Henderson v. Harris County

Case: 21-20544 Document: 00516506091 Page: 1 Date Filed: 10/12/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

October 12, 2022

No. 21-20544 Lyle W. Cayce

Clerk

Jean Henderson; Christopher Devonte Henderson,

Plaintiffs—Appellants,

versus

Harris County, Texas; Arthur Simon Garduno,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-2052

Before Smith, Duncan, and Oldham, Circuit Judges.

Per Curiam:

Christopher Henderson fled from three officers investigating drug

activity. An officer chased Henderson and commanded him to stop.

Eventually, Henderson stopped and turned suddenly toward the officer. The

officer feared Henderson was reaching for a weapon, so he tased him.

Henderson sued Harris County and the officer. The district court dismissed

the Monell claim against Harris County for failure to state a claim and granted

summary judgment to the officer based on qualified immunity. We affirm.

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I.

A.

On April 26, 2018, three police officers went to Houston’s Ingrando

Park to investigate drug activity. One of the officers was Arthur Garduno, a

deputy constable for Harris County Constable Precinct 6. The officers

approached the park separately in marked patrol cars and saw three men at a

picnic table. Garduno claims he smelled marijuana and saw one of the men

“breaking up marijuana” into a shoebox. Another one of the men was

Christopher Henderson. Garduno claims Henderson had a blunt tucked

behind his ear and that Henderson threw a plastic bag containing a leafy green

substance onto the ground.

When Henderson saw the officers, he ran. Garduno radioed about a

person evading arrest, activated his siren, and followed. As Henderson

entered an apartment complex, Garduno jumped out of the car and continued

the chase on foot. Eventually, Garduno caught up to Henderson in the

complex parking lot and ordered Henderson to stop running. 1 Garduno

warned, “I’m going to tase you.” What happened next is disputed. Garduno

says Henderson stopped, turned to face him, and reached toward his

waistband with both hands. Henderson claims he stopped running, “turned

his head slightly toward the deputy, and raised his hands in the air as if to

surrender.”

Garduno feared Henderson was reaching for a weapon, so Garduno

deployed his taser. But because only one of the taser’s prongs reached

Henderson—one lodged in his face, and the other went over his head—the

1

The parties dispute how many times Garduno told Henderson to stop. Henderson

says he heard Garduno yell “stop” only once. Garduno and several witnesses recall

multiple commands.

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circuit didn’t complete, and the taser didn’t shock Henderson. So one

second later, Garduno deployed his taser a second time. This time both

prongs lodged in Henderson’s back. He fell backward and hit his head.

The other officers arrived at the scene. Garduno claims Henderson

continued to struggle while on the ground and resisted being placed in

handcuffs. So Garduno “dry” tased him a final time.

The officers searched Henderson and found marijuana in his pocket

but no weapon. Henderson was charged with possession of marijuana of less

than 2 oz. in a drug-free zone, but that charge was later dismissed on the

prosecution’s motion.

B.

Christopher Henderson and his grandmother Jean Henderson sued

Deputy Garduno and Harris County under 42 U.S.C. § 1983 for violations of

Henderson’s Fourth Amendment rights, as incorporated. See Mapp v. Ohio,

367 U.S. 643, 655 (1961). 2 The district court dismissed the claim against the

County and granted summary judgment to Garduno. Henderson timely

appealed.

As to the Monnell claim, Henderson alleged the County failed “to

adopt any policies whatsoever to govern Deputy Garduno’s use of force,”

“failed to train Deputy Garduno in the proper use of a [t]aser,” and “failed

to supervise Deputy Garduno.” Henderson further alleged the “chief

policymaker was the Constable of Precinct 6, Silvia R. Trevino,” or “in the

2

Jean Henderson is plaintiff-appellant here. Chris and Jean were both named

plaintiffs when the suit was filed. But earlier in the litigation, Chris became unable to act

for himself, so Jean obtained a guardianship over Chris’s person and estate. Jean is now the

sole plaintiff on behalf of Chris both as next friend and as the guardian of his person and

estate.

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alternative, the chief policymaker was another person with managerial

authority.”

The County moved to dismiss under Rule 12(b)(6). The district court

granted the motion. It held Henderson (1) failed to allege an “official policy”

to state a plausible § 1983 claim against Harris County and (2) failed to allege

a pattern of constitutional violations sufficient to show deliberate

indifference or establish deliberate indifference through the single-incident

exception to failure-to-train liability.

Afterward, Henderson moved to alter or amend the judgment under

Rule 59(e), asking the court to either allow her to amend her complaint based

on additional evidence contained in her summary-judgment filings, or

reconsider its dismissal order based on the court’s alleged

mischaracterization of the facts and Henderson’s ability to plead a Monell

cause of action. The district court declined, holding: (1) Henderson was not

entitled to leave to amend because she did not seek such leave during the

fourteen months Harris County’s motion to dismiss was pending, nor did she

allege any facts unavailable to her during those fourteen months; (2)

Henderson was not entitled to reconsideration based on the court’s allegedly

“misleading” summary of the facts because “[e]ven assuming that the

[c]ourt’s brief recitation of the facts was inaccurate, which the [c]ourt

disputes, such characterization would not alter the outcome of the [m]otion

to [d]ismiss.”

As to the claim against Officer Garduno, Henderson alleged

Garduno’s conduct violated the Fourth Amendment and was objectively

unreasonable under clearly established law. Garduno moved for summary

judgment, asserting qualified immunity. The district court held that

Henderson alleged facts sufficient to establish a Fourth Amendment

violation but failed at the second step of the qualified-immunity analysis

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because Garduno’s “conduct was not objectively unreasonable in light of

clearly established law at the time the violation occurred.” Accordingly, the

district court granted summary judgment for Garduno, finding he was

entitled to qualified immunity.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo both

the district court’s grant of Garduno’s summary judgment motion based on

qualified immunity, Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016), and

its grant of the County’s motion to dismiss for failure to state a Monell claim,

Groden v. City of Dallas, 826 F.3d 280, 283 (5th Cir. 2016). We review the

district court’s denial of Henderson’s Rule 59(e) motion to alter or amend

the judgment for abuse of discretion. Trevino v. City of Fort Worth, 944 F.3d

567, 570 (5th Cir. 2019).

II.

First, the Monell claim. Henderson argues the district court erred

because (A) Harris County failed to provide any use-of-force policies or train

its officers on taser use, 3 and (B) the district court employed an unfair

procedure by dismissing her claims sua sponte. Both arguments fail.

A.

To establish Monell liability, a plaintiff must show that an official

policy promulgated by a municipal policymaker was the moving force behind

the violation of a constitutional right. Peterson v. City of Fort Worth, 588 F.3d

838, 847 (5th Cir. 2009). And to get past the pleading stage, a complaint’s

3

Henderson also asserted that Harris County “failed to supervise Deputy

Garduno.” But as Henderson conceded—and as the district court correctly noted—this

claim relies entirely “on Harris County’s [alleged] failure to formulate an adequate policy

concerning [t]aser usage.” Thus, we follow the district court’s lead in treating

Henderson’s supervisory liability claim as encompassed in her other claims.

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“description of a policy or custom and its relationship to the underlying

constitutional violation cannot be conclusory; it must contain specific facts.”

Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quotation

omitted). A “failure-to-train action is a type of Monell claim.” Hutcheson v.

Dallas Cnty., 994 F.3d 477, 482 (5th Cir. 2021). To establish Monell liability

on a failure-to-train theory, 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 rights.” Ibid.

Henderson must plausibly allege each element, but she flunks all three.

First, Henderson has not plausibly alleged that the County failed to

train the officers involved on the constitutional use of tasers. Henderson

contends Harris County was placing officers on the street without any training

as to when they may constitutionally use a taser. Her only support for that

contention: The County—in response to public information requests by

Henderson’s attorney—“failed to produce any written policies or

procedures governing the conduct of deputy constables in performing law

enforcement.” The district court rightly rejected these allegations as

“conclusory,” holding that the complaint contained “no ‘specific facts’ as

to whether Trevino or Harris County had a ‘custom or practice’ of not

creating or implementing policies governing Precinct 6 deputies.” This alone

is enough to dispose of Henderson’s failure-to-train claim. And Henderson’s

broader claim that the County failed to implement any use-of-force policies

is deficient for the same reason.

Second, Henderson has not plausibly alleged a causal connection

between any failure to train officers and the alleged violation here. That is

because it was Deputy Garduno who allegedly violated the Constitution by

deploying his taser. Indeed, Henderson herself “conceded that Garduno

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received [t]aser training from TCOLE,” the Texas Commission on Law

Enforcement. She attempts to get around that concession by arguing there is

a difference between training officers in “the mechanics of using a taser

weapon” and in “the constitutional limitations of the use of force with a taser

weapon.” But she supplies no reason to think the TCOLE program trained

officers in the former and not the latter.

Third, Henderson has not plausibly alleged that any failure to train

constituted deliberate indifference. “To show deliberate indifference, a

plaintiff normally must allege ‘a pattern of similar constitutional violations by

untrained employees.’” Hutcheson, 994 F.3d at 482 (quoting Connick v.

Thompson, 563 U.S. 51, 62 (2011)). If a plaintiff cannot allege a pattern, “it is

still possible to establish deliberate indifference through the single-incident

exception.” Id. But that exception is “extremely narrow.” Id. (citation

omitted). Indeed, “[t]he single-incident exception ‘is generally reserved for

those cases in which the government actor was provided no training

whatsoever.’” Id. at 483 (emphasis added) (quoting Peña, 879 F.3d at 624).

And it requires proving “that the highly predictable consequence of a failure

to train would result in the specific injury suffered.” Id. at 482 (quoting Valle

v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010)). “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.’” Id. at 483 (quoting Littell v. Houston

Indep. Sch. Dist., 894 F.3d 616, 624–25 (5th Cir. 2018)).

Here, Henderson concedes that she does “not allege a pattern of

similar constitutional violations” and instead “contend[s] that [her] claim

falls within the single-incident exception.” Id. There are at least two

problems with that. First, as already noted, this is not a case where “the

government actor was provided no training whatsoever,” id. (quotation

omitted), because everyone agrees Garduno was trained in proper taser use.

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Second, Henderson again relies only on the County’s “failure to produce

certain policies and procedures” in response to public information requests.

She suggests the only possible conclusion to be drawn from the County’s

failure to respond to those requests is that the County had no policies and

offered its officers no training on proper taser use. As the district court rightly

concluded, these “vague allegations are insufficient to establish ‘deliberate

indifference’ through the single-incident exception.”

B.

Henderson also contends the district court erred by dismissing the

Monell claim against Harris County sua sponte. But the district court did not

dismiss sua sponte; it acted on the County’s motion to dismiss. Henderson

claims she “was truly blindsided by the [d]istrict [c]ourt’s decision to dismiss

Harris County.” But she concedes in the very same sentence that Harris

County’s motion to dismiss was pending for fourteen months. She even

responded to that motion, making the same arguments she now advances on

appeal. The district court’s order granting dismissal closely tracked the

arguments in the County’s motion and rejected the arguments in

Henderson’s response. Thus, Henderson could not have been blindsided by

anything in the district court’s order, and the district court was well within

its discretion to deny Henderson’s Rule 59(e) motion.

III.

Next, Henderson’s claims against Officer Garduno. To prevail,

Henderson must overcome Garduno’s qualified immunity defense, which

“includes two inquiries. The first question is whether the officer violated a

constitutional right. The second question is whether the right at issue was

clearly established at the time of the alleged misconduct.” Morrow v.

Meachum, 917 F.3d 870, 874 (5th Cir. 2019) (quotation omitted). “We can

decide one question or both.” Ibid. Here, we only answer the second.

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To show clearly established law, Henderson has two paths: (A) she

can identify an on-point case, or (B) she can satisfy the obvious-case

exception. See Salazar v. Molina, 37 F.4th 278, 285–86 (5th Cir. 2022).

Henderson does neither.

A.

Start with on-point cases. Qualified immunity generally relieves law

enforcement officers of the burden of defending personal-capacity suits. The

immunity, however, does not protect officers who violate clearly established

constitutional rights. Rights are “clearly established” when “existing

precedent ‘squarely governs’ the specific facts at issue,” Kisela v. Hughes,

138 S. Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 577 U.S.

7, 15 (2015) (per curiam)), not when a rule is merely “suggested by then-

existing precedent,” City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (per

curiam). The Supreme Court recently underscored the importance of

specificity in the clearly-established-law inquiry when it reminded lower

courts “not to define clearly established law at too high a level of generality.”

Id. Rather, courts must determine that existing precedent has rendered the

right “beyond debate.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021)

(per curiam) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).

The hurdle is even higher when the plaintiff alleges a Fourth

Amendment violation. As we have said elsewhere, in excessive-force cases

requiring split-second judgments, it is “especially difficult” to overcome

qualified immunity. Morrow, 917 F.3d at 875. That is because in the Fourth

Amendment excessive-force context, “it is sometimes difficult for an officer

to determine how the relevant legal doctrine . . . will apply to the factual

situation the officer confronts.” Mullenix, 577 U.S. at 12 (quotation omitted);

see Graham v. Connor, 490 U.S. 386, 396–97 (1989) (laying out the excessive-

force inquiry, which “requires careful attention to the facts and

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circumstances of each particular case”). Thus, Henderson must demonstrate

that the law is “so clearly established that—in the blink of an eye, in the

middle of a high-speed chase—every reasonable officer would know it

immediately.” Morrow, 917 F.3d at 875.

Henderson points to a slew of cases. But many of the cases she relies

on are irrelevant to the clearly-established-law inquiry—either because they

issued too late or because they do not bind us (and hence do not give officers

in our circuit fair notice of the law). And the cases she cites that could clearly

establish law do not do so with the requisite specificity.

First, several of Henderson’s cases came too late to supply clearly

established law. Garduno tased Henderson on April 26, 2018. Any cases after

that date “cannot show clearly established law at the time of the violation.”

Salazar, 37 F.4th at 286 (quotation omitted); see also Kisela, 138 S. Ct. at 1154

(“[A] reasonable officer is not required to foresee judicial decisions that do

not yet exist in instances where the requirements of the Fourth Amendment

are far from obvious.”). That rule dispatches the bulk of Henderson’s cases. 4

See Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 335 (5th Cir. 2020);

Amador v. Vasquez, 961 F.3d 721, 730 (5th Cir. 2020); Timpa v. Dillard, 20

F.4th 1020, 1035 (5th Cir. 2021); Cole v. Carson, 935 F.3d 444, 449, 456–57

4

To this, Henderson argues that “[p]ost-incident cases which merely apply clearly

established law from pre-incident authority are instructive and provide valuable guidance

in determining whether the law was clearly established with sufficient clarity at the time of

the incident.” Specifically, Henderson says that she never contends any of the post-

incident cases she cites established new law; rather, these cases are meant to demonstrate

“how the legal principles clearly established in [cases like] Newman, Trammel, Stain,

Hanks, Cooper, and Goodson . . . have been applied.” We reject Henderson’s attempt to

bootstrap after-the-fact precedent. The law must be “‘clearly established’ at the time of

defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). If

Henderson must rely on post-incident cases to prove clearly established law, then the law

was not clearly established at the time of the incident. A pig with lipstick is still a pig.

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(5th Cir. 2019) (en banc); Scott v. White, 810 F. App’x 297, 301–02 (5th Cir.

2020); Fairchild v. Coryell Cty., 40 F.4th 359, 362–67 (5th Cir. 2022).

Second, various other cases Henderson cites are unpublished. But

unpublished opinions “do not establish any binding law for the circuit,” so

“they cannot be the source of clearly established law for the qualified

immunity analysis.” Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019)

(quotation omitted); see also Salazar, 37 F.4th at 286 (same); Bell v. City of

Southfield, 37 F.4th 362, 367–68 (Thapar, J.) (“[A] plaintiff cannot point to

unpublished decisions to . . . [demonstrate] a right has been clearly

established.”). This rule eliminates several more of Henderson’s authorities.

See Peña v. City of Rio Grande, 816 F. App’x 966, 974–77 (5th Cir. 2020) (per

curiam); Autin v. City of Bayton, 174 F. App’x 183, 186 (5th Cir. 2005) (per

curiam); Massey v. Wharton, 477 F. App’x 256 (5th Cir. 2012) (per curiam).

Finally, Henderson also invokes a handful of published Fifth Circuit

opinions. 5 Most of Henderson’s remaining cases “do not involve tasing or

fleeing,” Salazar, F.4th at 286, so she relies on them for general statements

of law. See Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (denying QI to

officer who “forcefully slam[med arrestee’s] face into a vehicle while she was

restrained and subdued”); Cooper v. Brown, 844 F.3d 517, 524–25 (5th Cir.

2016) (denying QI to officer who subjected arrestee “to a lengthy dog attack”

even though he “was not actively resisting arrest or attempting to flee”);

Lytle v. Bexar Cnty., 560 F.3d 404, 412–13 (5th Cir. 2009) (denying QI to

officer who “fir[ed] at the back of a fleeing vehicle some distance away”);

Trammell v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017) (denying QI where

5

“Even on the assumption that Fifth Circuit precedent can create clearly

established law . . . none of [Henderson]’s cases is a close enough fit.” Salazar, 37 F.4th

at 286 (citing Rivas-Villegas, 142 S. Ct. at 7 (assuming without deciding that “controlling

Circuit precedent clearly establishes law for purposes of § 1983”)).

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several officers tackled an individual who was not fleeing and who did not

pose danger to himself or others); Hanks v. Rogers, 853 F.3d 738, 745–46 (5th

Cir. 2017) (denying QI to officer who employed a “half spear takedown” on

suspect who was not actively resisting and “made no attempt to flee”);

Goodson v. City of Corpus Christi, 202 F.3d 730 (5th Cir. 2000) (denying QI

to officers who, without reasonable suspicion, tackled an individual who was

not fleeing, not violent, and who resisted only by pulling his arm away from

the officer). But such general statements are insufficient to produce “clearly

established” law. See Kisela, 138 S. Ct. at 1153 (“[P]olice officers are entitled

to qualified immunity unless existing precedent squarely governs the specific

facts at issue.” (emphasis added) (quotation omitted)).

That leaves only two published Fifth Circuit cases involving tasings:

Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), and Darden v. City of Fort

Worth, 880 F.3d 722 (5th Cir. 2018). These cases are cited by every tasing

plaintiff who sues under § 1983 in our circuit. But these cases are extreme

examples that do nothing to clearly establish the law for less-extreme tasings

like Henderson’s.

Start with Newman. In that case, Derrick Newman was a passenger in

a vehicle that was pulled over for failing to yield. An officer discovered an

outstanding warrant for a different passenger and began to arrest him.

Newman got out of the car and consented to a protective pat-down search. In

his telling, Newman complied with all commands, but after he made an off-

color joke, the officers beat him with a baton and tased him three times. This

court denied the officer qualified immunity. See Newman, 703 F.3d at 759

(concluding none of the Graham factors justified the tasing because “on

Newman’s account, he committed no crime, posed no threat to anyone’s

safety, and did not resist the officers or fail to comply with a command”).

“Because Newman involved a plaintiff who committed no crime and obeyed

all commands, that case cannot clearly establish that using a taser was

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unlawful in the circumstances [Garduno] confronted here.” Salazar, 37

F.4th at 288.

Henderson’s reliance on Darden fares no better. While executing a no-

knock warrant at a private residence, officers “allegedly threw [Darden] to

the ground, tased him twice, choked him, punched and kicked him in the

face, pushed him into a face-down position, pressed his face into the ground,

and pulled his hands behind his back to handcuff him,” ultimately causing

him to suffer a heart attack and die during the arrest. Darden, 880 F.3d at 725.

“The force used in Darden—causing the death of the arrestee—is obviously

much more extreme than the . . . tasing at issue here.” Salazar, 37 F.4th at

288.

In short, Newman and Darden are nothing like this case. Both involved

“far more force than was deployed here.” Id. at 287. And neither involved a

suspect fleeing from police. Even on Henderson’s own version of the facts,

this case is radically different: Henderson concededly ran from police, then

stopped suddenly and turned toward the pursuing officer. Thus, neither

Newman nor Darden involves materially similar facts and hence cannot

clearly establish the law.

B.

Finally, the obvious-case exception. Henderson cites Hope v. Pelzer

and Taylor v. Riojas for the proposition that there can be “notable factual

distinctions between the precedents relied on . . . so long as the prior decision

gave reasonable warning that the conduct then at issue violated constitutional

rights.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quotation omitted); see

Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam) (similar). Hope and

Taylor are Eighth Amendment cases that predated City of Tahlequah. So it is

unclear how much if any weight we should place on obvious Eighth

Amendment cases in the face of Supreme Court direction in Fourth

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Amendment cases “not to define clearly established law at too high a level of

generality.” City of Tahlequah, 142 S. Ct. at 11. And even if Hope and Taylor

could apply here, “obvious” cases are exceedingly “rare.” District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018); see Bartlett, 981 F.3d at 337

(“The standard for obviousness is sky high.”).

Even accepting Henderson’s versions of the facts, this case is not

obvious. Garduno made the split-second decision to deploy his taser after

Henderson had led him on a long chase by car and by foot and was still

unrestrained. Henderson admits he suddenly stopped running, turned

toward Garduno, and moved his arms in a manner that suggested to Garduno

that Henderson was reaching for a weapon. This is a far cry from the handful

of instances where we have recognized an “obvious case.” If anything, the

obviousness of this case points in the other direction: As illustrated in Escobar

v. Montee, 895 F.3d 387 (5th Cir. 2018), and as we explained in Salazar, “a

suspect cannot refuse to surrender and instead lead police on a dangerous hot

pursuit—and then turn around, appear to surrender, and receive the same

Fourth Amendment protection from intermediate force he would have

received had he promptly surrendered in the first place.” Salazar, 37 F.4th

at 282–83.

AFFIRMED.

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