Hutcheson v. Dallas County, TX

Case: 20-10383 Document: 00515817386 Page: 1 Date Filed: 04/12/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2021

No. 20-10383 Lyle W. Cayce

Clerk

Nicole Hutcheson; Ruth Boatner,

Plaintiffs—Appellants,

versus

Dallas County, Texas; Fernando Reyes; Trenton Smith;

Elvin Hayes; Betty Stevens,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

No. 3:17-CV-2021

Before Higginbotham, Smith, and Dennis, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Joseph Hutcheson died after police officers restrained him at the

Dallas County Jail. The plaintiffs, Hutcheson’s wife and mother, sued the

county and four individual officers, bringing an excessive force claim against

the officers and failure-to-train and wrongful-death claims against the county.

The district court dismissed or granted summary judgment on all claims;

plaintiffs appeal on excessive force and failure to train. We affirm.

Case: 20-10383 Document: 00515817386 Page: 2 Date Filed: 04/12/2021

No. 20-10383

I.

Hutcheson walked into the lobby of the jail under the influence of

cocaine and methamphetamine. He staggered through the lobby, approached

a group of people sitting on a bench, conversed with them briefly, and took a

seat on the bench. When he sat down, the others scattered. Hutcheson rose

and spoke with Officer Elvin Hayes. Hayes placed a hand on Hutcheson’s

arm as if to restrain him, but Hutcheson brushed him away, sat back down,

and conversed with Hayes and Deputy Fernando Reyes, who had walked

over. Hutcheson stood up again and staggered around the lobby. After he

had roamed the lobby for about a minute, Reyes approached Hutcheson,

grabbed him, and placed him on the floor.

Other officers joined Reyes in restraining Hutcheson on the floor.

They placed him facedown, and Reyes tried to handcuff him while Officers

Betty Stevens and Trenton Smith helped restrain him, including by putting

their knees on Hutcheson’s upper back. Hutcheson resisted, moving his

arms to avoid the handcuffs and attempting to roll onto his back several times.

He also continued to move his legs, prompting Hayes to step on his ankle.

Hayes then grabbed both of Hutcheson’s legs and pushed them upward

toward Hutcheson’s buttocks. Once his legs were released, he stopped mov-

ing. The officers placed him in a seated position, and a few minutes later a

nurse came to the scene. Minutes after that, paramedics arrived and per-

formed CPR.

Hutcheson was taken to the hospital, where he was declared dead.

The medical examiner’s report concluded that the manner of death was

“homicide” and that he died from a combination of the narcotics in his sys-

tem and the stress from his struggle with and restraint by the officers.

II.

The plaintiffs sued four officers and the county. They brought three

2

Case: 20-10383 Document: 00515817386 Page: 3 Date Filed: 04/12/2021

No. 20-10383

claims: an excessive force action against the officers and a failure-to-train

action against the county under 42 U.S.C. § 1983 and a wrongful-death claim

under Texas law. See Tex. Civ. Prac. & Rem. Code § 71.002.

The defendants initially moved to dismiss; the district court denied

that motion after the plaintiffs moved orally to amend their complaint. After

the plaintiffs filed their amended complaint, the defendants again moved to

dismiss. The district court converted the part of the defendants’ motion

raising the defense of qualified immunity (“QI”) to a motion for summary

judgment, then invited the plaintiffs to move for limited discovery. The

plaintiffs so moved, and the court denied their motion. The district court

granted the defendants’ motion to dismiss and granted summary judgment

against the plaintiffs’ claims.

Plaintiffs appeal the summary judgment regarding excessive force;

they also appeal the dismissal of their failure-to-train claim, or, in the alter-

native, they request the opportunity to replead.

III.

A.

We review a summary judgment de novo, considering all evidence in

the light most favorable to the non-moving party and drawing all reasonable

inferences in the non-movant’s favor. Garcia v. Blevins, 957 F.3d 596, 600

(5th Cir. 2020), cert. denied, 121 S. Ct. 1058 (2021). The burden lies with the

movant to show “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). Further, where video evidence “discredits the non-movant’s descript-

ion of facts, we will consider the facts in the light depicted by the videotape.”

Shepherd v. City of Shreveport, 920 F.3d 278, 283 (5th Cir. 2019) (internal

quotations omitted).

3

Case: 20-10383 Document: 00515817386 Page: 4 Date Filed: 04/12/2021

No. 20-10383

B.

The officers raised the defense of QI, which provides government

officials with immunity from suit so long as they do not “violate clearly estab-

lished statutory or constitutional rights of which a reasonable person would

have known.” Brothers v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016) (internal

quotations omitted). A government official is entitled to QI unless a plaintiff

establishes “that (1) the defendant violated the plaintiff’s constitutional

rights and (2) the defendant’s actions were objectively unreasonable in light

of clearly established law at the time of the violation.” Cowart v. Erwin,

837 F.3d 444, 454 (5th Cir. 2016) (internal quotations omitted).

The plaintiffs contend that the officers violated Hutcheson’s consti-

tutional rights by using excessive force. To establish excessive force under

the Fourth Amendment, a plaintiff must demonstrate “(1) an injury, which

(2) resulted directly and only from the use of force that was clearly excessive

to the need; and the excessiveness of which was (3) objectively unreasona-

ble.” Pena v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018) (inter-

nal quotations omitted). The “second and third elements collapse into a sin-

gle objective-reasonableness inquiry” determined by the crime’s severity,

the suspect’s threat, and whether the suspect is actively resisting arrest or

trying to flee. Id.

The plaintiffs contend that the officers used excessive force in viola-

tion of clearly established law. They rely on Darden v. City of Fort Worth,

880 F.3d 722, 732 (5th Cir. 2018), in which we stated that “a police officer

uses excessive force when the officer strikes, punches, or violently slams a

suspect who is not resisting arrest.” The plaintiffs assert that it is unclear

whether Hutcheson was resisting, so there is a genuine issue of material fact

whether the officers are entitled to QI.

Darden is unavailing. First, the video evidence shows Hutcheson

4

Case: 20-10383 Document: 00515817386 Page: 5 Date Filed: 04/12/2021

No. 20-10383

resisting arrest, both while he moved around the lobby and while officers tried

to restrain him on the floor. Indeed, he moved to escape when Hayes tried

to grab his arm, and he resisted handcuffing while on the floor. Resisting

while being handcuffed constitutes active resistance and justifies the use of

at least some force. See, e.g., Collier v. Montgomery, 569 F.3d 214, 219 (5th

Cir. 2009). Second, the officers used much less force to restrain Hutcheson

than the officers used in Darden, where the officers “threw [the plaintiff] to

the ground and tased him.” Darden, 880 F.3d at 731. The officers did not

strike or tase Hutcheson, nor did they throw him to the ground. Thus, the

plaintiffs cannot rely on Darden to demonstrate that the officers used exces-

sive force, much less that they violated clearly established law.

The plaintiffs also submit that Joseph v. Bartlett, 981 F.3d 319 (5th Cir.

2020), supports their contention that there is a dispute of material fact

whether the officers violated Hutcheson’s Fourth Amendment rights. The

plaintiffs observe that in Joseph, as here, there was video evidence of the

plaintiff’s encounter with police. Id. at 325. But the court observed that the

video evidence in Joseph was of very limited use, stating that “[f]or the most

part, Joseph cannot be seen in the video.” Id. Hutcheson and the police can

be seen for the duration of the encounter.

The plaintiffs also point out that the panel in Joseph affirmed that

“[o]fficers engage in excessive force when they physically strike a suspect

who is not resisting arrest.” Id. at 342. But the officers never struck Hutche-

son, who was resisting. Thus, for the same reasons that the plaintiffs’ reli-

ance on Darden is unavailing, so too is their invocation of Joseph.

Because Hutcheson “was not in the midst of harming other individ-

uals and because his resistance was mostly passive, the officers were entitled

to use only a proportional amount of force.” Brothers, 837 F.3d at 519. The

video shows the officers using only the force necessary to restrain Hutcheson,

5

Case: 20-10383 Document: 00515817386 Page: 6 Date Filed: 04/12/2021

No. 20-10383

rather than striking or using other force against him. Cf. id. Moreover, the

fact that they tried to restrain Hutcheson gently before grabbing him and

placing him on the floor weighs in favor of the reasonableness of their actions.

Indeed, “we have placed weight on the quickness with which law enforce-

ment personnel have escalated from negotiation to force.” Id. at 520.

It follows that the plaintiffs do not raise a dispute of material fact

whether the officers used unreasonable force to restrain a resisting suspect.

Therefore, the plaintiffs cannot satisfy the first step of the QI inquiry. The

district court properly granted summary judgment as to excessive force.

IV.

A.

The plaintiffs appeal the denial of limited discovery. In QI cases, we

use a two-step procedure “under which a district court may defer its [QI]

ruling if further factual development is necessary to ascertain the availability

of that defense.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). First,

the court determines whether the pleadings “assert facts which, if true,

would overcome the defense of [QI].” Id. (internal quotations omitted). Sec-

ond, if the pleadings assert such facts, the district court issues a narrowly

tailored discovery order “to uncover only those facts needed to rule on the

immunity claim.” Id. (internal quotations omitted). We review for abuse of

discretion the decision whether to permit limited discovery on QI. Machete

Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015).

B.

The plaintiffs assert that the district court erred in denying limited

discovery. They contend that there is some uncertainty surrounding Hut-

cheson’s death, particularly because the video does not include any sound.

Thus, plaintiffs aver that limited discovery could provide evidence that might

contradict the defendants’ account. In the interest of garnering such evi-

6

Case: 20-10383 Document: 00515817386 Page: 7 Date Filed: 04/12/2021

No. 20-10383

dence, the motion for discovery included three interrogatories and two

production requests, all with the goal of gaining access to witnesses, including

their testimony, that the county might have collected.

Before limited discovery is permitted, a plaintiff seeking to overcome

QI must assert facts that, if true, would overcome that defense. See, e.g.,

Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014). It is not enough broadly

to seek information that might impeach the defendants’ version of events.

Thus, the plaintiffs faltered at the first step of our two-step procedure. See

Backe, 691 F.3d at 648. Moreover, they failed to identify any questions of fact

that the court must resolve before determining QI, thereby failing the second

step. See id. The district court did not abuse its discretion in denying the

motion for limited discovery.

V.

A.

The plaintiffs appeal the dismissal of their failure-to-train claim

against the county. “We review a district court’s dismissal under Rule

12(b)(6) de novo, accepting all well-pleaded facts as true and viewing those

facts in the light most favorable to the plaintiffs.” Littell v. Hous. Indep. Sch.

Dist., 894 F.3d 616, 622 (5th Cir. 2018) (cleaned up). There is no heightened

pleading standard for § 1983 claims against municipalities. Id. To survive a

motion to dismiss, the complaint need not contain detailed factual allegations

but still must state sufficient facts to establish a plausible claim on its face. Id.

A complaint is facially plausible when it pleads “factual content that

allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

alleged facts must be more than speculative. See Littell, 894 F.3d at 622.

Further, a complaint must do more than recite the elements of a cause of

action and must be supported by more than conclusory statements. See Pena,

7

Case: 20-10383 Document: 00515817386 Page: 8 Date Filed: 04/12/2021

No. 20-10383

879 F.3d at 618. In failure-to-train cases, “[d]efects in a particular training

program must be specifically alleged.” Quinn v. Guerrero, 863 F.3d 353, 365

(5th Cir. 2017).

B.

A person may sue a municipality that violates his or her constitutional

rights “under color of any statute, ordinance, regulation, custom, or usage.”

§ 1983; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). To

establish municipal liability (a “Monell claim”) under § 1983, “a plaintiff

must show the deprivation of a federally protected right caused by action

taken pursuant to an official municipal policy.” Valle v. City of Hous.,

613 F.3d 536, 541 (5th Cir. 2010) (internal quotations omitted). A plaintiff

must identify “(1) an official policy (or custom), of which (2) a policy maker

can be charged with actual or constructive knowledge, and (3) a constitu-

tional violation whose moving force is that policy (or custom).” Pineda v.

City of Hous., 291 F.3d 325, 328 (5th Cir. 2002) (cleaned up). Municipalities

are not liable “on the theory of respondeat superior” and are “almost never

liable for an isolated unconstitutional act on the part of an employee.” Peter-

son v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).

C.

A failure-to-train action is a type of Monell claim. The “failure to train

can amount to a policy if there is deliberate indifference to an obvious need

for training where citizens are likely to lose their constitutional rights on

account of novices in law enforcement.” Id. at 849.

To establish a failure-to-train claim, a plaintiff must “prove that

(1) the city failed to train or supervise the officers involved; (2) there is a

causal connection between the alleged failure to supervise or train and the

alleged violation of the plaintiff’s rights; and (3) the failure to train or

supervise constituted deliberate indifference to the plaintiff’s constitutional

8

Case: 20-10383 Document: 00515817386 Page: 9 Date Filed: 04/12/2021

No. 20-10383

rights.” Pena, 879 F.3d at 623 (cleaned up).

To show deliberate indifference, a plaintiff normally must allege a

“pattern of similar constitutional violations by untrained employees.” Id.

(quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)). But where a plaintiff

does not allege such a pattern, it is still possible to establish deliberate indif-

ference through the single-incident exception. Id. at 624.

The single-incident exception is “extremely narrow.” Valle, 613 F.3d

at 549. The “plaintiff must prove that the highly predictable consequence of

a failure to train would result in the specific injury suffered.” Id. (cleaned

up). For a violation to be “highly predictable,” the municipality “must have

failed to train its employees concerning a clear constitutional duty implicated

in recurrent situations that a particular employee is certain to face.” Littell,

894 F.3d at 624–25 (cleaned up). The single-incident exception “is generally

reserved for those cases in which the government actor was provided no

training whatsoever.” Pena, 879 F.3d at 624.

D.

The plaintiffs contend that the district court erred by dismissing their

Monell claim against the county before analyzing their excessive-force claim

against the officers. The plaintiffs cite no caselaw to suggest that that order

of analysis was an error, much less a reversible one. Moreover, because the

order of analysis did not change the final disposition of any claim, it in no way

prejudiced the plaintiffs’ case.

Turning to the merits, the plaintiffs’ claim falls short: They fail to

establish the first element of a failure-to-train claim, which requires showing

that the municipality “failed to train or supervise the officers involved.” Id.

at 623. The complaint is speculative on that point, stating that “[i]f Dallas

County failed to train its law enforcement and detention personnel” on the

proper procedures to deal with drug-intoxicated individuals, then “it acted

9

Case: 20-10383 Document: 00515817386 Page: 10 Date Filed: 04/12/2021

No. 20-10383

with deliberate indifference to Mr. Hutcheson’s constitutionally protected

rights.” The complaint thus doesn’t actually make a factual allegation that

the county failed to train or supervise—the plaintiffs aver only that if it failed

to train, then it was deliberately indifferent to Hutcheson’s rights.

The complaint also asserts that “[t]he fact that this incident occurred

at all demonstrates the obvious need for Dallas County to provide its officers

with additional or different training.” That allegation is conclusory. More-

over, if we adopted the plaintiffs’ logic, it would result in the imposition of

respondeat superior liability on municipalities—and it is “well-established that

a city is not liable under § 1983” under that theory. Peterson, 588 F.3d at 847.

Having failed to state factual allegations that the county failed to train the

officers, the plaintiffs cannot establish the first element.

The plaintiffs also fail to establish the third element—deliberate indif-

ference. They concede that they do not allege a pattern of similar constitu-

tional violations, see Pena, 879 F.3d at 623; instead, they contend that their

claim falls within the single-incident exception. But the plaintiffs cannot avail

themselves of that exception because they do not allege that there was “no

training whatsoever.” Id. at 624. Indeed, the complaint stipulates that the

Dallas County Sheriff’s Department’s General Orders provide instruction

for officers about how to restrain suspects safely and how to handle inter-

actions with suspects who are mentally ill or under the influence of drugs.

The county therefore provided at least some relevant directives or training to

its officers. The plaintiffs do not allege that the county provided no training,

so they cannot show that the county was deliberately indifferent. The district

court properly dismissed the failure-to-train claim.

VI.

The plaintiffs request that, if we were to find a deficiency in the

complaint against Dallas County, we offer them the opportunity to amend to

10

Case: 20-10383 Document: 00515817386 Page: 11 Date Filed: 04/12/2021

No. 20-10383

cure any defects. We review the denial of leave to amend a complaint for

abuse of discretion. United States ex rel. Adrian v. Regents of Univ. of Cal.,

363 F.3d 398, 403 (5th Cir. 2004). The court “should freely give leave [to

amend] when justice so requires.” Fed R. Civ. P. 15(a)(2). But “leave to

amend is by no means automatic.” Ashe v. Corley, 992 F.2d 540, 542 (5th

Cir. 1993) (internal quotations omitted).

The plaintiffs contend that they should be permitted to amend so that

they can plead their best case. The district court already provided them an

opportunity to amend, however, and the amended complaint is still deficient.

Moreover, the plaintiffs do not indicate how they would cure their complaint

if given another chance to amend. See Benfield v. Magee, 945 F.3d 333, 339–

40 (5th Cir. 2019). Thus, the district court did not abuse its discretion in

denying leave to file a second amendment.

AFFIRMED.

11