Vardeman v. City of Houston

Case: 22-20109 Document: 00516586193 Page: 1 Date Filed: 12/21/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

December 21, 2022

No. 22-20109

Lyle W. Cayce

Clerk

William Vardeman,

Plaintiff—Appellant,

versus

City of Houston; Rickey Dewayne Simpson,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-3242

Before Higginbotham, Southwick, and Higginson, Circuit

Judges.

Leslie H. Southwick, Circuit Judge:

The plaintiff claims a law enforcement officer violated his Fourth

Amendment rights by punching him in the face, knocking him to the

pavement, then standing over him for a time. The reason for the blow? The

plaintiff had not move his vehicle quickly enough at an airport passenger

pickup area. The district court dismissed on the pleadings. We conclude,

though, the allegations in the complaint present a plausible claim that, viewed

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No. 22-20109

objectively, the excessive force used by the law enforcement officer was not

just to insist the vehicle be moved, but it constituted a seizure that would

prolong the encounter. On the other hand, the plaintiff does not sufficiently

allege a municipal policy to support a claim against the city defendant.

Accordingly, we REVERSE judgment for the officer, AFFIRM judgment

for the city, and REMAND for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

According to the complaint, in September 2018, William Vardeman

landed at Hobby Airport in Houston, Texas, for a business trip. His family

took a later flight, and he returned to the airport to pick them up. While he

awaited his family’s arrival, Vardeman made several loops around the

passenger pickup area and eventually parked his vehicle. As Vardeman

attempted to talk over the phone with his wife and daughter, a traffic officer

approached and ordered him to move his vehicle forward. Once Vardeman

began moving his vehicle approximately 30 yards forward, his wife called him

and told him the family was standing outside the baggage claim doors.

Vardeman got out of the vehicle and opened the tailgate to be ready to load

his family’s luggage. Meanwhile, another traffic officer approached and told

him to move his vehicle. He told the traffic officer that his wife and daughter

were on their way out. She again told him to move his vehicle, but as he was

beginning to pull away, he noticed his family walking up to the vehicle. He

got out of the vehicle to reopen the tailgate. As he was beginning to load his

family’s luggage, the traffic officer approached him again and said, “I told

you to move your f---ing car.” Vardeman explained to the officer that his

family was standing quite near, and he would move as soon as their bags were

loaded. The traffic officer responded, “I don’t give a f--- and you are going

to move that car.” The officer then called for assistance.

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As Vardeman finished loading his family’s bags and prepared to leave,

another traffic officer, defendant Rickey DeWayne Simpson, approached and

yelled into Vardeman’s face, “[y]ou need to move the f---ing car or I will

whip your bitch ass.” Vardeman’s adult daughter, who was holding her baby,

attempted to separate the two men by sticking her arm between them, but

Simpson “forcefully pushed” her. Vardeman then pushed Simpson away

from his daughter and grandchild. Simpson then “aggressively and violently

struck” Vardeman in the face with a closed fist, knocked him to the ground,

and “menacing[ly]” stood over him, as if he were about to strike again.

When Vardeman was able to get off the ground, he called the Houston Police

Department to report he “had just been verbally and physically assaulted by

an airport officer,” and then he returned to his vehicle.

Vardeman asserted claims against the City of Houston for Fourth and

Fourteenth Amendment violations, mental anguish, negligence, and

deliberately indifferent or negligent hiring and management. He asserted

state law claims against Simpson for assault and battery and for mental

anguish, and he asserted federal claims under 42 U.S.C. § 1983 against both

defendants. The state law claims against Simpson were dismissed, and there

is no issue raised here about those.

The district court granted the City of Houston’s motion to dismiss

under Rule 12(b)(1) and Rule 12(b)(6), finding the City immune from suit.

Further, the district court determined Vardeman’s Section 1983 claims

against the City of Houston failed because he did not show any municipal

policy that the officer was carrying out when striking Vardeman.

The Section 1983 claim against Simpson was resolved when the

district court granted judgment on the pleadings. The court concluded that,

even though the complaint clearly alleged Simpson applied force during the

encounter, the only possible inference from this encounter was that Simpson

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was insisting Vardeman leave, not that he was seizing him. Vardeman timely

appealed.

DISCUSSION

Vardeman seeks reversal here of the district court’s dismissal of his

excessive force claim against Simpson and his municipal liability claim

against the City of Houston. Both were dismissed at the pleadings stage. 1

Both a Rule 12(c) motion for judgment on the pleadings and a Rule

12(b)(6) motion to dismiss for failure to state a claim are reviewed de novo.

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312,

313 n.8 (5th Cir. 2002). The Rule 12(c) standard is the same as that applied

to Rule 12(b)(6). Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). A

court may dismiss a complaint as a matter of law when the plaintiff fails “to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).

To withstand a Rule 12(b)(6) motion, “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. 554, 570 (2007)). The court accepts well-

pled facts as true and “view[s] them in the light most favorable to the

1

Both Simpson’s and the City of Houston’s pleadings assert that Vardeman’s excessive

force claim against Simpson should fail because he is not a law enforcement officer. They

rely on a Ninth Circuit case, United States v. Attson, 900 F.2d 1427 (9th Cir. 1990), in

support of this argument. The district court, though, stated in its opinion that the logic of

Attson has been implicitly overruled by Soldal v. Cook Cnty., 506 U.S. 56, 68–69 (1992). We

considered a similar argument about an officer who handled a city’s ambulance permits but

acted outside the scope of his duties when detaining two ambulance drivers who did not

have permits. Sweetin v. City of Texas City, 48 F.4th 387, 390 (5th Cir. 2022). We held the

permit officer was subject to Section 1983 but had no qualified immunity because he was

acting beyond his authority. Id. at 392. Here, Officer Simpson was performing his assigned

functions, and he was a government official when performing those duties. The argument

that Simpson is not an official subject to Section 1983 is incorrect.

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plaintiff.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.

2019) (quotation marks and citation omitted). Dismissal is appropriate if the

facts pled are not enough to state a facially plausible claim for relief. Leal v.

McHugh, 731 F.3d 405, 410 (5th Cir. 2013). Plausibility is not akin to

probability, but instead, “it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Walker, 938 F.3d at 735 (quotation marks

and citation omitted). “All questions of fact and any ambiguities in the

current controlling substantive law must be resolved in the plaintiff’s

favor.” Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). We apply these

standards to the two issues raised here. We discuss the officer’s liability

claim first.

I. Excessive force claim against Officer Simpson

Relevant here, a seizure occurs within the meaning of the Fourth

Amendment when an officer applies “physical force to restrain movement,

even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S.

621, 626 (1991). “[T]he appropriate inquiry is whether the challenged

conduct objectively manifests an intent to restrain,” and “the amount of

force remains pertinent in assessing the objective intent.” Torres v. Madrid,

141 S. Ct. 989, 998 (2021) (emphasis omitted).

The district court rejected that a Fourth Amendment seizure had been

pled, finding the alleged facts “do not support a reasonable inference that

Simpson objectively manifested an intent to restrain Vardeman.” Instead,

the court concluded the complaint supports only that the officer “wanted

Vardeman to move along, not to remain, and that Simpson left before

Vardeman stood back up.” Guiding the district court’s analysis was the

Supreme Court’s 2021 decision in Torres v. Madrid, which became the

central authority in this case when it was released during the pendency of this

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litigation. Before deciding if we agree with the district court’s analysis of

Torres, though, we discuss some older precedents.

We start with considering how to label the encounter between officer

and citizen at the airport. The Supreme Court stated that “not all personal

intercourse between policemen and citizens involves ‘seizures’ of persons.

Only when the officer, by means of physical force or show of authority, has

in some way restrained the liberty of a citizen may we conclude that a

‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

Consequently, an arrest need not be the officer’s purpose in order for his or

her actions to be a seizure.

After Terry, the Supreme Court, in a plurality opinion, applied this

analysis to determine whether “a person ha[d] been ‘seized’ within the

meaning of the Fourth Amendment.” United States v. Mendenhall, 446 U.S.

544, 554 (1980). The Court determined a person has been seized if, given the

totality of the circumstances, “a reasonable person would have believed that

he was not free to leave.” Id. Examples of such a seizure include “the

threatening presence of several officers, the display of a weapon by an officer,

some physical touching of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer’s request might be

compelled.” Id.

Though the Mendenhall explanation gathered only a plurality, it was

“adopted by the Court in later cases.” Hodari D., 499 U.S. at 627 (citing,

e.g., Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). Therefore, when

deciding whether a seizure has occurred, “a court must consider all the

circumstances surrounding the encounter to determine whether the police

conduct would have communicated to a reasonable person that the person

was not free to decline the officers’ requests or otherwise terminate the

encounter. Florida v. Bostick, 501 U.S. 429, 439 (1991).

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As its wording shows, the test is objective for whether a seizure occurs

when law enforcement officers interact with individuals. “The test’s

objective standard — looking to the reasonable man’s interpretation of the

conduct in question — allows the police to determine in advance whether the

conduct contemplated will implicate the Fourth Amendment.” Chesternut,

486 U.S. at 574.

Applying those principles, we see the complaint asserts that officer

Simpson arrived after Vardeman finished loading the luggage and closed the

tailgate. The complaint identifies Simpson’s first words as threatening —

“You need to move the f---ing car or I will whip your bitch ass” — and alleges

they were expressed when Simpson was “within an inch of Vardeman’s

face.” Vardeman’s daughter reached between the two men with her arm to

create some separation between them. Simpson pushed the daughter, who

was holding her baby, and Vardeman pushed Simpson. Then came

Simpson’s blow to Vardeman’s face:

Simpson aggressively and violently struck Mr. Vardeman with

a closed fist, in the right side of his face with such force it

knocked him to the ground. Simpson then proceeded to walk

around and stand over Vardeman, in a menacing manner and

acting as if [he] was going to strike Vardeman again while he

was still on the ground. It was only when Vardeman’s wife got

in front of Simpson did he walk back to the sidewalk away from

Vardeman.

In summary, Vardeman alleged that the officer — after being shoved —

physically struck the target of his ire, then hovered over him menacingly.

The Supreme Court has emphasized that the application of force can

be quite brief and still be a seizure:

While a mere touch can be enough for a seizure, the amount of

force remains pertinent in assessing the objective intent to

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restrain . . . . Nor does the seizure depend on the subjective

perceptions of the seized person . . . . The rule we announce

today is narrow. In addition to the requirement of intent to

restrain, a seizure by force — absent submission — lasts only

as long as the application of force . . . . But brief seizures are

seizures all the same.

Torres, 141 S. Ct. at 998–99.

The Court reiterated its rule that a law enforcement “seizure is a

single act, and not a continuous fact.” Id. at 1002 (quoting Hodari D., 499

U.S. at 625). There can be a mere moment of seizure of a person — which is

often described in Supreme Court precedent as a “meaningful interference,

however brief, with an individual’s freedom of movement.” United States v.

Jacobsen, 466 U.S. 109, 113 n.5 (1984) (collecting cases). Vardeman alleges

such a meaningful interference here.

We conclude as follows. The allegations that Simpson punched

Vardeman in the face so hard that he fell to the ground, and then Simpson

hovered over him for a time in a menacing manner, would, if supported by

evidence, allow jurors to find that for some period of time at least, a

reasonable person would not believe he was free to leave. The Supreme

Court has not required a finding that the officer intended to arrest the person,

only that an objective person would perceive that at least briefly, there was

no freedom to go. Torres, 141 S. Ct. at 998–99.

Though the earlier alleged profane insistence by the officer was for

Vardeman to move his vehicle, we see a fact dispute as to whether the

encounter had become something of longer duration and for a different

purpose, such as at least for being issued a ticket. Respectfully, we conclude

the district court erred in holding the complaint did not set out sufficient facts

for a claim of excessive force in making a seizure.

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II. City of Houston’s liability for Simpson’s actions

To allege a plausible claim under Section 1983 against a municipality,

“a plaintiff must show that (1) an official policy (2) promulgated by the mu-

nicipal policymaker (3) was the moving force behind the violation of a consti-

tutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir.

2009).

There are three ways to establish a municipal policy for Section 1983

liability:

First, a plaintiff can show written policy statements, ordi-

nances, or regulations. Second, a plaintiff can show a wide-

spread practice that is so common and well-settled as to consti-

tute a custom that fairly represents municipal policy. Third,

even a single decision may constitute municipal policy in rare

circumstances when the official or entity possessing final poli-

cymaking authority for an action performs the specific act that

forms the basis of the Section 1983 claim.

Webb v. Town of Saint Joseph, 925 F.3d 209, 214–215 (5th Cir. 2019) (quota-

tion marks and citations omitted). Of relevance here, to establish a pattern,

“[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but

rather must point to the specific violation in question.” Estate of Davis ex rel.

McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).

In his complaint, Vardeman provides a list of alleged bad acts by City

of Houston employees, jailers, and police officers. None of these incidents,

however, are meaningfully related to Simpson’s actions at the airport. The

district court rejected the relevance of these alleged incidents, saying they

were a “hodge-podge of unrelated incidents of Houston police and correc-

tional officer violence”; further, they do not show a “custom, policy, prac-

tice, and procedure of using excessive force.” Moreover, the district court

concluded Vardeman did not adequately establish “a pattern or practice of

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assaulting [] people at the airport, that the incident was the product of a fail-

ure to train the employees, or that the City was deliberately indifferent to the

risk of the assault.”

The complaint does not adequately allege a pattern or practice, and

we generally reject Section 1983 claims against a municipality based on one

incident. See Sanchez v. Young Cnty., 866 F.3d 274, 280 (5th Cir. 2017). In

one opinion, we remarked on the fact that “the principal evidence of the al-

leged policy or custom arises from . . . this single case. To be unconstitu-

tional, however, a municipal entity’s policy that derives from custom or prac-

tice must be so common and well settled as to constitute a custom that fairly

represents municipal policy.” Id. (quotation marks and citation omitted).

We agree with the district court. The complaint does not contain suf-

ficient allegations to make plausible a claim for a pattern or practice of assault.

There was no error in dismissing the claim against the City of Houston.

We REVERSE the dismissal of the claims against officer Simpson,

AFFIRM judgment for the City of Houston, and REMAND for further

proceedings.

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