The opinion
August 05, 2022
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
OLIVIA SLIGH, § CIVIL ACTION NO.
Plaintiff, § 4:20-cv-01417
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
CITY OF CONROE, §
et al, §
Defendants. §
OPINION AND ORDER
GRANTING MOTIONS TO DISMISS
Plaintiff Olivia Sligh alleges that the City of Conroe
and members of the Conroe Police Department and the
Montgomery County Sheriff’s Office violated her
constitutional rights when a trained police dog severely bit
her during what turned into her arrest.
The motions to dismiss by Defendants the City of
Conroe, Montgomery County, Deputy Alexis Alias Montes,
and Officer Tyson Sutton are granted. Dkts 55, 59 & 77.
1. Background
Sligh alleges that a change in her psychotropic
medication caused her to become “suicidal and cut herself
with a foot scraper which has a razor blade in it” in the
early morning hours of July 5, 2018. She also says that her
boyfriend called 911 to report that she’d hurt herself and
then left the house on foot headed into a wooded area when
he tried to take her to the hospital. She asserts that her
boyfriend didn’t report a crime or that she had weapon.
Dkt 54 at ¶¶ 12–14.
Sutton and Montes responded to the call. They each
wore bodycams, which recorded the entirety of their
interactions with Sligh. See Dkt 55-1 at 2. Sligh’s
allegations contradict such video in certain respects. See
Dkt 54 at ¶¶ 13–23. As noted below, such contrary
allegations are properly disregarded. For as shown in the
first thirteen minutes of Sutton’s bodycam video, the
events proceeded substantially as follows.
0:00:20 to 0:01:50. Sutton arrives with a police dog
trained by the Conroe Police Department. Montes is
already on the scene. They are informed by other officers of
report by Sligh’s boyfriend that a suicidal Sligh wanted to
“die in peace,” was bleeding heavily after having cut
herself, had been drinking heavily that night, and left on
foot when he tried to take her to the hospital.
0:03:56 to 0:05:21. After brief survey of the
neighborhood, Sutton retrieves the canine from his cruiser,
leashes it, and begins to search for Sligh in the areas
surrounding her home.
0:09:10 to 0:10:27. Sutton and the canine enter into a
wooded area with dense underbrush, searching by
flashlight. He notes that he sees her but can’t reach her.
0:10:45 to 0:11:40. Montes arrives, and Sutton informs
him of the situation. Sutton then states that Sligh “is
taking off.” He proceeds with the canine to follow her into
the underbrush.
0:11:40 to 0:12:02. Sutton catches up to Sligh in the
underbrush beside a fence. He shines the flashlight in her
face as the canine barks and strains towards her on a leash.
She approaches towards Sutton, who loudly says, “Wait,
wait, wait, don’t! Do not walk towards me! Do not walk
towards me! The dog will bite you!”
0:12:00 to 0:12:19. Sligh can be heard to acknowledge
the commands. She then refuses multiple commands by
Montes to place her hands behind her back, to which she
responds with profanity. She also slaps at Montes’s hands
and arms, attempting to pull away.
0:12:19 to 0:12:30. A physical struggle begins between
Sligh and Montes. She strikes him at least once and then
breaks free.
0:12:30 to 0:13:33. Sutton releases the canine, which
bites Sligh’s upper thigh. Sligh screams in obvious pain.
Sutton commands the canine multiple time to release its
bite. It doesn’t immediately comply and instead bites Sligh
twice more on the upper leg and ankle.
Sligh was eventually arrested. She maintains that
Sutton and Montes misrepresented in their reports that
she’d “resisted arrest, tried to escape, and assaulted
Montes.” Dkt 54 at ¶ 24. She was taken to the hospital for
stitches and other treatment for the dog bites, which
wounds later became infected. Id at ¶¶ 25–26.
Sligh filed this lawsuit in federal court to assert claims
(i) under 42 USC § 1983 against the City of Conroe,
Montgomery County, and each officer individually;
(ii) under Title II of the ADA and Section 504 of the
Rehabilitation Act against Montgomery County (and its
Sheriff’s Department) and the City of Conroe (and its Police
Department); (iii) under various state-law tort claims
against all Defendants; and (iv) for punitive damages.
Dkt 23 at ¶¶ 30–52.
Defendants previously moved to dismiss all claims
against them. Dkts 27, 28 & 29. Sligh at hearing
abandoned her state-law tort claims (except as against
Sutton) and withdrew the municipal-liability claim against
Montgomery County, which claims were dismissed with
prejudice. Her claims under the ADA for intentional
discrimination were also dismissed with prejudice. And her
claims for failure to accommodate under the ADA, under
Section 1983 against Montes, and for municipal liability
against the City of Conroe were dismissed without
prejudice. See Dkt 43 (Minute Entry of 05/07/2021).
Sligh filed a third amended complaint asserting claims
(i) under Section 1983 for violation of her Fourth and
Fourteenth Amendment rights against the City of Conroe
as a municipality and against Sutton and Montes
individually; (ii) under Title II of the ADA and Section 504
of the Rehabilitation Act against Montgomery County and
the City of Conroe; and (iii) for punitive damages as to all
reasserted claims. Dkt 54 at ¶¶ 37–63. Montgomery
County, Montes, and the City of Conroe moved to dismiss
for failure to state a claim. Dkts 55 & 59. The parties were
ordered to mediation at hearing. See Dkt 67 (Minute Entry
of 11/10/2021). Upon impasse, Sutton moved for judgment
on the pleadings. Dkt 77.
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 holds 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.
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 v Beaumont Independent
School District, 938 F3d 724, 735 (5th Cir 2019). But courts
don’t accept as true “conclusory allegations, unwarranted
factual inferences, or legal conclusions.” Gentiello v Rege,
627 F3d 540, 544 (5th Cir 2010). And the court generally
“must limit itself to the contents of the pleadings, including
attachments thereto.” Brand Coupon Network LLC v
Catalina Marketing Corp, 748 F3d 631, 635 (5th Cir 2014),
quoting Collins v Morgan Stanley Dean Witter, 224 F3d
496, 498 (5th Cir 2000).
Rule 12(c) of the Federal Rules of Civil Procedure
provides, “After the pleadings are closed—but early enough
not to delay trial—a party may move for judgment on the
pleadings.” A motion seeking such relief “is designed to
dispose of cases where the material facts are not in dispute
and a judgment on the merits can be rendered by looking
to the substance of the pleadings and any judicially noticed
facts.” Great Plains Trust Co v Morgan Stanley Dean
Witter & Co, 313 F3d 305, 312 (5th Cir 2002), quoting
Hebert Abstract Co Inc v Touchstone Properties Limited,
914 F2d 74, 76 (5th Cir 1990, per curiam). This means the
legal standard for motions under Rule 12(c) is the same as
those for motions pursuant to Rule 12(b)(6). See
Gentilello v Rege, 627 F3d 540, 543–44 (5th Cir 2010).
Although review is constrained, a notable exception
permits consideration of documents or other undisputed
materials “if they are referred to in the plaintiff’s complaint
and are central to her claim.” Collins, 224 F3d at 498–99
(quotation marks omitted), quoting Venture Associates
Corp v Zenith Data Systems Corp, 987 F2d 429, 431
(7th Cir 1993). The Fifth Circuit has characterized this as
a “limited exception.” Scanlan v Texas A&M University,
343 F3d 533, 536 (5th Cir 2003), citing Collins, 224 F3d at
498–99. But it has expressly recognized that a district
court may consider pertinent video (like that from an
officer’s body camera) if the requirements stated above are
satisfied. For example, see Robles v Ciarletta, 797 F App’x
821, 831–32 (5th Cir 2019, per curiam). This is so because
review of such evidence, where appropriate, can assist the
court “in making the elementary determination of whether
a claim has been stated.” Collins, 224 F3d at 499. Likewise,
a court isn’t required to accept as true allegations that are
contradicted by the materials attached to the complaint or
otherwise appropriate for judicial consideration. For
example, see Cicalese v University of Texas Medical
Branch, 456 F Supp 3d 859, 872 (SD Tex 2020), citing
R2 Investments LDC v Phillips, 401 F3d 638, 642 (5th Cir
2005). And so, any allegation contradicted by a video
segment will be disregarded.
3. Excessive-force and bystander-liability claims
Sligh brings claims against Sutton and Montes
pursuant to Section 1983. These officers assert qualified
immunity, which 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 v Callahan, 555 US 223, 231 (2009), quoting
Harlow v Fitzgerald, 457 US 800, 818 (1982). The
availability of qualified immunity ultimately “turns only
upon the objective reasonableness of the defendant’s acts.”
Thompson, 245 F3d at 457 (emphasis in original)
(quotations omitted).
a. Officer Sutton
Sligh asserts a claim against Sutton for excessive force.
Dkt 54 at ¶¶ 37–47. The elements of such claim are (i) an
injury, (ii) the injury resulted directly and only from a use
of force that was clearly excessive, and (iii) the
excessiveness of the force was clearly unreasonable.
Taylor, 488 F Supp 3d at 532, quoting Trammell v Fruge,
868 F3d 332, 340 (5th Cir 2017), in turn quoting Deville v
Marcantel, 567 F3d 156, 167 (5th Cir 2009). The use of
excessive force must also be intentional. Brower v County
of Inyo, 489 US 593, 596 (1989). The Fifth Circuit instructs
that when considering excessive-force claims, “the
reasonableness of an officer’s conduct depends on ‘the facts
and circumstances of each particular case.’” Cooper v
Brown, 844 F3d 517, 522 (5th Cir 2016), citing Graham v
Connor, 490 US 386, 396 (1989). Such determination is
based on “the perspective of a reasonable officer on the
scene.” Ibid.
Sligh can’t demonstrate violation of a constitutional
right on these facts. She was uncooperative at the time of
her arrest—and indeed, responded with hostility to
warnings that the canine would bite if approached, actively
resisted arrest, assaulted Montes during his attempt to
handcuff her, and failed to comply with either officer’s
instruction. See Dkt 55-1 at 2, 0:11:40 to 0:12:30. Sutton’s
use of the canine under these circumstances can’t be said
to be unreasonable.
Neither can it be said that his subsequent inability to
instantly detach the canine somehow made its use
unreasonable. True, the time from bite to detachment
amounted to about sixty-two seconds, but this was in the
midst of Sligh’s own continued struggles and multiple
instructions for the canine to detach—with the initial bite
occurring only because Sligh refused to comply with orders
and physically resisted arrest.
Sligh also can’t establish that any such putative right
was clearly established so as to be known by a reasonable
officer. In particular, she offers no “clearly established law
indicating that an officer violates the Fourth Amendment
when he loses control of his canine, which proceeds to
injure a suspect.” Byrd v City of Bossier, 624 F App’x 899,
903 (5th Cir 2015, per curiam).
Sutton is entitled to qualified immunity.
b. Officer Montes
Sligh also asserts a claim pursuant to Section 1983
against Montes for failure to intervene during the use of
excessive force. Dkt 54 at ¶¶ 55–61. A claim for bystander
liability requires a showing that Montes knew Sutton was
violating Sligh’s constitutional rights and had a reasonable
opportunity to prevent that violation but chose not to do so.
Whitley v Hanna, 726 F3d 631, 646 (5th Cir 2013) (citations
omitted). It having been determined that Sligh hasn’t
established any violation of her constitutional rights by
Sutton, Montes “is not within the scope of a bystander
liability claim.” Id at 647 (citations omitted).
Montes is entitled to qualified immunity.
4. Municipal-liability claims
Sligh brings claims against the City of Conroe under
Section 1983. She also brings claims against both the City
of Conroe and Montgomery County pursuant to Title II of
the ADA and Section 504 of the Rehabilitation Act.
a. Section 1983
Sligh contends that the City of Conroe maintains “an
unwritten policy of routinely tolerating the infliction of
serious bodily injury via dog biting.” Dkt 54 at 18. She
specifically maintains that the City of Conroe violated
certain of her constitutional rights by having official,
unwritten customs of using excessive force by way of “find
& bite attack-trained dogs.” Id at 9. And she claims that its
vague and inadequate written polices, failure to properly
train and supervise, and ratification of Sutton’s conduct
directly led to the deprivation of her constitutional rights.
Id at 9.
The standards here are familiar:
[M]unicipal 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) (citations omitted). “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 municipal-
ity is actually responsible.” Doe v Edge-
wood Independent School District, 964 F3d
351, 364–65 (5th Cir 2020) (emphasis in
original), quoting Pembaur v Cincinnati,
475 US 469, 479 (1986).
Hunter v City of Houston, 564 F Supp 3d 517, 529 (SD Tex
2021).
As to policies and procedures, Sligh fails to establish
the necessary elements of her claim that the City of Conroe
has a policy and procedure to use excessive force. Most
importantly, it’s been determined above that no violation
of any constitutional right occurred. But Sligh also doesn’t
identify either the official policy or the municipal
policymaker necessary to establish that the City of Conroe
was the “moving force” behind the alleged violations of her
constitutional rights. She instead argues in utterly
conclusory terms that its policies are at present
inadequate, broad, and vague. Dkt 54 at 28. That’s
insufficient. See Pena v City of Rio Grande City, 879 F3d
613, 622 (5th Cir 2018) and Harvey v Montgomery County,
881 F Supp 2d 785, 797 (SD Tex 2012).
As to ratification, the Fifth Circuit holds, “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.”
Covington v City of Madisonville, 812 F App’x 219, 228
(5th Cir 2020, per curiam), citing City of St Louis v
Praprotnik, 485 US 112, 127 (1988), and Beattie v Madison
County School District, 254 F3d 595, 603 n 9 (5th Cir 2001).
Again, there’s no constitutional violation in the first
instance. And beyond that, there’s only conclusory
allegation of a policymaker’s knowing approval of actions
and the improper basis for those actions. See Dkt 54 at 28.
As to failure to train and supervise, the elements are
the same for each, being (i) the training procedures of the
municipality’s policymaker were inadequate, (ii) the
policymaker was deliberately indifferent in adopting the
training policy, and (iii) 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); see also Pena,
879 F3d at 623, citing Thompson v Upshur County, 245 F3d
447, 459 (5th Cir 2001).
Sligh fails to establish the necessary elements, even
beyond her failure to show an underlying constitutional
violation of right. She in no way alleges facts to establish
that the City of Conroe was deliberately indifferent in
adopting a training policy, the inadequacy of which directly
caused her injury. This is mainly so because she fails even
to identify the subject policy. Nor is there any allegation
either identifying a municipal policymaker or linking
municipal action to that policymaker. See generally Dkt 54;
see also Taylor v Hartley, 488 F Supp 3d 517, 537–38
(SD Tex 2020). She alleges only a single, isolated incident
pertaining to use of a police dog to assist officers during her
apprehension. Dkt 54 at 4, 15–18. And no allegation
specifies any similar incidents. See generally Dkt 54.
That’s again conclusory and insufficient. See Roberts v City
of Shreveport, 397 F3d 287, 292 (5th Cir 2005), and
Bennett v City of Slidell, 728 F2d 762, 767 (5th Cir 1984).
The claims for municipal liability under Section 1983
will be dismissed.
b. ADA and Rehabilitation Act
Sligh also brought claims against Montgomery County
and the City of Conroe for failure to accommodate pursuant
to Title II of the ADA and Section 504 of the Rehabilitation
Act. Dkt 54 at ¶¶ 48–54. She contends that these provisions
required Montgomery County and the City of Conroe to
accommodate her disability by avoiding the use of a police
dog during her apprehension. Id at ¶ 53. Such contention
completely overlooks standards pertinent to the situation
that Sutton and Montes confronted in that dark, wooded
area after 2 am on the morning in question. For the Fifth
Circuit holds that to require officers to ascertain whether
their actions in the presence of exigent circumstances
might comply with the ADA prior to securing the safety of
themselves and others “would pose an unnecessary risk to
innocents.” Hainze v Richards, 207 F3d 795, 801 (5th Cir
2000).
Sligh contends that she was unarmed, suspected of no
crime, and “experiencing a mental health crisis”—while
posing no threat to either the officers or other citizens. For
example, see Dkt 54 at 1, 11. That’s disingenuous. The
bodycam video clearly shows that Sligh posed an obvious
threat to at least one human life—her own. She had taken
a razor to her own throat about fifty minutes before her
confrontation with the officers. What’s more, Sutton and
Montes were advised that she was suicidal, had cut her
throat, was uncontrollable, and was bleeding from the neck
after having cut her carotid artery. And when first
confronted by the officers, blood was streaming from the
wound and across her body. Dkt 55 at 19–21. The bodycam
footage goes on to show that she failed to abide by
instructions not to walk towards the officers and to back
up; that she was advised that the dog would bite; that she
thereafter refused to comply with requests to put her hands
behind her back; and that she instead reacted angrily,
lashing out with profanity and instigating a fight. Dkt 55-1
at 2, 0:11:40–0:12:30.
Neither the ADA nor the Rehabilitation Act apply to
these circumstances, where officers are responding to
reported incidents—whether or not those reports involve
subjects with mental disabilities—“prior to the officer’s
securing the scene and ensuring that there is no threat to
human life.” Hainze, 207 F3d at 801; see also Lincoln v City
of Colleyville Texas, 2016 WL 8710478, *6 (ND Tex)
(explaining that Rehabilitation Act yields same result
given same language, remedies, rights, and procedures as
ADA). As such, the officers weren’t foreclosed of their duty
to protect themselves and others. See Lincoln, 2016 WL
8710478 at *6, citing City and County of San Francisco
California v Sheehan, 575 US 600, 615 (2015).
The claims under the ADA and the Rehabilitation Act
will be dismissed.
5. Conclusion
Sligh’s objection to certain evidence submitted by
Montgomery County and Montes—a putative certificate of
absence of public record—is SUSTAINED. Dkt 60 at 5–6; see
Dkt 55-1 at 24. The exhibit has been disregarded.
The motion to dismiss by Defendants Montgomery
County and Deputy Alexis Montes is GRANTED. Dkt 55.
The motion to dismiss by Defendant the City of Conroe
is GRANTED. Dkt 59.
The motion to dismiss by Defendant Officer Tyson
Sutton is GRANTED. Dkt 77.
It being determined above that no violation of law or
constitutional right occurred, the request by Plaintiff
Olivia Sligh for punitive damages is DENIED. Dkt 54 at
¶¶ 62–63; see Auster Oil & Gas Inc v Stream, 835 F2d 597,
604 (5th Cir 1899) (finding punitive damages unavailable
as independent claim or cause of action).
All claims by Sligh against Defendants Montgomery
County, the City of Conroe, Officer Tyson Sutton, and
Deputy Alexis Montes are DISMISSED WITH PREJUDICE.
A final judgment will enter by separate order.
SO ORDERED.
Signed on August 5, 2022, at Houston, Texas.
Che 0 Facts
Hon. Charles Eskridg
United States District Judge
12