Bettina Littell v. Houston Independent Sch

Case: 16-20717 Document: 00514532013 Page: 1 Date Filed: 06/27/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 16-20717

June 27, 2018

Lyle W. Cayce

Clerk

BETTINA LITTELL, as parent and next friend of I.L., a minor; YVONNE

BENAVIDES, as parent and next friend of A.B., a minor,

Plaintiffs - Appellants

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

During a sixth-grade choir class, an assistant principal allegedly ordered

a mass, suspicionless strip search of the underwear of twenty-two preteen girls.

All agree the search violated the girls’ constitutional rights under Texas and

federal law. Even so, the district court dismissed the girls’ lawsuit against the

school district for failure to state a claim. We reverse.

I

A

For purposes of this appeal, we take as true the amended complaint’s

factual allegations. Those allegations describe how $50 went missing during a

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No. 16-20717

sixth-grade choir class at Houston’s public Lanier Middle School. Assistant

Principal Verlinda Higgins was brought in to investigate. When no money

turned up, the school police officer “suggested that girls like to hide things in

their bras and panties.” Higgins took all twenty-two girls in the choir class to

the female school nurse, who strip searched them, taking them one at a time

into a bathroom, where she “check[ed] around the waistband of [their] panties,”

loosened their bras, and checked “under their shirts.” The girls “were made to

lift their shirts so they were exposed from the shoulder to the waist.” No par-

ents were notified, despite the girls’ requests. No money was found.

B

The Houston Independent School District allegedly permits its school of-

ficials to conduct invasive searches of students’ persons—but provides no train-

ing as to how to do so legally. Instead, employees are left to rely on the school

district’s written search policy as set forth in three official school district doc-

uments attached to the amended complaint.

The first document, labeled “Legal Policy FNF,” states in abstract terms

the federal legal standard governing student searches. See Safford Unified

Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009); New Jersey v. T.L.O., 469

U.S. 325, 341 (1985). It instructs that searches must be “reasonable,” and that

“[a] search is reasonable if it meets both of the following criteria”:

1. The action is justified at the inception, i.e., the

school official has reasonable grounds for suspecting

that the search will uncover evidence of a rule viola-

tion or a criminal violation.

2. The scope of the search is reasonably related to the

circumstances that justified the search in the first

place, i.e., the measures adopted are reasonably re-

lated to the objectives of the search and are not exces-

sively intrusive in light of the age and sex of the stu-

dent and the nature of the infraction.

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Legal Policy FNF also provides citation to the Fourth Amendment of the U.S.

Constitution, New Jersey v. T.L.O., and a federal district court opinion from

1980 dealing with dog-sniff searches of cars. The document gives no further

explanation or detail, however, as to what its two criteria mean, or how teach-

ers and administrators can tell when they are met. 1

A second document, titled “Regulation FNF2,” sets forth certain imple-

menting procedures. This document provides a simpler—and broader—rule for

deciding when a search is proper:

Students and their personal effects are subject to be-

ing searched by school officials, if a school official has

reasonable cause to believe that the student is in pos-

session of contraband. . . . If a school official has rea-

sonable cause to believe that contraband is present, he

or she may institute a search.

Regulation FNF2 further defines “contraband” as “all substances or materials,

the presence of which are prohibited by Board policy or state law.” And it

briefly attempts to define the legal phrase “reasonable cause.” 2

1 Legal Policy FNF also states that “[s]chool officials may search a student’s outer

clothing, pockets, or property by establishing reasonable cause or securing the student’s vol-

untary consent.” Given the reference to “outer clothing,” this sentence could arguably be read

to prohibit all strip searches, regardless of context. The school district, however, emphatically

rejects that view. At oral argument, for example, the following exchange occurred:

THE COURT: In the policy, where it says “school officials may

search a student’s outer clothing, pockets, or property by estab-

lishing reasonable cause or securing consent,” why doesn’t that

policy explicitly tell these teachers they couldn’t go beyond cloth-

ing, especially if they didn’t have even reasonable cause?

THE SCHOOL DISTRICT: Well, unfortunately, in this day and

age, there needs to be some discretion by school administrators

that would allow those types of searches to maintain the safety

in our schools.

Oral Arg. at 35:44–36:15; see also, e.g., id. at 20:33–20:45 (school district stating its position

that the policy permits searches to go beyond outer clothing and pockets “under certain cir-

cumstances”). For purposes of this appeal, therefore, we do not construe Legal Policy FNF to

categorically prohibit searches of students’ underwear.

2 Regulation FNF2 defines “reasonable cause” as follows:

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The last relevant document is page four of the Student Code of Conduct.

This document purports to “brief[ly] descri[be]” the school district’s legal poli-

cies and regulations. Its summary of the student-search policy is further con-

densed:

School officials are empowered to conduct reasonable

searches of students and school property when there is

reasonable cause to believe that students may be in

possession of drugs, weapons, alcohol, or other materi-

als (“contraband”) in violation of school policy or state

law. Students who bring contraband onto school

grounds may be searched . . . .

Apart from inserting the quoted language into these three documents,

the school district allegedly does nothing to apprise its employees of the stand-

ards that govern whether, when, and how public officials may constitutionally

search a student’s person and/or underwear.

C

In the wake of the mass strip search in this case, the school’s principal

issued a memo admonishing Higgins for “[r]equesting a search of the students’

person[s] for items other than ‘contraband.’” It is unclear why the principal did

not consider stolen money to qualify as “contraband” under Regulation FNF2

and/or the Student Code of Conduct, given that theft is “prohibited by . . . state

law.” Regardless, the supposed lack of “contraband” appears to have been the

principal’s only concern; the memo never criticized the search for invading the

Reasonable cause is the standard for a search on school property

or at school-related events and is based on the school official’s

specific reasonable inferences which he or she is entitled to draw

from the facts in light of the school official’s experience. Specific

reasonable inferences may be drawn from instances including

but not limited to a tip from a reliable student, suspicious behav-

ior that suggests that contra-band is present, a smell indicating

the presence of contraband, or a bulge in a pocket, etc. Reasona-

ble cause should not be based on a mere hunch.

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underwear of twenty-two preteen girls, or for doing so without particularized

suspicion.

The memo likewise made no mention of Legal Policy FNF or Regulation

FNF2. Instead, it instructed Higgins to “follow [the school district’s] policy and

procedures in the Student Code of Conduct,” and to “revisit page 4 of [that

Code] for policy procedures concerning school officials and reasonable search

of students.” The memo further made clear that, at least in the principal’s

mind, such strip searches of students are not per se improper under school dis-

trict policy. Rather than forbidding all strip searches going forward, the memo

requested: “In the future, if you feel a student must have a search requiring a

strip search, please notify me before proceeding.”

D

Two of the girls’ mothers sued the Houston Independent School District

in federal district court on their daughters’ behalves. They asserted claims un-

der 42 U.S.C. § 1983 and the Texas Constitution. As relief, they sought com-

pensatory damages, as well as an injunction requiring the school district to

clarify its search policy and provide at least some Fourth Amendment training.

The school district moved to dismiss the complaint for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). While its motion was pending, the school

district responded to Plaintiffs’ first set of interrogatories, and in doing so pro-

vided copies of the documents described above. See Fed. R. Civ. P. 33(d). The

district court subsequently granted the school district’s motion and dismissed

the complaint without prejudice.

Plaintiffs promptly amended their complaint, this time attaching copies

of the school district’s interrogatory responses and the documents the school

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district had provided. 3 It was not enough. The district court granted the school

district’s renewed motion to dismiss the action under Rule 12(b)(6), while deny-

ing further leave to amend. This appeal followed.

II

We review a district court’s dismissal under Rule 12(b)(6) de novo, “ac-

cepting all well-pleaded facts as true and viewing those facts in the light most

favorable to the plaintiffs.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel.

Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc); see also Leatherman v. Tar-

rant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)

(no heightened pleading standard for municipal § 1983 liability). To survive a

motion to dismiss, a complaint need not contain “detailed factual allegations”;

rather, it need only allege facts sufficient to “state a claim for relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim has facial plau-

sibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct al-

leged.” Id. Significantly, a complaint may proceed even if “recovery is very re-

mote and unlikely,” so long as the alleged facts “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555–56.

III

The central issue on appeal is whether the amended complaint states a

claim for municipal liability against the school district under 42 U.S.C. § 1983.

3 Some of the school district’s interrogatory responses differ from the facts alleged in

the amended complaint. To the extent there are inconsistencies, our factual recitation above

credits the amended complaint. See, e.g., Peña v. City of Rio Grande, 879 F.3d 613, 620 & n.9

(5th Cir. 2018) (explaining that “on a motion to dismiss, [a plaintiff’s] well-pleaded factual

allegations enjoy a presumption of truth,” even if they conflict with factual assertions made

by other persons in documents attached to the amended complaint).

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That statute makes liable “[e]very person” who, under color of state law, vio-

lates federal constitutional rights. For this purpose, municipal entities like the

school district qualify as “persons.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690 (1978). But the school district “cannot be held liable under § 1983 on a

respondeat superior theory.” Id. Rather, the school district itself must have

caused the violation. Id.

Thus, to state a § 1983 claim against the school district, the amended

complaint must allege sufficient factual content to permit the reasonable in-

ference (1) that a constitutional violation occurred and (2) that an “official pol-

icy” attributable to the school district’s policymakers (3) “was the moving force”

behind it. See, e.g., Magee, 675 F.3d at 854, 866–67; see also, e.g., Peña v. City

of Rio Grande, 879 F.3d 613, 621 (5th Cir. 2018); Groden v. City of Dallas, 826

F.3d 280, 283–85 (5th Cir. 2016). We address each component in turn.

A

That the alleged facts demonstrate a constitutional violation is presently

undisputed. A brief discussion of why the alleged search was unconstitutional,

however, will nonetheless prove helpful.

To search a student’s person, school officials must generally have rea-

sonable suspicion that the search will reveal evidence of a violation of school

rules or the law. T.L.O., 469 U.S. at 341–42; accord Redding, 557 U.S. at 375;

2 Wayne R. LaFave et al., Criminal Procedure § 3.9(k) (4th ed. updated Dec.

2017). Reasonable suspicion has two dimensions. One is the “knowledge com-

ponent,” which measures the strength of the evidence indicating illicit activity.

Redding, 557 U.S. at 370–71. The second dimension, often called the “nexus”

component, 4 measures the strength of the evidence indicating “that the specific

E.g., United States v. Moore, 805 F.3d 590, 594 (5th Cir. 2015); United States v. Free-

4

man, 685 F.2d 942, 948–49 (5th Cir. 1982).

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‘things’ to be searched for and seized are located on the property [or, in this

context, the person] to which entry is sought.” Zurcher v. Stanford Daily, 436

U.S. 547, 556 (1978); accord Redding, 557 U.S. at 370. Together, these ele-

ments mean that searching a student’s person requires “a moderate chance of

finding evidence of wrongdoing” on the person of that specific student. Red-

ding, 557 U.S. at 371.

When the search is of the student’s underwear, moreover, additional re-

quirements apply. Underwear searches are “embarrassing, frightening, and

humiliating.” Id. at 374–75. “[B]oth subjective and reasonable societal expec-

tations of personal privacy support the treatment of such a search as categori-

cally distinct, requiring distinct elements of justification . . . .” Id. at 374; see

also Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 404 (5th

Cir. 2002) (“Strip searches implicate fundamental Fourth Amendment

rights.”). Thus, the Supreme Court has “ma[d]e it clear” that a search of a stu-

dent’s underwear is impermissibly intrusive unless the school officials reason-

ably suspect either that the object of the search is dangerous, or that it is ac-

tually likely to be hidden in the student’s underwear. Redding, 557 U.S. at 377;

see, e.g., id. at 368, 374–76 (search requiring thirteen-year-old student to “pull[]

her underwear away from her body” held impermissibly intrusive because no

evidence suggested that the “common pain relievers” sought were either dan-

gerous or likely to be found in the girl’s underwear).

Applied here, this clearly established law means that Higgins violated

the constitutional rights of the twenty-two girls unless Higgins reasonably sus-

pected that the missing $50 cash (1) would be found on that particular girl’s

person and either (2) would be found specifically in that girl’s underwear or (3)

would pose a dangerous threat to students. For what are perhaps obvious rea-

sons, the parties do not dispute that the alleged search failed all three condi-

tions. It was clearly unconstitutional.

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B

The parties’ real dispute concerns whether Plaintiffs adequately allege

an “official municipal policy” on which § 1983 liability may rest. See Monell,

436 U.S. at 691. To be clear, the argument is not that the school district’s writ-

ten search policies are facially unconstitutional or that they caused the alleged

constitutional violation by themselves. Rather, the “official municipal policy”

on which Plaintiffs attempt to hang Monell liability is the school district’s al-

leged policy of providing no training whatsoever regarding its employees’ legal

duties not to conduct unreasonable searches. In other words, as currently pre-

sented, this is a “failure to train” case.

1

The Supreme Court established the “failure to train” method of proving

municipal liability in City of Canton v. Harris, 489 U.S. 378, 386–92 (1989).

Under Canton, when a municipal entity enacts a facially valid policy but fails

to train its employees to implement it in a constitutional manner, that failure

constitutes “official policy” that can support municipal liability if it “amounts

to deliberate indifference.” Id. at 388. To prove deliberate indifference at trial,

Plaintiffs must show that, “in light of the duties assigned to specific officers or

employees[,] the need for more or different training is so obvious, and the in-

adequacy so likely to result in the violation of constitutional rights, that the

policymakers . . . can reasonably be said to have been deliberately indifferent

to the need.” Id. at 390.

Canton envisioned two means of proving deliberate indifference. Some-

times, Canton said, municipal employees will violate constitutional rights “so

often” that the factfinder can infer from the pattern of violations that “the need

for further training must have been plainly obvious to the . . . policymakers.”

Id. at 390 n.10. This proof-by-pattern method is “ordinarily necessary.” Bd. of

Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997).

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But even absent proof of pattern, deliberate indifference can still be in-

ferred if the factfinder determines that the risk of constitutional violations was

or should have been an “obvious” or “highly predictable consequence” of the

alleged training inadequacy. Id. (construing Canton, 489 U.S. at 390 & n.10);

accord Brown v. Bryan Cty., 219 F.3d 450, 459–61 (5th Cir. 2000) (same); see

also, e.g., Burge v. St. Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003) (“[I]n

a limited set of cases, a plaintiff, unable to show a pattern of constitutional

violations, may establish deliberate indifference by ‘showing a single incident

with proof of the possibility of recurring situations that present an obvious po-

tential for violation of constitutional rights,’” such that “it should have been

apparent to the policymaker that a constitutional violation was the highly pre-

dictable consequence of a particular policy or failure to train.”); Drake v. City

of Haltom, 106 F. App’x 897, 900 (5th Cir. 2004) (reversing grant of motion to

dismiss because “[w]e [were] unwilling to say, at th[e pleading stage], that it is

not obvious that male jailers who receive no training and who are left virtually

unsupervised might abuse female detainees”). Such an inference is possible in

only very narrow circumstances: The municipal entity must have “fail[ed] to

train its employees concerning a clear constitutional duty implicated in recur-

rent situations that a particular employee is certain to face.” Canton, 489 U.S.

at 396 (O’Connor, J., concurring); accord Peña, 879 F.3d at 624 (suggesting

that, without proof of a pattern of constitutional violations, the failure to train

generally must be “complete,” rather than merely deficient in a particular nar-

row respect). 5

5 Because “virtually every” plaintiff alleging municipal liability can propose some

training reform that would have prevented “the particular injury-causing conduct,” Canton,

489 U.S. at 391–92, our caselaw has “generally reserved” the single-incident method of prov-

ing deliberate indifference for cases in which the policymaker provides “no training whatso-

ever” with respect to the relevant constitutional duty, Peña, 879 F.3d at 624, as opposed to

training that is inadequate only as to the particular conduct that gave rise to the plaintiff’s

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Thus, for example, if a city policymaker opts to provide no training what-

soever to police officers concerning the established and recurring constitutional

duty not to use excessive deadly force, a factfinder may reasonably infer that

the city acted with the requisite deliberate indifference. The Supreme Court

explained as much in Canton, by way of hypothetical:

[C]ity policymakers know to a moral certainty that

their police officers will be required to arrest fleeing

felons. The city has armed its officers with firearms, in

part to allow them to accomplish this task. Thus, the

need to train officers in the constitutional limitations

on the use of deadly force, see Tennessee v. Garner, 471

U.S. 1 (1985), can be said to be “so obvious[]” that fail-

ure to do so could properly be characterized as “delib-

erate indifference” to constitutional rights.

489 U.S. at 390 n.10 (majority opinion). “Under those circumstances there is

an obvious need for some form of training.” Connick v. Thompson, 563 U.S. 51,

64 (2011). Otherwise, the Supreme Court has said, there would be “no way for

novice officers to obtain the legal knowledge they require” to conform their be-

havior to their clear and recurring constitutional obligations. Id. at 63–64.

2

Here, the alleged facts, taken together and assumed to be true, permit

the reasonable inference—i.e., the claim has facial plausibility—that the risk

of public officials’ conducting unconstitutional searches was or should have

been a “highly predictable consequence” of the school district’s decision to pro-

vide its staff no training regarding the Constitution’s constraints on searches.

injury, see, e.g., Peterson v. City of Fort Worth, 588 F.3d 838, 849 (5th Cir. 2009) (granting

summary judgment because the city undisputedly provided “extensive training on the use of

force,” even if that training did not specifically address “the risk of injury from knee strikes”).

Accord Connick v. Thompson, 563 U.S. 51, 67 (2011) (rejecting failure-to-train liability based

on a single incident because the alleged training defect was too “nuance[d]”).

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Indeed, Plaintiffs’ allegations mirror Canton’s hypothetical in all material re-

spects.

As in Canton, “[t]he constitutional duty of the individual officer [not to

conduct unreasonable searches] is clear,” with ample “constitutional guide-

posts for municipalities.” 489 U.S. at 396–97 (O’Connor, J., concurring) (con-

struing id. at 390 & n.10 (majority opinion)). Although the Canton hypothetical

concerned the Fourth Amendment’s constraints on seizures, whereas this case

concerns its constraints on searches, “the precise nature” of both types of obli-

gations is sufficiently clear in the law. Id. at 397. Indeed, if anything, it is the

duties with respect to searches that are defined with greater specificity. Stu-

dent searches are governed by defined principles such as the need for individ-

ualized suspicion, the nexus requirement, and the limit on unduly intrusive

means. Excessive force, on the other hand, turns on a totality-of-the-evidence

balancing test that “requires careful attention to the facts and circumstances

of each particular case” and “is not capable of precise definition or mechanical

application.” Graham v. Connor, 490 U.S. 386, 396 (1989). Because excessive-

force law is sufficiently clear to ground failure-to-train liability—as Canton’s

hypothetical makes plain—we hold the same with respect to the law of unrea-

sonable student searches.

Also as in Canton, the constitutional duty not to conduct unreasonable

searches is plausibly alleged to arise “in recurrent situations that a particular

employee is certain to face.” 489 U.S. at 396 (O’Connor, J., concurring) (con-

struing id. at 390 & n.10 (majority opinion)). The alleged facts here fairly imply

that conducting a “search” within the meaning of the Fourth Amendment

(thereby triggering the constitutional duty) is among “the usual and recurring”

tasks that at least some school district employees “must perform.” Id. at 390–

91 (majority opinion). Most notably, the school district expressly vests search

authority in all its “school officials,” and notifies its students that their persons

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“may be searched.” See supra Part I–B. And with respect to Higgins herself,

the alleged fact that she “was brought in . . . to investigate,” supra Part I–A,

coupled with the disciplinary memo’s anticipation that she might order addi-

tional strip searches “[i]n the future,” see supra Part I–C, makes plausible that

the school district expected, or even intended, that Higgins would exercise her

authority to order students searched. These factual allegations must suffice at

the pleading stage to show that the school district knew or should have known

to a high degree of certainty that Higgins and other employees would be placed

in situations requiring knowledge of Fourth Amendment search law.

Like the city in Canton, moreover, the school district cannot rely on its

employees to come pre-equipped with legal knowledge. Just as “[t]here is no

reason to assume police academy applicants are familiar with the constitu-

tional constraints on the use of deadly force,” Connick, 563 U.S. at 64, there is

no reason to expect that school district employees automatically understand

the constitutional constraints on searching a student’s person. After all, public

school officials are generally no better equipped than police officers “to find,

interpret, and apply legal principles.” Id. at 70. To the extent the school district

disagrees with this assessment, of course, it is free to present contrary evidence

at summary judgment or at trial. But at the pleading stage, this unremarkable

conclusion finds adequate support in both “experience and common sense,” Iq-

bal, 556 U.S. at 679, and in the factual allegations that not one of Higgins, the

school police officer, or the nurse realized the search might be unconstitutional,

and that even the school’s principal—who was tasked with disciplining Higgins

for conducting an unlawful search—still failed to diagnose the search’s serious

constitutional defects, compare supra Part I–C, with supra Part III–A. The

amended complaint thus plausibly alleges that, “in the absence of training,

there is no way for [school officials] to obtain the legal knowledge they require.”

Connick, 563 U.S. at 64.

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In these circumstances, the Supreme Court has said, “there is an obvious

need for some form of training.” Id. (emphasis added). But, critically, the school

district here allegedly provides “no training whatsoever” as to how to conduct

a lawful search. Peña, 879 F.3d at 624. This straightforward factual allegation

carries straightforward doctrinal consequences. It means that, for purposes of

resolving the school district’s motion to dismiss, we must assume that this is

not a case in which “an otherwise sound [training] program has occasionally

been negligently administered,” or in which an officer received appropriate

training that she then failed properly to obey. See Canton, 489 U.S. at 391;

Burge, 336 F.3d at 373. Nor do Plaintiffs rely on only a “nuance[d]” flaw in an

existing training regime, or attempt to derive municipal liability from the mere

fact that “additional training would have been helpful.” Connick, 563 U.S. at

67–68; see supra note 5. Instead, we must credit Plaintiffs’ factual allegations

and proceed on the assumption that the school district has made the conscious

choice to take no affirmative steps to instruct any of its employees on the con-

stitutional rules governing student searches—even though at least some of

those employees are regularly called upon to conduct such searches. In short,

this case presents an alleged “complete failure to train” of the kind we have

found actionable. Peña, 879 F.3d at 624. Plaintiffs’ allegations of deliberate

indifference survive a motion to dismiss.

We emphasize, however, that our conclusion in no way ordains Plaintiffs’

ultimate success. Without a pattern of constitutional violations, deliberate in-

difference can be inferred only in narrow and extreme circumstances like those

of Canton’s hypothetical. And in the thirty years since Canton issued, actual

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cases reaching those extremes have proved fortunately rare. 6 Perhaps at sum-

mary judgment or at trial, the evidence in this case, too, will reveal the allega-

tions of deliberate indifference to have been unfounded. The evidence might

show, for example, that no one reasonably expects school officials to conduct

“searches” within the meaning of the Fourth Amendment. Or it might show

that, contrary to Plaintiffs’ allegations, the school district does provide legal

search training to employees who might reasonably be expected to need it.

But if Plaintiffs’ allegations prove true—that is, if the school district

knew or should have known that officials like Higgins would certainly be

placed in situations implicating Fourth Amendment search law; if the school

district knew or should have known that those officials would lack the legal

knowledge necessary to handle those situations; and if the school district none-

theless failed to provide those officials any legal training on the subject—then

the factfinder will be entitled (but not required) to infer that the school district

acted with deliberate indifference to its students’ Fourth Amendment rights.

In such a case, “[t]he likelihood that the situation will recur and the predicta-

bility that an officer lacking specific tools to handle that situation will violate

citizens’ rights c[an] justify a finding that policymakers’ decision not to train

the officer reflected ‘deliberate indifference’ to the obvious consequence of the

policymakers’ choice—namely, a violation of a specific constitutional or statu-

tory right.” Brown, 520 U.S. at 409 (construing Canton, 489 U.S. at 390 & n.10).

6 We count only one published “single incident” failure-to-train case in our circuit in

which the plaintiff prevailed. See Brown, 219 F.3d at 457–65 (upholding jury verdict). But

conversely, we have identified just two published Fifth Circuit decisions dismissing such a

claim on the pleadings. And those cases, unlike this one, did not involve allegations of a “com-

plete failure to train.” Peña, 879 F.3d at 624 (emphasis omitted); accord Culbertson v. Lykos,

790 F.3d 608, 625 (5th Cir. 2015); see also, e.g., Drake, 106 F. App’x at 900 (reversing grant

of motion to dismiss because “[w]e [were] unwilling to say, at th[e pleading stage], that it is

not obvious that male jailers who receive no training and who are left virtually unsupervised

might abuse female detainees”).

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Whether the evidence will bear that out, and whether that inference will prove

persuasive, are factual matters incapable of resolution on a motion to dismiss.

3

The contrary arguments presented to us fail to engage the applicable le-

gal framework. For example, the district court’s analysis turns on its erroneous

assumption that, without a pattern of unconstitutional searches, the school

district could not have been on notice of the need to provide at least some type

of Fourth Amendment training. 7 But in light of Canton, the Fifth Circuit rec-

ognizes an “exception” to the pattern method of proving deliberate indifference

for cases in which “a constitutional violation was the highly predictable conse-

quence” of the alleged failure to train. E.g., Burge, 336 F.3d at 373. The district

court never meaningfully evaluated whether that exception might apply here.

And we conclude above that Plaintiffs plausibly allege it might.

The school district, meanwhile, devotes wide swaths of its brief to assert-

ing the facial constitutionality of its written search policies. Because those pol-

icies correctly state the law, the school district says, unlawful searches could

not have been an “obvious” consequence of enacting them. The first difficulty

with this argument is its premise: in fact, the school district’s written search

7 The district court rejected the allegations of deliberate indifference because, in its

view:

Plaintiffs have failed to demonstrate that [school district] per-

sonnel are recurrently faced with situations so similar to the facts

of the instant case that the need for training would be obvious.

To be more specific, Plaintiffs did not provide the Court with any

prior instances when [school district] officials conducted a search

of this magnitude before the event of the instant case, nor do

they allege there is a pattern of complaints by other citizens. Alt-

hough the strip searches in this case may have been questiona-

ble under the Fourth Amendment, any impropriety of these

searches was not a product of [the written search] policy, and

Plaintiffs have failed to establish a pattern of unconstitutional

behavior that should have led [the school district] to begin train-

ing its employees. (emphases added).

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policies are at best incomplete guides to actual Fourth Amendment law, cap-

turing none of the alleged search’s constitutional defects. Compare supra Part

I–B, with supra Part III–A. Although the policies describe the “knowledge com-

ponent” of the reasonable suspicion standard (i.e., the requisite degree of cer-

tainty that contraband “[be] present”), they make no mention of the require-

ment that there be reasonable suspicion linking the contraband to a particular

student. See, e.g., supra note 2. And the policies are wholly silent with respect

to the additional requirements for strip searches, i.e., that there be reasonable

suspicion that the object of the search will be found specifically in the student’s

underwear or else be dangerous. If anything, the policies say the opposite: they

appear to condone the use of strip searches to locate any “contraband,” defined

as any item possessed in violation of the law or school policy.

But even accepting the school district’s incorrect premise, this argument

is still beside the point. The Supreme Court in Canton “reject[ed] [the] conten-

tion that only unconstitutional policies are actionable under [§ 1983].” 489 U.S.

at 387. Instead, Canton permits municipal liability when “a concededly valid

policy is unconstitutionally applied.” Id (emphases added). In such a case, the

“policy” that grounds municipal liability is the failure to train municipal em-

ployees regarding their constitutional duties, if that failure amounted to delib-

erate indifference and caused the plaintiff’s injury. Id. at 387–88. Plaintiffs

need not also demonstrate the invalidity of the written policies themselves. 8

8 The school district also places heavy reliance on the Eleventh Circuit’s opinion in

Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1173–75 (11th Cir. 2001), cert. granted,

judgment vacated, 536 U.S. 953 (2002), and opinion reinstated, 323 F.3d 950 (11th Cir. 2003).

But, tellingly, that case was decided not at the pleading stage but on a motion for summary

judgment, with an evidentiary record inconsistent with Plaintiffs’ factual allegations here.

See id. at 1162–63, 1173 (affirming grant of summary judgment because “the students have

failed to present sufficient evidence to demonstrate . . . that the District’s employees faced

clear questions of Fourth Amendment law on a recurring basis”); see also Drake, 106 F. App’x

at 900 (reversing the district court for relying on an out-of-circuit single-incident case that

“was decided on a motion for summary judgment, not a motion to dismiss”). In addition,

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Only two portions of the school district’s brief confront the Canton frame-

work. Those portions assert that the risk of unconstitutional searches could

not plausibly have been an “obvious consequence” of providing no Fourth

Amendment training because (1) the missing $50 unambiguously fell outside

the written policies’ definition of “contraband” and (2) Fourth Amendment

caselaw is not “void for vagueness.” The relevance of the first point is unclear,

but it is in any event incorrect. Because Texas law prohibits theft, see Tex.

Penal Code Ann. § 31.03, the reportedly stolen $50 constituted both “materi-

als . . . prohibited by . . . state law” within the meaning of Regulation FNF2,

and “evidence of . . . a criminal violation” within the meaning of Legal Policy

FNF. See supra Part I–B. And the school district’s second point is a non sequi-

tur. Nothing in Canton suggests that a legal doctrine must be “void for vague-

ness” before a municipality’s failure to train its staff to follow it can ground a

failure-to-train theory. Otherwise, there could be no Canton hypothetical. After

all, police officers can always conduct their own research into excessive-force

law, which (one assumes) is not void for vagueness either.

We hold that deliberate indifference is plausibly alleged.

C

Of course, deliberate indifference is not the whole story. Plaintiffs’ “fail-

ure to train” theory will also require proof of causation: “Would the injury have

been avoided had the employee been trained under a program that was not

deficient in the identified respect?” Canton, 489 U.S. at 391. Without stating

its reasoning, the district court held that, even if Plaintiffs adequately allege

deliberate indifference, they still fail to allege causation. We hold otherwise.

Thomas lacks persuasive value to the extent it conflates the “pattern” and “single incident”

methods of proving deliberate indifference. See 261 F.3d at 1173–74 (rejecting single-incident

liability because the plaintiffs failed to adduce evidence of a pattern of unconstitutional

searches). In the Fifth Circuit, we have explained, those two methods are distinct. See, e.g.,

Burge, 336 F.3d at 373.

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Given the relatively egregious nature of the alleged constitutional viola-

tion in this case, see supra Part III–A, we think it plausible that even a modi-

cum of Fourth Amendment training would have alerted Higgins that the

search she ordered was unconstitutional. We also think it plausible that Hig-

gins would not have undertaken the search had she known it was illegal. Thus,

to the extent the amended complaint plausibly alleges deliberate indifference,

it also plausibly alleges causation. We cannot affirm the district court’s alter-

native basis for dismissing Plaintiffs’ federal claims. The order dismissing

those federal claims must, accordingly, be reversed.

IV

In addition to asserting federal claims, Plaintiffs seek injunctive relief

under article 1, section 9 of the Texas Constitution (which prohibits unreason-

able searches). They ask the district court to order the school district to clarify

its search policy and provide minimally adequate search training.

The parties and the district court have implicitly assumed throughout

this litigation that Texas law recognizes an implied cause of action under

which plaintiffs can sue to enjoin municipal policies that cause constitutional

violations (e.g., a policy of failing to train), even if those policies are not them-

selves unconstitutional. Cf. City of Beaumont v. Bouillion, 896 S.W.2d 143,

148–49 (Tex. 1995). Without passing judgment on the matter, we adopt that

assumption for the limited purpose of this appeal. 9

9 Bouillion—the only Texas case cited by the parties or the district court—held that

“there is no implied private right of action for damages arising under the free speech and free

assembly sections of the Texas Constitution,” 896 S.W.2d at 147, but stated that “suits for

equitable remedies for violation of constitutional rights are not prohibited,” id. at 149. This

language does not obviously resolve whether the Texas Constitution contains an implied

right of action to enjoin an inadequate municipal training policy that is not itself unconstitu-

tional, as Plaintiffs seek to do here. (No one has argued that the alleged policy of providing

no training itself violates the Texas Constitution.) Nonetheless, because “appellate courts do

not sit as self-directed boards of legal inquiry and research,” NASA v. Nelson, 562 U.S. 134,

147 n.10 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)),

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Even with that assumption in place, however, the district court dis-

missed Plaintiffs’ Texas-law causes of action for failure to state a claim. It did

so for two independent reasons, both of which were error.

A

First, the district court dismissed the Texas-law claims based on its pre-

vious determination that, under the standards of causation applicable to

§ 1983 suits for municipal liability, “Plaintiffs fail to allege sufficient facts to

indicate that [the school district’s allegedly] deficient training of its employees

was the ‘moving force’ behind the constitutional violations.”

We have already rejected the district court’s conclusion on this point. In

fact, we have held, Plaintiffs do allege sufficient factual content to permit the

reasonable inference that, but for the alleged failure to train, the alleged con-

stitutional violations would not have occurred. See supra Part III–C. And, to

the extent the district court intended to rely on its conclusion that Plaintiffs

fail adequately to allege deliberate indifference, we have rejected that conclu-

sion, too. See supra Part III–B. This stated rationale from the district court

cannot justify dismissing Plaintiffs’ state-law claims.

B

Second, the district court dismissed the Texas-law claims because, in its

view, “what Plaintiffs appear to be asking for is an ‘obey-the-law’ injunction,”

which the district court thought “would be too vague . . . to give a reasonable

person notice” of what it would require. For support, the district court cited

Rule 65(d) of the Federal Rules of Civil Procedure, which defines the required

scope and content of district court injunctions. Under Rule 65(d), “[a] general

especially when it comes to delicate questions of state law, we decline to address in the first

instance this nonjurisdictional issue that neither party raises. We instead join the parties

and the district court and assume without deciding that a “failure to train” lawsuit is cog-

nizable under the implied private right of action to enforce the Texas Bill of Rights.

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injunction which in essence orders a defendant to obey the law is not permit-

ted.” Meyer v. Brown & Root Const. Co., 661 F.2d 369, 373 (5th Cir. 1981).

We reverse this determination. As an initial matter, it is far from clear

that Rule 65(d) can ever justify dismissing a cause of action at the pleading

stage. Rule 65(d) governs the scope and content of injunctions; it does not pur-

port to set a pleading standard. Neither the district court nor the school district

cites any case suggesting that a complaint’s failure to propose sufficiently spe-

cific injunction language is grounds for a Rule 12(b)(6) dismissal. 10

To the extent Rule 65(d) can theoretically justify a pleading-stage dis-

missal, moreover, we expect that it can do so only if there is no conceivable way

to frame the requested relief in adequately specific terms. That is not the case

10 We find opinions from numerous district courts that address this issue, the majority

of which agree that Rule 65(d) usually does not justify dismissal of a complaint. See SEC. v.

Couch, No. 3:14-CV-1747-D, 2014 WL 7404127, at *8 (N.D. Tex. Dec. 31, 2014) (refusing to

dismiss a request for injunctive relief “based only on the allegations of the complaint” just

because the request could be considered an “obey the law injunction” in “violat[ion] of Rule

65(d)(1)’s specificity requirements”); City of New York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D.

296, 353–54 (E.D.N.Y. 2007) (“[A] motion for failure to state a claim properly addresses the

cause of action alleged, not the remedy sought. It is the court that will craft any remedy. Only

when that remedy has been determined may defendants contest its application on grounds

of vagueness or some other violation of Rule 65(d) . . . .”); Goodman v. Donald, No. CIVA

CV699012, 2007 WL 2164535, at *9 (S.D. Ga. July 24, 2007) (“Defendants contend Plaintiff’s

requests for injunctive relief should be dismissed because they are vague based, in part, on

Rule 65(d) . . . . It is clear Rule 65(d) is not implicated at this point in the litigation. This

portion of Defendants’ Motion to Dismiss is denied.”); Dasrath v. Cont’l Airlines, Inc., 228 F.

Supp. 2d 531, 546 (D.N.J. 2002) (noting that while “an injunction might very well be imper-

missible under Rule 65(d)[,] . . . the specificity requirements of that rule are not applicable in

assessing an attack on the complaint” (citing 11A Wright & Miller, Federal Practice and Pro-

cedure 2d § 2955 (1995))); W. Colo. Fruit Growers Ass’n, Inc. v. Marshall, 473 F. Supp. 693,

699–700 (D. Colo. 1979) (agreeing that the requested injunction might violate Rule 65(d) but

explaining that “[t]he equitable nature of injunctive relief . . . renders such claims particu-

larly unsuited for disposition in a motion to dismiss”); U.S. ex rel. Clark v. Ga. Power Co., 301

F. Supp. 538, 543 (N.D. Ga. 1969) (“Rule 65(d), as indicated by its title, refers to the form of

an injunction or a restraining order, and is silent as to the specificity required in the com-

plaint’s request for injunction.”). But see In re Xerox Corp. ERISA Litig., No. CIV.

3:02CV01138 AWT, 2008 WL 918539, at *7 (D. Conn. Mar. 31, 2008); In re Xerox Corp. ERISA

Litig., 483 F. Supp. 2d 206, 221 (D. Conn. 2007).

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here. Far from merely requesting that the school district be enjoined from vio-

lating the Fourth Amendment, the amended complaint seeks, in its words,

injunctive relief . . . prohibiting the use of strip

searches of students at [Houston Independent School

District] schools unless and until:

(1) The [written] Student Search Policy is clearly de-

fined; including who can be searched, under what cir-

cumstances a student can be subjected to a search,

what can be searched for, when a search is reasonable,

and the procedures for implementing said search;

(2) A procedure for implementing a search of a stu-

dent’s person is clearly documented, including but not

limited to proper ways to obtain consent, who is to be

notified and when they are to be notified that a search

is occurring; and

(3) [The school district] implements a training pro-

gram for all employees so that student’s Constitu-

tional Rights are protected.

It is not difficult to imagine reforms to the school district’s allegedly nonexist-

ent Fourth Amendment training program that the district court could conceiv-

ably order without running afoul of Rule 65(d). To take some easy examples:

the district court might order that the written policy be modified to mention

the “nexus” requirement, see Zurcher, 436 U.S. at 556; supra Part III–A; or it

might order that some type of in-person training occur at least once for certain

classes of employees. The district court’s characterization of Plaintiffs’ re-

quested relief as a mere “obey-the-law” injunction is incorrect.

This is not to say that the language in the amended complaint would

pass muster if copied verbatim into an injunction. In the event that Plaintiffs

demonstrate their entitlement to such an order (presumably after a trial),

there will be opportunity for the parties and the court to resolve which partic-

ular requirements are justified by the established facts. But at the pleading

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stage, the rule that injunctions must do more than “order the defendant to obey

the law” cannot justify the dismissal the district court entered here.

V

The district court’s judgment is reversed. This case is remanded for fur-

ther proceedings consistent with this opinion.

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