Eric Darden v. City of Fort Worth, Texas

Case: 18-11624 Document: 00515394735 Page: 1 Date Filed: 04/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 24, 2020

No. 18-11624

Lyle W. Cayce

Clerk

ERIC C. DARDEN, as Administrator of the Estate of Jermaine Darden and

on behalf of the statutory beneficiaries of the Estate of Jermaine Darden

(which are Donneika Goodacre-Darden, surviving mother of Jermaine

Darden, Charles H. Darden, surviving father of Jermaine Darden,

Plaintiff - Appellant

v.

CITY OF FORT WORTH, TEXAS,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CV-221

Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

This case arises from the death of Jermaine Darden, who suffered a heart

attack and died while being arrested by police officers employed by the City of

Fort Worth. Mr. Darden’s estate sued, alleging that the officers used excessive

force and that the City was liable for failing to adequately train the officers.

* 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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No. 18-11624

With respect to the failure-to-train claim, the district court granted summary

judgment in the City’s favor. We affirm.

I. BACKGROUND

On May 16, 2013, a large team of heavily armed police officers executed

a no-knock warrant on a private residence in Fort Worth, Texas. Darden v. City

of Fort Worth, Tex., 880 F.3d 722, 725 (5th Cir. 2018). Officer W. F. Snow was

assigned to the entry team, which was tasked with breaking down the front

door, entering the residence, and securing the premises. Id. Officer Javier

Romero drove the van that transported the team to the residence, but was also

assigned to stand guard near the front door while other officers entered the

residence and arrested the people inside. Id. Two other members of the team

wore cameras on their helmets, which captured on video some, but not all, of

the events that transpired as the warrant was executed. Id.

When the police first arrived at the house, the entry team broke down

the front door with a battering ram, yelled that they were police, and ordered

everyone to get down. Id. A man, later identified as Jermaine Darden (“Mr.

Darden”), was kneeling on the seat of a couch near the door when the officers

entered, and he immediately raised his hands in the air. Id. Mr. Darden

weighed approximately 340 pounds. Id. As Officer Snow entered the residence,

he reached out and ripped the shirt off Mr. Darden’s back, apparently in an

attempt to get Mr. Darden from the couch to the ground. Id. The videos do not

show what happened during the twenty-five seconds that followed, and there

is conflicting testimony about what transpired. Id. at 725–26. Officer Snow

twice used a Taser on Mr. Darden, who at one point appeared to push himself

up on his hands. Id. at 726. Other people in the house repeatedly yelled, “He’s

got asthma,” and, “He can’t breathe.” Eyewitnesses also testified that Mr.

Darden told the officers he could not breathe and that he pushed himself up on

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his hands because he was trying to get into a position where he could breathe.

Id.; id. at 726 n.3.

As Officer Romero finished placing handcuffs on Mr. Darden, Mr.

Darden’s body went limp. Id. at 726. The officers then pulled Mr. Darden’s

debilitated body up into a sitting position and left him there. Id. Mr. Darden

appeared to be unconscious, and his head hung down on his chest. Id. It was

subsequently determined that Mr. Darden had suffered a heart attack and

died. Id.

The administrator of Mr. Darden’s estate (“Plaintiff-Appellant”) brought

suit under Title 42 U.S.C. § 1983, claiming (1) that Officers Snow and Romero

used excessive force in arresting Mr. Darden; (2) that the City of Fort Worth

(“the City”) was liable for failing to adequately train the officers; and (3) that

various defendants were liable for state-law torts. Id. at 727. All of the

defendants filed motions for summary judgment, and the district court granted

those motions and dismissed the case. Darden, 880 F.3d at 727. The district

court determined that the officers had not violated clearly established law and

were thus entitled to qualified immunity. Id. Because it held that the officers

had not violated Mr. Darden’s constitutional rights, the district court also

granted summary judgment in favor of the City on the municipal liability

claims. Id.

The administrator of Mr. Darden’s estate appealed to this court, which

reversed the district court’s dismissal of the claims against Officers Snow and

Romero. Id. at 734. The panel also vacated the dismissal of the claims against

the City, remanding the case for further proceedings. Id. On remand, the

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district court again granted summary judgment in favor of the City on the

estate’s municipal liability claims. 1 This appeal followed.

II. STANDARD OF REVIEW

“We review a summary judgment de novo, ‘using the same standard as

that employed by the district court under Rule 56.’” Newman v. Guedry, 703

F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,

435 (5th Cir. 2000)). Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a).

III. DISCUSSION

Only one question is before this court: did the district court err in

granting the City summary judgment on Plaintiff-Appellant’s municipal

liability claim? We conclude that it did not.

A municipality may be liable under Title 42 U.S.C. § 1983 (“Section

1983”) if the municipality itself “‘subjects’ a person to a deprivation of rights or

‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson,

563 U.S. 51, 60 (2011) (quoting Monnell v. New York City Dep’t Soc. Servs., 436

U.S. 658, 692 (1978)). But local governments are only responsible for “their

own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (citing

Monell, 436 U.S. at 665–83). “In limited circumstances, a local government’s

decision not to train certain employees about their legal duty to avoid violating

citizens’ rights may rise to the level of an official government policy” for

purposes of Section 1983. Connick, 563 U.S. at 61. However, “[a] municipality’s

1 The district court also found that the City was entitled to summary judgment on

Plaintiff-Appellant’s state law claims. Plaintiff-Appellant did not address those claims in his

appellate briefing. They are therefore forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th

Cir. 1994) (“An appellant abandons all issues not raised and argued in its initial brief on

appeal.”); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (per curiam) (“Claims not

pressed on appeal are deemed abandoned.”)

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culpability for a deprivation of rights is at its most tenuous where a claim turns

on a failure to train.” Id. (citing Okla. City v. Tuttle, 471 U.S. 808, 822–23

(1985)). When such a claim is made, “the focus must be on adequacy of the

training program in relation to the tasks the particular officers must perform.”

Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (quoting City of Canton,

Ohio v. Harris, 489 U.S. 378, 390 (1989)).

Here, Plaintiff-Appellant alleges that the City provided inadequate

training regarding the proper use of no-knock warrants, Tasers, and excessive

and deadly force. In order to succeed at this stage, the City must show that

there is no genuine dispute as to a material fact regarding (1) whether there

was an inadequacy in the City’s training policy; (2) whether the City was

deliberately indifferent in its adoption of that policy; or (3) whether the

inadequate training policy directly caused the constitutional violation

allegedly suffered by Mr. Darden. See, e.g., Sanders-Burns v. City of Plano, 594

F.3d 366, 381 (5th Cir. 2010); Zarnow v. City of Wichita Falls, 614 F.3d 161,

170 (5th Cir. 2010).

Plaintiff-Appellant does not argue a pattern of similar constitutional

violations. Instead, it relies on the single-incident exception to that rule. As

such, the City must show that there is no genuine dispute as to whether the

constitutional violation allegedly suffered by Mr. Darden was the “highly

predictable” consequence of the City’s failure to train the officers in its Zero-

Tolerance Unit. See Valle v. City of Houston, 613 F.3d 536, 549 (5th Cir. 2010).

It has met that burden.

The City proffered, and the district court relied on, several “General

Orders” governing police practices that were in place on the day of Mr.

Darden’s death. Those orders largely restate applicable law regarding the use

of force. While the existence of such policies is not dispositive, “[w]e consider

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compliance with state requirements as a factor counseling against a ‘failure to

train’ finding.” Zarnow, 614 F.3d at 171.

Plaintiff-Appellant seeks to evade the import of the City’s existing

policies by emphasizing that its allegations are specific to the City’s Zero-

Tolerance Unit, which specializes in serving search warrants and conducting

searches of residences, including “dynamic entries” and no-knock warrants.

Plaintiff-Appellant offered evidence, in the form of an affidavit by Dallas

Independent School District Police Chief Craig Miller, 2 that “[n]othing can

potentially be more dangerous than making a Dynamic Entry into a location”

about which officers have “very little information.” The City, Plaintiff-

Appellant emphasizes, offered no evidence that members of the Unit receive

training on the use of excessive force and Tasers in the context of dynamic

entries.

However, “a plaintiff must allege with specificity how a particular

training program is defective.” Roberts v. City of Shreveport, 397 F.3d 287, 293

(5th Cir. 2005). Plaintiff-Appellant’s general position is that the City failed to

provide any training specific to the use of excessive force and Tasers in the

context of no-knock entries. But it has not identified—in its briefing, at oral

argument, or in post-argument supplemental briefing—how such training

would differ from the existing training on using excessive force and Tasers. 3

Even Chief Miller, in his affidavit, neglected to address this issue. Indeed, he

offered the conclusory statement that “a lack of adequate training [was] a

2 Prior to being employed by the Dallas Independent School District, Mr. Miller served

as the Deputy Chief of the Crimes Against Persons Division of the Dallas Police Department.

Mr. Miller also served as the Homicide Unit Commander.

3 Plaintiff-Appellant emphasizes that the City “was supposed to provide the members

of this unit with a ‘briefing sheet’ in order to ‘make sure that all of the pertinent information

is communicated to everybody that’s involved,’” but that no such information was provided.

This argument is unhelpful to Plaintiff-Appellant, as it suggests that the City did have an

official policy of providing briefing sheets before no-knock entries.

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significant part of the reason [the officers] utilized more force than the

situation required” and opined that (1) “there were alternatives to conducting

a dynamic entry search warrant,” (2) the Zero Tolerance Unit “made entry into

a location without proper intelligence and ultimately caused the death of

Jermaine Darden,” and (3) “nothing can potentially be more dangerous than

making a dynamic entry into a location where, according to the briefing sheet,

they had very little information.”

Given this gap in Plaintiff-Appellant’s allegations and summary

judgment evidence, we conclude that the City is entitled to summary judgment.

It has shown that—in this case, given the evidence now before the court—there

is no genuine dispute as to a material fact regarding whether there was an

inadequacy in the City’s training policy. 4

IV. CONCLUSION

The district court order granting summary judgment in favor of the

City on Plaintiff-Appellant’s municipal liability claims is AFFIRMED.

4 The parties dispute whether Plaintiff-Appellant’s failure-to-train claim includes not

just a failure-to-train on the use of excessive force and Tasers, but also a failure-to train-on

rendering medical aid. That claim was largely ignored by the district court, and it is unclear

whether or not it was adequately pled. (The operative complaint alleges only that the City

“failed to implement and/or enforce policies, practices, and procedures for the Fort Worth

Police Department that respected Jermaine Darden’s constitutional rights to assistance,

protection, and equal treatment under the law”; that the City is responsible for “assuring

safety for all citizens of the City of Fort Worth”; that Mr. Darden told Officers Snow and

Romero that he could not breathe but that his pleas were ignored; that Mr. Darden “was not

provided with medical attention and sat unresponsive for at least 15 minutes before Medstar

arrived”; and that the City “failed to implement and/or enforce the policies, procedures, and

practices necessary to provide constitutionally adequate protection and assistance to [Mr.]

Darden during his struggle to survive and implemented policies, procedures and practices

which actually interfered with or prevented [Mr.] Darden from receiving the protection,

assistance, and care he deserved.”) But resolving that question is unnecessary. At no point

did Plaintiff-Appellant offer any evidence regarding how the City’s training on rendering

medical aid is defective. That claim, like the others, therefore fails.

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