Alexander v. City of Dallas Texas

United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DOMINIQUE ALEXANDER, CARVELL §

BOWENS, CYRUS CEZAR, DAMON §

CRENSHAW, DAJAI FIELDS, §

CYNTHIA FLORES, TRACY FOSTER, §

JASMIN GALVAN, DEBBIE KIM, §

ALEXIS MCKINNEY, LAPREA PIERCE, §

AMY SMITH, LAKEISHA SMITH, §

NATHAN TINDALL, ELISEO VALDEZ, §

COURTNEY WADLOW, CNAYA §

WARREN, SARAH SHIRLEY, JOSEPH §

ADAMS, KRISTA ADAMS, and JANE § CIVIL ACTION NO. 3:22-CV-1193-S

AND JOHN DOE BRIDGE PLAINTIFFS = §

1-10 §

§

v. §

§

CITY OF DALLAS, TEXAS, JOHN AND §

JANE ROE DALLAS POLICE §

OFFICERS 1-10, DALLAS COUNTY, §

TEXAS, and JOHN AND JANE SMITH §

SHERIFF’S DEPUTIES 1-10 §

MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order addresses Defendant Dallas County’s Rule 12(b)(6)

Motion to Dismiss Plaintiffs’ Claims Alleged Against It in Plaintiffs’ Amended Complaint

(“County Motion”) [ECF No. 30] and Defendant City of Dallas’s Motion to Dismiss Plaintiffs’

Second Amended Complaint (“City Motion”) [ECF No. 33]. The Court has reviewed the Motions,

Plaintiffs’ Response to the County Motion (“County Response”) [ECF No. 40], Plaintiffs’

Response to the City Motion (“City Response”) [ECF No. 43], Defendant Dallas County’s Reply

in Support of the County Motion [ECF No. 41], Defendant City of Dallas’s Reply in Support of

the City Motion [ECF No. 44], and the applicable law. For the following reasons, the Court

GRANTS the Motions.

I. BACKGROUND

This lawsuit arises out of protests in Dallas, Texas, in the aftermath of George Floyd’s

death. Pls.’ Second Am. Compl. (“Second Amended Complaint”)! [ECF No. 28] 1, 47.

Plaintiffs are individuals who participated in the protests and allege they were “unlawfully detained

on [the] Margaret Hunt [Hill] Bridge in violation of their constitutional rights” and “harmed when

{members of law enforcement] fired tear gas canisters at them, shot them with rubber bullet [kinetic

impact projectiles (“KIPs”)], and seized and restrained them for hours... .”? Id. 2.

The protests in Dallas began on May 29, 2020. /d. 54. Three days later, on June 1, 2020,

Plaintiffs “gathered for a peaceful protest in front of Lew Sterrett Justice Center to exercise their

First Amendment rights.” Jd. § 63. Plaintiffs then began marching with other protesters. Id. J 64.

When the protesters reached the intersection with the road leading to the Margaret Hunt Hill

Bridge, the Dallas Police Department allegedly “positioned themselves and had stopped traffic so

that protesters would enter the westbound ramp onto the [bjridge.” Jd. ¥ 65. Plaintiffs proceeded

onto the bridge. /d. According to Plaintiffs, no one warned them not to go onto the bridge or told

them they would be arrested or detained if they did so. /d. Plaintiffs refer to this tactic as “kettling,”

which they describe as “an increasingly violent technique . . . wherein police officers block off

streets and push or ‘corral’ a group of protesters into a small area, like a bridge . . ., to restrict their

movement.” Id. J 50.

Plaintiffs titled their live pleading “Original Complaint.” However, Plaintiffs have already amended their

Complaint twice. See ECF Nos. 3, 28. Therefore, the Court refers to Plaintiffs’ live pleading as their Second

Amended Complaint.

? It is unclear who the intended defendants are in this case. The caption of the Second Amended Complaint

only names the City, John and Jane Roe Dallas Police Officers, the County, and John and Jane Smith

Sheriff's Deputies. See Second Am. Compl. 1. However, the Second Amended Complaint also references

additional individuals and entities, such as the current and former Dallas police chiefs and the Texas

Department of Public Safety. See, e.g., id. at 1-2, Jf 24-30. In this Memorandum Opinion and Order, the

Court will focus only on the moving Defendants. If Plaintiffs amend their Complaint, the Court instructs

them to clearly and consistently identify the individuals and/or entities named as defendants.

As they entered the bridge, Plaintiffs claim they were “met by a line of law enforcement

officers dressed in riot gear.” Jd. | 66. Plaintiffs attempted to exit the bridge, but law enforcement

officers blocked their exit. Id. J] 66-67. The protesters stopped, put their hands in the air, and

chanted, “Hands up! Don’t shoot!” Jd. 7 68. Then, all of the streetlights on the bridge went out. /d.

{| 69. The officers told the protesters to go home; however, the protesters allegedly were trapped

by law enforcement and could not leave the bridge. Jd. After several minutes, and allegedly without

provocation, law enforcement officers began firing “pepper balls, flash-bangs, smoke bombs, tear

gas, and KIPs”? into the crowd. Jd. 70. Plaintiffs became disoriented. Jd. 71. The officers told

them to get on the ground, stated that they were under arrest, and zip tied them. Jd. The officers

detained Plaintiffs on the bridge for over two hours. Jd. § 72. Law enforcement officers initially

charged protesters with obstructing a highway or violating a curfew ordinance but ultimately

dropped all charges. /d. ] 98. Plaintiffs claim that the members of law enforcement working the

protests were not terminated or disciplined and did not receive additional training or supervision.

Id. 104-05.

Plaintiffs allege that law enforcement officers in Dallas have used “‘less lethal’

ammunition against peaceful protesters” once before, during protests in 2018. Jd. 4 84. During

those protests, officers allegedly shot protesters with pepper balls. Jd. Then-Police Chief Ulysha

Reneé Hall stated that she was “concerned to learn” that pepper balls had been used and “called

for a review of the . . . incident.” Jd. | 85. The officers involved allegedly were not disciplined and

did not receive additional training or supervision. Jd. { 86.

> According to Plaintiffs, KIPs are “ammunition used commonly in crowd-control settings,” including

pepper balls and rubber, sponge, or foam bullets. Second Am. Compl. 479. Here, Plaintiffs particularly

challenge the use of pepper balls and “40mm eXact iMpact extended range ‘sponge’ bullets.” Jd. 56.

Though KIPs are referred to as “nonlethal” or “less lethal,” Plaintiffs allege that the “fatality, morbidity,

and significant risks of injuries from KIPs have been well documented.” Id. 7 49.

Based on the foregoing allegations, Plaintiffs filed suit, asserting eight causes of action.

Against the County, Plaintiffs bring a claim for conspiracy under 42 U.S.C. § 1985 (Count Eight)

and, possibly, a claim for unlawful seizure pursuant to 42 U.S.C. § 1983 (Count Four). Jd. {J 144-

57, 196-200. Against the City, Plaintiffs bring Section 1983 claims for violations of the First

Amendment (Count One), excessive force (Count Three), unlawful seizure (Count Four), failure

to supervise or discipline (Count Five), failure to train (Count Six), and permanent injunctive relief

(Count Seven). /d. Ff 106-23, 140-95. Plaintiffs also bring a Section 1985 conspiracy claim against

the City (Count Eight). Jd. FJ] 196-200.

II. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a

plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Ail.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738,

742 (Sth Cir. 2008). To meet this “facial plausibility” standard, a plaintiff must “plead[] factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court

must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff.

Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (Sth Cir. 2007) (citation omitted).

However, the court does not accept as true “conclusory allegations, unwarranted factual inferences,

or legal conclusions.” Ferrer vy. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation

omitted). A plaintiff must provide “more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).

“Factual allegations must be enough to raise a right to relief above the speculative level . . . on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Jd. (citations

omitted).

In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of the pleadings.

See Spivey v. Robertson, 197 F.3d 772, 774 (Sth Cir. 1999). The pleadings include the complaint

and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (Sth

Cir. 2000). At the motion to dismiss stage, the Court does not evaluate the plaintiff's likelihood of

success. It only determines whether the complaint states a claim upon which relief can be granted

when viewed in the light most favorable to the plaintiff. Mann v. Adams Realty Co., 556 F.2d 288,

293 (Sth Cir. 1977).

Ili, ANALYSIS

The County and the City filed separate Motions to dismiss all claims asserted against them.

The Court grants both Motions.

A. Datlas County Motion

Plaintiffs seemingly intended to assert two claims—one for unlawful seizure and one for

conspiracy—against the County; however, they only name the County in the conspiracy cause of

action. The Court dismisses the unlawful seizure claim for failure to name the County and

dismisses the conspiracy claim for failure to state a claim.

i. Unlawful Seizure

The County moves to dismiss Count Four, Plaintiffs’ Fourth Amendment unlawful seizure

claim, both on the grounds that the claim is not asserted against the County and because Plaintiffs

fail to state a plausible claim. County Mot. 8-17. Plaintiffs bring Count Four against “Law

Enforcement Defendants,” a term that is not defined in the Second Amended Complaint. Second

Am. Compl. 32. Plaintiffs do define the term “Law Enforcement Officers,” which refers to “all

Defendant Police Officers, Sheriff Deputies, State Troopers[,] and Federal agents” but not to the

County. Jd. J 31. Plaintiffs concede as much, stating that they “amended their complaint to include

‘Law Enforcement Defendants’ but failed to provide a definition, which . . . intended to include

Dallas County.” County Resp. 10. Regardless of Plaintiffs’ intent, the County is never mentioned

in Count Four. Because Plaintiffs do not define the term “Law Enforcement Defendants” and do

not include any allegations against the County in Count Four, the County’s Motion is granted with

respect to the unlawful seizure claim.*

ii. Conspiracy

The County also moves to dismiss Count Eight, Plaintiffs’ Section 1985(3) conspiracy

claim. The County moves to dismiss on two grounds: (1) that Section 1985(3) does not apply to

state actors and (2) that Plaintiffs fail to state a claim for a conspiracy under Section 1985(3).

County Mot. 17-23. As Plaintiffs correctly note, the County does not cite any binding precedent

for the proposition that Section 1985(3) claims cannot be brought against state actors, and the

Court has not located any. County Resp. 13-14. But because Plaintiffs have failed to state a claim

even assuming such claims are cognizable, the Court declines to reach this issue.

42 U.S.C. § 1985(3) prohibits “conspiracies that involve depriving someone of equal

protection of the laws or equal privileges and immunities under the laws.” Cantu v. Moody, 933

F.3d 414, 419 (5th Cir. 2019) (citation and internal quotation marks omitted). In the Fifth Circuit,

“the only conspiracies actionable under [Section 1985(3) are those motivated by racial animus.”

Id. (citation omitted). As the County notes, Plaintiffs do not plead that the alleged conspiracy was

motivated by any class-based animus,” let alone racial animus, and Plaintiffs did not respond to

‘ Byen if Plaintiffs had included the County in Count Four, the Court would dismiss this claim for the

reasons stated below. See infra § TH(B)(ii)(a).

is unclear whether Section 1985(3) encompasses other forms of class-based animus in the Fifth Circuit.

See Gonzales v. Gillis, No. 21-60634, 2023 WL 3197061, at *4 n.6 (Sth Cir. May 2, 2023) (citations

omitted). Even if it does, Plaintiffs’ conspiracy claim must be dismissed on the same basis.

G6

the County’s Motion on this point. County Mot. 19. Therefore, Plaintiffs’ conspiracy claim against

the County must be dismissed.

B. City of Dallas Motion

The City moves to dismiss certain parties and all claims against it. First, the City argues

that the expiration of the statute of limitations necessitates the dismissal of some parties. City

Mot. 4 & n.3. Second, the City moves to dismiss the Section 1983 claims brought against it on the

ground that Plaintiffs fail to state a claim. Jd. at 4-5. Third, the City contends that Plaintiffs’ claim

for a preliminary injunction should be dismissed because an injunction is merely a remedy. Jd.

at 5. Finally, the City moves to dismiss Plaintiffs’ Section 1985(3) conspiracy cause of action for

failure to state a claim. Jd. The Court agrees with the City on all fronts.

i. Statute of Limitations

As an initial matter, the City moves to dismiss the claims of Plaintiffs Sarah Shirley, Joseph

Adams, and Krista Adams and suggests that the Court should sua sponte dismiss all claims against

unidentified defendants. Jd. at 4 n.3, 7. Plaintiffs concede that Shirley’s and the Adamses’ claims

are barred by the statute of limitations. City Resp. 6. Therefore, the Court dismisses their claims

with prejudice. However, Plaintiffs do not address the City’s argument with respect to Defendants

“John and Jane Roe Dallas Police Officers 1-10” and “John and Jane Smith Sheriff's Deputies 1-

10.” Second Am. Compl. 1. Even if the Court finds that Plaintiffs did not abandon their claims

against these Defendants by failing to respond to the City’s Motion on this point, see Black v. N.

Panola Sch. Dist., 461 F.3d 584, 588 n.1 (Sth Cir. 2006), the claims are barred by the applicable

statute of limitations.

Plaintiffs assert claims against the unidentified Defendants under 42 U.S.C. §§ 1983 and

1985. See Second Am. Compl. ff 106-39, 144-57, 187-200. “Because there is no federal statute of

limitations for actions brought pursuant to 42 U.S.C. §§ 1983 and 1985, federal courts borrow the

forum state’s general personal injury limitations period.” Beckwith v. City of Houston, 790 F.

App’x 568, 575 (Sth Cir. 2019) (citation omitted). Texas’s statute of limitations for personal injury

claims is two years. /d. at 572 (citation omitted). Federal law, however, governs when a claim

accrues. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (Sth Cir. 2001) (citation omitted).

A Section 1983 claim accrues when the plaintiff knows or has sufficient information to know that

he has been injured by the defendant’s actions, id. (citation omitted), and a Section 1985 claim

accrues when the plaintiff knows or should know of the overt acts involved in the conspiracy,

Beckwith, 790 F. App’x at 575-76. In this case, both types of claims accrued on June 1, 2020. See,

e.g., Monacelli v. City of Dallas, No. 3:21-CV-2649-L, 2023 WL 9052013, at *3 (N.D. Tex. Dec.

29, 2023) (“[T]he statute of limitations commenced to run on June 1, 2020—the date of the

protest[.]”). Plaintiffs brought suit within two years of June 1, 2020, but still have not identified

the police officers and sheriff's deputies.

“[A]n amended complaint to substitute an individual for a John Doe defendant does not

relate back to the date of the original complaint . . . .” Bond v. Nueces County, No, 20-40050, 2022

WL 4595000, at *2 n.2 (5th Cir. Sept. 30, 2022) (citation omitted); see also Balle v. Nueces County,

952 F.3d 552, 557-58 (Sth Cir. 2017) (concluding that an amended complaint does not relate back

to the date of the original complaint where the plaintiff substitutes a named individual for a John

Doe). The doctrine of equitable tolling is available to preserve Plaintiffs’ claims if “strict

application of the statute of limitations would be inequitable.” Balle, 952 F.3d at 558 (citation

omitted). But Plaintiffs have not responded to the City’s Motion on this point, sought discovery,

or otherwise “diligently pursued [their] rights as required for equitable tolling of the limitations

period.” Bond, 2022 WL 4595000, at *2 n.2. Indeed, by filing this case on June 1, 2022, the date

the statute of limitations ran, Plaintiffs all but ensured they would not be able to name the

unidentified individuals in time. See Balle, 952 F.3d at 558. As such, the Court finds no basis for

equitable tolling and dismisses Plaintiffs’ claims against John and Jane Roe Dallas Police

Officers 1-10 and John and Jane Smith Sheriff's Deputies 1-10.

ii. Municipal Liability

The City moves to dismiss Plaintiffs’ Section 1983 claims for First Amendment violations

(Count One), excessive force (Count Three), and unlawful seizure (Count Four)® on the ground

that Plaintiffs have not established a basis for municipal liability. City Mot. 8-17. “Section 1983

provides a federal cause of action for the deprivation, under color of law, of a citizen’s ‘rights,

privileges, or immunities secured by the Constitution and laws’ of the United States.” Livadas v.

Bradshaw, 512 U.S. 107, 132 (1994) (citation omitted). To state a claim under Section 1983, a

plaintiff must allege facts showing (1) a deprivation of a right secured by the Constitution and the

laws of the United States; and (2) that the deprivation occurred under color of state law. See Flagg

Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549

(5th Cir. 2005) (citation omitted). “Claims under § 1983 may be brought against persons in their

individual or official capacity, or against a governmental entity.” Goodman v. Harris County, 571

F.3d 388, 395 (Sth Cir. 2009) (citation omitted).

A municipal entity like the City cannot be held vicariously liable under Section 1983 for

the individual acts of its employees. See Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S.

397, 403 (1997); Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 215 (Sth Cir. 1998)

(citation omitted). “It is only when the ‘execution of the government’s policy or custom . . . inflicts

6 As discussed, Plaintiffs do not define the term “Law Enforcement Defendants,” and as a result, it is unclear

who Plaintiffs intend to assert Count Four against. But because the City, unlike the County, is mentioned

in the body of Count Four, the Court will proceed as though Plaintiffs pleaded an unlawful seizure claim

against the City.

the injury’ that the municipality may be held liable under § 1983.” City of Canton v. Harris, 489

U.S. 378, 385 (1989) (alteration in original) (citation omitted). Therefore, to impose Section 1983

liability on the City, Plaintiffs must sufficiently allege “a policymaker; an official policy [or

custom]; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.”

Piotrowski, 237 F.3d at 578 (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

a. Official Policy or Custom

The City first challenges Plaintiffs’ pleadings with respect to an official policy or custom.

According to the City, Plaintiffs do not plead facts establishing a policy or custom of “the unlawful

seizure of peaceful protesters, retaliation against peaceful protesters, or the use of excessive force

against peaceful protesters.” City Mot. 10. Plaintiffs respond that they “need not enumerate each

and every instance of such violation[s]” and that, regardless, they have established the requisite

custom or policy via the single incident exception. City Resp. 8-9.

An official policy is most clearly established through a policy statement formally

announced by an official policymaker. Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th

Cir. 2010) (citation omitted). When an official policy is not explicit, however, a persistent and

widespread practice by city officials or employees that is so common and well settled as to

constitute a “custom” will suffice. See id. at 168-69.

Plaintiffs do not identify a formal policy statement; therefore, the Court considers only

whether Plaintiffs have adequately alleged a persistent and widespread practice that amounts to a

custom. See, e.g., Second Am. Compl. 141 (identifying only a “de facto unwritten policy”).

Where a plaintiff relies on a pattern of prior incidents to establish a policy, the plaintiff must plead

facts that demonstrate the prior incidents “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

10

is the expected, accepted practice of city employees.” Peterson v. City of Fort Worth, 588 F.3d

838, 850 (5th Cir. 2009) (quoting Webster v. City of Houston, 735 F.2d 838, 842 (Sth Cir. 1984)).

The “pattern of abuses” must “transcend[] the error made in a single case.” Jd, at 850-51 (quoting

Piotrowski, 237 F.3d at 582). “A pattern requires similarity and specificity; ‘[p]rior indications

cannot simply be for any and all “bad” or unwise acts, but rather must point to the specific violation

in question.’” /d. at 851 (alteration in original) (quoting Est. of Davis ex rel. McCully v. City of N.

Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)). “In addition to similarity and specificity, a

pattern must be comprised of ‘sufficiently numerous prior incidents’ rather than merely ‘isolated

instances.” Fuentes v. Nueces County, 689 F. App’x 775, 778 (5th Cir. 2017) (quoting McConney

v. City of Houston, 863 F.2d 1180, 1184 (Sth Cir. 1989)).

As to Plaintiffs’ excessive force claim, Plaintiffs identify only one prior incident: the Dallas

Police Department’s use of “pepper balls on a non-threatening crowd during the September 2018

protests.” Second Am. Compl. 84; see also id. 7141; City Resp. 8 (“Plaintiffs’ Amended

[C]omplaint does identify that Defendant fired pepper balls during peaceful protests in 2018.”

(citation omitted)). With respect to this incident, another district court recently held under similar

facts:

One incident of KIP deployment at the Botham Jean protest in 2018, followed by a

separate instance the night of May 31, 2020, when an officer allegedly shot a

protestor with a PepperBall weapon, is not a “persistent, widespread practice” that

is “so common and well settled as to constitute a custom that fairly represents

municipal policy.”

Monacelli v. City of Dallas, No. 3:21-CV-2649-L, 2022 WL 4668054, at *7 (N.D. Tex.

Sept. 30, 2022) (quoting Piotrowski, 237 F.3d at 579). And this Court reached the same conclusion

in another protest-related case, holding that “one incident in 2018, followed by three instances

occurring within the span of approximately three days in 2020, without more, does not amount to

a plausible allegation of a ‘persistent, widespread practice’ that is sufficiently ‘common and well

11

settled.”” Order at 9, Cleveland v. City of Dallas, No. 3:22-CV-01154-S (N.D. Tex. Dec. 28, 2022),

ECF No. 7 (citing Peterson, 588 F.3d at 850-52).

Moving to the unlawful seizure and First Amendment claims, Plaintiffs allege that “[i]t is

the pattern and practice of the City of Dallas . . . to arrest but not charge protesters” and “to employ

kettling techniques against peaceful protesters.” Second Am. Compl. ff 153-54. However,

Plaintiffs do not point to any prior instances of such conduct, and their conclusory statements do

not suffice. In their briefing, Plaintiffs argue that further specificity is unnecessary because “[i]t is

widely publicized that [the] City arrested several high profile Black Lives Matter protestors.” City

Resp. 8. In support, Plaintiffs point to two court cases in which the City prevailed and the

respective claims were dismissed with prejudice. See id. at 8 n.31; Alexander v. Brown, No. 3:18-

CV-02101-X, 2020 WL 7056331, at *3 (N.D. Tex. Dec. 2, 2020) (granting summary judgment to

the City on Section 1983 municipal liability claims); Woolum vy. City of Dallas, No. 3:18-CV-

2453-B-BN, 2020 WL 687614, at *5 (N.D. Tex. Jan. 22, 2020) (dismissing municipal liability

claims against the City), report and recommendation adopted by 2020 WL 636903 (N.D. Tex.

Feb. 11, 2020). These two instances do not constitute a legally sufficient pattern. Moreover,

Plaintiffs’ conclusory arguments, which rely only on cases in which courts did not find any

constitutional violations, do not point the Court to a pattern of prior violations with the requisite

similarity and specificity.

Finally, Plaintiffs allege that the City “has a long history of violating First Amendment

rights of protesters” and that the City has a “persistent, widespread pattern or practice of falsely

arresting and charging peaceful protestors with false charges.” Second Am. Compl. ff 116-17. But

again, Plaintiffs point only to the 2018 incident and to the 2020 protests to support their allegations.

12

Id. 118. For the reasons stated above, these allegations do not establish a legally sufficient

pattern.

Where, as here, a plaintiff cannot identify a pattern or custom, a single decision or action

by a final policymaker may, in rare circumstances, constitute a policy. Zarnow, 614 F.3d at 169

(citation omitted); Howell v. Town of Ball, 827 F.3d 515, 527 (Sth Cir. 2016) (citation omitted).

For liability to attach, the final policymaker must “perform[] the specific act that forms the basis

of the § 1983 claim.” Webb v. Town of Saint Joseph, 925 F.3d 209, 215 (Sth Cir. 2019) (citation

omitted). The Fifth Circuit, “in conformity with the Supreme Court’s jurisprudence, has been

highly reluctant to permit this exception to swallow the rule that forbids mere respondeat superior

liability.” Roberts v. City of Shreveport, 397 F.3d 287, 295 (Sth Cir. 2005) (footnote and citation

omitted). .

Plaintiffs invoke the single incident exception in their briefing but do not provide any

analysis of it. See City Resp. 8-9. They do not identify a single decision or action by a final

policymaker or argue that any such decision or action was the moving force behind their injuries.

Because Plaintiffs have not pointed to any allegations “coming within the ambit of this narrow

exception,” the Court concludes that Plaintiffs cannot rely on it to establish a basis for municipal

liability. Monacelli, 2022 WL 4668054, at *11 n.7.

For the foregoing reasons, Counts One, Three, and Four are dismissed for failure to plead

an official policy or custom through either a pattern of violations or the single incident exception.’

7 Plaintiffs repeatedly allege that the City “ratified” officers’ actions. See, e.g., Second Am. Compl. ff 84,

90-91, 162. Ratification requires that a policymaker “knowingly approve a subordinate’s actions and the

improper basis for those actions.” Covington v. City of Madisonville, 812 F. App’x 219, 228 (Sth Cir. 2020)

(citation omitted). The Fifth Circuit has limited ratification to “extreme factual situations.” Peterson, 588

F.3d at 848 (citation omitted). Neither party addresses ratification in its briefing, and the Court declines to

do so without the benefit of the parties’ arguments. To the extent Plaintiffs intend to rely on such a theory,

they must make that intent clear in any amended complaint that they file.

13

b. Violation of Constitutional Rights

With respect to Count One, Plaintiffs’ First Amendment claim, the City also challenges the

third element—a violation of constitutional rights. City Mot. 15-17. Plaintiffs allege that the City

engaged in First Amendment retaliation by using excessive force against and arresting Plaintiffs

when Plaintiffs were exercising their First Amendment rights. Second Am. Compl. f§ 112, 120;

City Resp. 11-12. According to the City, Plaintiffs were not engaged in constitutionally protected

activity because they were breaking the law during the protest. City Mot. 16.

To establish a First Amendment retaliation claim, Plaintiffs must plead facts that

demonstrate that: (1) they were engaged in constitutionally protected activity, (2) the officers’

action caused them to suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the officers’ adverse actions were substantially

motivated against their exercise of constitutionally protected conduct. Alexander v. City of Round

Rock, 854 F.3d 298, 308 (5th Cir. 2017) (citation omitted).

The City argues that Plaintiffs cannot meet the first element because they were violating a

Texas law prohibiting obstructing a highway or street. City Mot. 16 (citing TEX. PENAL CODE

§ 42.03). Plaintiffs respond that police officers “blocked the streets so that there was no traffic to

impede” and caused any illegal activity by “block[ing] the streets . . . such that the only route

Plaintiffs could take was to enter the bridge.” City Resp. 11 (citation omitted). “The First

Amendment does not entitle a citizen to obstruct traffic .... A State may therefore enforce its

traffic obstruction laws without violating the First Amendment, even when the suspect is blocking

traffic as an act of political protest.” Singleton v. Darby, 609 F. App’x 190, 193 (Sth Cir. 2015)

(citation omitted); see also Utley v. City of Houston, No. 21-20623, 2022 WL 2188529, at *1 (5th

Cir. June 17, 2022) (“[The plaintiff] was not engaged in constitutionally protected activity when

14

he was arrested—he was obstructing a roadway in violation of TEX. PENAL CODE § 42.03—so his

First Amendment retaliation claim fails.” (citation omitted)). Though Plaintiffs claim that there

was no traffic to obstruct, they do not argue against the fact that they were obstructing a roadway.

See, e.g., Second Am. Compl. 65-69 (describing Plaintiffs’ march onto the Margaret Hunt Hill

Bridge and position “in the middle of the Bridge”).

To the extent Plaintiffs’ First Amendment claim is based on their arrests, they must “first

establish the absence of probable cause, and then demonstrate that the retaliation was a substantial

or motivating factor behind the arrest.” Kokesh v. Curlee, 14 F.4th 382, 396 (Sth Cir. 2021) (citing

Nieves v. Bartlett, 139 8. Ct. 1715, 1725 (2019)). Here, the fact that Plaintiffs were breaking Texas

law, as discussed above, provides probable cause. But there is an exception to this rule. “[T]Jhe no-

probable-cause requirement should not apply when a plaintiff presents objective evidence that [the

plaintiff] was arrested when otherwise similarly situated individuals not engaged in the same sort

of protected speech had not been.” Nieves, 139 S. Ct. at 1727. Plaintiffs do not argue that this

exception applies, and the Court finds no support in the Second Amended Complaint for the notion

that similarly situated individuals not exercising their First Amendment rights were not arrested.

For these additional reasons, the Court grants the City’s Motion with respect to Count One,

Plaintiffs’ First Amendment claim.

iii, Failure to Train, Supervise, or Discipline

Next, the City moves to dismiss Plaintiffs’ claims for failure to supervise or discipline and

failure to train. City Mot. 17-19, Although Plaintiffs assert their claims in two separate counts

(Counts Five and Six), “the elements required to prove a claim under either theory are the same,”

and the Court considers them together. Edwards v. Oliver, No. 3:17-CV-01208-M-BT, 2021 WL

6884649, at *10 (N.D. Tex. Nov. 24, 2021) (citation omitted), report and recommendation adopted

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by 2022 WL 447085 (N.D. Tex. Feb. 14, 2022). Plaintiffs allege that the City failed to properly

train police officers on First and Fourth Amendment rights, the use of “less lethal” forms of

ammunition, and the elements of criminal charges. See, e.g., Second Am. Compl. [f 115, 141, 159,

177. Plaintiffs also allege that the City failed to supervise and discipline officers with respect to

these matters. See, e.g., id. J§} 158-64. The City contends that Plaintiffs did not plead deliberate

indifference, which is required for such claims. City Mot. 17-19.

Claims for failure to train, supervise, or discipline are species of municipal liability claims.

Hutcheson v. Dallas County, 994 F.3d 477, 482 (Sth Cir. 2021). The “failure to train[, supervise,

or discipline] can amount to a policy if there is deliberate indifference to an obvious need for

training[, supervision, or discipline] where citizens are likely to lose their constitutional rights.”

Id. (citation omitted). For their failure to train, supervise, or discipline claims to survive a motion

to dismiss, Plaintiffs must plausibly allege that (1) the City failed to train, supervise, or discipline

the officers involved; (2) there is a causal connection between the alleged failure to train, supervise,

or discipline and the alleged violation of Plaintiffs’ rights; and (3) the failure to train, supervise,

or discipline constituted deliberate indifference to Plaintiffs’ constitutional rights. Pefia v. City of

Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018) (citation omitted).

The City challenges the third element, deliberate indifference, which requires more than

“negligence or even gross negligence”—it is a “stringent standard, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Valle, 613 F.3d at 547 (citation

omitted). To plausibly allege deliberate indifference, a plaintiff must demonstrate that “in light of

the duties assigned to specific officers or employees[,] the need for more or different training is so

obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers . . . can reasonably be said to have been deliberately indifferent to the need.” City of

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Canton, 489 U.S. at 390. A court infers deliberate indifference “either from a pattern of

constitutional violations or, absent proof of a pattern, from showing a single incident with proof

of the possibility of recurring situations that present an obvious potential for violation of

constitutional rights.” Garza v. City of Donna, 922 F.3d 626, 637-38 (Sth Cir. 2019) (citation and

internal quotation marks omitted).

Plaintiffs do not make any additional arguments in support of the existence of a pattern

with respect to their failure to train, supervise, or discipline claims; instead, they reiterate the same

arguments the Court has already rejected. See City Resp. 12 (“Plaintiffs sufficiently establish

deliberate indifference as discussed in Section 1 above. Copied below for reference,”). For the

reasons stated above, Plaintiffs have not alleged a pattern of constitutional violations related to the

alleged training, supervision, or disciplinary failures. The alleged 2018 incident is insufficient,

standing alone, to constitute a pattern, and Plaintiffs’ other pattern-related allegations are

conclusory. Accordingly, Plaintiffs fail to establish a pattern of similar violations that constitutes

deliberate indifference.

Plaintiffs also cannot establish deliberate indifference through the single incident

exception. Again, Plaintiffs invoke the exception but do not provide any specific argument in

support of its application. See City Resp. 12-13. The exception “is generally reserved for those

cases in which the government actor was provided no training [or supervision] whatsoever.” Pefia,

879 F.3d at 624; see also Est. of Davis, 406 F.3d at 386 (“We did find a single incident to suffice

in Brown v. Bryan County, concluding that there was an utter failure to train and supervise.” (citing

219 F.3d 450, 462 (5th Cir. 2000))). “[T]here is a difference between a complete failure to train

and a failure to train in one limited area.” Pefia, 879 F.3d at 624 (cleaned up). Though Plaintiffs

allege in conclusory fashion that the City provided no training, their specific allegations contradict

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that claim. See, e.g., Second Am. Compl. ff] 85 (referring to General Orders governing officers’

use of pepper balls), 87 (same), 92 (alleging that the City should have provided “additional training

on how to use the sponge bullets” (emphasis added)), 96 (describing the City’s policies on use of

deadly force). The City therefore “provided at least some relevant directives or training to its

officers.” Hutcheson, 994 F.3d at 483.

Similarly, though Plaintiffs allege that then-Police Chief Hall “took no action against the

officers” who used pepper balls in 2018, Second Am. Compl. § 86, Plaintiffs also allege that Hall

“asked [the] investigative unit to conduct a full review” and that a review was in fact conducted

and resulted in a finding that “the use of the pepper ball gun was consistent with the department’s

general orders,” id. Jj 85, 89 (internal quotation marks omitted).

Plaintiffs have not plausibly alleged deliberate indifference either by pointing to a pattern

or a single incident; therefore, their claims for failure to train, supervise, or discipline must be

dismissed.

iv. Permanent Injunction

The City asks the Court to dismiss Count Seven, titled “Permanent Injunctive Relief,” id.

at 40, because injunctive relief is a remedy, not a cause of action, City Mot. 19. The City is correct

that “[a] permanent injunction is not an independent cause of action but an equitable remedy that

depends on an underlying cause of action.” Donnelly v. JPMorgan Chase Bank, N.A., No. H-15-

1671, 2015 WL 6690257, at *4 (S.D. Tex. Oct. 16, 2015) (citing Massey v. EMC Mortg. Corp.,

546 F. App’x 477, 483 (Sth Cir. 2013)). If Plaintiffs successfully replead the underlying causes of

action, their claim for injunctive relief may be proper. But at this time, because the Court dismisses

all of Plaintiffs’ underlying claims, Plaintiffs’ claim for permanent injunctive relief also fails.

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y. Conspiracy

Like the County, the City moves to dismiss Count Eight, Plaintiffs’ Section 1985(3)

conspiracy claim, for failure to state a claim. City Mot. 19-22. Among other things, the City notes

that Plaintiffs “failed to plead racial animus” and “do not even plead their racial or ethnic heritage.”

Id. at 22. Plaintiffs did not respond to the City’s Motion on this point. For the reasons stated above,

see supra § III(A)(ii), the Court concludes that Plaintiffs’ conspiracy claim against the City must

be dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Dallas County’s Rule 12(b)(6)

Motion to Dismiss Plaintiffs’ Claims Alleged Against It.in Plaintiffs’ Amended Complaint [ECF

No. 30] and Defendant City of Dallas’s Motion to Dismiss Plaintiffs’ Second Amended Complaint

[ECF No, 33]. The Court DISMISSES WITH PREJUDICE (1) the claims of Plaintiffs Sarah

Shirley, Joseph Adams, and Krista Adams and (2) the claims against Defendants John and Jane

Roe Dallas Police Officers 1-10 and John and Jane Smith Sheriff's Deputies 1-10. With respect to

the remaining parties and claims, because Plaintiffs have requested leave to amend their

Complaint, see County Resp. 19; City Resp. 18, and given the Federal Rules of Civil Procedure’s

liberal policy of allowing amendments to pleadings, the Court GRANTS Plaintiffs leave to amend

their Complaint. Plaintiffs must file an amended complaint by April 8, 2024. If an amended

complaint is not filed within such time, Plaintiffs’ claims will be dismissed with prejudice.

SO ORDERED.

SIGNED March 25, 2024.

(tu) Mel.

LoS

UNITED STATES DISTRICT JUDGE

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