# Taylor v. County

> District Court, S.D. Texas · September 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10673762

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10673762

## How later opinions describe it (automated extraction)

- declining to find ratification in case where officer shot fleeing suspect in back
- reversing district court decision to convert motion for judgment on pleadings
- declining to find ratification where officer told protesters to leave intersection

## Opinion text

September 22, 2020
David J. Bradley, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EDWARD TAYLOR, § CIVIL ACTION NO.
Plaintiff, § 4:18-cv-04811
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
HARRY HARTLEY, in his §
individual capacity, and §
HARRIS COUNTY, §
TEXAS §
Defendants. §
MEMORANDUM AND OPINION
RESOLVING MOTIONS TO DISMISS
The motion to dismiss filed by Defendant Harry Hartley is
denied. Dkt 19. His assertion of qualified immunity doesn’t
overcome the facts as pleaded in the complaint by Plaintiff
Edward Taylor.
The motion to dismiss filed by Defendant Harris County is
granted. Dkt 18. The civil rights claims under 42 USC § 1983
asserting municipal liability are dismissed without prejudice. The
claims under the Americans With Disabilities Act and the
Rehabilitation Act are dismissed with prejudice.
1. Background
This is a civil rights action. The standard of review in the
present posture requires that the allegations in Taylor’s amended
complaint be accepted as true. Walker v Beaumont Independent School
District, 938 F3d 724, 735 (5th Cir 2019). That complaint factually
pleads as follows.
Taylor suffers from cognitive, behavioral, and physical
disabilities. He has “epilepsy, lack of motor functions, speech
impediments, brain damage/trauma, and mental illness.” Dkt 17
at ¶ 21. These conditions substantially limit “his ability to care for
himself, eat, sleep, speak, learn, read, concentrate, think,
communicate, interact with others, work, and consortium
activities.” Id at ¶ 23. They also substantially limit “the operation
of his immune, digestive, bowel, bladder, neurological, brain, and
respiratory systems.” Id at ¶ 26. And these conditions cause
“headaches, confusion, memory problems, and nausea” and
result in “cognitive, behavioral, and physical disabilities.” Id at
¶¶ 24–25.
Taylor was arrested for assault while receiving treatment for
his disabilities at a hospital in February 2017. Id at ¶ 19. He was
taken to the Harris County Jail. Taylor alleges that, while he was
waiting in line with other inmates being processed into the jail,
his mental issues were “obvious to all present.” Id at ¶¶ 28–29.
He doesn’t explain why this was so.
Hartley is an officer with the Harris County Sheriff’s Office.
He was present when Taylor was waiting in line. Taylor alleges
that Hartley “was being ‘mouthy’ to all the inmates.” Id at ¶ 30.
When it was Taylor’s turn to be checked in and moved to the
courtroom for his initial appearance, Hartley yelled at him to
“take his gay ass hat off.” Id at ¶ 32. Taylor asserts that he felt
threatened, had a mental outburst, and swung at Hartley. Id at
¶ 34. Hartley caught Taylor’s arm, threw him to the ground,
slammed his head into the concrete, and then proceeded to
punch him in the face fifteen times. Id at ¶¶ 35–39. Taylor was
limp and unconscious after the second punch to his face, but
Hartley only stopped because another officer pulled him away
and off of Taylor. Id at ¶¶ 40–41.
Taylor asserts that at no point did he resist or try to defend
himself. Id at ¶¶ 43–44. And he alleges that Hartley’s “excessive
use of force” and “attempt to kill” him occurred after he was
already restrained. Id at ¶¶ 56–57. One inmate apparently
described the incident as Hartley “hammering on Plaintiff.” Id at
¶ 46. Others yelled at Hartley to stop because they thought he
was going to kill Taylor. Id at ¶ 47. The amended complaint
states, “Other inmates viewing this incident agreed that the force
was unnecessary and excessive.” Id at ¶ 45.
Taylor was taken to a hospital for his injuries. He required a
surgically inserted shunt to relieve pressure on his brain,
treatment for an antibiotic-resistant infection, and surgical
clipping of an aneurysm, in addition to other medical care. Id at
¶¶ 65–66. He has also undergone extensive follow-up care and
surgical procedures. Id at ¶ 68.
As to the arrest that brought Taylor to the Harris County Jail
in the first place, a grand jury eventually determined that there
were inadequate grounds for prosecution. He was never formally
charged. Id at ¶ 20. He notes that he was charged with assault on
a public servant with respect to the incident at hand, which was
also dismissed. Id at ¶ 63.
Taylor alleges that Hartley wasn’t charged with any crime or
disciplined in any way, despite Taylor sending a “demand letter”
that isn’t otherwise described. Id at ¶ 64. He also asserts that
Hartley lied about the incident in the offense report, in which he
wrote that Taylor “rose up against Hartley” and “made attempts
to continue to strike Hartley.” Id at ¶ 58. Taylor also devotes
nearly two pages in his complaint to describing a history by
Hartley of abuse and poor performance, including racially
derogatory remarks, verbal aggression, refusal to give medical
treatment, anger-management issues, and general bullying and
belittling conduct. Id at ¶¶ 69–72. Taylor asserts that Harris
County ignored complaints about Hartley and allowed him to
ridicule his coworkers in front of staff and inmates without
discipline. Id at ¶ 73.
Taylor sued Hartley in his individual capacity under 42 USC
§ 1983 for excessive use of force. He stated additional claims
against Harris County under 42 USC § 1983 for failure to train
and ratification. He also alleges Harris County is liable under the
Americans With Disabilities Act, 42 USC § 12101 et seq, and the
Rehabilitation Act, 29 USC § 794.
2. Legal standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
a plaintiff’s complaint to provide “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Rule
12(b)(6) allows the defendant to seek dismissal if the plaintiff fails
“to state a claim upon which relief can be granted.”
Read together, the Supreme Court has held that Rule 8 “does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell
Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a
Rule 12(b)(6) motion to dismiss, the complaint “must provide
the plaintiff’s grounds for entitlement to relief—including factual
allegations that when assumed to be true ‘raise a right to relief
above the speculative level.’” Cuvillier v Taylor, 503 F3d 397, 401
(5th Cir 2007), quoting Twombly, 550 US at 555.
A complaint must therefore contain enough facts to state a
claim to relief that is plausible on its face. Twombly, 550 US at 570.
A claim has facial plausibility “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556
US at 678, citing Twombly, 550 US at 556. This standard on
plausibility is “not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 US at 678, quoting Twombly, 550 US at 557.
Review on motion to dismiss under Rule 12(b)(6) is
constrained. The reviewing court must accept all well-pleaded
facts as true and view them in the light most favorable to the
plaintiff. Walker, 938 F3d at 735. The court must also generally
limit itself to the contents of the pleadings and its attachments.
Brand Coupon Network LLC v Catalina Marketing Corp, 748 F3d 631,
635 (5th Cir 2014).
But a notable exception allows a defendant to attach
documents “if they are referred to in the plaintiff’s complaint and
are central to her claim.” Collins v Morgan Stanley Dean Witter,
224 F3d 496, 498–99 (5th Cir 2000), quoting Venture Associates
Corp v Zenith Data Systems Corp, 987 F2d 429, 431 (7th Cir 1993).
The Fifth Circuit characterizes this as a “limited exception.”
Scanlan v Texas A&M University, 343 F3d 533, 536 (5th Cir 2003).
Where appropriate, review of such evidence can assist the court
“in making the elementary determination of whether a claim has
been stated.” Collins, 224 F3d at 498–99.
3. Inclusion of videotape screenshots
Videotape recordings from the jail hallway apparently
captured the incident between Taylor and Hartley. Dkt 17 at ¶ 2.
The videotape itself isn’t before the Court and hasn’t been
reviewed. But with their motions to dismiss, Hartley and Harris
County attached five screenshots captured from the moments
before the physical encounter itself commenced.
Taylor objects. An initial issue is whether these screenshots
can properly be considered in the current procedural posture.
a. Consideration under Rule 12(b)(6)
Hartley and Harris County explain the screenshots this way:
The video depicting the beginning of this
incident clearly reveals that the incident began
with Plaintiff’s provocation of physical violence
as alleged in Plaintiff’s First Amended
Complaint. The following screen captures
demonstrate the 5 seconds at the beginning of
this incident where DO Hartley provided
instructions to the Plaintiff to remove his hat,
the Plaintiff appeared to comply with these
instructions and then, just as DO Hartley
directed his attention away, the Plaintiff
abruptly turned to attack DO Hartley.
Dkt 18 at 2; Dkt 19 at 1–2.
Inspection of the screenshots show date and time stamps
spanning just over three seconds. Only the back and top of
Hartley’s head is visible. The screenshots are accompanied by
descriptive captions stating:
o DO Hartley Speaking Directly to Plaintiff Directing
Plaintiff to Remove His Hat;
o DO Hartley’s Attention Directed to Plaintiff, Plaintiff
Apparently Complying;
o DO Hartley’s Attention Directed Away from Plaintiff,
Plaintiff Abruptly Turning Back;
o Plaintiff Drawing Left Arm Back to Attack DO Hartley;
and
o Plaintiff Lunging At & Attacking DO Hartley.
Dkt 18 at 2–3, Dkt 19 at 2–3. The final screenshot stops short of
showing actual physical contact between them. Nothing from the
subsequent beating or its aftermath appears.
Hartley and Harris County argue that consideration of the
screenshots is permissible because Taylor referenced the
videotape in his complaint. See Dkt 17 at ¶¶ 2, 42, 60, 61, 103.
This, they say, makes it central to the claims at issue. Dkt 23 at 2.
Taylor calls these “cherry-picked, dubiously-captioned
screenshots” that cannot be considered. Dkt 22 at 16.
Federal courts in Texas have accepted and considered
videotape footage on motions to dismiss excessive-force claims
under Section 1983. See Burkett v City of Haltom City, 2015 WL
3988099, *3 n 4 (ND Tex); Robles v Aransas County Sheriff’s
Department, 2016 WL 4159752, *4 (SD Tex). On appeal in the
latter case, the Fifth Circuit found that the district court properly
considered the videotape. Robles v Ciarletta, 797 F Appx 821, 832
(5th Cir 2019) (unpublished). But the defendants in both Robles
and Burkett attached footage depicting the entire incident. For
example, see Robles, 2016 WL 4159752 at *6 (discussing at least
six minutes of videotape footage along with audio).
To the contrary here, Hartley and Harris County have
attached only a small selection of screenshots from the beginning
of the incident—rather than the videotape itself. The standard on
review can’t be stretched so far. Indeed, federal courts have
recognized in other contexts that parties cannot “make use of
video segments that have been ‘cherry-picked’” where the
remainder is unavailable for the court’s review. For example, see
United States v Yevakpor, 419 F Supp 2d 242, 252 (NDNY 2006).
And in an analogous procedural posture, the Fifth Circuit has
held it as error for a court to consider only quoted portions of a
document where the entire document isn’t itself attached to the
motion to dismiss. Scanlan, 343 F3d at 536–37; see also O’Malley v
Brown Brothers Harriman & Co, 2020 WL 1033658, *4 (WD Tex)
(declining to consider attached document where plaintiff
questioned its veracity and completeness). This same must
naturally pertain to screenshots of videotape subject to
consideration on motion to dismiss.
Hartley and Harris County argue that the beginning of the
videotape as depicted by the selected screenshots “clearly reveals
that the incident began with Plaintiff’s provocation of physical
violence.” Dkt 19 at 1. Perhaps. But those screenshots by their
nature give no audible or visual context for anything that
preceded any initial exchange between Hartley and Taylor. More
troubling, the screenshots ignore the main thrust of the
allegations at hand. Taylor alleges that Hartley “beat [him] within
an inch of his life” and continued to punch him even “after he
went limp and unconscious.” Dkt 17 at ¶¶ 37, 40. Eyewitnesses
are alleged to characterize it the same way, with medical
evaluations tending to corroborate the extreme nature of this
beating. Id at ¶¶ 45, 65–68.
Indeed, this is all apparently on the subject videotape. It
specifies that “the video shows he [Hartley] punched Plaintiff
15 times.” Id at ¶ 61. But none of that is depicted in the submitted
screenshots. Hartley and Harris County cannot on motion to
dismiss so lightly limit the context and gravity of what Taylor
endured by only including select screenshots that by their nature
are more relevant to their later defense. See Scanlan, 343 F3d at
537 (improper for district court to consider attached report
where more central to defenses).
The Court finds that Hartley and Harris County improperly
included the screenshots in their motions to dismiss. They won’t
be considered as part of the pleadings for purposes of further
consideration here.
b. Consideration under Rule 56
Hartley and Harris County alternatively ask to convert their
motions into ones for summary judgment if the screenshots
aren’t considered as part of the pleadings. Dkt 23 at 2–3. This
would depend on the Court finding the screenshots to assist
consideration on summary judgment. They don’t.
Federal Rule of Civil Procedure 12(d) provides, “If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under
Rule 56.” This permits—but doesn’t require—the reviewing
court to accept and consider materials submitted outside the
pleadings on motion to dismiss. It is a question of discretion, and
a court is to exercise that discretion by determining whether the
proffered material is likely to facilitate disposing of the action.
Isquith for & on Behalf of Isquith v Middle South Utilities Inc, 847 F2d
186, 194 n 3 (5th Cir 1988).
A respected treatise on this rule states, “When the extra-
pleading material is comprehensive and will enable a rational
determination of a summary judgment motion in accordance
with the standard set forth in Rule 56, the district court is likely
to accept it; when it is scanty, incomplete, or inconclusive, the
district court probably will reject it.” Charles Wright and Arthur
Miller, Federal Practice and Procedure § 1366 (3d ed). The five
selected screenshots are both incomplete and inconclusive,
making them just as indeterminate on summary judgment as they
are on motion to dismiss. Considering them in no way advances
resolution of this case.
The Fifth Circuit also counsels against conversion to a
motion for summary judgment without affording the adversary
“an opportunity to conduct discovery.” Benchmark Electronics Inc v
JM Huber Corp, 343 F3d 719, 725 (5th Cir 2003) (reversing district
court decision to convert motion for judgment on pleadings); see
also Mitsui Sumitomo Insurance Co (HK) v P&O Ports Louisiana Inc,
2007 WL 2463308, *2 (ED La) (declining to convert at “an early
point in the litigation”). Discovery in this matter doesn’t close
until April 15, 2021. Dkt 31. Were this Court to consider the five
screenshots, Taylor would no doubt seek to submit the entirety
of the videotape along with requests for “time to obtain affidavits
or declarations or to take discovery.” See FRCP 56(d)(2). In
short, the five screenshots create—but don’t resolve—issues of
material fact.
The Court declines to convert the motions to dismiss into
ones for summary judgment.
4. Motion to dismiss by Hartley
Hartley invokes the affirmative defense of qualified
immunity. This is a topic of renewed and considerable debate.
Hartley’s briefing evinces seeming belief that its talismanic
invocation somehow prevents scrutiny of his conduct. That is
decidedly not so.
a. Qualified immunity, examined
The Fifth Circuit has recently wrestled with the doctrine. See
Zadeh v Robinson, 928 F3d 457 (5th Cir 2019); Cole v Carson, 935
F3d 444 (5th Cir 2019) (en banc). And the Supreme Court had nine
petitions for certiorari pending for review relating to qualified
immunity at the conclusion of its most recent term. But it
declined to grant any of them. Marcia Coyle, Supreme Court
Conference Watch: Qualified Immunity, State Bar Fees and Firearms (The
National Law Journal, May 27, 2020), archived at
https://perma.cc/ZAV7-HB2G. Brief review of the
development and current debate on this doctrine provides
helpful context.
The statute colloquially known as Section 1983 imposes
liability on state actors who violate constitutional or other legal
rights. Congress enacted it during Reconstruction as part of the
Ku Klux Klan Act in 1871 in an effort to combat lawlessness and
civil-rights violations in southern states. “The purpose of § 1983
is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.” Wyatt v Cole, 504
US 158, 161 (1992), citing Carey v Piphus, 435 US 247, 254–57
(1978).
The statute originally provided:
That any person who, under color of any law,
statute, ordinance, regulation, custom, or usage
of any State, shall subject, or cause to be
subjected, any person within the jurisdiction of
the United States to the deprivation of any
rights, privileges, or immunities secured by the
Constitution of the United States, shall, any such
law, statute, ordinance, regulation, custom, or
usage of the State to the contrary
notwithstanding, be liable to the party injured in
any action at law, suit in equity, or other proper
proceeding for redress . . . .
An Act to Enforce the Provisions of the Fourteenth Amendment
to the Constitution of the United States, and for Other Purposes,
Pub L No 42-21, 17 Stat 13 (1871) (emphasis added).
The text of the statute on its face created a standard of strict
liability. It makes no reference to immunity—qualified or
otherwise.
Congress rephrased and reenacted the provision a few years
later as Section 1979 of the Revised Statutes of 1874, An Act to
Protect All Citizens in Their Civil and Legal Rights, 18 Stat 335
(1875). As currently amended and codified, the statute provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 USC § 1983 (emphasis added).
The text is slightly rephrased but remains strikingly similar to
the original. And were the text chosen by Congress this Court’s
only guide, it would appear to create a standard of strict liability.
Indeed, the Supreme Court has observed that Section 1983
“creates a species of tort liability that on its face admits of no
immunities.” Imbler v Pachtman, 424 US 409, 417 (1976).
As thus construed, it would also serve a fundamental
principle of the rule of law—where there is a right, there must be
a remedy for its violation. To say this has deep roots in American
jurisprudence is an understatement. As Justice White wrote for a
unanimous Supreme Court in Franklin v Gwinnett City Public
Schools:
From the earliest years of the Republic, the
Court has recognized the power of the Judiciary
to award appropriate remedies to redress
injuries actionable in federal court, although it
did not always distinguish clearly between a
right to bring suit and a remedy available under
such a right. In Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163, 2 L.Ed. 60 (1803), for
example, Chief Justice Marshall observed that
our Government “has been emphatically
termed a government of laws, and not of men.
It will certainly cease to deserve this high
appellation, if the laws furnish no remedy for
the violation of a vested legal right.” This
principle originated in the English common
law, and Blackstone described it as “a general
and indisputable rule, that where there is a legal
right, there is also a legal remedy, by suit or
action at law, whenever that right is invaded.” 3
W. Blackstone, Commentaries 23 (1783). See
also Ashby v. White, 1 Salk. 19, 21, 87 Eng.Rep.
808, 816 (Q.B.1702) (“If a statute gives a right,
the common law will give a remedy to maintain
that right . . .”).
503 US 60, 66–67 (1992).
But despite the seeming categorical imperative arising from
the language of Section 1983, the Supreme Court held in Pierson
v Ray that officials who commit constitutional or statutory
violations could raise the defense of “good faith and probable
cause” to defeat civil liability. 386 US 547, 557 (1967). It further
elaborated on the doctrine in Harlow v Fitzgerald, holding that
“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” 457 US 800, 818 (1982). And it has said that the doctrine
is meant to balance two important interests, being “the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.” Pearson v Callahan, 555 US 223, 231 (2009); see also
Johnston v City of Houston, Texas, 14 F3d 1056, 1059 (5th Cir 1994).
Qualified immunity thus now protects government officials
“from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson, 555 US
at 231, quoting Harlow, 457 US at 818. But many have noted that
the doctrine risks eclipsing the remedy as enacted by Congress at
42 USC § 1983. And it is the requirement of clearly established law
that has evoked concern.
The Fifth Circuit observed in Sims v City of Madisonville, “This
is the fourth time in three years that an appeal has presented the
question whether someone who is not a final decisionmaker can
be liable for First Amendment retaliation. . . . Continuing to
resolve the question at the clearly established step means the law
will never get established.” 894 F3d 632, 638 (5th Cir 2018) (per
curiam). The following year in Zadeh v Robinson, the Fifth Circuit
held that members of the Texas Medical Board violated a
doctor’s constitutional rights through a warrantless search of his
office and medical records. 928 F3d 457, 468 (5th Cir 2019). Yet
it held the defendants were entitled to qualified immunity because
the unlawfulness of their conduct wasn’t clearly established at the
time of the search. Id at 470. Judge Willett specifically drew
attention to a “growing, cross-ideological chorus of jurists and
scholars urging recalibration of contemporary immunity
jurisprudence.” 928 F3d at 480 (Willett concurring in part).
Examining the requirement of clearly established law in the
qualified-immunity analysis, he observed, “This current ‘yes
harm, no foul’ imbalance leaves victims violated but not
vindicated. Wrongs are not righted, and wrongdoers are not
reproached.” Id at 479 (Willett concurring in part).
The Fifth Circuit has nevertheless declined to reconsider its
approach to qualified immunity, finding itself bound by both its
own prior decisions and those of the Supreme Court. See Garcia v
Blevins, 957 F3d 596, 602 (5th Cir 2020). As such, the doctrine
must be applied here as it currently stands. Still, the foregoing
undermines any suggestion that its invocation yields a foregone
conclusion. And it certainly belies Hartley’s argument that the
Court can’t take a close look at his conduct and determine
whether, under color of law, he subjected a citizen of the United
States to the deprivation of rights secured by the Constitution.
b. Qualified immunity, applied
Hartley raises the affirmative defense of qualified immunity
in response to Taylor’s claim against him for excessive use of
force. But rather than engage with the facts as pleaded, Hartley
sponsors his own version of the events to support qualified
immunity. To the contrary, the pertinent scrutiny focuses only on
his conduct as pleaded in the amended complaint.
i. Consideration of well-pleaded facts
The underlying merits in Ashcroft v Iqbal addressed issues of
qualified immunity pertaining to allegations of racial and religious
discrimination against individuals detained after the attacks of
September 11th. 556 US 662 (2009). That action didn’t proceed
past the pleading stage, but it would be a mistake to read the
decision as a free pass for government actors accused of
unconstitutional conduct.
The procedural focus in Iqbal was clarification of the
pleading standard at the motion to dismiss stage. The Supreme
Court had previously stated, “The threshold inquiry a court must
undertake in a qualified immunity analysis is whether plaintiff’s
allegations, if true, establish a constitutional violation.” Hope v
Pelzer, 536 US 730, 736 (2002). It left that starting point relatively
untouched—being the consideration of well-pleaded facts in the
complaint, accepting them as true, and viewing them in the light
most favorable to the plaintiff. See Iqbal, 556 US at 678.
Hartley argues that he is entitled to qualified immunity
against Taylor’s cause of action for an unconstitutional exercise
of force. Yet he all but concedes that qualified immunity doesn’t
reach the conduct as pleaded in the amended complaint. This is so
because he neither accepts the factual allegations at face value nor
argues that the specified conduct depicts action within
constitutional bounds. He instead uses the screenshots addressed
above to suggest a milder version of events—and then argues
why that revised narrative entitles him to qualified immunity.
His motion itself in fact makes only this generic reference to
what happened after what is seen in the proffered screenshots:
“DO Hartley utilized physical force to both protect himself and
others, and to subdue Plaintiff.” Dkt 19 at 1. No factual
reckoning appears. The reply likewise doesn’t address any
particular allegation. Rather, after defending submission of the
screenshots, the reply states that “trading blows for blows is
proportionate” and that “strikes of the hand” are permissible
when “a detention officer [is] violently ambushed in a hallway
with a dozen other unrestrained prisoners present.” Dkt 23 at 4.
As a first matter, a violent ambush doesn’t even closely
approximate what the screenshots show, even if they were
properly before the Court. But as a second, more important
matter, “trading blows for blows” and “strikes of the hand” aren’t
at all what Taylor pleaded. The amended complaint instead states:
o “Hartley caught Plaintiff’s arm.”
o “Hartley threw Plaintiff to the ground.”
o “Hartley slammed Plaintiff’s head into the concrete
ground.”
o “Hartley punched Plaintiff in the face 15 times.”
o “Hartley continued to punch Plaintiff in the face
after he went limp and unconscious after the second
punch to Plaintiff’s face.”
o “Hartley only stopped punching Plaintiff because
another officer pulled Hartley’s arm away and off
Plaintiff.”
o “At no point did Plaintiff resist arrest.”
o “At no point did Plaintiff try to defend himself.”
o “Other inmates viewing this incident agreed that the
force was unnecessary and excessive.”
o “An inmate described the incident as Hartley
hammering on Plaintiff.”
o “Other inmates were yelling at Hartley to stop
because they thought he was going to kill Plaintiff.”
Dkt 17 at ¶¶ 35–36, 38–41, 43–47.
The Fifth Circuit is clear that “even in the context of
qualified immunity, ‘the facts alleged’ must be ‘[t]aken in the light
most favorable to the party asserting the injury.’” Anderson v
Valdez, 845 F3d 580, 600 (5th Cir 2016), quoting Tolan v Cotton
572 US 650, 655–56 (2014). And so the Court has considered all
these allegations and assumes their veracity. See Iqbal, 556 US at
679. Simply put, this isn’t “an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id at 678, quoting Twombly,
550 US at 555. The allegations contain “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 US at
678, citing Twombly, 550 US at 556.
These allegations also assert facts which, if true, could
overcome the defense of qualified immunity. To do so Taylor
must allege facts that support a violation of a constitutional right,
and the right at issue must be clearly established at the time of
the alleged misconduct. Ashcroft v al-Kidd, 563 US 731, 735 (2011),
citing Harlow, 457 US at 818.
ii. Violation of a constitutional right
To state a claim for the use of excessive force under the
Fourth Amendment, Taylor must allege an “(1) injury, (2) which
resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly
unreasonable.” Trammell v Fruge, 868 F3d 332, 340 (5th Cir 2017),
quoting Deville v Marcantel, 567 F3d 156, 167 (5th Cir 2009). The
first aspect isn’t in dispute. Taylor alleges he was injured due to
the use of force applied against him. The question is whether he
has alleged a use of force that was clearly excessive in a clearly
unreasonable way.
The test used to determine whether a use of force was
reasonable under the Fourth Amendment “is not capable of
precise definition or mechanical application.” Graham v Connor,
490 US 386, 396 (1989), quoting Bell v Wolfish, 441 US 520, 559
(1979). Rather, “its proper application requires careful attention
to the facts and circumstances of each particular case.” Graham,
490 US at 396. The Supreme Court provides a framework for
analysis with the following factors outlined in Graham:
o First, the severity of the crime at issue;
o Second, whether the suspect poses an immediate
threat to the safety of the officers or others; and
o Third, whether the suspect is actively resisting arrest
or attempting to evade arrest by flight.
Ibid. The speed with which an officer resorts to force, and the
failure to use “physical skill, negotiation, or even commands”
before applying such force, weigh in favor of finding that the use
of force was excessive to the need. Newman v Guedry, 703 F3d 757,
763 (5th Cir 2012).
Taylor admits that he “had a mental outburst and swung at
Hartley.” Dkt 17 at ¶ 34. Some response by Hartley was thus
appropriate under the first Graham factor. But the second and
third factors suggest that his response could be found excessive
to the need and objectively unreasonable. Without warning or
attempting to deescalate the situation, Hartley immediately threw
Taylor to the ground, slamming his head into the concrete.
Hartley then punched Taylor fifteen times, knocking him
unconscious after the second. The allegations are clear that this
beating continued even after Taylor was no longer resisting or
posing any immediate threat.
The Fifth Circuit has observed that “caselaw establishes that
it is unreasonable to use force after a suspect is subdued or
demonstrates compliance.” Shumpert v City of Tupelo, 905 F3d 310,
323 (5th Cir 2018). And so these facts, if ultimately found to be
true, would support a finding that Hartley’s use of force was
clearly excessive and objectively unreasonable.
iii. Clear establishment of that right
The Supreme Court has held, “A clearly established right is
one that is ‘sufficiently clear that every reasonable officer would
have understood that what he is doing violates that right.’”
Mullenix v Luna, 136 S Ct 305, 308, (2015), quoting Reichle v
Howards, 566 US 658, 664 (2012). “This is not to say that an
official action is protected by qualified immunity unless the very
action in question has previously been held unlawful; but it is to
say that in the light of pre-existing law the unlawfulness must be
apparent.” Hope, 536 US at 739 (citations omitted).
The Supreme Court has consistently instructed lower courts
not to define the applicable “clearly established law” at a “high
level of generality.” White v Pauly, 137 S Ct 548, 552 (2017),
quoting al-Kidd, 563 US at 742. Instead, “the clearly established
law must be ‘particularized’ to the facts of the case.” White, 137 S
Ct at 552, quoting Anderson v Creighton, 483 US 635, 640 (1987).
Even so, a case directly on point isn’t required. A “constitutional
violation can be ‘clearly established’ even when there is no
materially similar precedent.” Zimmerman v Cutler, 657 F Appx
340, 346 (5th Cir 2016), citing Hope, 536 US at 741. “[B]ut existing
precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 136 S Ct at 308, quoting al-
Kidd, 563 US at 741.
The pertinent inquiry on assertion of a Fourth Amendment
violation is “whether it was clearly established that the Fourth
Amendment prohibited the officer’s conduct in the ‘situation [he
or she] confronted.’” Mullenix, 136 S Ct at 309, quoting Brosseau v
Haugen, 543 US 194, 199 (2004). The reviewing court “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 v Swanson,
659 F3d 359, 371–72 (5th Cir 2011) (en banc), quoting al-Kidd, 563
US at 742. But ‘“in an obvious case,’ the Graham excessive-force
factors themselves ‘can clearly establish the answer, even without
a body of relevant case law.’” Newman v Guedry, 703 F3d 757, 764
(5th Cir 2012), quoting Brosseau, 543 US at 199.
The Fifth Circuit in Stevens v Corbell held, “Since it is well-
settled in this Circuit that knowing use of excessive force in
booking an arrestee violates the arrestee’s constitutional rights,
the defense of qualified immunity is unavailable to a police officer
who the plaintiff has alleged thus used excessive force.” 832 F2d
884, 890 (5th Cir 1987). As here, the officer there was booking
the plaintiff into jail. As here, the officer there continued to beat
the plaintiff into and beyond the point of consciousness. Id at
866. Indeed, the Fifth Circuit observed that “there is no real
dispute about what the law authorized” in those circumstances.
Ibid. This Court likewise has little trouble concluding that the law
has long been clearly established that an officer can’t continue to
beat an arrestee well after he becomes unconscious. Every
reasonable officer would have understood that doing so violates
a person’s constitutional right. Mullenix, 136 S Ct at 308.
Other more recent decisions are in line with this basic
proposition. As Judge Sim Lake recently observed, “there is a
well-developed body of case law in the Fifth Circuit specifically
holding that the use of physical force against a restrained,
passively resisting or non-resisting subject violates the
constitution.” Salcido as Next Friend of KL v Harris County, Texas,
2018 WL 6618407, *13 (SD Tex). Judge Lake cited Bush v Strain,
513 F3d 492, 501 (5th Cir 2008), which found it objectively
unreasonable to “forcefully slam [the arrestee’s] face into a
vehicle while she was restrained and subdued,” and Williams v
Bramer, 180 F3d 699, 704 (5th Cir 1999), which found an
allegation of choking that wasn’t in response to any resistance or
aggression by an arrestee was “sufficient to assert a constitutional
violation.” Salcido, 2018 WL 6618407 at *13; see also Anderson v
McCaleb, 480 F Appx 768, 773 (5th Cir 2012) (clearly established
law put officers on notice that they couldn’t tase or beat plaintiff
once he stopped resisting arrest).
All of this is especially true where an officer uses force even
after the suspect is rendered unconscious. Corbell, 832 F2d at 890.
As the Northern District of Texas observed over a decade ago,
“The court cannot hold that a reasonable officer would not have
known that beating and punching an unconscious detainee and
intentionally slamming a detainee into door jambs while
transporting him was unlawful.” Smith v Aguirre, 2009 WL
1683477, *6 n 3 (ND Tex).
Taylor asserts that he was beaten past the point of
unconsciousness and that the beating continued beyond any
notion of resisting or attempting to flee. The allegations also
indicate that he wasn’t a continuing threat to Hartley or others
around him after being rendered unconscious and that the
beating only stopped because another officer pulled Hartley away
and off of him. This sufficiently pleads facts that, if true, would
overcome qualified immunity.
The motion by Hartley to dismiss the excessive-force claim
based on assertion of qualified immunity must be denied.
5. Motion to dismiss by Harris County
Taylor asserts Section 1983 liability against Harris County
predicated on theories of failure to train, ratification, and an
unconstitutional policy condoning illegal and improper conduct.
He also brings claims under the Americans With Disabilities Act
of 1990 and the Rehabilitation Act of 1973. Harris County moves
to dismiss them all. Dkt 18.
a. Claims under 42 USC § 1983
Municipal liability under Section 1983 doesn’t extend merely
on a respondeat superior basis. Monell v Department of Social Services,
436 US 658, 691 (1978). The plaintiff must show that an official
policy promulgated by the municipal policymaker was the
moving force behind the violation of a constitutional right.
Piotrowski v City of Houston, 237 F3d 567, 578 (5th Cir 2001). “The
‘official policy’ requirement was intended to distinguish acts of
the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for
which the municipality is actually responsible.” Doe v Edgewood
Independent School District, 2020 WL 3634519, *8 (5th Cir)
(emphasis in original), quoting Pembaur v Cincinnati, 475 US 469,
479 (1986).
Taylor brings four separate counts under Section 1983 that
mix and muddle his factual allegations in an overlapping and
redundant way. Dkt 17 at ¶¶ 80–112. He at base asserts in
Count 2 that Harris County failed to train Hartley on deescalation
techniques, the reasonable use of force, and the proper procedure
for filing offense reports. See generally id at ¶¶ 80–84, 86–87. He
asserts in Counts 3 and 5 that Harris County has a policy of
ratifying officers’ illegal and improper conduct and/or shielding
them from the consequences of such conduct. See generally id at
¶¶ 90–98, 104–07, 110–11; see also id at ¶ 85 (appearing also to
include ratification in failure-to-train claim). And he asserts in
Count 4 that Harris County has an actual policy of permitting its
officers to perform illegal and improper conduct. See generally id
at ¶¶ 104–07.
i. Failure-to-train theory
The Supreme Court observes, “A municipality’s culpability
for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train.” Connick v Thompson, 563 US 51, 61
(2011). But a decision by a local government not to train certain
employees about their legal duty to avoid violating citizens’ rights
may in some circumstances rise to the level of an official
government policy for purposes of Section 1983. Id at 61–62.
To state such a claim, a plaintiff must plead that:
o First, the training procedures of the municipality’s
policymaker were inadequate;
o Second, the policymaker was deliberately indifferent
in adopting the training policy; and
o Third, the inadequate training policy directly caused
the plaintiff’s injury.
Conner v Travis County, 209 F3d 794, 796 (5th Cir 2000), quoting
Baker v Putnal, 75 F3d 190, 200 (5th Cir 1996).
Municipal liability doesn’t attach merely because “a particular
officer may be unsatisfactorily trained” or “an otherwise sound
program has occasionally been negligently administered.” City of
Canton, Ohio v Harris, 489 US 378, 390–91 (1989). The Fifth
Circuit directs with the first element that the focus must be on
the adequacy of the training program in relation to the tasks the
particular officer must perform. Snyder v Trepagnier, 142 F3d 791,
798 (5th Cir 1998), quoting City of Canton, 489 US at 390. And so
to defeat a motion to dismiss, the plaintiff must allege with
specificity how the training program is defective in this regard.
Roberts v City of Shreveport, 397 F3d 287, 293 (5th Cir 2005).
Taylor fails to meet his pleading burden on this first element.
He alleges in Count 2 that Hartley’s training was defective
because it didn’t include sufficient deescalation or use-of-force
training. Dkt 17 at ¶¶ 81–82. He also claims that deescalation
training is common practice in police departments across Texas.
Id at ¶ 81. But this is wholly conclusory. Taylor neither alleges
specific facts about the training protocols in Harris County nor
describes any deficiencies in the program in light of Hartley’s
assigned duties. See Snyder, 142 F3d at 798. In short, he hasn’t
identified a specific training program or shown how it is
inadequate. And without a sufficiently specified training program
or defects, Taylor necessarily hasn’t shown the causation required
by the third element.
Taylor also fails to meet his pleading burden on the second
element of deliberate indifference. This is “a stringent standard of
fault,” one “requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Connick, 563 US
at 61, quoting Board of County Commissioners of Bryan County
Oklahoma v Brown, 520 US 397, 410 (1997). “Thus, when city
policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to
violate citizens’ constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain that
program.” Connick, 563 US at 61. A municipality’s deliberate
indifference typically requires a plaintiff to allege a pattern of
similar constitutional violations by untrained employees. Id at 62.
A plaintiff must generally show that, given the duties assigned to
specific officers or employees, “the need for more or different
training is obvious, and the inadequacy is likely to result in the
violation of constitutional rights.” City of Canton, 489 US at 390.
Taylor alleges no pattern of similar constitutional violations
by other allegedly untrained employees, which is “ordinarily
necessary” to establish the requisite deliberate indifference to
state a failure-to-train claim. Connick, 563 US at 62. He instead
seeks to use Hartley’s conduct—and only Hartley’s conduct—to
state his claim. For instance, he refers to prior instances of alleged
abuses by Hartley regarding verbal harassment, derogatory
remarks, sleeping on the job, bullying, and the like. Dkt 17 at
¶¶ 69–72. These actions, Taylor says, “evidence his plainly
inadequate training, supervision, and/or discipline by Harris
County in the use of de-escalation techniques for officers.” Id
at ¶ 81f; see id at ¶ 82b (same as to reasonable use of force) and
¶ 83d (same as to preparation of offense reports). But none
involve any application of physical force, excessive or otherwise.
The same can be said—conclusory assertions about Hartley
alone—as to allegedly deficient training on reasonable use of
force and preparation of offense reports. As such, these couldn’t
have put any city policymaker on notice that its training was
deficient on deescalation, use of force, and offense reporting.
Connick, 563 US at 62–63.
Taylor fails to meet the pleading standards necessary to a
failure-to-train claim. Count 2 must be dismissed.
ii. Ratification theory
The Supreme Court permits a ratification theory against a
municipality to go forward in certain limited circumstances:
[W]hen a subordinate’s decision is subject to
review by the municipality’s authorized
policymakers, they have retained the authority
to measure the official’s conduct for
conformance with their policies. If the
authorized policymakers approve a
subordinate’s decision and the basis for it, their
ratification would be chargeable to the
municipality because their decision is final.
City of St Louis v Praprotnik, 485 US 112, 127 (1988) (emphasis in
original).
The Fifth Circuit had recognized the potential for a
ratification theory even prior to Praprotnik. See Grandstaff v City of
Borger, 767 F2d 161 (5th Cir 1985). And the Fifth Circuit
considered a ratification theory under Rule 12(b)(6) standards
earlier this year. On the pleadings in Covington v City of Madisonville,
Texas, it found such theory sufficiently alleged to withstand
motion to dismiss. 812 F Appx 219, 228–29 (5th Cir 2020)
(unpublished). It specified as follows:
Ratification in this context requires that a
policymaker knowingly approve a subordinate’s
actions and the improper basis for those
actions. Otherwise, unless conduct is
“manifestly indefensible,” a policymaker’s
mistaken defense of a subordinate who is later
found to have broken the law is not ratification
chargeable to the municipality.
Id at 228, citing Praprotnik, 485 US at 127; Beattie v Madison County
School District, 254 F3d 595, 603 n 9 (5th Cir 2001); and Coon v
Ledbetter, 780 F2d 1158, 1161–62 (5th Cir 1986).
The precise standard by which to plead a ratification theory
is somewhat unclear as discussed and applied in other Fifth
Circuit precedent. See Hobart v City of Stafford, 916 F Supp 2d 783,
794–97 (SD Tex 2013) (collecting precedent). But three points
warrant analysis here. First, a clear prerequisite is knowing
approval by a policymaker of both conduct and its underlying,
improper basis. Second, a slightly different path by which to
establish ratification appears by reference above to manifestly
indefensible conduct. Third, although left out of the articulation
above, a question exists whether Fifth Circuit precedent limits the
ratification theory to extreme factual situations. For example, see
Peterson v City of Fort Worth, Texas, 588 F3d 838, 848 (5th Cir 2009).
Each of these will be considered separately to the extent raised
by Harris County.
But at the outset, Count 5 must be dismissed as entirely
conclusory. It contains only two substantive allegations—first,
that “Harris County ratifies, accepts, and approves of its officers’
illegal and improper conduct such as Hartley’s actions,” and
second, that “[t]his ratification shows a policy, procedure,
custom, practice, or protocol of approving officers (particularly
Hartley) to use unjustifiable and unreasonable force.” Dkt 17 at
¶¶ 110–11. The prior paragraph does purport to incorporate by
reference the entirety of all preceding paragraphs. Id at ¶ 109. But
it is entirely unclear what this adds, given that it also incorporates
the more-specific ratification claim pleaded in Count 3. On its
own terms, Count 5 is plainly insufficient under the standards
mandated by Twombly and Iqbal. And reference to Hartley’s
conduct alone to show a policy of ratification does nothing other
than assert a variant of respondeat superior liability, which is
impermissible.
The ratification theory pleaded by Taylor will only be
considered further with respect to Count 3.
As to knowing approval by a policymaker. That a policymaker
must knowingly approve both the actions of a subordinate and
the improper basis of those actions accords with the more general
principle that only policymakers can create municipal liability
under Section 1983. And so they—and not just their
subordinates—must be responsible for the violation. Milam v City
of San Antonio, 113 F Appx 622, 627 (5th Cir 2004) (unpublished).
This means that the initial inquiry “is identification of
officials or governmental bodies ‘who speak with final
policymaking authority for the local governmental actor
concerning the action alleged to have caused the particular
constitutional or statutory violation at issue.’” Doe on behalf of MF
v Harris County Precinct Six Constable Sylvia Trevino, 2020 WL
1695054, *7 (SD Tex), quoting Bolton v City of Dallas, Texas, 541
F3d 545, 548 (5th Cir 2008). It isn’t necessarily fatal at the
pleading stage that the plaintiff fails to articulate “the specific
identity of the policymaker.” Groden v City of Dallas, Texas, 826
F3d 280, 285 (5th Cir 2016). But he or she must still “plead facts
that show that the defendant or defendants acted pursuant to a
specific official policy, which was promulgated or ratified by the
legally authorized policymaker.” Id at 282 (emphasis in original).
Whether an individual is a final policymaker for a
municipality is a question of state law. Bolton, 541 F3d at 548.
Taylor brings his action here against Harris County. It has long
been recognized in Texas that the county sheriff is a county’s final
policymaker as to law enforcement. Turner v Upton County, 915
F2d 133, 136 (5th Cir 1990) (collecting cases). The Harris County
Sheriff is thus presumably the policymaker to whom Taylor must
connect his ratification theory. Regardless, the question under
Groden is whether the amended complaint alleges sufficient facts
to suggest that the sheriff or another authorized policymaker for
Harris County ratified Hartley’s actions. It doesn’t.
Broadly speaking, Taylor attributes all ratifying actions
generically to “Harris County.” For example, he alleges that
Harris County “knows, should know, or must know that Hartley
fabricated evidence” and that Harris County “allowed Hartley to
fabricate evidence in order to protect himself and to permit the
county to avoid having a record of his unreasonable conduct.” Id
at ¶¶ 91–92. And he alleges that “Harris County has failed to
discipline or even admit that Hartley’s actions were
unreasonable.” Id at ¶ 94. These allegations are deficient and
conclusory even against the lenient standard of Rule 8(a)(2)
requiring only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” This is so because Taylor in
no way connects this single instance of an excessive use of force
by Hartley to the Harris County Sheriff or any other putative
policymaker. But that is the requirement—the pleading of facts
showing that the subordinate acted pursuant to a specified,
official policy that was either promulgated or ratified by a legally
authorized policymaker. Groden, 826 F3d at 282.
Hartley with a bit more specificity also alleges, “Harris
County failed to respond to Plaintiff’s demand letter, evincing
Harris County believes Hartley’s actions were reasonable and that
he was free from any wrongdoing.” Dkt 17 at ¶ 96. Yet both the
addressee and the contents of this letter are unknown because it
is neither attached nor described in any way. But even if the Court
were to infer that the Harris County Sheriff or some other
policymaker received his demand letter and failed to subsequently
investigate, it wouldn’t sufficiently state a ratification claim under
Fifth Circuit precedent.
For instance, the plaintiff in Milam asserted a ratification
claim against the City of San Antonio arising from an alleged
unlawful arrest. 113 F Appx at 628. He sent letters to city officials,
some of whom were policymakers. Id. The “Municipal Integrity
Division” of the city opened but never completed an
investigation. Id at 623. The Fifth Circuit observed, first, that this
didn’t “present a situation where the policymakers have approved
the ‘decision and the basis for it.’” Id at 628, quoting Praprotnik,
485 US at 127. “That the policymakers failed to take disciplinary
action in response to [the plaintiff’s] complaints does not show
that they knew of and approved the illegal character of the arrest,
determining that it accorded with municipal policy.” Milam, 113
F Appx at 628, citing Praprotnik, 485 US at 130. And second, the
Fifth Circuit said that “it is hard to see how a policymaker’s
ineffectual or nonexistent response to an incident, which occurs
well after the fact of the constitutional deprivation, could have
caused the deprivation.” Milam, 113 F Appx at 628 (citations
omitted) (emphasis in original). So, too, here.
An instructive counterpoint is the Fifth Circuit’s recent
approval of the ratification claim as pleaded in Covington, which
showed a genuine connection between the policymaker and the
underlying conduct of the subordinate. 812 F Appx at 228–29.
The plaintiff brought a ratification claim against the City of
Madisonville arising from her unlawful arrest and consequent
temporary loss of child custody. Her ex-husband was a police
officer with the City of Madisonville. He hatched a plan to plant
drugs in her car so he could regain custody of their children. She
alleged that he frequently complained to other officers about his
ongoing custody battle and urged them to try to find a reason to
arrest her. Id at 222. The drugs were allegedly planted in her car
by a confidential informant that her ex-husband recruited, and
she was subsequently arrested. The charges were later dropped,
and the children were returned to her custody. Ibid.
The chief of police was a policymaker for the city. Id at 228.
The plaintiff alleged that he ratified the conduct of her ex-
husband—who was his subordinate—by failing to intervene to
stop him and by covering up evidence of his culpability during
the ensuing investigation. Id at 229. She also specifically alleged
that the police chief failed to provide audio recordings to
investigators and failed to properly label and investigate a
statement written by a confidential informant asserting that her
ex-husband had offered to pay him to plant drugs in the plaintiff’s
car. The Fifth Circuit held that these facts, when considered
together with the plaintiff’s assertions that the police chief failed
to supervise her ex-husband prior to the planting of drugs in her
vehicle, were sufficient to survive a motion to dismiss. Ibid.
The facts in Taylor’s complaint are much closer to those in
Milam than in Covington—while falling short of both. Unlike
Covington, Taylor alleges no facts suggesting that the Harris
County Sheriff or another policymaker was in any way involved
in Hartley’s misconduct or had ever received a complaint
involving excessive use of force. He instead primarily bases his
ratification claim upon the lack of response to his demand letter
and a lack of investigation and discipline. Dkt 17 at ¶¶ 94, 96.
That is insufficient under Milam. Indeed, the Fifth Circuit there
noted that the Supreme Court in Praprotnik “recognized that
policymakers who ‘[s]imply go[ ] along with’ a subordinate’s
decision do not thereby vest final policymaking authority in the
subordinate, nor does a ‘mere failure to investigate the basis of a
subordinate’s discretionary decisions’ amount to such a
delegation.” 113 F Appx at 627, quoting Praprotnik, 485 US at
130. The Fifth Circuit specifically observed that such limitations
on municipal liability “are necessary to prevent the ratification
theory from becoming a theory of respondeat superior, which theory
Monell does not countenance.” Milam, 113 F Appx at 627.
Taylor hasn’t pleaded the requisite knowing approval of a
policymaker because he alleges neither the policymaker nor his
or her connection to the policy or conduct subject to ratification.
Groden, 826 F3d at 282.
As to “manifestly indefensible” conduct. The Fifth Circuit in
Covington cited Coon, 780 F2d at 1161–62, with respect to
ratification of conduct that is otherwise “manifestly
indefensible.” The sheriff in Coon defended the conduct of his
deputies based upon their version of a contested incident. The
Fifth Circuit held that this didn’t support ratification liability
where their version “did not show that the deputies’ actions were
manifestly indefensible.” Id at 1162. As more recently stated, “a
policymaker who defends conduct that is later shown to be
unlawful does not necessarily incur liability on behalf of the
municipality.” Peterson, 588 F3d at 848, citing Coon, 780 F2d at
1161–62.
Taylor pleads contrary to this requirement. He specifically
avers that Hartley stated in the offense report of the incident that,
after he initially struck Taylor, “Plaintiff rose up against Hartley”
and “Plaintiff made attempts to continue to strike Hartley.”
Dkt 17 at ¶ 58. Taylor also alleges in the same paragraph that
those statements and that explanation were a lie. Ibid. But
whether the statements in the offense report are true or not isn’t
the issue. The question is whether that “version of events” shows
conduct by the subordinate that is “manifestly indefensible.”
Coon, 780 F2d at 1161–62; see also Peterson, 588 F3d at 848. It
doesn’t. To the contrary, that Hartley allegedly determined to
fabricate the context of his beating of Taylor indicates that Harris
County doesn’t have in place a policy tolerating unreasonable and
excessive use of force.
Taylor also alleges that other witness and video evidence
established that the offense report wasn’t accurate. See id at
¶¶ 59–60. But he pleads nothing to suggest that such information
was brought to the attention of an authorized policymaker. This
claim will be dismissed without prejudice as noted below, with
the claim against Hartley proceeding to discovery as discussed
above. Taylor may seek leave to replead this aspect of his
ratification claim if discovery shows that the referenced video and
witness statements were before and considered by the Harris
County Sheriff or other policymaker.
As to extreme factual scenario. A question exists under Fifth
Circuit precedent whether ratification theory is necessarily limited
to “extreme factual situations.” For example, see Peterson, 588 F3d
at 848. This line of authority derives from Grandstaff, where the
Fifth Circuit found ratification by a municipality when a group of
police officers mistook an innocent man for a fugitive,
surrounded him, and killed him in a blaze of gunfire poured on
his truck. 767 F2d at 171. Later, the Fifth Circuit has at times
indicated a limitation of this theory to extreme factual scenarios, while
finding the circumstances under review insufficiently extreme.
See Snyder, 142 F3d at 798 (declining to find ratification in case
where officer shot fleeing suspect in back); Peterson, 588 F3d at
848 (declining to find ratification where officer detained suspect
and struck his knee); World Wide Street Preachers Fellowship v Town
of Columbia, 591 F3d 747, 755 (5th Cir 2009) (declining to find
ratification where officer told protesters to leave intersection).
But there is a lack of clarity on this point. Not all Fifth Circuit
ratification cases address or appear to require proof of an extreme
factual scenario. Or at least it isn’t referenced as such in the given
procedural posture, even where the underlying allegations aren’t
extreme in the same sense presented in Grandstaff. For example, see
Turner 915 F2d at 136 (false charges, summary judgment); Beattie,
254 F3d at 603 (employment, summary judgment); Milam 113 F
Appx at 626 (illegal arrest, trial); Chavez v Brownsville Independent
School District, 135 F Appx 664, 679 (5th Cir 2005) (unpublished)
(employment, summary judgment).
Confounding this further, the Court is only aware of two
Fifth Circuit ratification cases at the motion to dismiss stage, and
neither turned on whether the background facts were sufficiently
extreme. One is Covington, which facts have been described
previously. It didn’t include any reference to an extreme factual
scenario as part of the pleading standard stated there. The other is
Culbertson v Lykos, where the Fifth Circuit addressed ratification
of an underlying First Amendment retaliation concerning Harris
County’s decision not to renew a breath-alcohol testing contract
with a certain lab because two of their employees had spoken out
about problems with the tests. 790 F3d 608, 621 (5th Cir 2015).
It there recognized this limitation—but then found ratification
sufficiently alleged to withstand a motion to dismiss without any
analysis of whether the factual scenario was sufficiently extreme.
Id at 623. And as with the cases cited immediately above, neither
Covington nor Culbertson presented facts even approximating the
type of extreme scenario at issue in Grandstaff. See Hobart, 916
F Supp 2d at 796 (determining whether an underlying violation is
an “extreme constitutional violation or only a garden-variety
constitutional violation is an ill-defined task”).
Harris County seeks dismissal on this basis. Dkt 18 at 17. The
Court needn’t resolve this issue given the disposition above. It
will be addressed further if Taylor seeks to replead this claim. And
if so, the parties will be required to provide more than the single
paragraph of argument sponsored by Harris County in its motion
and the single sentence provided by Taylor in his response. See
Dkt 18 at 17; Dkt 22 at 29.
iii. Policy permitting officers to perform illegal
and improper conduct
To establish municipal liability under Section 1983 based on
an unconstitutional policy, a plaintiff must show that an official
policy promulgated by the municipal policymaker was the
moving force behind the violation of a constitutional right.
Piotrowski, 237 F3d at 578. A plaintiff must thus plead:
o First, the existence of an official policy;
o Second, the policymaker promulgated the policy; and
o Third, the policy caused the plaintiff’s injury.
Peña v City of Rio Grande City, 879 F3d 613, 621 (5th Cir 2018),
quoting Hicks–Fields v Harris County, 860 F3d 803, 808 (5th Cir
2017).
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.” Connick, 563 US at 61. As framed by the Fifth
Circuit, a complaint’s “description of a policy or custom and its
relationship to the underlying constitutional violation . . . cannot
be conclusory; it must contain specific facts.” Peña, 879 F3d at
621, quoting Spiller v City of Texas City, Police Department 130 F3d
162, 167 (5th Cir 1997); see also Oliver v Scott, 276 F3d 736, 741
(5th Cir 2002) (necessary to plead specific conduct and facts
giving rise to constitutional violation). And as already discussed,
to satisfy the policymaker element a plaintiff must “plead facts that
show that the defendant or defendants acted pursuant to a
specific official policy, which was promulgated or ratified by the
legally authorized policymaker.” Groden, 826 F3d at 285
(emphasis in original).
Count 4 repeats the allegations that “Harris County” has
failed to discipline Hartley, despite being aware of this incident
and his prior behavior. See Dkt 17 at ¶¶ 101–105. To the extent
this appears to assert a policy based on ratification, it is a
repackaging of the same allegations deficiently pleaded in
Counts 3 and 5. That has already been rejected above.
Beyond this, Taylor fails to meet his pleading burden on the
first element. It isn’t even clear whether the complained-of policy
is written down or an unwritten custom. Instead, he only alleges
that Harris County “permits its officers to perform illegal and
improper conduct,” and that this “failure to act shows a policy,
procedure, custom, practice, or protocol of permitting officers
(particularly Hartley) to use unjustifiable and unreasonable force
without consequence.” Id at ¶¶ 106–07. As with both Counts 2
and 5, this is wholly conclusory. Taylor doesn’t plead specific
facts about the alleged policy. He simply states that such a policy
exists based only on Hartley’s conduct. This is insufficient. Pena,
879 F3d at 621; Scott, 276 F3d at 741.
Taylor also fails to meet his pleading burden on the third
element. Taylor needn’t plead the specific identity of the
policymaker, but he must plead facts showing a connection
between the policy and an official policymaker. Groden, 826 F3d
at 285. For instance, in Groden the Fifth Circuit dealt with First
Amendment claims asserted against the City of Dallas that it had
adopted a policy of “cracking down” on vendors engaging in
unpopular-but-protected speech in and around the site of
President Kennedy’s assassination. The Fifth Circuit looked first
to prior decisions holding that the “final policymaker” for Dallas
is its city council. 826 F3d at 286, citing Bolton, 541 F3d at 550.
And so the pertinent question was only “whether Groden has
pled sufficient facts to suggest, for the purpose of a 12(b)(6)
motion, that the city council promulgated or ratified the
crackdown policy of which he complains.” Ibid. The Fifth Circuit
concluded allegations were sufficient that pointed to public
announcement of a new policy regarding “cracking down” on
vendors at Dealy Plaza and the grassy knoll, where a city
“spokesman” also gave media interviews describing the new
policy. Ibid.
As with Taylor’s ratification claim, he fails to connect the
complained-of policy to an official policymaker. Taylor alleges no
facts suggesting that the Harris County Sheriff or other
authorized policymaker promulgated a policy of allowing officers
to use unjustifiable and unreasonable force without consequence.
Taylor fails to meet the pleading standards necessary to an
unconstitutional policy claim. Count 4 must be dismissed.
iv. Potential for repleading
Taylor has already amended his complaint once. See Dkts 15,
17. A district court “should freely give leave [to amend] when
justice so requires.” FRCP 15(a)(2). “But leave may be denied
when it would cause undue delay, be the result of bad faith,
represent the repeated failure to cure previous amendments,
create undue prejudice, or be futile.” Morgan v Chapman, 2020 WL
4558954, *7 (5th Cir), citing Smith v EMC Corp, 393 F3d 590, 595
(5th Cir 2004).
The claims against Harris County for failure to train
(Count 2), ratification (Counts 3 and 5), and an unconstitutional
policy permitting illegal and improper conduct (Count 4) will be
dismissed without prejudice. Taylor may bring a motion seeking
leave to amend on or before the discovery deadline of April 15,
2021. Dkt 31. If discovery reveals the involvement of an
authorized policymaker with sufficient knowledge—and as to
Counts 2 and 4, specific facts about the complained-of policies—
Taylor may seek leave to amend. Taylor is instructed to reassert
only one ratification claim, if at all.
b. Claims under the Americans With Disabilities
Act and the Rehabilitation Act
Taylor asserts claims under the Americans With Disabilities
Act of 1990 and the Rehabilitation Act of 1973. He proceeds
under theories of discrimination and failure to accommodate.
Dkt 17 at ¶ 114.
i. Discrimination theory
Title II of the ADA provides, “Subject to the provisions of
this subchapter, no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.” 42 USC § 12132. It defines public entities to include local
governments. 42 USC § 12131(1)(A). And it creates a private
right of action against them for monetary and equitable relief. See
42 USC § 12133.
The language of Title II tracks the language of Section 504
of the Rehabilitation Act. Hainze v Richards, 207 F3d 795, 799 (5th
Cir 2010). It “specifically provides that ‘[t]he remedies,
procedures and rights’ available under Section 504 shall be the
same as those available under Title II.” Id, quoting 42 USC
§ 12133. As such the elements necessary to state a case of
discrimination under the Rehabilitation Act are “operationally
identical” to those under the ADA. Melton v Dallas Area Rapid
Transit, 391 F3d 669, 676 n 8 (5th Cir 2004).
To establish a prima facie case of discrimination under Title II
of the ADA and Section 504 of the Rehabilitation Act, a plaintiff
must demonstrate that:
o First, “he is a qualified individual within the meaning
of the ADA”;
o Second, “he is being excluded from participation in,
or being denied benefits of, services, programs, or
activities for which the public entity is responsible,
or is otherwise being discriminated against by the
public entity”; and
o Third, “such exclusion, denial of benefits, or
discrimination is by reason of his disability.”
Melton, 391 F3d at 671–72; see also Greer v Richardson Independent
School District, 472 F Appx 287, 291 n 1 (5th Cir 2012) (factors as
pertinent to the Rehabilitation Act).
Harris County doesn’t dispute that Taylor was a disabled
person within the meaning of the ADA. But the second and third
elements are both at issue.
Taylor alleges as to the second element that he was denied
the opportunity to be booked and arraigned, to have his case
reviewed for probable cause, and to have bail set at a hearing.
Dkt 17 at ¶ 114b. The Fifth Circuit hasn’t specified whether such
services are within comprehension of the ADA. But the Southern
District of Texas has previously considered whether arresting
officers or prisons are public entities providing benefits that
might possibly be denied. In Hobart v City of Stafford, the court
applied Title II to an arrest, recognizing that a failure to
accommodate a disability in that context might cause a person
“to suffer greater injury or indignity in that process than other
arrestees.” 2010 WL 3894112, *10 (SD Tex), quoting Gohier v
Enright, 186 F3d 1216, 1220 (10th Cir 1999). The Court assumes
this sufficiently pleads the second element. Taylor ultimately fails
to establish the third—that he was beaten and denied benefits by
reason of his disability.
To show discrimination by reason of disability, a plaintiff
“must show that the denial was intentional.” EM b/n/f Guerra v
San Benito Consolidated Independent School District, 374 F Supp 3d
616, 624 (SD Tex 2019), citing Delano-Pyle v Victoria County, Texas,
302 F3d 567, 574 (5th Cir 2002). Several circuits have held that
deliberate indifference is the correct standard by which to determine
intentionality in this context. See McCollum v Livingston, 2017 WL
2215627, *2 n 3 (SD Tex) (collecting cases from Second, Third,
Ninth, Tenth, and Eleventh Circuits). They suggest that this
standard corresponds to the remedial goals of the ADA and the
Rehabilitation Act. For instance, when discussing their
enactment, the Supreme Court noted, “Discrimination against
the handicapped was perceived by Congress to be most often the
product, not of invidious animus, but rather of thoughtlessness
and indifference—of benign neglect.” Alexander v Choate, 469 US
287, 295 (1985). The Third Circuit thus observed that “a standard
of deliberate indifference, rather than one that targets animus,
will give meaning to the RA’s and the ADA’s purpose to end
systematic neglect.” SH ex rel Durrell v Lower Merion School District,
729 F3d 248, 264 (3d Cir 2013).
But the Fifth Circuit has declined to hold that deliberate
indifference “suffices.” Smith v Harris County, Tex, 956 F3d 311,
318 (5th Cir 2020); see also Perez v Doctors Hospital at Renaissance,
Ltd, 624 F Appx 180, 184 (5th Cir 2015) (unpublished) (declining
to make new law on standard of intent). It has instead “relied ‘on
the widely accepted principle that intent requires that the
defendant at least have actual notice,” while leaving the “precise
contours” somewhat less delineated. Smith, 956 F3d at 318,
quoting Miraglia v Board of Supervisors of Louisiana State Museum, 901
F3d 565, 574 (5th Cir 2018). That principle is alone enough to
resolve the issues at hand.
The amended complaint states, “Hartley intentionally
discriminated against Plaintiff through his hostility, provocation,
and beating of Plaintiff whose disability was a significant and/or
the only factor causing Hartley’s actions.” Dkt 17 at ¶ 114c. This
is entirely conclusory and says nothing about what was known to
Hartley at the time. The amended complaint in the same passage
does refer—again in conclusory terms—to Taylor’s disability as
“known, open, and obvious.” Id at ¶ 114. But as discussed next
on his failure-to-accommodate theory, this specifies nothing
about why his disabilities were open and obvious to Hartley or
otherwise known to him.
Simply put, Taylor fails to plead sufficient facts permitting an
inference that Hartley had notice of Taylor’s disabilities. Indeed,
nothing suggests that he and Hartley had any substantial
interactions through which Hartley could have ascertained
Taylor’s disabilities prior to the alleged incident. The first factual
allegation putting them in close proximity is reference to Taylor’s
turn to be checked in and moved into the courtroom for his initial
appearance. This is when Hartley told him in pejorative terms to
remove his hat. Id at ¶ 32. No other exchange is indicated
between them. Nothing references what Taylor was saying,
doing, or otherwise manifesting while waiting his turn in line.
As a result, the claim based on an intentional discrimination
theory must be dismissed.
ii. Failure-to-accommodate theory
In addition to prohibiting discrimination, the ADA and the
Rehabilitation Act “impose upon public entities an affirmative
obligation to make reasonable accommodations for disabled
individuals.” Smith, 956 F3d at 317, quoting Bennett–Nelson v
Louisiana Board of Regents, 431 F3d 448, 454 (5th Cir 2005). To
establish a prima facie case on a failure-to-accommodate claim, a
plaintiff must show that:
o First, “he is a qualified individual with a disability”;
o Second, “the disability and its consequential
limitations were known by the covered entity”; and
o Third, “the entity failed to make reasonable
accommodations.”
Smith, 956 F3d at 317, quoting Ball v LeBlanc, 792 F3d 584,
596 n 9 (5th Cir 2015).
As to the first element, Taylor alleges that his disabilities
include epilepsy, lack of motor functions, speech impediments,
brain damage, and mental illness. Dkt 17 at ¶ 21. As to the third,
he claims that he required at least ten accommodations that he
didn’t receive, including a system more adept at cataloguing his
physical and mental needs, a mental health screening, better
training for jail staff, and more rigorous monitoring and
observation. Id at ¶ 126. Harris County doesn’t put either of
those elements at issue here.
It does contest the second. To satisfy the knowledge element,
a plaintiff must ordinarily show “that they identified their
disabilities as well as the resulting limitations to a public entity or
its employees and requested an accommodation in direct and
specific terms.” Smith, 956 F3d at 317, citing Windham v Harris
County, Texas, 875 F3d 229, 237 (5th Cir 2017). Absent a request
in this manner, a plaintiff can only prevail “by showing that the
disability, resulting limitation, and necessary reasonable
accommodation were open, obvious, and apparent to the entity’s
relevant agents.” Smith, 956 F3d at 318 (quotation marks and
citations omitted). The Fifth Circuit holds that well-understood
and outwardly visible disabilities such as blindness, deafness, or
being wheelchair-bound can present situations where the
disability, resulting limitation, and reasonable accommodation are
apparent. Windham, 875 F3d at 238. But mental disabilities aren’t
necessarily apparent due to their often hidden or obscured
nature. Taylor v Principal Financial Group, Inc, 93 F3d 155, 165
(5th Cir 1996).
At issue is whether Taylor’s disability and the
accommodations it required were known by the jail staff. Harris
County observes that Taylor doesn’t allege that he requested any
specific accommodation. Dkt 18 at 10. Taylor tries to bridge that
gap by stating throughout his complaint in conclusory terms that
his disability and need for accommodation were open and obvious.
Dkt 17 at ¶¶ 10, 31, 33, 37, 51, 55, 114, and 121. But his mental
impairment and resulting limitations aren’t obvious “outwardly
visible” disabilities—at least not without some specification of
what was going on at the pertinent time or actually manifested to
the person or persons alleged to have failed to provide the
required accommodation. Windham, 875 F3d at 238.
There is no indication in the amended complaint of any prior
exchange by Taylor with the jail staff. And nothing suggests that
they would have had opportunity to learn about his disabilities or
known what type of accommodations those disabilities would
have required. To the contrary, the factual allegations begin with
Hartley waiting in line for booking—and that Hartley “was being
‘mouthy’ to all the inmates,” not just to him. Dkt 17 at ¶ 30.
Hartley then used provocative language against Taylor, to which
Taylor reacted by lunging at Hartley, followed by the beating that
is at issue. Id at ¶¶ 32, 34–39. The excessiveness of that beating
is troubling and goes forward on Taylor’s claim under Section
1983 as a violation of his constitutional rights. But its connection
to his disability and a need for accommodation simply hasn’t
been established.
The Fifth Circuit quite clearly holds, “In the context of a
failure-to-accommodate claim, intentional discrimination
requires at least actual knowledge that an accommodation is
necessary.” Smith, 956 F3d at 319, citing Cadena v El Paso County,
946 F3d 717, 724 (5th Cir 2020). Short of any facts or explanation
as to why his disabilities would have been open and obvious at the
time requiring accommodation, it is an insufficient conclusory
averment. Twombly, 550 US at 557.
The claim based on a failure-to-accommodate theory must
be dismissed.
iii. Potential for repleading
Harris County moved to dismiss the ADA and Rehabilitation
Act claims in Taylor’s original complaint. Dkt6. Before
reassignment to this Court, Judge Ewing Werlein addressed this
in a status conference in April 2019. Dkt 15. The parties there
agreed to allow Taylor to file an amended complaint, and the
motion to dismiss was mooted. The minute entry from that
conference in part states, “Plaintiff's counsel agreed that Plaintiff
would not seek leave to file any further amendment regarding
Plaintiffs ADA and Rehabilitation Act Claims.” Ibid.
These claims will be dismissed with prejudice.
6. Conclusion
The motion to dismiss by Harry Hartley is DENIED. Dkt 19.
The claim against him under 42 USC § 1983 for excessive force
in violation of the Fourth Amendment will continue through
discovery.
The motion to dismiss by Harris County is GRANTED.
Dkt 18. The civil rights claims under 42 USC § 1983 asserting
municipal liability are DISMISSED WITHOUT PREJUDICE. The
claims under the American With Disabilities Act and the
Rehabilitation Act are DISMISSED WITH PREJUDICE.
SO ORDERED.

Signed on September 22, 2020, at Houston, Texas.
CL. 2 Calcd =
Hon. Charles Eskridge
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673762. Public record. Not legal advice.