)). “[I]t is inevitable that law

enforcement officials will in some cases reasonably but mistakenly conclude that probable cause

is present . . . [and those] officials who act in ways they reasonably believe to be lawful [] should

not be held personally liable.” Anderson, 483 U.S. at 641. “The relevant question . . . is the

objective (albeit fact-specific) question whether a reasonable officer could have believed [the

officers’] warrantless search to be lawful, in light of clearly established law and the information

the searching officers possessed.” Anderson, 483 U.S. at 641. In that event, the officer is entitled

to summary judgment on qualified immunity grounds. See Anderson, 483 U.S. at 641 (holding that

the Court has previously extended qualified immunity to officials who were alleged to have

violated the Fourth Amendment). “To the extent that the underlying facts are disputed, we may

resolve questions of probable cause as questions of law.” Piazza, 217 F.3d at 246.

Here, the DPD Officers had “arguable (that is, reasonable but mistaken) probable cause”

for arresting Fletcher for public intoxication. Club Retro, 568 F.3d at 206. In Texas, a person

commits an offense of public intoxication—an arrestable offense— “if the person appears in a

public place while intoxicated to the degree that the person may endanger the person or another.”

Tex. Pen. Code. § 49.02(a).

As shown in the Stewpot surveillance, (ECF No. 114, Ex. 1-C at 53:16), Officer Morales

was flagged down by a bystander who asked Officer Morales to take Fletcher—who was passed

out and covered in feces—to detox. (ECF No. 114 at 133). When Morales approached Fletcher, he

noticed a bump and cut with crusted blood on his head, and that Fletcher’s pants were covered in

feces. (ECF No. 111 at 4). As shown, Morales roused Fletcher by nudging him with his foot and

had Fletcher walk down the street. (ECF No. 114, Ex. 1-C at 55:14-56:35). Fletcher’s gait was

slow and unsteady. (ECF No. 120, Ex. 1-B 0:00-0:06). At the corner, Morales observed that

“Fletcher had slurred speech, bloodshot eyes, breath smelling of alcohol, unsteady balance, and

was having a hard time standing.” (ECF No. 111 at 4). Morales called for backup and Officers

Todd and Morris arrived—both noting Fletcher’s speech was slurred and that he was covered in

feces and had a head wound. (ECF No. 111 at 4-5).

Once the DFR Paramedics arrived, Todd told them about the feces and Fletcher’s head

wound. (ECF No. 111 at 5). Officer Morales held the flashlight while the DFR Paramedics talked

with Fletcher and examined his head wound. (ECF No. 111 at 5). During this examination,

Fletcher was cooperative and showed no signs of distress. (ECF No. 111 at 5). As alleged and thus

believed by the DFR Paramedics, Fletcher admitted to the DFR Paramedics that he had been

drinking beer. (ECF No. 111 at 5).

As stated in the Investigative Information, Officer Morales was told by the DFR

Paramedics after they observed Fletcher that “the injury on the back of his head was old and that

the comp did not require any medical attention.” (ECF No. 114 at 133). Thus, “[r]elying on the

paramedics’ conclusion that Fletcher did not require medical attention, Morales arrested Fletcher

for public intoxication.” (ECF No. 111 at 5). “The veracity and basis of knowledge of the person

supplying the hearsay information are relevant considerations in evaluating whether probable

cause exists.” Moreno v. Dretke, 450 F.3d 158, 170 (5th Cir. 2006). “Texas courts presume that a

police officer is a reliable source and no special showing is required for a magistrate to rely on

their hearsay declarations.” Moreno, 450 F.3d at 170. Thus, all three DPD Officers—who are not

medical professionals—reliance on the DFR Paramedics’ statements, is reasonable. Further, the

three DPD Officers believed Fletcher was intoxicated to an extent that he could not care for himself

or could be victimized by others. (ECF No. 111 at 5); See Tex. Pen. Code. § 49.02(a) (a person

may be arrested for public intoxication “if the person appears in a public place while intoxicated

to the degree that the person may endanger the person or another”).

Kelson argues that the DPD Officers did not have probable cause to arrest Fletcher for

public intoxication. Kelson states that Fletcher did not have any alcohol in his system, and that the

DPD Officers’ contact with Fletcher is too minimal to support their conclusion that Fletcher was

intoxicated. (ECF No. 119 at 13). Additionally, Kelson argues that the DFR Paramedics—who had

the most contact with Fletcher—state that Fletcher was not intoxicated. (ECF No. 119 at 13).

Kelson cites to DFR Officers Cox and Clark’s internal statements as evidence that Fletcher was

not intoxicated. (ECF No. 119 at 13-14). Additionally, Kelson argues that the DPD Officers “know

that certain illnesses and injuries may have symptoms similar to intoxication which requires them

to assess further as to whether a person is in fact intoxicated.” (ECF No. 119 at 14).

What Kelson fails to consider in his argument is that probable cause turns on what the

officers knew at the moment of arrest. See Resendiz, 203 F.3d at 903 (emphasis added). “Qualified

immunity gives ample room for mistaken judgements, by protecting all but the plainly incompetent

or those who knowingly violate the law.” Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001). At

the time of arrest, the DPD Officers were not aware that Fletcher suffered from schizophrenia and

myotonic dystrophy—causing a speech impediment—or that he had been attacked and punched in

the head—causing TBI—a few hours earlier. What they did know was that Fletcher had slurred

speech, an unsteady gait, a head wound, and was covered in feces. Even if the DPD Officers did

not state that Fletcher had bloodshot eyes and smelled of alcohol—which they did—the facts

enumerated would lead a reasonable officer in the DPD Officers position to believe that Fletcher

was intoxicated and a potential danger to himself. Like the situation here, in Miller v. SS

Hospitality Group, the Court concluded that the officers had probable cause to arrest the plaintiff

for public intoxication. Miller v. SS Hosp. Grp., LLC, No. 4:17-CV-00847-O, 2018 WL 3054691,

at *5 (N.D. Tex. June 5, 2018). In Miller, the officers’ reports stated that the plaintiff “showed

signs of intoxication, including bloodshot watery eyes, slurred speech, and unsteadiness.” 2018

WL 3054691 at *5. Thus, at the time of arrest, the officers’ belief that the plaintiff was intoxicated

based on what they observed at that time, was reasonable. Miller, 2018 WL 3054691 at *5

(emphasis added). Such is the situation here.

Kelson has not carried his burden of establishing that probable cause is lacking; rather, the

DPD Officers have established sufficient evidence to conclude that at the time of Fletcher’s arrest

it was reasonable (even if mistaken) to believe Fletcher was intoxicated to a degree that he was a

potential danger to himself. See Club Retro, 568 F.3d at 206 (arguable probable cause exists when

an officer is reasonable but mistaken). Thus, the DPD Officers are entitled to qualified immunity

on Kelson’s false arrest claim because they had probable cause to arrest Fletcher for public

intoxication.

2. Clearly Established Law

In the alternative, the DPD Officers are entitled to summary judgment on Kelson’s false

arrest claim because Kelson has not met his heavy and demanding burden of showing that the DPD

Officers alleged false arrest of Fletcher violated clearly established law. Morrow v. Meachum, 917

F.3d 870, 874 (5th Cir. 2019) (the question of “whether the officer violated clearly established

law—is a doozy”). Although the Supreme Court “caselaw does not require a case directly on point

for a right to be clearly established, existing precedent must have placed the statutory or

constitutional question beyond debate.” Kisela v. Hughes, 548 U.S. —, 138 S. Ct. 1148, 1152

(2018). “It is the plaintiff’s burden to find a case in his favor that does not define the law at a high

level of generality.” Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018). “The hurdle is

even higher when the plaintiff alleges a Fourth Amendment violation.” Henderson v. Harris Cnty.,

Texas, 51 F.4th 125, 132 (5th Cir. 2022). “[O]utside of an obvious case, the law is only clearly

established if a prior case exists where an officer acting under similar circumstances . . . was held

to have violated the Fourth Amendment.” Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017). If,

however, officers of “reasonable competence could disagree on [whether the conduct is legal],

immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Kelson fails to cite any established case law except for his proposition that a court “must

also look to the circumstantial evidence that, if believed, would tend to discredit the police officer’s

story, and consider whether this evidence could convince a rational fact finder that the officer acted

unreasonably.” (ECF No. 19 at 14). He cites to three cases for this proposition: Abraham v. Raso,

183 F.3d 279, 294 (3rd Cir. 1999); Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir. 1992); and

Herrin v. Treon, 459 F.Supp.2d 525, 541 (N.D. Tex. 2006). Kelson simply cites to these three

cases, he does not offer any evidence or details pertaining to how they are analogous to his

situation.

First, it must be noted that Abraham and Hopkins are persuasive authority only and not

controlling, as they are Third Circuit and Ninth Circuit cases, respectively. In both of these cases,

the circuit courts reversed the district courts—holding that material issues of fact precluded

granting summary judgment in favor of defendants. In Abraham, the Fourth Amendment claim is

for excessive force, and not for false arrest. 183 F.3d at 294. Right off the bat, the difference in

claims makes this case unqualified to “place the constitutional question beyond debate.” See

Kisela, 138 S. Ct. at 1152. Further, Abraham involves a police chase after the plaintiff was caught

stealing clothing at Macy’s department store, leading to the plaintiff attempting to hit the officer

with his car, causing the officer to then fire at the plaintiff. 183 F.3d at 283-85. Nothing about this

case is analogous to Kelson’s situation. Additionally, Hopkins has been overruled—lending less

credibility to Kelson’s reliance on this authority. 958 F.2d at 885. In Hopkins, the officer shot the

plaintiff after the plaintiff acted in a threatening manner toward the officer. 958 F.2d at 883-84. In

both Abraham and Hopkins, the officers used deadly force after the plaintiffs acted in a violent and

threatening manner. Here, the DPD Officers never claimed that Fletcher acted violently or

threateningly—rather they arrested him for fear of harm to himself by his alleged intoxication.

Further, although Herrin is a Northern District of Texas case, it cannot suffice as clearly

established law with analogous facts, as the claims alleged in this case are under the Eighth and

Fourteenth Amendments. 459 F.Supp.2d at 541. The false arrest claim at issue here is brought

under the Fourth Amendment.

These cases Kelson cites to are not sufficiently analogous to the facts at issue. Thus, Kelson

has not carried his burden of showing that the DPD Officer’s actions violated clearly established

law, and the Court must grant qualified immunity as to the DPD Officers. The DPD Officers are

entitled to qualified immunity on both prongs, and summary judgment must be granted in favor of

the DPD Officers on Kelson’s false arrest claim.

B. Count Two—Denial of Medical Treatment

Kelson asserts a denial of medical treatment claim under the Eighth and Fourteenth

Amendments in violation of 42 U.S.C. § 1983 against the DPD Officers—Morales, Todd, and

Morris—and the CDC Officers—Hernandez and Warren. The rights of a pretrial detainee to

medical treatment are protected under the Fourteenth Amendment, whereas those of a convicted

prisoner are protected under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, n.16 (1979).

“The constitutional rights of a convicted state prisoner spring from the Eighth Amendment’s

prohibition on cruel and unusual punishment, and, with a relatively limited reach, from substantive

due process.” Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (internal citations omitted).

“The constitutional rights of a pretrial detainee, on the other hand, flow from both the procedural

and substantive due process guarantees of the Fourteenth Amendment.” Hare, 74 F.3d at 639.

Although it is immaterial as the same standard has been applied to pretrial detainees under the

Fourteenth Amendment, as well as convicted inmates under the Eighth Amendment, the Court will

only address this claim under the Fourteenth Amendment as Kelson never argues that Fletcher is

a convicted prisoner and only brings the denial of medical treatment claim under the Fourteenth

Amendment in their response to the motion for summary judgment. (ECF No. 119 at 16). See

Hare, 74 F.3d at 648; see also Nerren v. Livingston Police Dept., 86 F.3d 469, 472 (5th Cir. 1996)

(“[W]e make explicit that which was heretofore either implicit or taken for granted in our case

law: An arrestee’s complaint for denial of substantive due process and a pretrial detainee’s

complaint for denial of substantive due process are evaluated under the same standards.”).

1. Constitutional Violation

For denial of medical treatment claims, “[t]he appropriate standard to apply in analyzing

constitutional challenges brought by pretrial detainees depends on whether the alleged

unconstitutional conduct is a condition of confinement or episodic act or omission.” Tamez v.

Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (internal quotations omitted). “An action is

characterized properly as an episodic act or omission case when the complained-of harm is a

particular act or omission of one or more officials.” Tamez, 589 F.3d at 769. “If a case falls under

the episodic act or omission category, we apply the deliberate indifference standard.” Tamez, 589

F.3d at 769.

The present challenge involves an episodic act or omission under our case law. See Brown

v. Strain, 663 F.3d 245, 249 (5th Cir. 2011) (analyzing allegations that an officer refused to provide

a detainee with immediate medical treatment as an “episodic act or omission” case). Thus, Kelson

must prove that the DPD Officers and the CDC Officers each acted with subjective deliberate

indifference to Fletcher’s need for medical care. See Westfall v. Luna, 903 F.3d 534, 551 (5th Cir.

2018).

“To establish a constitutional violation, a plaintiff must show that the defendant: (1) was

aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists; (2) subjectively drew the inference that the risk existed; and (3) disregarded the risk.”

Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019); see Mason v. Lafayette City-Par. Consol.

Gov’t, 806 F.3d 268, 279 (5th Cir. 2015) (“The plaintiff must show that an officer acted with

subjective knowledge of a substantial risk of serious medical harm, followed by a response of

deliberate indifference.”). “Deliberate indifference is an extremely high standard to meet.” Rose v.

Dallas Cnty., Texas, No. 3:19-CV-01240-E, 2020 WL 5815902, at *4 (N.D. Tex. Sept. 30, 2020).

“To prove deliberate indifference, a pretrial detainee must show that the state official knew of and

disregarded an excessive risk to the inmate’s health or safety.” Gibbs v. Grimmette, 254 F.3d 545,

549 (5th Cir. 2001). “Deliberate indifference is more than mere negligence in failing to supply

medical treatment.” Gibbs, 254 F.3d at 549. “To defeat qualified immunity, the plaintiffs must

establish that the officers . . . were aware of a substantial and significant risk . . . but effectively

disregarded it.” Jacobs v. West Feliciana Sheriff’s Dept., 228 F.3d 388, 395 (5th Cir. 2000). “A

plaintiff must show that the officials refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton

disregard for any serious medical needs.” Mason, 806 F.3d at 279 (internal quotations omitted).

(i) DPD Officers: Morales, Todd, and Morris

In order to defeat qualified immunity as to the DPD Officers on the denial of medical

treatment claim, Kelson must prove the DPD Officers acted with deliberate indifference. This is

an incredibly high standard—Kelson must prove that each DPD Officer had subjective knowledge

of Fletcher’s medical needs and responded with deliberate indifference. See Jacobs, 228 F.3d at

395; Mason, 806 F.3d at 279.

Kelson argues that at all times the DPD Officers knew of Fletcher’s traumatic head injury

and “at the time the Arresting Officers interacted with Fletcher, they knew of the significant risk

that severe blunt force trauma to the head can cause and disregarded it by choosing to harass and

laugh at Fletcher and ignore the obvious signs of distress and injury, instead of rendering medical

care, which ultimately resulted in Fletcher’s death.” (ECF No. 119 at 18). Kelson’s allegations that

the DPD Officers had subjective knowledge of Fletcher’s medical condition, and blatantly refused

to help, are not supported by evidence. Repeatedly, Kelson merely asserts that “Defendants

Morales, Todd, and Morris had the common medical knowledge that severe beatings, like the ones

suffered by Fletcher, can cause brain damage leading to death.” (ECF No. 34 at 6). Once again,

these are mere conclusory assertions, without supporting evidence.

Kelson further alleges that the DPD Officers’ reliance on the DFR Paramedics opinion that

the injury was old and did not require medical attention is unfounded, as the DFR Paramedics

actions “amounted to inadequate and inappropriate medical care.” (ECF No. 119 at 19-20). In

arguing that such reliance is reasonable, the DPD Officers rely on Davalos v. Johns. No. 3:11-cv-

0222-P, 2013 WL 1820313 (N.D. Tex. Apr. 30, 2013). In Davalos, the Court states that, “[u]nless

it would be evident to a lay person that a person is receiving inadequate or inappropriate treatment,

non-medical personnel, like police officers, may properly rely on an examination by medical

personnel to determine whether a serious medical need exits and whether further medical care

should be administered.” 2013 WL 1820313, at *10. Kelson argues that this reliance on Davalos

is unfounded, as “Fletcher displayed almost cartoonish symptoms of a serious head injury—large

bump on head, blood on head, recent unconsciousness, slurred speech, difficulty walking, soiled

clothing—that would put even a layperson on notice that he needed immediate medical care,” and

thus the DFR Paramedics conclusion that Fletcher did not need medical attention was evidently

inadequate. (ECF No. 119 at 20). However, the DPD Officers attributed such characteristics to

drunkenness, and since deliberate indifference requires “subjective knowledge” on the part of each

defendant, it is reasonable for the DPD Officers to rely on the DFR Paramedics conclusion that

the wound was old and did not require medical assistance, as the DPD Officers did not have

subjective knowledge of Fletcher’s medical needs. See Mason, 806 F.3d at 279. As in Davalos,

where the court found the police officer’s reliance on the paramedic’s conclusion that the plaintiff

did not need medical attention was reasonable, here, the Court concludes that the DPD Officers’

reliance on the DFR Paramedics conclusion was reasonable. See 2013 WL 1820313, at *10. Thus,

there is no constitutional violation, and the DPD Officers are entitled to qualified immunity on

Kelson’s denial of medical treatment claim.

(ii) CDC Officers: Hernandez and Warren

In order to defeat qualified immunity as to the CDC Officers on the denial of medical

treatment claim, Kelson must prove the CDC Officers acted with deliberate indifference. This is

an incredibly high standard—it must be proven that each CDC Officer had subjective knowledge

of Fletcher’s medical needs and responded with deliberate indifference. See Jacobs, 228 F.3d at

395; Mason, 806 F.3d at 279. Kelson argues that the CDC Officers’ conduct amounted to deliberate

indifference toward Fletcher:

Fletcher presented at the jail with a head injury, was bleeding, was

nonresponsive, the defendants were aware of his head injury and

symptoms, the defendants only checked on Fletcher one time and

saw that the state he was in had not improved as he laid on the

ground unresponsive in his own blood and feces for eight hours, and

they chose to do nothing.

(ECF No. 119 at 21). The CDC Officers were not present for Fletcher’s arrest nor were they

involved in his examination by the paramedics. The CDC Officers’ knowledge regarding Fletcher

consisted solely of the report given to them by the DPD Officers upon intake and what they actually

observed. In order to raise a sufficient fact issue as to the CDC Officers’ knowledge of Fletcher’s

medical needs, Kelson must show that the CDC Officers had actual knowledge of his medical

needs.

A case seemingly analogous to Kelson’s situation is Rose v. Dallas County. 2020 WL

5815902, at *6. In Rose, the plaintiff asserts that upon his arrival at the Dallas County Jail he was

able to walk, talk, and care for himself. 2020 WL 5815902, at *1. He alleges that after suffering

multiple strokes in jail, he was unable to speak, respond, move, or eat, but was not taken to the

hospital due to the officers’ failure to monitor him. Rose, 2020 WL 5815902, at *1-2. The plaintiff

asserted a claim of denial of medical treatment against the officers, and the Court granted summary

judgment in favor of the officers, finding such claim was unfounded. Rose, 2020 WL 5815902, at

*7. In Rose, the Court concluded that “[i]t is not clear from the evidence when or how often each

individual Defendant saw Plaintiff in the jail.” Rose, 2020 WL 5815902, at *6. “Even if the Court

assumes that from making the rounds in the jail, Defendants had some knowledge of Plaintiff’s

muteness and inability to take care of the activities of daily living, that knowledge is just not

sufficient to raise a fact issue as to Defendants’ knowledge of any excessive risk to Plaintiff’s

health.” Rose, 2020 WL 5815902, at *6. “There is nothing to show that any of them had actual

knowledge of Plaintiff’s medical circumstances or his risk of stroke.” Rose, 2020 WL 5815902, at

*6. This case is analogous to the situation at hand, as the CDC Officers made rounds in the

Detention Center, as shown in the video. (ECF No. 120, Ex. 1-D). However, the only factual

allegation that could indicate the CDC Officers had actual knowledge of Fletcher’s medical needs

was that “Fletcher spent much of his time at the Detention Center lying unresponsive underneath

a mattress in the cell.” (ECF No. 34 at 8). This knowledge is not sufficient to raise a fact issue as

to the CDC Officers’ knowledge of any excessive risk to Fletcher’s health. See Rose, 2020 WL

5815902, at *6.

Thus, because Kelson cannot show that both CDC Officers—Hernandez and Warren—had

subjective knowledge of Fletcher’s medical needs and responded with deliberate indifference,

there is no constitutional violation. See Mason, 806 F.3d at 279 (“The plaintiff must show that an

officer acted with subjective knowledge of a substantial risk of serious medical harm, followed by

a response of deliberate indifference.”). Both CDC Officers are entitled to qualified immunity, and

summary judgment must be granted as to the CDC Officers on Kelson’s denial of medical

treatment claim.

2. Clearly Established Law

Although Kelson cannot establish a constitutional violation by either the DPD Officers or

CDC Officers on the denial of medical treatment claim, alternatively, Kelson’s attempt to defeat

qualified immunity also fails as to clearly established law. For the second prong of the qualified

immunity analysis, Kelson bears the burden of identifying a case that proves the law was clearly

established at the time of the alleged Fourteenth Amendment violation. “The law is clearly

established if there is factually similar, controlling case law from this court or the Supreme Court.”

Mason, 806 F.3d at 277. “It is the plaintiff’s burden to find a case in his favor that does not define

the law at a high level of generality.” Vann, 884 F.3d at 310. “When considering a defendant’s

entitlement to qualified immunity, we must ask whether the law so clearly and unambiguously

prohibited his conduct that every reasonable official would understand that what he is doing

violates the law.” Morgan, 659 F.3d at 371. “To answer that question in the affirmative, we must

be able to point to controlling authority—or a robust consensus of persuasive authority—that

defines the contours of the right in question with a high degree of particularity.” Morgan, 659 F.3d

at 371–72.

(i) DPD Officers: Morales, Todd, and Morris

With regard to Kelson’s denial of medical treatment claim as to the DPD Officers, Kelson

fails to cite any controlling or even persuasive precedent to prove the clearly established prong.

That alone dooms the case. See Vann, 884 F.3d at 310 (holding that the district court properly

granted summary judgment in favor of defendant when plaintiff “cited nary a pre-existing or

precedential case”). Rather, Kelson merely refutes Defendants’ reliance on Davlos. 2013 WL

1820313, at *10. Kelson bears the burden of showing specific caselaw on point and wholly fails

to meet this burden. See Vann, 884 F.3d at 310; Cass v. City of Abilene, 814 F.3d 721, 732-33 (5th

Cir. 2016) (granting qualified immunity because plaintiffs did not meet the burden of showing

specific law on point). Thus, qualified immunity must be granted to the DPD Officers on Kelson’s

claim of denial of medical treatment. The DPD Officers are entitled to qualified immunity on both

prongs, and summary judgment must be granted in favor of the DPD Officers on Kelson’s denial

of medical treatment claim.

(ii) CDC Officers: Hernandez and Warren

In alleging denial of medical treatment by the CDC Officers, Kelson cites to many cases

to assert that the law is clearly established on this point. But many of the cases Kelson relies on

are “irrelevant to the clearly-established inquiry—either because they issued too late or they do

not bind us (and hence do not give officers in our circuit fair notice of the law).” Henderson, 51

F.4th at 133. Further, the remaining cases Kelson cites that could potentially supply clearly

establish law do not do so at the requisite specificity. See Henderson, 51 F.4th at 133.

First, multiple of the cases Kelson cites are unpublished opinions. “Unpublished opinions

do not establish any binding law for the circuit” so “they cannot be the source of clear established

law for the qualified immunity analysis.” Henderson, 51 F.4th at 133 (quoting Marks v. Hudson,

933 F.3d 481, 486 (5th Cir. 2019). Thus, this rule eliminates the bulk of authorities Kelson relies

on. See Rodriguez v. Bexar Cnty, No. SA-18-CV-248-XR, 2018 WL 4431433, at *7 (W.D. Tex.

Sept. 17, 2018); Galvan v. Calhoun Cty., 719 Fed.App’x. 372, 375 (5th Cir. 2018); Williams v.

Certain Individual Employees of Texas Dep’t of Criminal Justice-Institutional Div. at Jester III

Unit, Richmond, Texas, 480 Fed.App’x. 251, 257-58 (5th Cir. 2010); Stewart v. Guzman, 555

Fed.App’x 425, 432 (5th Cir. 2014); Rodrigue v. Grayson, 557 Fed.App’x 341, 347 (5th Cir.

2014); Rodrigue v. Morehouse Det. Ctr., No. CIV.A. 09-0985, 2010 WL 5301015, at *3 (W.D.

La. Dec 20, 2010); Brown v. Cain, 546 Fed.App’x 47, 475 (5th Cir. 2013).

Second, several of Kelson’s cases came too late to supply clearly established law. All of

the events surrounding Fletcher’s contact with the CDC Officers occurred on or about December

30, 2016, and December 31, 2016. “Any cases after that date cannot show clearly established law

at the time of the violation.” Henderson, 51 F.4th at 133; see also Kisela, 138 S. Ct. at 1152

(“police officers are entitled to qualified immunity unless existing precedent squarely governs the

facts at issue) (emphasis added). This eliminates two of Kelson’s cases, both of which have already

been dispatched by the unpublished rule above. See Rodriguez, 2018 WL 4431433, at *7; Galvan,

719 Fed.App’x. at 375.

Finally, Kelson invokes only three published Fifth Circuit Opinions: Easter v. Powell, 467

F.3d 459 (5th Cir. 2006); Harris v. Hegman, 198 F.3d 153 (5th Cir. 1999); and Walker v. Butler,

967 F.2d 176 (5th Cir. 1992). Yet, Kelson relies on these cases for general statements of law—

insufficient to prove clearly established law. See Kisela, 138 S. Ct. at 1153. All three cases stand

for the proposition that “failure to provide or delay in providing medical treatment when the

medical condition is known amounts to a violation of clearly established law.” (ECF No. 119 at

22). This is not in dispute—what is disputed is whether the CDC Officers had subjective

knowledge that Fletcher needed medical treatment. In Easter, a prison inmate repeatedly

complained of chest pain and went to the prison infirmary for medication. 467 F.3d at 461. The

Fifth Circuit reversed a grant of summary judgment on qualified immunity grounds in favor of the

nurse, concluding that the nurse offered the inmate no treatment options when he had a history of

cardiac problems, was experiencing severe chest pain, and did not have his prescribed heart

medication—all of which was well known to the nurse. Easter, 467 F.3d at 463-65. This is unlike

Kelson’s situation. The only factual allegations that could impute knowledge to the CDC Officers

is that “Fletcher spent much of the time at the Detention Center lying unresponsive underneath a

mattress in the cell.” (ECF No. 34 at 8). Further, Kelson only makes inferences, not facts, to

support his proposition that the CDC Officers had knowledge of Fletcher’s condition and yet were

deliberately indifferent. “[I]t was patently obvious that he was hurt and required medical care while

he was detained in the Detention Center.” (ECF No. 34 at 8). “Defendants Hernandez and Warren

followed the Detention Facility’s policy and practice of merely walking by cells intermittently

without actually checking on the physical condition of the detainees . . . [they] possessed the

knowledge that many of their detainees may be in physical distress due to being involved in

physical altercations (like Fletcher) or overuse of drugs and alcohol (unlike Fletcher) and that

failing to frequently check on their physical condition can result in a detainee dying from injuries

and/or drug and alcohol abuse.” (ECF No. 34 at 8). Thus, it is undisputed that the CDC Officers

followed the CDC’s policies when checking on Fletcher. Further, this situation shares no

synonymity with Easter—the CDC Officers had no medical history on Fletcher nor was he asking

for help while incarcerated and being denied.

Similarly, in Harris, a prison inmate was treated for a broken jaw, and immediately after

such treatment continued to complain that his jaw was still broken. 198 F.3d at 154-55. The inmate

was denied treatment multiple times after constant requests and complaints of excruciating pain.

Harris, 198 F.3d at 154-55. Once again, Harris does not provide an analogous factual basis to the

situation here. The CDC Officers did not treat Fletcher for any medical condition, nor did they

have knowledge of such, nor did they ignore any requests for help or complaints of pain. Both

Easter and Harris allege deliberate indifference against a medical professional who had

knowledge of the plaintiff’s medical condition—the CDC Officers are not medical professionals,

nor had they been privy to treating Fletcher previously.

The third published opinion Kelson relies on, Walker, evidences a conclusion directly

contrary to Kelson’s position. 967 F.2d at 178. In Walker, a prison guard fell on an inmate’s leg

while breaking up a fight, fracturing the inmate’s ankle. 967 F.2d at 178. The prison guard then

made the inmate walk to the hospital. Walker, 967 F.2d at 178. After the district court concluded

this amounted to deliberate indifference on behalf of the prison guard, the Fifth Circuit reversed,

concluding that the prison guard did not act with deliberate indifference—his conduct was “not

wanton and did not involve a reckless disregard of [the inmate’s] rights.” Walker, 967 F.2d at 178.

Thus, the Court concludes Kelson incorrectly relied on this case, and it cannot support a conclusion

of clearly established law.

Kelson fails to cite any “factually similar, controlling case law from this court or the

Supreme Court.” Mason, 806 F.3d at 277. As Kelson has not met his burden of finding “a case in

his favor that does not define the law at a high level of generality,” the CDC Officers are entitled

to qualified immunity on the denial of medical treatment claim. Vann, 884 F.3d at 310. Thus, the

Court grants summary judgment in favor of the CDC Officers on the denial of medical treatment

claim.

C. Count Four—Monell

Kelson asserts a Monell claim under 42 U.S.C. § 1983 against the City asserting that the

City policymakers and supervisors maintained unconstitutional customs, practices, and policies

and additionally, that the City ratified such policies. To state a claim under § 1983, a plaintiff 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 v. Toledo, 446 U.S. 635, 640 (1980). The existence of a

constitutional violation is a “threshold” requirement in any § 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).

Kelson asserts theories of municipal liability, failure to train liability, and ratification of

such unconstitutional policies against the City:

Upon information and belief, Defendant City of Dallas Police Department, Fire

Department, and City Marshal’s Office, including its agents, employees, officers,

and/or firefighter paramedics, together with other City of Dallas policymakers and

supervisors maintained, inter alia, the following unconstitutional customs,

practices, and/or policies:

a. maintaining a policy of inaction and an attitude of indifference towards

providing medical treatment for mentally ill persons (“MIPs”) and homeless

people in order to get them off the streets;

b. maintaining a policy of unreasonably searching, seizing, and arresting MIPs

and homeless people in order to get them off the streets;

c. providing inadequate training regarding how to detain and treat MIPs and

homeless persons;

d. inadequately supervising, training, controlling, assigning, and disciplining

City of Dallas Police Officers, Fire Department paramedics, City Marshal’s

Office, and other personnel, including Defendants Clark, Cox, Morales, Todd,

Morris, Bradfield, Hernandez, Warren, and Russell, who Defendant City of

Dallas knew or in the exercise of reasonable care should have known were

committing such egregious acts;

Defendant City of Dallas Police Department, Fire Department, and City Marshal’s

Office had actual and/or constructive knowledge of the deficient policies, practices

and customs alleged above. Despite having knowledge of the above, the Defendant

City of Dallas condoned, tolerated and through its own actions or inactions thereby

ratified such policies. Such Defendant also acted with deliberate indifference to the

foreseeable effects and consequences of these policies with respect to the

constitutional rights of Fletcher.

(ECF No. 34 at 13-14). The Court will address each of these theories, beginning with

municipal liability.

1. Municipal Liability

To sustain municipal liability under § 1893, Kelson must point to more than the actions of

a City of Dallas employee, he must identify a policymaker with final policymaking authority and

a policy that is the moving force behind the alleged constitutional violation. “Municipal liability

under 42 U.S.C. § 1983 requires proof of 1) a policymaker; 2) an official policy; 3) and a violation

of constitutional rights whose “moving force” is the policy or custom.” Rivera v. Houston Indep.

Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citing Piotrowski v. City of Houston, 237 F.3d 567,

578 (5th Cir. 2001)). “To sustain liability under § 1983, the [Plaintiff] must point to more than the

actions of an employee, [Plaintiff] must identify a policymaker with final policymaking authority

and a policy that is the ‘moving force’ behind the alleged constitutional violation.” Rivera, 349

F.3d at 247. The Supreme Court has explained that a governmental entity may not be held liable

under § 1983 “unless action pursuant to official municipal policy of some nature caused a

constitutional tort.” Monell, 436 U.S. at 691. “Municipalities are not liable on the theory of

respondeat superior and are almost never liable for an isolated unconstitutional act on the part of

an employee.” Hutcheson v. Dallas Cnty., Texas, 994 F.3d 477, 482 (5th Cir. 2021).

(i) Policymaker Prong

“The first requirement for imposing municipal liability is proof that an official policymaker

with actual or constructive knowledge of the constitutional violation acted on behalf of the

municipality.” Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 167 (5th Cir. 2010). “The

policymaker must have final policymaking authority.” Rivera, 349 F.3d at 247. The identity of the

policymaker is a question of state law. Groden v. City of Dallas, 826 F.3d 280, 284 (5th Cir. 2016).

Kelson argues that the City of Dallas Police Department, Fire Department, and City Marshal’s

Office are the policymakers in this case. (ECF No. 34 at 13). However, under Texas law, “the final

policymaker for the city of Dallas is the Dallas city council.” Groden, 826 F.3d at 286 (citing

Texas Local Gov’t Code § 25.029). Thus, to show that the City of Dallas acted unconstitutionally,

Kelson must show that the city council promulgated or ratified an unconstitutional policy. Kelson

does not do this. In fact, Kelson does not point to a single specific custom or policy, much less one

promulgated by the city council. Thus, Kelson fails to prove the first prong of municipal liability.

(ii) Official Policy or Custom Prong

Upon consideration whether the “allegedly unconstitutional action constitutes a custom or

policy of the municipality,” two forms must be considered. Zarnow, 614 F.3d at 168. “First, a

plaintiff may point to a policy statement formally announced by an official policymaker.” Zarnow,

614 F.3d at 168. Alternatively, “the plaintiff may demonstrate a persistent widespread practice of

city 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 municipal

policy.” Zarnow, 614 F.3d at 169. “The Supreme Court has explained that a custom may give rise

to liability under Monell if the practice is so persistent and widespread as to practically have the

force of law.” Moore v. LaSalle Mgmt. Co., L.L.C., 41 F.4th 493, 509 (5th Cir. 2022); see Connick

v. Thompson, 563 U.S. 51, 61 (2011) (“Official municipal policy includes the decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.”).

Kelson “may prove the existence of a custom or policy in one of two ways:” (1) a pattern

of unconstitutional conduct on the part of municipal actors or employees; or (2) a final policymaker

took a single unconstitutional action. Zarnow, 614 F.3d at 169. However, Kelson states that these

arguments do not address the actual claims Kelson is making: “[f]irst, Plaintiffs are not claiming

that an official written policy caused the violations of Fletcher’s constitutional rights.” (ECF No.

118 at 12). Second, Plaintiffs are not relying on a single incident to prove a policy of custom that

cause the violation of Fletcher’s constitutional rights.” (ECF No. 118 at 12). Instead, Kelson cites

multiple lawsuits filed in recent years against the City regarding incidents of arrest towards

mentally ill and homeless people and indifference towards providing medical treatment, as well as

other prior fatal incidents at the City’s Detention Center (ECF No. 118 at 13). Kelson further argues

that there is a third way to prove a valid municipal liability claim: “showing the need to take some

action to control the government’s agents is so obvious, and the inadequacy of existing practice so

likely to result in violation of constitutional rights, that the policymaker can reasonably be said to

have been deliberately indifferent to such need.” (ECF No. 118 at 14). This third theory Kelson

cites under which municipal liability can be found is known as failure to train liability.

(a) Failure to Train

The Supreme Court recognized that “there are limited circumstances in which an allegation

of a failure to train can be the basis for liability under § 1983.” City of Canton, Ohio v. Harris, 489

U.S. 378, 387 (1989).

The inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into

contact . . . Only where a municipality’s failure to train its employees

in a relevant respect evidences a deliberate indifference to the rights

of its inhabitants can such a shortcoming be properly thought of as

a city policy or custom that is actionable under § 1983. If, in the

light of the duties assigned to specific officers or employees the

need for more or different training is so likely to result in the

violation of constitutional rights, the policymakers of a city can

reasonably be said to have been deliberately indifferent to the

need, for which the city may be held liable if the failure to provide

proper training, which may be viewed as a city policy, actually

causes injury.

Burge v. Par. of St. Tammany, 187 F.3d 452, 472 (5th Cir. 1999).

“To establish Monell liability on a failure-to-train theory, a plaintiff must prove that: “(1)

the city failed to train or supervise the officers involved; (2) there is a causal connection between

the alleged failure to supervise or train and the alleged violation of the plaintiff’s rights; and (3)

the failure to train or supervise constituted deliberate indifference to the plaintiff’s constitutional

rights.” Henderson, 51 F.4th at 130. “Because the standard for municipal liability is a stringent

one, a pattern of similar constitutional violations by untrained employees is ordinarily required to

show deliberate indifference.” Pena v. City of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018).

“In assessing whether a training policy and procedure is inadequate, we look to whether the

program enables officers to respond properly to the usual and recurring situations with which they

must deal.” Hicks-Fields v. Harris Cnty., Texas, 860 F.3d 803, 811 (5th Cir. 2017). “Plaintiffs must

demonstrate that the highly predictable consequence of not training is that the asserted injury

would occur.” Hicks-Fields, 860 F.3d at 811. “While it may in theory be possible to establish the

inadequacy of a training program with a single incident, adequately trained officers occasionally

make mistakes; the fact that they do says little about the training program or the legal basis for

holding the city liable.” Hicks-Fields, 860 F.3d at 811.

Kelson asserts that the City maintained policies “inadequately supervising, training,

controlling, assigning, and disciplining” the Officers in the City’s purview, while the City “knew

or in the exercise of reasonable care should have known [the Officers] were committing such

egregious acts.” (ECF No. 34 at 13-14). However, nowhere in Kelson’s briefing does he reference

any evidence concerning the procedures used to train the Officers, the Officers’ qualifications, or

direct references to the particular inadequacies of their training. See Zarnow, 614 F.3d at 170.

Kelson has not plausibly alleged that the City failed to train the Officers involved on how to detain

and treat MIPS and homeless persons. (ECF No. 118 at 15). For “liability to attach based on an

inadequate training claim, a plaintiff must allege with specificity how a particular training program

is defective.” Roberts v. City of Shreveport, 397 F.2d 287, 293 (5th Cir. 2005). Because Kelson

failed to allege how the City’s training programs were defective, much less allege with specificity,

the City cannot be liable under a failure to train theory of liability. (ECF No. 118 at 14-15). Thus,

because Kelson cannot establish the first element of the failure to train test, the Court pretermits

discussion of the other two elements.

Additionally, it must be noted that it appears to the Court that Kelson was confused as to

his argument regarding failure-to-train liability. When Kelson argues that there is a third way to

prove a valid municipal liability claim: by “showing the need to take some action to control the

government’s agents is so obvious, and the inadequacy of existing practice so likely to result in

violation of constitutional rights, that the policymaker can reasonably be said to have been

deliberately indifferent to such need,” Kelson is effectively asserting a failure to train claim. (ECF

No. 118 at 14). However, later in his briefing, Kelson explicitly states that he is asserting a failure

to train claim. (ECF No. 118 at 15-16). In this latter argument, Kelson contends that his claim falls

within the single-incident exception for deliberate indifference. (ECF No. 118 at 16-17). This

exception is very narrow—the “plaintiff must prove that the highly predictable consequence of a

failure to train would result in the specific injury suffered.” Hutcheson, 994 F.3d at 482. “For a

violation to be highly predictable, the municipality must have failed to train its employees

concerning a clear constitutional duty implicated in recurrent situations that a particular employee

is certain to face.” Hutcheson, 994 F.3d at 482-83. “The single-incident exception is generally

reserved for those cases in which the government actor was provided no training whatsoever.”

Hutcheson, 994 F.3d at 483; see also Pena, 879 F.3d at 624. Kelson does not argue that the City

provided zero training to the Officers on how to detain and treats MIPs and homeless persons;

rather he claims such training given was inadequate. (ECF No. 118 at 16-17). Kelson conclusory

states that the City’s training was inadequate without supporting evidence. Thus, Kelson’s failure-

to-train claim cannot fall under the single-incident exception.

Kelson’s failure to train claim—whether explicitly stated as such or not—fails in all

regards, and thus—as this is the only way in which Kelson attempts to prove the policy or custom

prong of municipal liability—the City cannot be liable under the municipal liability theory of

Kelson’s Monell claim.

(iii) Moving Force

Because the Court found both that the policymaker and policy or custom factors were not

met to establish municipal liability, the Court pretermits further discussion of whether the City’s

actions were the moving force behind the alleged constitutional violations. This is further

reinforced by the fact that the Court did not find any constitutional violations of the Fourth or

Fourteenth Amendments as to the DPD or CDC Officers. See supra §§ III.A.1; III.B.1 (The Court

concluded that both the DPD Officers and CDC Officers are entitled to qualified immunity on all

claims.); see Brown, 243 F.3d at 192 (if a plaintiff “does not show any violation of his

constitutional rights—then there exists no liability to pass through to the City”). However, the

DFR Paramedics are not parties to Defendants’ Motion for Summary Judgment, so the Court

cannot automatically dismiss the Monell claim against the City, but the lack of constitutional

violations found above is an influential factor the Court can consider.

2. Ratification

Kelson asserts that the DPD and CDC Officers had actual and/or constructive knowledge

of the alleged deficient policies, practices, and customs, and that the City condoned, tolerated, and

ratified such policies while having knowledge of such. (ECF No. 34 at 14). “An officer’s decision

is chargeable to the municipality if ‘authorized policymakers approve [the] decision and the basis

for it.’” Cole v. Hunter, 497 F. Supp. 3d 172, 186 (N.D. Tex. 2020) (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988)). “The Fifth Circuit has explicitly held that a municipality

is not liable under the ratification theory where a Police Chief accepts his officers’ version of

events, so long as ‘that version did not show that the deputies’ actions were manifestly

indefensible.’” Allen v. City of Galveston, No. G-06-467, 2008 WL 905905, at *8 (S.D. Tex. March

31, 2008) (citing Coon v. Ledbetter, 780 F.2d 1158, 1162 (5th Cir. 1986)). “Without a showing

that the Officers’ actions were manifestly indefensible based on their version of the facts, failure

to discipline, even if the City blindly accepted the Officers’ version of the incident, does not equate

to ratifying unconstitutional conduct.” Cole, 497 F. Supp. 3d at 186; see also Fraire v. City of

Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (“Plaintiffs present nothing but conjecture when

they allege that [the municipality] must have known [the officer] was lying.”).

Kelson makes this ratification assertion in his Second Amended Complaint, yet completely

fails to address any ratification theory in responding to Defendants’ Motion for Summary

Judgment. (ECF No. 34; ECF No. 118). Thus, Kelson has effectively abandoned his Monell claim

under the ratification theory. Hernandez v. City of Grand Prairie, No. 3:16-cv-2432-L, 2017 WL

4098596, at *13 (N.D. Tex. Sept. 15, 2017) (“When a plaintiff fails to defend or pursue a claim in

response to a motion or dismiss or summary judgment, the claim is deemed abandoned.”); see also

Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983). Accordingly, the Court

pretermits further discussion of the abandoned Monell claim under the ratification theory.

In sum, Kelson fails to prove Monell liability against the City under municipal liability—

including failure to train liability—or under a ratification theory. Thus, the City is entitled to

summary judgment on Kelson’s Monell claim.

IV. CONCLUSION

For the reasons discussed above, Defendants’ Motion for Summary Judgment, (ECF No.

111) is GRANTED. All of Plaintiff Kelson’s claims against Individual Defendants James

Hernandez, George Morales, Nicholas Morris, Christopher Todd, and DSO Warren are

DISMISSED WITH PREJUDICE. All of Plaintiff Kelson’s claims against Defendant City of

Dallas are also DISMISSED WITH PREJUDICE.

SO ORDERED: December 20, 2023.