Vickie Cook v. City of Dallas

Case: 19-10217 Document: 00515193575 Page: 1 Date Filed: 11/08/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 8, 2019

No. 19-10217

Lyle W. Cayce

Clerk

VICKIE COOK, Individually and as Natural Mother to Deanna Cook; N. W.,

a Minor, by and through her Grandparent and Guardian Vickie Cook; A. W.,

a Minor, by and through her Grandparent and Guardian Vickie Cook,

Plaintiffs - Appellants

v.

TONYITA HOPKINS; KIMBERLEY COLE; JOHNNYE WAKEFIELD;

YAMINAH SHANI MITCHELL; JULIE MENCHACA, Officer; AMY

WILBURN, Officer; ANGELIA HEROD-GRAHAM; CITY OF DALLAS,

Defendants - Appellees

************************************************************************

VICKIE COOK, Individually and as Natural Mother to Deanna Cook; N. W.,

a Minor, by and through her Grandparent and Guardian Vickie Cook; A. W.,

a Minor, by and through her Grandparent and Guardian Vickie Cook;

KARLETHA COOK-GUNDY, Individually and as Representative of the

Estate of Deanna Cook, Deceased,

Plaintiffs - Appellants

v.

CITY OF DALLAS; ANGELIA HEROD-GRAHAM,

Defendants – Appellees

Case: 19-10217 Document: 00515193575 Page: 2 Date Filed: 11/08/2019

No. 19-10217

Appeal from the United States District Court

for the Northern District of Texas

U.S.D.C. No. 3:12-CV-3788

Before STEWART, CLEMENT, and HO, Circuit Judges.

PER CURIAM:*

This appeal arises from Deanna Cook’s 911 call to report domestic

violence, the Dallas Police Department’s response to that call, and Deanna’s

tragic death at the hands of her abuser.

Deanna’s mother Vickie Cook, her two minor daughters, and her sister

Karletha Cook-Gundy (the Independent Administrator of Deanna’s estate)

sued Defendants Tonyita Hopkins (“Hopkins”), Kimberley Cole (“Cole”), and

Johnnye Wakefield (“Wakefield”), all of whom worked at the 911 call center on

the day Deanna died; Yaminah Shani Mitchell (“Mitchell”), the police

dispatcher made aware of Deanna’s 911 call; Julie Menchaca and Amy

Wilburn, the police officers who responded to Deanna’s call that day (the

“Officers”); Angelia Herod-Graham (“Herod-Graham”), who responded to

Deanna’s mother’s 911 call two days after Deanna’s death, when Plaintiffs

discovered her body (collectively, the “Individual Defendants”); and the City of

Dallas (the “City”), seeking damages pursuant to (i) 42 U.S.C. § 1983, alleging

violations of Deanna’s Fourteenth Amendment rights to due process and equal

protection, and (ii) state-law tort statutes. The district court granted the

Individual Defendants’ and the City’s motions to dismiss in part and then

granted Defendants’ motions for summary judgment, entering its final

* 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.

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judgment on February 6, 2019. The court also denied Plaintiffs’ request for

additional discovery against the City. We AFFIRM the district court’s

judgments.

I.

On Friday, August 17, 2012, at 10:54 a.m., Deanna, a 32-year-old mother

of two, called 911 to report that she was being attacked in her home by her ex-

husband. Deanna had previously called the police to report her ex-husband’s

domestic abuse and harassment, both before they were divorced and after the

divorce was finalized. Hopkins, a 911 call-center employee with the title of

“Call Taker,” answered Deanna’s call that day. Cole, the call-center supervisor,

was not at her post at the time, so Wakefield, a “Senior Call Taker,” assisted

Hopkins with handling and classifying Deanna’s call.

On the call, Deanna was “screaming at the top of her lungs in fear, crying

out for assistance,” and “screaming help, please stop it” to her attacker.

Deanna did not provide her address to Hopkins. Hopkins claims that because

Deanna had called from a cellphone, Hopkins could not immediately retrieve

Deanna’s address, so she enlisted Wakefield to help find the latitude and

longitude of Deanna’s location. Nearly ten minutes after the call began,

Hopkins notified police dispatch, classifying the call as a “Major Disturbance.”

Hopkins added the comment “urgent!” to her notify report. The line eventually

went silent. Wakefield instructed Hopkins to hang up the phone and call

Deanna back. The call went to voicemail. Hopkins did not follow up to ensure

that police dispatch had actually sent officers to Deanna’s residence.

Mitchell was the police dispatcher who received Deanna’s location that

day. She allowed police officers to volunteer for the call, despite it being marked

“urgent.” Menchaca and Wilburn, City of Dallas police officers, volunteered to

go to Deanna’s residence. On the way, the Officers stopped at 7-Eleven for

bottles of water. Approximately 50 minutes after Deanna called 911, the

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Officers arrived at Deanna’s home. They knocked on the door and had the

dispatcher call Deanna’s cellphone, which went to voicemail. They avoided

entering the home from the back entrance because they heard dogs barking.

When the Officers didn’t get a response, they left the residence and noted that

the disturbance had been resolved.

Plaintiffs went to Deanna’s home two days later, on Sunday, August 19,

2012, after Deanna failed to show up for church. They noticed her two

chihuahuas barking and water leaking from her home. Her mother, Vickie,

then called 911. Herod-Graham answered Vickie’s call. She told Vickie that no

police officers could help Vickie and her family enter Deanna’s house unless

Vickie called nearby prisons and hospitals first. Plaintiffs then kicked in the

patio door of the residence and entered Deanna’s bedroom, where they found

Deanna deceased, her body partially in the bathtub.

Former Dallas Police Chief David Brown suspended Hopkins, issued

Cole a written reprimand, and fired Herod-Graham. Under department policy,

Herod-Graham should not have asked Vickie to call prisons and hospitals

before sending the police to Deanna’s address. Chief Brown and former Dallas

Mayor Mike Rawlings also allegedly commented on Deanna’s death publicly.

According to Plaintiffs, Chief Brown admitted that, “[the 911 operator]

obviously failed . . . and it cost the life of Ms. Cook,” and Mayor Rawlings stated

that, “our safety net wasn’t there for her.”

Plaintiffs sued Defendants in federal court, bringing § 1983 claims under

the Fourteenth Amendment’s Due Process and Equal Protection clauses, as

well as claims under Texas’ negligence, gross negligence, bystander recovery,

wrongful death, and survival laws. They later filed a separate complaint in a

separate suit against Herod-Graham, the City, and various

telecommunications defendants (but the telecommunications defendants were

dismissed). The district court agreed to consolidate the two cases in 2015.

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The Individual Defendants all filed Rule 12(b)(6) motions to dismiss for

failure to state a plausible claim. With the exception of Cole, against whom all

of Plaintiffs’ claims were dismissed, 1 the district court dismissed all of

Plaintiffs’ claims against the Individual Defendants except for their equal

protection claims for discrimination based on race, gender, socioeconomic

background, and status as a domestic-violence victim. 2 The Individual

Defendants, excluding (i) Cole and (ii) Herod-Graham, who moved for

summary judgment separately, then moved for summary judgment based on

qualified immunity, which the district court granted, finding that Plaintiffs

had failed to raise any genuine disputes of material fact as to whether they

had discriminated against Deanna in violation of the Equal Protection Clause.

The district court later granted Herod-Graham’s motion for summary

judgment based on, inter alia, qualified immunity, holding that Vickie’s equal

protection rights had not been violated.

The City moved to dismiss Plaintiffs’ claims in a Rule 12(c) motion, which

the district court granted in part. The City also filed two Rule 12(b)(6) motions

to dismiss (which included leftover claims from the consolidated cases).

Finally, the City moved for summary judgment in two separate instances. The

district court granted the City’s motions for summary judgment on the

1 Defendants correctly note that Plaintiffs do not adequately brief Cole’s alleged

liability under the Fourteenth Amendment. Their briefing makes one off-hand reference to

Cole’s role in “providing discriminatory practices to Hopkins through training.”

2 The district court correctly noted that government employees cannot request the

dismissal of claims filed under the state statute from which Plaintiffs’ state-law tort claims

arose. See Tex. Civ. Prac. & Rem. Code § 101.106(e); Hernandez v. City of Lubbock, 253

S.W.3d 750, 755 (Tex. App. 2007) (“We see nothing . . . construing section 101.106(e) to

provide for dismissal of an employee on the motion of any but the governmental unit

defendant.”). However, once the “governmental unit” at issue has filed a motion to dismiss

those tort claims filed under § 101.106(e) against itself and its employees, “the employees

shall immediately be dismissed.” See Tex. Civ. Prac. & Rem. Code § 101.106(e). Because the

district court granted the City’s motion to dismiss with respect to those state-law tort claims,

the court uniformly denied as moot Plaintiffs’ state-law tort claims against the Individual

Defendants.

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municipal-liability claims based on the proposition in City of Los Angeles v.

Heller, 475 U.S. 796 (1986), that a municipality cannot be held liable if

plaintiffs cannot show that a constitutional deprivation has occurred. Because

the district court had already held that none of the Individual Defendants had

violated Deanna’s or Vickie’s rights to equal protection, the court held that

Plaintiffs’ claims against the City could not survive. The court also granted the

City’s motion for summary judgment on the state-law tort claims. Finally, on

separate occasions, the district court denied Plaintiffs additional discovery.

As will be discussed below, Plaintiffs attempt to appeal all of the district

court’s decisions. We note that Plaintiffs fail to address or present arguments

as to some of these decisions, and consequently, we consider those arguments

forfeited. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)

(“It has long been the rule in this circuit that any issues not briefed on appeal

are waived.”); Yohney v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993) (one

“abandon[s] [one’s] arguments by failing to argue them in the body of [one’s]

brief”); Fed. R. App. P. 28(a)(8)(A) (the argument in appellant’s brief “must

contain . . . appellant’s contentions and the reasons for them”).

II.

We review the district court’s dismissals of complaints under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim de novo. Mowbray

v. Cameron County, 274 F.3d 269, 276 (5th Cir. 2001). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to 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, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 678. In evaluating

motions to dismiss, we must view the well-pleaded facts in the light most

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favorable to the plaintiff. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,

735 (5th Cir. 2019); Iqbal, 556 U.S. at 678. And “[a]lthough for the purposes of

a motion to dismiss we must take all of the factual allegations in the complaint

as true, we ‘are not bound to accept as true a legal conclusion couched as a

factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

We review the district court’s grants of summary judgment de novo,

applying the same standards as the district court. Coleman v. United States,

912 F.3d 824, 828 (5th Cir. 2019). The court’s role is not “to weigh the evidence

and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). Summary judgment is proper “only if, viewing the evidence in the light

most favorable to the nonmovant, ‘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.’” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th

Cir. 2018) (quoting Fed. R. Civ. P. 56(a)); see Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “[T]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine [dispute] of

material fact.” Anderson, 477 U.S. at 247–48. Further, we must consider all

evidence, “but may not make ‘credibility assessments,’ which are the exclusive

province of the trier of fact.” La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477

(5th Cir. 2002) (quoting Dibidale, Inc. v. Am. Bank & Trust Co., 916 F.2d 300,

307–08 (5th Cir.1990)). Although the moving party generally bears the burden

of demonstrating to the court that a genuine issue for trial does not exist, a

“qualified immunity defense alters the usual summary judgment burden of

proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). The burden shifts

to the non-movant to show that qualified immunity does not apply. Id.

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We review the district court’s denial of discovery for abuse of discretion.

JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 936 F.3d 251, 256 (5th

Cir. 2019). “A trial court enjoys wide discretion in determining the scope and

effect of discovery, and it is therefore unusual to find an abuse of discretion in

discovery matters.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir.

2017) (cleaned up). When the trial court bases its decision “on an erroneous

view of the law,” it has abused its discretion. Crosby v. La. Health Serv. &

Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011). However, “[e]ven if a district

court abuses its discretion, the reviewing court will not overturn its ruling

unless it substantially affects the rights of the appellant.” JP Morgan, 936 F.3d

at 256.

III.

A. Motions to Dismiss Plaintiffs’ Due Process Claims 3

Plaintiffs contend that the district court erred in dismissing their due

process claims brought against Individual Defendants in their personal

capacities 4 and the City pursuant to 42 U.S.C. § 1983. The Due Process clause

of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any

person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. But the Supreme Court has held that “the Due Process

Clauses generally confer no affirmative right to governmental aid, even where

3 We note that Plaintiffs’ due process claim pursuant to § 1983 in its First Amended

Complaint (including the telecommunications defendants) against Herod-Graham was

dismissed for failure to allege facts that state a plausible claim. We agree with the district

court.

4 We also note that Plaintiffs’ complaint does not clearly state whether suit was

brought against the Individual Defendants in their official capacities. The district court

determined that the Individual Defendants were sued in their personal capacities, because a

suit against an officer of the state in his or her official capacity is no different than “pleading

an action against an entity of which an officer is an agent,” and Plaintiffs’ complaint already

named the City. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55 (1978).

We agree with the district court’s reasoning.

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such aid may be necessary to secure life, liberty, or property interests.”

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). And

the “failure to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause.” McClendon v. City of

Columbia, 305 F.3d 314, 324 (5th Cir. 2002) (quoting DeShaney, 489 U.S. at

197)). However, in “certain limited circumstances,” the state can form a

“special relationship” with an individual that “imposes upon the state a

constitutional duty to protect that individual from dangers,

including . . . private violence.” Id. at 324. Those “certain limited

circumstances” are instances where the state affirmatively exercises its powers

“to restrain the individual’s freedom to act on his own behalf ‘through

incarceration, institutionalization, or other similar restraint of personal

liberty.’” Id. (quoting DeShaney, 489 U.S. at 200).

Plaintiffs argue that because the City “promised Deanna” that they

would increase police patrols in her neighborhood and arrest her abuser when

she called, the state created a “special relationship” between Deanna and itself.

However, it would be contrary to our precedent and Supreme Court precedent

to recognize a “special relationship” here. The complaint does not allege that

any of the Defendants affirmatively acted to restrain Deanna’s personal liberty

in a similar way to incarceration or institutionalization. In Beltran v. City of

El Paso, this court held that a plaintiff grandmother whose granddaughter was

killed by her father, a domestic abuser, did not show that the state had created

a “special relationship” where the 911 operator who took the granddaughter’s

call on the date she was murdered informed the granddaughter that the police

“would be sent out” but “[n]o police units immediately responded.” 367 F.3d

299, 302 (5th Cir. 2004). There, the grandmother alleged that her

granddaughter had relied on “falsely promised police services . . . to her

detriment.” Id. at 307. Further, the 911 operator in Beltran told the

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granddaughter to lock herself in her bathroom to avoid her father, which the

grandmother alleged was a restraint on personal liberty. Id. The facts here

involve less restraint on liberty than those in Beltran, where the court found

no “special relationship” existed. Id. at 307−08. First, the alleged “promise” of

additional police services and arrest of Deanna’s ex-husband is removed in

time from Deanna’s death. Second, the 911 call-center employees did not tell

Deanna to remain in her home on the day of her death, much less tell her to

barricade herself in the bathroom to avoid her attacker. There is simply no

allegation in the complaint that the Defendants here restrained Deanna’s

liberty sufficiently to show that a “special relationship” existed.

It’s true that Deanna might have a viable claim for violation of her due

process rights if this circuit recognized the “state-created danger theory,”

which can make the state liable under § 1983 if “it created or exacerbated the

danger” of private violence against an individual. Bustos v. Martini Club Inc.,

599 F.3d 458, 466 (5th Cir. 2010). Plaintiffs rely heavily on an out-of-circuit

opinion, Okin v. Village of Cornwall-on-Hudson Police Department, in which

the Second Circuit held that the state-created danger theory gave rise to a

substantive due process violation where “police conduct . . . encourage[d] a

private citizen to engage in domestic violence, by fostering the belief that his

intentionally violent behavior [would] not be confronted by arrest, punishment,

or police interference.” 577 F.3d 415, 437 (2d Cir. 2009). But, as the district

court explained, this circuit does not recognize the state-created danger theory,

and we decline to do so today, despite Plaintiffs’ urging that “[t]his is that case.”

See Beltran, 367 F.3d at 307 (citing McClendon, 305 F.3d at 327−33) (“This

court has consistently refused to recognize a ‘state-created danger’ theory of §

1983 liability even where the question of the theory’s viability has been

squarely presented.”); Doe v. Columbia-Brazoria Indep. Sch. Dist., 855 F.3d

681, 688 (5th Cir. 2017) (“[P]anels [in this circuit] have repeatedly noted the

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unavailability of the [state-created danger] theory.”) (cleaned up). In sum, the

district court did not err in dismissing Plaintiffs’ due process claims against

Defendants.

B. Motions for Summary Judgment

i. Equal Protection Claims: Individual Defendants’ Qualified Immunity

Plaintiffs argue that the district court erred in granting summary

judgment in favor of the Individual Defendants on Plaintiffs’ § 1983 equal-

protection claims based on discrimination against Deanna for her race, gender,

socioeconomic background, and status as a domestic-violence victim. Plaintiffs

contend that, in determining whether the Individual Defendants were entitled

to qualified immunity on these claims, the district court erred by allegedly

“weighing the witness’ credibility” and ignoring “material fact disputes

indicating Plaintiffs were treated differently from other similarly situated

individuals.”

“To establish an entitlement to qualified immunity, a government official

must first show that the conduct occurred while he was acting in his official

capacity and within the scope of his discretionary authority.” Beltran, 396 F.3d

at 303. A two-pronged inquiry then applies in a qualified-immunity analysis:

“First, the court must determine whether the plaintiff has alleged a violation

of a clearly established federal constitutional or statutory right. Second, the

court must determine whether the official’s conduct was objectively reasonable

in light of the clearly established legal rules at the time of the alleged

violation.” Id.

The Equal Protection Clause of the Fourteenth Amendment provides

that “[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. Generally, to state a claim

under the Equal Protection Clause, a § 1983 plaintiff must allege “that [(1) she]

received treatment different from that received by similarly situated

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individuals and that [(2)] the unequal treatment stemmed from a

discriminatory intent.” Fennell v. Marion Ind. Sch. Dist., 804 F.3d 398, 412

(5th Cir. 2015) (race-based equal protection claim); see Gibson v. Tex. Dep’t of

Ins., 700 F.3d 227, 238 (5th Cir. 2012) (equal protection claim alleging

discrimination against a protected class). Panels in this circuit have recognized

that the “Equal Protection Clause should not be used to make an end-run

around the DeShaney principle that there is no constitutional right to state

protection for acts carried out by a private actor.” Beltran, 396 F.3d at 304; see

Kelley v. City of Wake Village, 264 F. App’x 437, 442 (5th Cir. 2008) (per

curiam). But a governmental entity providing protective services “may not, of

course, selectively deny its [] services to certain disfavored minorities without

violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3.

In Shipp v. McMahon, this court adopted “a coherent approach for courts

to review Equal Protection claims pertaining to law enforcement’s practices,

policies, and customs toward domestic assault cases.” 234 F.3d 907, 914 (5th

Cir. 2000), overruled in part on other grounds by McClendon, 305 F.3d at

328−29. To sustain a gender-based equal protection challenge under our

precedent, a plaintiff must show “(1) the existence of a policy, practice, or

custom of [government officials] to provide less protection to victims of

domestic assault than to victims of other assaults; (2) that discrimination

against women was a motivating factor; and (3) that the plaintiff was injured

by the policy, custom or practice.” Id.; see Beltran, 367 F.3d at 304−05.

“[O]fficials will be liable only for those policies, practices, customs, and conduct

that are the product of invidious discrimination.” Shipp, 234 F.3d at 914.

So, in considering qualified immunity here, our analysis turns on the

first prong of a qualified immunity inquiry: Have Plaintiffs raised a fact

dispute as to whether the Individual Defendants intentionally discriminated

against Deanna and Vickie and treated them differently? And, with respect to

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the claims based on gender and status as a domestic-violence victim, were

Plaintiffs injured by an existing policy, practice, or custom to provide lesser

protections to victims of domestic assault, which was motivated by

discrimination against women? (Defendants admit that it “was clearly

established at the time of Deanna’s and Vickie’s [911] calls that the Fourteenth

Amendment’s Equal Protection Clause prohibited intentional discrimination

in the provision of police protective services.”)

We first note that Plaintiffs conflate our Shipp equal protection analysis

with respect to their gender- and status as a domestic-violence victim-based

claims with the equal protection analysis that this court conducts with respect

to race- and socioeconomic-based equal protection claims. For example,

Plaintiffs allege that the City has an “Ignore and Delay strategy as it relates

to victims like Deanna,” presumably meaning “female domestic violence

victims, minorities[,] and residents of neighborhoods such as Deanna’s.” 5

Accordingly, here, we will separate our Shipp and race- and socioeconomic-

based equal protection analyses.

We agree with the district court in its order granting Herod-Graham’s

motion for summary judgment that Plaintiffs, for the purposes of our Shipp

analysis, have “produce[d] evidence sufficient to [raise a material-fact dispute]

5 Plaintiffs claim this strategy is demonstrated in the City’s “(i) allowing officers to

‘volunteer’ to investigate domestic violence disturbances or purposefully delay responding to

domestic violence victims; (ii) providing a lesser degree of protection to female domestic

violence victims than to victims of other assaults through not providing information required

by Art. 5.04(a) of the Texas Code of Criminal Procedure; (iii) providing less protection to

female victims in minority-race neighborhoods than to victims in other neighborhoods;

(iv) giving lower priority to domestic violence calls than to non-domestic violence calls;

(v) arriving at Deanna’s residence at a time (more than 50 minutes after her [911] call)

considerably in excess of the time officers respond to similarly situated persons in affluent

neighborhoods without a predominantly minority population; (vi) giving less police assistance

to women victims; (vii) prohibiting officers from driving fast with lights and sirens and

making emergency residential entries for domestic violence claims; and (viii) allowing officers

to stop for personal purchases en route to ‘urgent-flagged’ domestic violence calls.”

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that the City, at the time of the incident at hand, had a custom of providing

less protection in 911 call taking on the bases of . . . [gender] and status as a

domestic violence victim.” Considering the record in the light most favorable

to Plaintiffs, we recognize that the City made changes to its policies regarding

response procedures for domestic violence complaints in the years following

Deanna’s death; the fact that public officials acknowledged that the City’s

policies were not working to protect victims of domestic violence; the evidence

of misplaced paperwork and domestic violence cases that went unattended to

by law enforcement; and the disciplinary actions against the call-center

employees. However, on the second prong of our Shipp analysis, we find that

Plaintiffs have failed to raise a genuine dispute of material fact as to whether

discrimination against women was a motivating factor. A “discriminatory

purpose” is “more than intent as volition or intent as aware of consequences. It

implies that the decisionmaker . . . selected or reaffirmed a course of action at

least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an

identifiable group.” Kelley, 264 F. App’x at 443 (quoting Personnel Adm’r v.

Feeney, 442 U.S. 256, 279 (1979)). Further, “it is a truism that under current

Equal Protection Clause jurisprudence, a showing of disproportionate impact

alone is not enough to establish a constitutional violation . . . . The mere

existence of disparate treatment—even widely disparate treatment—does not

furnish adequate basis that discrimination was impermissibly motivated.” Id.

(quoting Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir. 1997)). Here, although

there may have been customs or policies in place that disproportionately

affected female victims of domestic violence in a negative way, Plaintiffs have

not shown that these customs or policies were motivated by a desire to

discriminate against women. If anything, the actions and statements of the

City’s officials regarding domestic violence following Deanna’s death

demonstrate the opposite of intentional discrimination. Thus, we find that

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Plaintiffs do not raise material-fact disputes as to whether Deanna’s and

Vickie’s equal protection rights were violated based on their gender or

Deanna’s status as a domestic-violence victim.

Plaintiffs stress in their reply brief that the district court did not address

whether there was a genuine dispute of material fact as to whether Deanna

and Vickie were treated differently than similarly-situated individuals.

However, this analysis applies only to Plaintiffs’ race- and socioeconomic-based

equal protection claims. (As discussed above, the Shipp analysis applies to

their gender- and status as a domestic-violence victim-based claims.) Most

importantly, Plaintiffs fail to recognize that, to survive summary judgment on

their equal protection allegations based on their race or socioeconomic class

would require raising a material-fact dispute as to whether Deanna and Vickie

were “intentionally treated differently from others similarly situated.” Gibson,

700 F.3d at 238 (emphasis added). So, now, with respect to Plaintiffs’ race- and

socioeconomic-based § 1983 claims, we consider (i) the foregoing “similarly

situated” equal protection inquiry, and (ii) “if a state actor intentionally

discriminated against [Plaintiffs] because of [their] membership in a protected

class.” Id. (emphasis added).

Plaintiffs’ race-based claim seems to be premised on the conduct of April

Sims, a 911 call-center employee who posted racist comments to her social

media account regarding the 911 calls she received. As egregious as Sims’s

comments were, we do not see how Sims’s conduct has any link to Plaintiffs’

proposition that Deanna and Vickie were intentionally discriminated against

and intentionally treated differently because of their race. Instead, the

evidence in the record shows that Sims was an outlier, who was deservedly

fired from her position. Relatedly, Plaintiffs’ socioeconomic-based claim seems

to be based on their argument that private citizens who pay for security alarm

systems receive higher priority than citizens in poorer neighborhoods (i.e.,

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faster police responses and the like). But there is no fact dispute here, because

there is no “fact” to dispute: Plaintiffs rely on Cole’s statement that she didn’t

“have [] information” as to whether that was true.

Plaintiffs make the same type of argument with respect to their claims

that the Officers responded to calls from similarly-situated Caucasian women

or calls from affluent neighborhoods more quickly. For example, Plaintiffs

characterize an “I do not remember” or “I’m not sure” answer as an admission

from the Officers. And on both claims, Plaintiffs consistently argue that a fact

dispute regarding Individual Defendants’ intentional discrimination against

Deanna and Vickie exists because of the “evidence” that Individual Defendants

“could recognize traits of” Deanna and Vickie from the call, and that the district

court made improper credibility assessments in considering the record with

respect to this assertion. We recognize that the district court considered

Individual Defendants’ testimony that they did not know of Deanna’s (or,

where applicable, Vickie’s) race or recognize the area in which she resided. But

summary judgment requires that a party “asserting that a fact . . . is genuinely

disputed must support the assertion by: (A) citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials; or (B) showing that the materials cited do not establish the absence

. . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). And here, Plaintiffs fail to

identify evidence in the record disputing the fact that Individual Defendants

were not aware of Deanna’s or Vickie’s race or socioeconomic background.

Thus, Plaintiffs have not satisfied prong one of our qualified-immunity

analysis regarding summary judgment, which would require them to show a

genuine dispute of material fact as to whether Individual Defendants violated

Deanna’s or Vickie’s equal protection rights. The district court did not err. We

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also find that the district court did not make improper credibility assessments

in considering the evidence in the record.

ii. Equal Protection Claim: The City

Plaintiffs contend that the district court erred in granting summary

judgment in favor of the City with respect to their municipal-liability claims.

The district court granted the City’s motions for summary judgment based on

the proposition in City of Los Angeles v. Heller that a municipality cannot be

held liable if Plaintiffs cannot show that a constitutional deprivation has

occurred. Heller, 475 U.S. at 799. Specifically, the City argues that Heller holds

that, “if [a City employee] inflicted no constitutional injury on [the Plaintiffs],

it is inconceivable that [the City] could be liable.” Id. The district court agreed

with the City, noting that in a footnote in a published Fifth Circuit case, the

panel wrote that “Heller, however, held only that if no claim is stated against

officials—if plaintiff does not show any violation of his constitutional rights—

then there exists no liability to pass through to the [municipality].” Brown v.

Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001). Plaintiffs conversely argue that

this circuit has not yet confronted the question of “whether municipal liability

is available if no individual liability exists.” See Carnaby v. City of Houston,

636 F.3d 183, 189 (5th Cir. 2011). We agree with the district court that

Plaintiffs are mistaken as to the City’s argument: “The City does not argue

that the law requires that once all personal capacity claims are dismissed, the

municipal-liability claims must also be dismissed.” Instead, the City argues

that because we have “unambiguously determined” that the Individual

Defendants did not violate Deanna’s or Vickie’s equal protection rights, we

must affirm the City’s motion for summary judgment under Heller as no

constitutional deprivation occurred. In sum, we agree with the district court

and the City that the Brown v. Lyford footnote is sufficient to support our

holding here that, under Heller, because we have found no constitutional

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violations on the part of the Individual Defendants, the City cannot be

subjected to municipal liability. See Brown, 243 F.3d at 191 n.18; see also

Cardenas v. San Antonio Police Dep’t, 417 F. App’x 401, 402 (5th Cir. 2011)

(per curiam) (holding that, because “individual defendants did not inflict any

constitutional harm on [plaintiff], the district court properly granted summary

judgment for the City”); Blair v. City of Dallas, 666 F. App’x 337, 341 (5th Cir.

2016) (per curiam) (noting that Heller holds that “there cannot be municipal

liability under § 1983 absent an underlying constitutional violation”).

C. “Class of One” Equal Protection Claims

Plaintiffs also contest the district court’s dismissal of their “alternative”

equal protection claim: That the Individual Defendants and the City

discriminated against Deanna in violation of her constitutional rights to equal

protection because of their “disdain for her as a recurrent domestic violence

caller.” Plaintiffs here could bring a “class of one” equal protection claim if they

“allege[d] that [Deanna] [had] been intentionally treated differently from

others similarly situated and that there [was] no rational basis for the

difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000). The district court held below that Plaintiffs failed to state a claim that

Defendants violated Deanna’s equal protection rights as a “class of one”

because their complaint merely alleged Deanna was a member of one of the

classes identified (i.e., a class based on her race, gender, socioeconomic status,

and status as a domestic-violence victim), rather than alleging she was a

member of a “class of one.” We agree with the district court that Plaintiffs did

not sufficiently plead the “class of one” theory in their complaint. See Fed. R.

Civ. P. 8(d) (“Each allegation must be simple, concise, and direct.”).

The district court noted that it did not grant Plaintiffs leave to amend on

the “class of one” issue because they did not “demonstrate how a fourth round

of pleadings [would] correct the aforementioned deficiencies because facts do

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not show that defendants acted in derogation of [Deanna’s] rights as an entity

unto herself.” Assuming arguendo that Plaintiffs did plead their “class of one”

theory appropriately, this court has held that a plaintiff alleging he or she is a

“class of one” must “present evidence that the defendant deliberately sought to

deprive him [or her] of the equal protection of the laws for reasons of a personal

nature unrelated to the duties of the defendant’s position.” Kelley, 264 F. App’x

at 444 (emphasis added). In Kelley, the panel noted that the plaintiff victim of

domestic violence was not denied her equal protection rights as a “class of one”

because she could not provide evidence that the police department and 911-

response department deliberately sought to deprive her of equal protection

under the law. Id. Like the plaintiff in Kelley, Plaintiffs here do not dispute

that the Individual Defendants and the City consistently responded to

Deanna’s past 911 calls. Id. Further, the plaintiff in Kelley was allegedly

subjected to police officers’ “inappropriate comments,” which the panel in that

case found was not enough to survive the defendant police officers’ motion for

summary judgment. Id. Here, the only defendant who had contact with Deanna

is Hopkins. And the only fact that could possibly support an argument that

Hopkins “singled out” Deanna is the lag in time between when Hopkins

answered Deanna’s call and when she notified police dispatch of Deanna’s

emergency. But in light of Kelley, this is clearly not enough to allege a “class of

one” equal protection claim. And most importantly, there is no indication that

Hopkins’ actions were deliberate against Deanna herself.

D. State-Law Tort Claims

As noted above, the district court denied as moot Plaintiffs’ state-law tort

claims against the Individual Defendants, and the state-law tort claims

against the Individual Defendants and the City from the original complaint

were dismissed by the district court pursuant to Fed. R. Civ. P. 12(c). See supra

note 2. However, Plaintiffs’ tort claims against the City regarding Vickie’s 911

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call on August 19, 2012, were not addressed until the City moved for summary

judgment on this issue. Plaintiffs dispute the district court’s grant of summary

judgment in favor of the City on the state-law tort claims only with respect to

Vickie’s 911 call in their briefing, so we consider their other arguments below

as to the tort claims forfeited.

Plaintiffs argue that the district court erred in granting summary

judgment in favor of the City on the state-law tort claims arising from Herod-

Graham’s conduct on August 19, 2012, i.e., two days after Deanna’s death and

the day her family discovered her body. The district court held that the City

was entitled to governmental immunity 6 as to Plaintiffs’ tort claims of

negligent infliction of emotional distress, intentional infliction of emotional

distress, and common-law bystander claims. See Gipson v. City of Dallas, 247

S.W.3d 465, 469 (Tex. App. 2008) (“Municipal corporations have traditionally

been afforded some degree of governmental immunity for governmental

functions, unless that immunity is waived. The operation of an emergency

ambulance service is a governmental function.”). Plaintiffs contend that the

“non-delivery of medical services to [Plaintiffs] on August 19, 2012 was

proprietary in nature or a mixture of functions.” See Tooke v. City of Mexia,

197 S.W.3d 325, 343 (Tex. 2006) (“A municipality is not immune from suit for

torts committed in the performance of its proprietary functions, as it is for torts

committed in the performance of its governmental functions.”). Plaintiffs state

6 The district court held that the City was entitled to “sovereign immunity” under

Texas law. We recognize that the district court was referring to “governmental immunity”

under Texas law here. See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 694 n.3

(Tex. 2003) (“Courts often use the terms sovereign immunity and governmental immunity

interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to

the State’s immunity from suit and liability. In addition to protecting the State from liability,

it also protects the various divisions of state government, including agencies, boards,

hospitals, and universities. Governmental immunity, on the other hand, protects political

subdivisions of the State, including counties, cities, and school districts.”).

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that “911 is not a part of the police,” but rather, “is a separate civilian

department.” But they identify no evidence to support that contention.

Plaintiffs further state that “EMT assistance is a proprietary function.”

We agree with the district court that this argument is misguided. Texas

law explicitly states that police and ambulance (i.e., EMT) services are

governmental functions. Tex. Civ. Prac. & Rem. Code § 101.0215(a)(1), (18).

The district court was correct to grant the City’s motion for summary judgment

with respect to the relevant state-law tort claims.

E. Discovery 7

Plaintiffs argue that the district court abused its discretion in denying

their “Emergency Motion to Continue the City’s Motion for Summary

Judgment” in response to the City’s second motion for summary judgment. In

the motion, Plaintiffs requested additional discovery (namely, depositions of

City officials) and a continuance to help “prove the City’s customs and practices

of discrimination against domestic violence victims such as Deanna, the City’s

failure to train, supervise and discipline and demonstrate how these practices

were the moving forces behind the treatment Plaintiffs received from the

Individual Defendants.” The district court denied Plaintiffs’ request on the

basis that the City’s motion for summary judgment was premised upon a pure

issue of law—i.e., “whether the City can be held liable under 42 U.S.C. § 1983

after a court has determined that all the defendant city employees did not

commit constitutional violations”—and thus, additional discovery would be

futile. The district court did not abuse its discretion in denying Plaintiffs’

motion here. The court correctly noted that additional discovery could be

7 We consider Plaintiffs’ assertion that the district court abused its discretion in

denying Plaintiffs’ “Emergency Motion for Discovery Preservation and for Leave of Court to

Conduct Discovery” (filed on October 19, 2012) forfeited because the Plaintiffs fail to

adequately brief the issue.

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warranted if Plaintiffs’ legal arguments turned out to be correct. But because

the City’s motion for summary judgment did not raise any issues of fact and

turned on a pure issue of law, additional discovery was not necessary at that

time. See Hunt v. Johnson, 90 F. App’x 702, 704 (5th Cir. 2004) (citing Williams

v. Phillips Petroleum Co., 23 F.3d 930, 937 (5th Cir. 1994)).

IV.

For the foregoing reasons, we AFFIRM the district court’s judgments

with respect to the decisions on appeal in full.

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