State of Texas v. City of Houston

Case: 14-20653 Document: 00513187947 Page: 1 Date Filed: 09/10/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20653 United States Court of Appeals

Fifth Circuit

FILED

IESHA GRANT, September 10, 2015

Lyle W. Cayce

Plaintiff–Appellant, Clerk

v.

CITY OF HOUSTON; KYE NAQUIN; DIANA BOCANEGRA; ANTONIO

GRACIA; DAVID RUSSELL; ROBERT SIMPSON; CHASE CROMIER,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-3278

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Appellant Iesha Grant (Grant) sued the City of Houston and six Houston

Police Department (HPD) officers, alleging several claims under 42 U.S.C.

§ 1983. The district court granted summary judgment and, in the alternative,

dismissed some of Grant’s claims under Rule 12(c). We affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

Case: 14-20653 Document: 00513187947 Page: 2 Date Filed: 09/10/2015

No. 14-20653

I

In September 2010, a number of HPD officers arrived at Grant’s home to

execute an arrest warrant for her brother, Thomas Grant (Thomas), who had

allegedly violated his probation. Upon their arrival, the officers set up a

perimeter around the residence. Shortly after Officer Robert Simpson knocked

on the front door, Thomas, carrying Grant’s infant son, walked out onto the

second-story balcony. The officers instructed Thomas to open the front door so

they could speak to him. Thomas walked back inside the residence, where

officers stationed on the rear perimeter observed him pour an unidentified

liquid into a toilet. Thomas was apprehended without incident after exiting

the residence through the rear door.

After securing Thomas and the infant in a patrol car, the officers

performed a protective sweep of the residence. During the sweep, the officers

discovered narcotics and a large amount of cash. Following the sweep, Grant

arrived at the residence. The officers asked her permission to search the

residence more thoroughly. Because Grant did not consent to a search, the

officers obtained a search warrant.

After the warrant issued, Officer Steven Fisher arrived to search the

residence with a narcotics detection canine. During the search, Grant’s dog,

Buster, who had been locked inside Grant’s bathroom, began barking. Grant

informed the officers that Buster had recently had a leg amputated because of

an infection. To remove Buster from the immediate search area, Fisher, an

experienced dog handler, led Buster downstairs and placed him in the garage.

Subsequently, Officers Simpson and Damian Garcia volunteered to

search the bottom floor of the residence, which included the garage. As they

entered the garage, Simpson observed a pit bull inside a kennel situated

against the garage wall. He began searching certain pieces of luggage, which

were stacked in the garage, for narcotics and paraphernalia. Garcia remained

2

Case: 14-20653 Document: 00513187947 Page: 3 Date Filed: 09/10/2015

No. 14-20653

by the door from which they had entered. As Simpson bent down to inspect

the luggage, he “heard the loud, sharp sound of aggressive barking and

snarling coming from behind [him].” Thinking that the pit bull might have

escaped from its kennel, Simpson turned around and saw Buster, “a medium-

sized, yellow, mixed-breed dog, with its ears folded back along the top of its

head, its teeth showing, its head lowered, and standing in an aggressive

stance.” As Simpson turned to face Buster, the dog charged towards the

officer’s legs, “snapping its teeth and turning its head sideways so that it could

bite [his] leg.” Simpson kicked Buster twice, but the dog continued its

aggressive approach. After retreating to a corner, Simpson drew his pistol and

fired at Buster. Simpson’s first shot caused Buster to collapse onto the floor,

but the dog quickly recovered and continued to charge at Simpson. Simpson’s

second shot penetrated Buster’s neck, instantly killing the dog.

Simpson subsequently filed a report describing the incident, and Garcia

filed a statement corroborating Simpson’s account. The Internal Affairs

Division of HPD investigated and determined that the shooting was justified.

The HPD Administrative Disciplinary Committee reviewed the incident and

reached the same conclusion. An HPD crime-scene reconstruction expert, who

examined the forensic evidence, concurred. But Grant retained a veterinary

expert, John Otto, DVM, who contradicted the eyewitness accounts, claiming

that Buster’s neck wound was “most likely an exit wound,” meaning that

Simpson may have shot Buster from behind. Grant admitted that Buster had

aggressive tendencies and that she heard aggressive barking from the garage

prior to Simpson’s discharge of his firearm.

The State of Texas brought a forfeiture action to retain the cash

discovered in Grant’s residence. Several months later, Grant filed the present

42 U.S.C. § 1983 action, which she styled a counterclaim, against the City of

Houston and eleven HPD officers. The defendants removed the case to federal

3

Case: 14-20653 Document: 00513187947 Page: 4 Date Filed: 09/10/2015

No. 14-20653

court. Grant subsequently filed an amended complaint, adding an additional

officer as a defendant and alleging that the defendants violated § 1983 by

illegally searching her residence, seizing her money, and killing Buster.

Following discovery, the defendants filed a motion for judgment on the

pleadings or in the alternative for summary judgment. Grant entered into a

settlement regarding the seizure of her money and dismissed six officers from

the action, including Garcia. She then filed a Motion to Re-align the Parties

and for Leave to File Third Amended Complaint. The magistrate judge

granted the motion to realign the parties but denied Grant leave to amend her

complaint. Several weeks later, the district court granted summary judgment

in favor of the defendants and, in the alternative, determined that Grant failed

to plead her claims pertaining to municipal liability and the seizure of her

pistol adequately. Grant timely appealed.

II

As an initial matter, “we must consider the basis of our own jurisdiction,

sua sponte if necessary.” 1 None of the defendants were named as a party in

the original forfeiture proceeding that the State of Texas filed against Grant

in Texas court. Grant asserted claims, which she styled counterclaims, against

the present defendants in her answer to the State of Texas’s notice of seizure

and intended forfeiture. Grant was correct to characterize these claims as

counterclaims, rather than third-party claims, because there is no basis for her

to assert that the counter-defendants are liable for any part of the money the

State of Texas sought to seize. 2 Under the well-pleaded complaint rule,

Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015) (per curiam) (citing Wilkens v.

1

Johnson, 238 F.3d 328, 329-30 (5th Cir. 2001)).

2See Texas ex rel. Bd. of Regents of Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 816 (5th

Cir. 1998); Third-Party Complaint, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining third-

party complaint as “[a] complaint filed by the defendant against a third party, alleging that

4

Case: 14-20653 Document: 00513187947 Page: 5 Date Filed: 09/10/2015

No. 14-20653

counterclaims are ordinarily insufficient to permit counter-defendants to

assert federal jurisdiction. 3 But when, as here, a defendant lodges a

counterclaim that arises under federal law against a newly-joined party, that

party may properly remove the case to federal court under 28 U.S.C. § 1441. 4

Accordingly, we are satisfied that we have jurisdiction to resolve this case.

III

We review a district court’s “grant of summary judgment de novo,

applying the same standards as the district court.” 5 Summary judgment is

warranted if, viewing the evidence in the light most favorable to the non-

moving party, “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” 6

Government officials performing discretionary functions are entitled to

qualified immunity against claims brought under 42 U.S.C. § 1983, meaning

that “they ‘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.’” 7 When an official

the third party may be liable for some or all of the damages that the plaintiff is trying to

recover from the defendant” (citing FED. R. CIV. P. 14)).

3 See Bd. of Regents, 142 F.3d at 816 n.2 (“The well-pleaded complaint rule bases

removal jurisdiction on the existence of a claim lying within federal jurisdiction on the face

of a plaintiff's well-pleaded complaint. There has never been a suggestion that a defendant

could, by asserting an artful counterclaim, render a case removable in violation of the well-

pleaded complaint rule.” (citing Rivet v. Regions Bank of La., 522 U.S. 470 (1998))); 14B

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3722 (4th ed. 2015).

4 See Bd. of Regents, 142 F.3d at 816.

5Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014) (citing

Duval v. N. Assurance Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013)).

6 FED. R. CIV. P. 56(a).

Toney v. Owens, 779 F.3d 330, 336 (5th Cir. 2015) (quoting McClendon v. City of

7

Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc)).

5

Case: 14-20653 Document: 00513187947 Page: 6 Date Filed: 09/10/2015

No. 14-20653

invokes the qualified immunity defense, the burden shifts to the plaintiff to

demonstrate that the defense does not apply. 8

To overcome qualified immunity, a plaintiff must demonstrate “(1) that

the official violated a statutory or constitutional right, and (2) that the right

was ‘clearly established’ at the time of the challenged conduct.” 9 We have

discretion to decide “which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at

hand.” 10 When analyzing qualified immunity, “we ‘may not resolve genuine

disputes of fact in favor of the party seeking summary judgment.’” 11

We review de novo a district court’s ruling on a Rule 12(c) motion for

judgment on the pleadings, applying the same standard applicable to a Rule

12(b)(6) motion to dismiss. 12 “To avoid dismissal, a plaintiff must plead

sufficient facts to state a claim for relief that is plausible on its face.” 13

We review for abuse of discretion the district court’s denial of a motion

for leave to amend a complaint. 14

IV

We first address Grant’s claim that the officers used excessive force to

seize Buster in violation of the Fourth Amendment.

8 Id. (citing Kitchen v. Dallas Cnty., 759 F.3d 468, 476 (5th Cir. 2014)).

9 Trent v. Wade, 776 F.3d 368, 377 (5th Cir. 2015) (quoting Morgan v. Swanson, 659

F.3d 359, 371 (5th Cir. 2011) (en banc)).

10 Id. (quoting Pearson v. Callahan, 555 U.S. 223, 242 (2009)).

11 Id. (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)).

12 Johnson v. Teva Pharms. USA, Inc., 758 F.3d 605, 610 (5th Cir. 2014) (citing

Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010)).

13 Id. (quoting Gentilello, 627 F.3d at 544).

14Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (per curiam) (citing Wilson v.

Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010)).

6

Case: 14-20653 Document: 00513187947 Page: 7 Date Filed: 09/10/2015

No. 14-20653

The Fourth Amendment guarantees “[t]he right of the people to be secure

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

and seizures.” 15 A “seizure” of property occurs when an officer meaningfully

interferes “with an individual’s possessory interests in that property.” 16 The

destruction of property constitutes a meaningful interference with an

individual’s possessory interests. 17 It is beyond dispute that Simpson “seized”

Buster within the meaning of the Fourth Amendment. 18

Seizures by law-enforcement officials violate the Fourth Amendment

only if they are unreasonable. 19 To determine whether a seizure was

reasonable, we look to the totality of the circumstances, balancing “the nature

and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” 20

A

15 U.S. CONST. amend. IV.

Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009) (quoting United States v.

16

Jacobsen, 466 U.S. 109, 113 (1984)).

17See Jacobsen, 466 U.S. at 124-25 (“[T]he field test did affect respondents’ possessory

interests protected by the [Fourth] Amendment, since by destroying [the property] it

converted what had been only a temporary deprivation of possessory interests into a

permanent one.”).

18 See San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d

962, 975 (9th Cir. 2005) (‘“The killing of [a] dog is a destruction recognized as a seizure under

the Fourth Amendment’ and can constitute a cognizable claim under § 1983.” (alteration in

original) (quoting Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other grounds

by Robinson v. Solano Cnty., 278 F.3d 1007, 1013 (9th Cir. 2002))); see also Strickland v.

Medlen, 397 S.W.3d 184, 198 (Tex. 2013) (noting that under Texas law, dogs are personal

property).

19See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (“A claim that law-

enforcement officers used excessive force to effect a seizure is governed by the Fourth

Amendment’s ‘reasonableness’ standard.” (citing Graham v. Connor, 490 U.S. 386 (1989) and

Tennessee v. Garner, 471 U.S. 1 (1985))).

20 Id. (quoting Graham, 490 U.S. at 396).

7

Case: 14-20653 Document: 00513187947 Page: 8 Date Filed: 09/10/2015

No. 14-20653

Grant, relying on the Ninth Circuit’s decision in San Jose Charter of

Hells Angels Motorcycle Club v. City of San Jose, 21 argues that Officers Naquin,

Bocanegra, Gracia, Russell, and Cromier, who were not in the garage, are

responsible for Buster’s death because their alleged “complete lack of

preparation ensured that Simpson . . . would have NO CHOICE . . . but to use

lethal force to shoot and kill Buster.”

In Hells Angels, police officers executed simultaneous search warrants

on the residences of several members of the Hells Angels and at the group’s

club house. 22 The officers were aware that dogs were present on several of the

members’ properties and “planned either to isolate or to shoot the dogs,” but

they had no specific plan to isolate the dogs or to use any non-lethal methods

to incapacitate them. 23 During the searches, the officers shot and killed several

of the members’ dogs. 24 The Hells Angels sued, alleging that the officers

unreasonably seized their dogs in violation of 42 U.S.C. § 1983. 25 Balancing

the nature of the intrusion on the members’ Fourth Amendment interests

against the governmental interests at stake, the district court denied qualified

immunity. 26 The Ninth Circuit upheld the district court’s denial of qualified

immunity, reasoning that the killing of the dogs represented a severe

intrusion, and that because the officers knew that some of the members owned

dogs and had ample time to prepare a non-lethal plan to subdue the dogs, the

21 402 F.3d 962 (9th Cir. 2005).

22 Id. at 965.

23 Id. at 968-69.

24 Id.

25 Id. at 965-66.

26 Id. at 966.

8

Case: 14-20653 Document: 00513187947 Page: 9 Date Filed: 09/10/2015

No. 14-20653

officers’ proffered governmental interests could not justify the killing of the

animals. 27

But Hells Angels is readily distinguishable from the instant case. Here,

the officers had no advance notice that a dog was present on the premises to

be searched. Moreover, Officer Fisher, an experienced dog handler, took

reasonable precautions to isolate Buster while the house was being searched.

Finally, while Buster’s killing doubtlessly presents a grave intrusion on

Grant’s property rights, in this case, unlike in Hells Angels, the governmental

interest of safety provides a sound justification. 28 The evidence in the record

indicates that Simpson was genuinely surprised by Buster’s presence and

aggression, and Grant has marshalled only a scintilla of evidence to dispute

the expert and eyewitness testimony indicating that Simpson exhausted all

non-lethal options prior to using lethal force against the dog. Naquin,

Bocanegra, Gracia, Russell, and Cromier could not have foreseen that Simpson

would be forced to resort to such force in the course of searching the garage.

To the extent Grant contends that the foregoing officers should have

intervened to prevent the shooting, her claim also fails. Only Simpson and

Garcia, who is no longer party to this suit, were actually present when Buster

was shot. The other officers did not participate in the shooting and could not

have intervened to prevent it. Contrary to Grant’s allegations of conspiracy,

there is no evidence that the officers knew that Simpson would shoot Buster or

placed him in a position in which shooting Buster was inevitable. Grant has

failed to establish that officers Naquin, Bocanegra, Gracia, Russell, or Cromier

27 See id. at 975-78.

28See id. at 977 (“While the governmental interest of safety might have provided a

sound justification for the intrusion had the officers been surprised by the presence of the dogs,

the same reasoning is less convincing given the undisputed fact that the officers knew about

the dogs a week before they served the search warrants.” (emphasis added)).

9

Case: 14-20653 Document: 00513187947 Page: 10 Date Filed: 09/10/2015

No. 14-20653

violated any of Grant’s statutory or constitutional rights. Accordingly, we hold

that the district court did not err in granting summary judgment in favor of

those defendants on the ground of qualified immunity.

B

Grant alleges that by shooting Buster, Simpson violated a number of

Texas statutes which, taken collectively, outline an administrative procedure

for the destruction of a dog that has caused death or serious bodily injury. But

these statutes are clearly designed to provide due process for a dog owner to

contest the labelling of her dog as “dangerous.” 29 Plainly, these statutes did

not inhibit Simpson’s right to use deadly force to protect himself from the

threat of serious bodily harm. 30 Accordingly, these provisions cannot be used

as a basis to establish that Simpson’s conduct was unreasonable.

Grant also contends that the district court erred in granting summary

judgment in favor of Simpson on the ground that a genuine dispute exists as

to the reasonableness of Simpson’s use of force. This claim also fails. We

examine an officer’s use of deadly force from

the perspective “of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” We thus “allo[w] for the fact

that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a

particular situation.” 31

29See, e.g., In re Loban, 243 S.W.3d 827, 830 (Tex. App.—Fort Worth 2008, no pet.)

(“Section 822.0421 of the Texas Health and Safety Code authorizes an appeal from a

dangerous dog declaration . . . .”).

30See TEX. PENAL CODE § 9.51(a), (d) (defining the circumstances under which a peace

officer may use deadly force).

31Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (alteration in original) (citation

omitted) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

10

Case: 14-20653 Document: 00513187947 Page: 11 Date Filed: 09/10/2015

No. 14-20653

According to Simpson and Garcia, the only two eyewitnesses to the

shooting, Buster backed Simpson into a corner, biting at Simpson’s legs.

Simpson only fired at the dog after “it was clear that the dog was aggressively

trying to harm Officer Simpson.” The Internal Affairs Division concluded that

“[a]ll physical evidence collected is consistent with Officer Simpson’s

statements,” and that it was reasonable for Simpson to believe “that he was

imminently in danger of being bitten” by Buster at the time he discharged his

weapon. A crime scene reconstruction expert for the defense observed that

Buster’s body was found facing the southwest corner of the garage, precisely

where Simpson claimed he was standing. The expert also noted that the

absence of a blood drip trail indicated that Buster died “very near the time the

fatal wound was inflicted,” and that Buster “appears to have been struck by a

bullet fired travelling from front to back and along the underside of the dog’s

head and throat.” The expert also opined that the location of the bullets and

bullet casings supported Simpson’s account. Based on this forensic evidence,

he concluded that Simpson was standing “in the southwest corner of the garage

when he discharged his firearm at an approaching and aggressive dog.

Furthermore, the dog was not retreating or fleeing from the officer, but was in

fact running towards and [sic] the officer at the time the lethal shot was fired.”

Finally, Grant conceded that the dog had aggressive tendencies, and that she

heard Buster “aggressively barking prior to the shots being fired.”

The only evidence Grant has marshaled to dispute the eyewitness

accounts is Otto’s statement that he suspected Buster was shot from behind.

Otto based his opinion on photographs taken of the scene, which depicted blood

projected in front of Buster’s body. He explained that the bullet wound in

Buster’s neck was “most likely an exit wound” because “[a]n entrance wound

would be much smaller and more circular.” But Otto’s interpretation of the

photographic evidence is contradicted not only by the defendants’ experts, but

11

Case: 14-20653 Document: 00513187947 Page: 12 Date Filed: 09/10/2015

No. 14-20653

also by Don Blake, a crime scene reconstruction expert whose services Grant

retained. Blake criticized HPD’s expert reports on the ground that the police

failed to preserve and document the scene of the shooting adequately, but he

also found fault with Otto’s conclusion that Buster’s neck wound was an exit

wound, observing that, “[i]f this is the only wound, it stands to reason it must

be an entrance wound, and . . . I have seen many entrance wounds that are not

circular in nature.”

Grant has failed to raise a genuine dispute as to whether Buster’s neck

wound was an exit wound. “[I]f the trial court concludes that the scintilla of

[expert] evidence presented supporting a position is insufficient to allow a

reasonable juror to conclude that the position more likely than not is true, the

court remains free to . . . grant summary judgment.” 32 By granting summary

judgment on this claim, the district court implicitly determined that Otto’s

opinion was a mere scintilla of evidence, one insufficient to generate a genuine

dispute of material fact. 33 In light of the extensive physical and expert

testimony indicating that Buster’s neck wound was an entry wound, Otto’s

statement to the contrary is insufficient to allow a reasonable juror to conclude,

by a preponderance of the evidence, that Simpson shot Buster from behind. 34

Accordingly, we affirm the district court’s grant of summary judgment in

Simpson’s favor.

32 Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000) (second and third alterations in

original) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)); see also

id. (“If the basis for an expert’s opinion is clearly unreliable, the district court may disregard

that opinion in deciding whether a party has created a genuine issue of material fact.” (citing

Berry v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993))).

33 See Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 485 (5th Cir. 2014)

(“At best, this single [piece of evidence] amounts to a mere ‘scintilla of evidence’ that cannot

defeat summary judgment.” (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

343 (5th Cir. 2007))).

34 See Daubert, 509 U.S. at 596.

12

Case: 14-20653 Document: 00513187947 Page: 13 Date Filed: 09/10/2015

No. 14-20653

V

Grant next raises a municipal liability claim under Monell v. Department

of Social Services 35 and City of Canton v. Harris, 36 arguing that the City of

Houston is liable for failing to properly train its police officers to determine

when force may lawfully be used against animals. The district court

determined that Grant failed to plead her municipal liability claim adequately.

To properly plead a municipal liability claim, “a plaintiff must allege ‘that

there was either an official policy or an unofficial custom, adopted by the

municipality, that was the moving force behind the claimed constitutional

violation.’” 37 Neither Grant’s complaint nor her amended complaint “makes

any mention of such a policy or custom.” 38 Grant does not dispute in her

briefing on appeal the district court’s finding that she failed to plead a policy

or custom. We agree with the district court that Grant’s municipal liability

claim fails on the pleadings.

VI

Grant also alleges that the officers violated her Second Amendment right

to bear arms by seizing a pistol that she lawfully owned. In reality, this claim

is likely a Fourth Amendment claim that the police unlawfully seized her

pistol. Regardless, Grant did not state that the pistol had been unlawfully

seized, either in her complaint or in her amended complaint. Because she

failed to plead sufficient facts to state a claim regarding the seizure of her

pistol, the district court did not err by dismissing such claim. 39

35 436 U.S. 658, 690 (1978).

36 489 U.S. 378, 388 (1989).

37 Thompson v. Mercer, 762 F.3d 433, 441-42 (5th Cir. 2014) (quoting Duvall v. Dallas

Cnty., 631 F.3d 203, 209 (5th Cir. 2011) (per curiam)).

38 Id. at 442.

39 Cf. id. at 441-42.

13

Case: 14-20653 Document: 00513187947 Page: 14 Date Filed: 09/10/2015

No. 14-20653

VII

Finally, Grant contends that the district court erred by denying her leave

to file a third amended complaint. The State of Texas initiated this case when

it filed a notice of seizure and intended forfeiture against Grant in September

2010. Approximately nine months later, in July 2011, Grant filed a

counterclaim against the City and eleven HPD officers, in which she alleged

that by seizing her money and killing Buster, the defendants violated her

Fourth Amendment right to freedom from unreasonable searches and seizures.

The defendants removed the case to federal court in September 2011. In

January 2012, the district court entered a scheduling order, which provided

that motions for leave to amend pleadings must be filed by March 12, 2012.

Grant filed her second amended third-party complaint on March 9, 2012, three

days prior to the filing deadline. The defendants moved for summary judgment

in September 2013. Grant did not move to amend her pleadings for a third

time until May 2014—eight months after the defendants filed their motion for

summary judgment and more than two years after the pleadings deadline. Her

third amended complaint would have added the municipal liability and

unlawful firearm seizure claims she now seeks to raise.

Although Federal Rule of Civil Procedure 15(a) normally governs the

amendment of pleadings, Rule 16(b) “governs the amendment of pleadings

after a scheduling order’s deadline to amend has expired.” 40 Rule 16(b)(4)

provides that after a district court has entered a scheduling order, the

“schedule may be modified only for good cause and with the judge’s consent.”

To establish good cause, the party seeking to modify the scheduling order must

show “that the deadlines cannot reasonably be met despite the diligence of the

Squyres v. Heico Cos., 782 F.3d 224, 237 (5th Cir. 2015) (quoting Filgueira v. U.S.

40

Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (unpublished) (per curiam)).

14

Case: 14-20653 Document: 00513187947 Page: 15 Date Filed: 09/10/2015

No. 14-20653

party needing the extension.” 41 We consider four factors when determining

whether the party has shown good cause under Rule 16(b)(4): “(1) the

explanation for the failure to timely [comply with the scheduling order]; (2) the

importance of the [modification]; (3) potential prejudice in allowing the

[modification]; and (4) the availability of a continuance to cure such

prejudice.” 42

Grant has failed to show good cause for her delay. She offers no evidence

that she could not have reasonably raised the municipal liability and firearm

seizure claims in her first or second amended complaints. Further, she tenders

no explanation to justify her inaction during the two years that elapsed

between the scheduling order’s deadline and her request to file a third

amended complaint.

She has also failed to show that her delay did not prejudice the

defendants. The defendants filed their summary judgment motion eight

months before Grant requested leave to amend. Because the district court

would have needed to consider another round of dispositive motions on Grant’s

newly-added claims, the defendants, to their prejudice, would have incurred

additional expenses due to Grant’s delay. 43

Moreover, the district court exhibited considerable patience by granting

continuances when, on several occasions, the parties asked for the court to

extend various discovery deadlines. Grant advances no explanation as to why

she did not also request on those occasions a suitable extension of the deadline

to modify pleadings.

41 Id. (quoting Filgueira, 734 F.3d at 422).

42Id. (alterations in original) (quoting Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d

161, 167 (5th Cir. 2010)).

43 See Squyres, 782 F.3d at 238-39.

15

Case: 14-20653 Document: 00513187947 Page: 16 Date Filed: 09/10/2015

No. 14-20653

While we do not discount the importance of the claims Grant sought to

add in her third amended complaint, we conclude that, weighing the foregoing

factors, the district court did not abuse its discretion in denying Grant leave to

amend her complaint.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

16