Sligh v. City of Conroe

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

November 21, 2023

No. 22-40518 Lyle W. Cayce

____________ Clerk

Olivia Sligh,

Plaintiff—Appellant,

versus

City of Conroe, Texas; Tyson Sutton; Alexis Alias

Montes; Montgomery County, Texas,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-1417

______________________________

Before King, Smith, and Elrod, Circuit Judges.

Per Curiam:

Olivia Sligh appeals the dismissal of (1) an excessive force claim under

42 U.S.C. § 1983; (2) a § 1983 failure-to-intervene/bystander liability claim;

(3) a § 1983 municipal liability claim; and (4) various failure-to-accommodate

claims under Title II of the ADA and § 504 of the Rehabilitation Act. We

AFFIRM.

No. 22-40518

I.

This case involves a plaintiff who was bitten and injured by a police

dog. The below facts are mainly taken from the operative complaint. At 1:39

a.m. on July 5, 2018, Plaintiff-Appellant Olivia Sligh’s partner called 911 to

report that Sligh was suicidal, had hurt herself, and had left her house on foot.

Sligh’s partner requested an ambulance, and he indicated that Sligh was

unarmed and not a violent person. The Montgomery County Sheriff’s Office

notified the City of Conroe of the emergency medical call and requested a

canine officer if available. Tyson Sutton, a police officer employed by the City

of Conroe, and Alexis Alias Montes, a deputy employed by the Montgomery

County Sheriff’s Office, responded to the call. Sutton brought along Thor, a

trained K9 police dog. These two officers, the City of Conroe, and

Montgomery County are the Defendants-Appellees in this action.

The complaint alleges that when the officers located Sligh, Sutton

shined a flashlight in Sligh’s face as Thor barked and lunged at her. Montes

grabbed Sligh, who pulled away. Sutton then sicced Thor on Sligh, and Thor

initially bit Sligh in the upper thigh. Sligh sat down, and Sutton continued to

direct Thor to bite Sligh on the rear of her upper leg and her ankle. Sligh

alleges that “Sutton used the dog to purposively attack and bite” her; that

“Montes did not intervene in the multiple dog bites by words or actions even

though the attack lasted one minute and some seconds”; and that she never

resisted seizure, tried to escape, or assaulted Montes.

Sligh’s complaint is not the only account of what happened that night.

Sligh’s complaint also repeatedly references Sutton’s bodycam footage (the

“Video”), which was attached to Montgomery County and Montes’s motion

to dismiss. In the Video, Sutton encounters Sligh and shines a flashlight at

her. Sligh begins to approach Sutton, who loudly says: “Wait, wait, wait,

don’t! Do not walk towards me! Do not walk towards me! The dog will bite

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No. 22-40518

you!” Sligh acknowledges Sutton before shouting a profanity at the officers.

Montes commands Sligh to place her hands behind her back. Sligh responds

with more profanities and, contrary to the complaint’s assertions that she

never resisted, slaps at Montes’s arms while attempting to pull away. Sligh

and Montes physically struggle for about 11 seconds, at which point Sligh

breaks free from Montes’s grip. Sutton then releases Thor with a bite

command, and Thor bites Sligh as Sutton commands her to get on the

ground. Sligh falls to a seated position on the ground and cries out in pain.

Beginning eight seconds after the bite command, Sutton repeatedly

commands Thor to release Sligh, but Thor does not immediately comply.

Sligh begins lying on her side. 36 seconds after giving the first bite command,

Sutton grabs and pulls Thor’s collar. Thor releases Sligh around 64 seconds

following the first bite command. 1 While Thor was biting Sligh, Montes

reaches to control Sligh’s hands and commands her to put her hands behind

her back. Montes handcuffs Sligh after Thor’s release.

On April 21, 2020, Sligh filed a complaint against the City of Conroe

and John Doe Conroe Police Officers alleging various constitutional,

Americans with Disabilities Act (“ADA”), and Rehabilitation Act claims.

Sligh subsequently amended her complaint three times and added the present

Defendants-Appellees. In the operative third amended complaint filed on

June 23, 2021, Sligh asserted various claims against Sutton and Montes in

their individual capacities as well as claims against the City of Conroe and

Montgomery County. Specifically, as relevant to this appeal, she asserted

(1) a 42 U.S.C. § 1983 excessive force claim against Sutton; (2) a § 1983

failure-to-intervene/bystander liability claim against Montes; (3) a § 1983

_____________________

1

The time of the release is unclear from the footage. But given that Thor began and

continued barking from this point, we can infer that the attack lasted 64 seconds at most

from first bite to release.

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No. 22-40518

municipal/Monell liability claim against the City of Conroe; and (4) various

failure-to-accommodate claims under Title II of the ADA and § 504 of the

Rehabilitation Act against both the City of Conroe and Montgomery County.

Montgomery County and Montes jointly moved to dismiss the

complaint for failure to state a claim, raising, inter alia, a qualified immunity

defense as to Montes. The City of Conroe and Sutton also moved to dismiss,

with Sutton raising a qualified immunity defense. The district court granted

all three motions. It held that (1) Sutton was entitled to qualified immunity

on Sligh’s excessive force claim; (2) Montes was entitled to qualified

immunity on Sligh’s failure-to-intervene/bystander liability claim; (3) Sligh

had failed to state a § 1983 municipal liability claim against the City of

Conroe; and that (4) Sligh’s ADA and Rehabilitation Act claims against the

City of Conroe and Montgomery County failed because they fell into the

exigent circumstances exception to the ADA. Sligh timely appealed.

II.

This court reviews de novo a district court’s grant of a motion to

dismiss. Whitley v. BP, P.L.C., 838 F.3d 523, 526 (5th Cir. 2016). In

considering a motion to dismiss, we may “also consider ‘[d]ocuments that a

defendant attaches to a motion to dismiss . . . if they are referred to in the

plaintiff’s complaint and are central to her claim.’” Villarreal v. Wells Fargo

Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (alteration in original) (quoting

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).

If an allegation is qualified by the contents of an exhibit attached to the

pleadings, but the exhibit instead contradicts the allegation, “the exhibit and

not the allegation controls.” United States ex rel. Riley v. St. Luke’s Episcopal

Hosp., 355 F.3d 370, 377 (5th Cir. 2004). Here, the Video was attached to

Montgomery County and Montes’s joint motion to dismiss and referenced

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No. 22-40518

by Sligh in her operative complaint. Accordingly, to the extent that the Video

contradicts Sligh’s allegations, the Video controls.

III.

A. Excessive Force Claim

We begin with Sligh’s excessive force claim against Officer Sutton. To

overcome Sutton’s qualified immunity defense, Sligh must show (1) that

Sutton violated a constitutional right; and (2) that the right at issue was

“clearly established” at the time of the alleged misconduct. See Pearson v.

Callahan, 555 U.S. 223, 232 (2009). We can address these inquiries in any

order. See id. at 236.

To succeed on a Fourth Amendment excessive force claim, Sligh must

demonstrate an “(1) injury, (2) which resulted directly and only from a use

of force that was clearly excessive, and (3) the excessiveness of which was

clearly unreasonable.” See Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir.

2017) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). “In

excessive-force claims, the reasonableness of an officer’s conduct depends

on the ‘facts and circumstances of each particular case . . . .’” Cooper v.

Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Graham v. Connor, 490

U.S. 386, 396 (1989)). Such a determination is based on “the perspective of

a reasonable officer on the scene.” Id. (quoting Graham, 490 U.S. at 396).

The Supreme Court in Graham v. Connor outlined three factors that inform

the reasonableness of an officer’s use of force: “(1) the severity of the crime

at issue, (2) whether the suspect posed an immediate threat to the safety of

officers or others, and (3) whether the suspect was actively resisting arrest or

attempting to evade arrest by flight.” See Joseph ex rel. Est. of Joseph v.

Bartlett, 981 F.3d 319, 332 (5th Cir. 2020) (citing Graham, 490 U.S. at 396).

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No. 22-40518

The first Graham factor, the severity of the crime, weighs in Sligh’s

favor. The officers were called based on concerns about Sligh’s mental

health, not a crime she was suspected of committing.

The second Graham factor, whether the suspect posed an immediate

threat to the safety of officers or others, also weighs in Sligh’s favor. Sligh

may have posed a safety threat to herself, as she had cut herself and was

potentially suicidal, but the officers received no indication that Sligh was

violent, armed, or otherwise posed a threat to others. Defendants-Appellees’

contention that the employment of a dog bite was justified due to Sligh’s

immediate safety threat to herself is unpersuasive in this case. Sligh did not

appear to be engaging in self-harm during her interactions with the officers,

which undermines Defendants-Appellees’ argument that Sligh posed an

“immediate” safety threat to herself that warranted such a dangerous use of

force. It is also difficult to see how Sligh’s self-harm justifies the employment

of a dog bite, which will inevitably lead to more punctures or lacerations.

Defendants-Appellees contend that Sutton could not determine

whether Sligh had a weapon in her clothing, which weighs in favor of

employing the dog bite. But it is difficult to imagine that Sutton would have

believed that Sligh, who was wearing a tank top and women’s athletic shorts,

was armed when no weapon was produced during the physical struggle

between Sligh and Montes. Furthermore, because the officers did not suspect

that Sligh was violent or had committed a crime, the fact that she was

unsearched is not enough to permit a reasonable officer to assume that she

posed an immediate threat. See Cooper, 844 F.3d at 523 n.2.

The third Graham factor, whether the suspect was actively resisting

arrest or attempting to evade arrest by flight, appears to weigh against Sligh.

The Video shows that Sligh actively resisted seizure, did not follow verbal

commands, and engaged in a physical struggle with Montes. Once Sligh

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No. 22-40518

broke free from Montes’s efforts to physically apprehend her, a reasonable

officer could conclude that a heightened use of force would be necessary to

detain her for her own safety. However, even where force is authorized,

officers must employ an appropriate degree of force to stay within

constitutional bounds. An officer must use force “with measured and

ascending actions that correspond[] to [a suspect’s] escalating verbal and

physical resistance.” Joseph, 981 F.3d at 332–33 (alterations in original)

(quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).

We find that under these circumstances, the decision to sic Thor on

Sligh constituted an excessive use of force in violation of the Fourth

Amendment. When Sligh slipped free from Montes’s attempt to seize her,

there was a break in the action. At that point, the officers could have

attempted to escalate their use of physical force in a more measured manner,

or they could have provided a clear warning that they would employ a dog

bite if Sligh did not comply. Instead, Sutton sicced Thor on Sligh without

warning.

Without any further attempts to subdue Sligh without the use of a dog

bite, and without providing Sligh any warning that she may be subjected to a

dog bite if she did not comply, Sutton sicced a dog on a woman who (1) was

not suspected of any crime; (2) did not pose an immediate safety threat to

officers or others; and (3) was in need of emergency medical intervention due

to self-harm. Furthermore, Sligh—surrounded by a fence and thick foliage—

was not attempting to flee the officers. Employing a dog bite under these

circumstances arguably constituted an unreasonable seizure in violation of

Sligh’s Fourth Amendment rights. 2

_____________________

2

We need not and do not address the issue of whether the prolonged duration of

Thor’s bite also constituted excessive force. Because Thor disobeyed Sutton’s commands

to release Sligh, the extension of the application of force in this case was arguably

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Because we find that Sligh has alleged a violation of a constitutional

right, we turn to the question of whether that right was clearly established at

the time of the violation. “To answer that question in the affirmative, we

must be able to point to controlling authority—or a robust consensus of

persuasive authority—that defines the contours of the right in question with

a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th

Cir. 2011) (en banc) (internal quotation marks and citation omitted).

Although this does not mean that “a case directly on point” is required,

“existing precedent must have placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

“‘[I]n an obvious case,’ the Graham excessive-force factors

themselves ‘can clearly establish’” the law without a body of relevant

precedent. Cooper, 844 F.3d at 524 (quoting Newman v. Guedry, 703 F.3d 757,

764 (5th Cir. 2012)). We find that the facts here do not present such an

“obvious case.” Because Sligh actively resisted seizure, the third Graham

factor weighs against her and justified a use of heightened force. While the

method of heightened force employed may have been unconstitutionally

excessive, the Graham analysis in this case is not so obvious as to clearly

establish the law without a body of relevant authority. Sligh therefore bears

the burden of identifying precedent that clearly establishes her constitutional

right.

_____________________

unintentional. Sligh has offered no evidence that Thor, nor police dogs more generally,

frequently ignore such commands to release. Neither has she offered any clearly established

law indicating that an officer violates the Fourth Amendment when he or she loses control

of a canine engaged in a dog bite. We therefore find that the unintended use of canine force

that occurred after Sutton ordered Thor to release did not violate Sligh’s clearly established

right. Because we find that there was not a clearly established violation of a constitutional

right, we need not address “whether in fact there is such a right.” See Pearson, 555 U.S. at

236–37.

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In arguing that Officer Sutton violated her clearly established right,

Sligh relies primarily on the case Cooper v. Brown, 844 F.3d 517 (5th Cir.

2016). In Cooper, the namesake plaintiff fled on foot after being pulled over

on suspicion of driving under the influence (“DUI”). Id. at 521. An officer

radioed for backup and explained that Cooper was a DUI suspect. Id.

Defendant Officer Brown answered the call with his police dog, Sunny, who

discovered Cooper in a small wood-fenced “cubbyhole.” Id. The parties

disputed whether Sunny initiated the attack or if Brown ordered it, but they

agreed on the following sequence of events following the initial bite:

Sunny continued biting Cooper for one to two minutes. During

that time, Cooper did not attempt to flee or to strike Sunny.

Brown instructed Cooper to show his hands and to submit to

him. At the time of that order, Cooper’s hands were on

Sunny’s head. Brown testified that he could see Cooper’s

hands and could appreciate that he had no weapon. Brown then

ordered Cooper to roll onto his stomach. He complied, and

Brown handcuffed him. But he did not order Sunny to release

the bite until after he had finished handcuffing Cooper.

Id. This court affirmed the district court’s denial of Brown’s motion for

summary judgment based on qualified immunity. Id. at 524–26. On the

question of whether there was a constitutional violation, we held that all the

Graham factors except for the severity of the crime “push[ed] heavily for

Cooper.” Id. at 522. Cooper did not pose an immediate threat because he was

not suspected of committing a violent offense, Brown had not been warned

that Cooper may be violent, and Brown could see that Cooper was unarmed.

Id. at 522–23. Furthermore, Cooper was “not actively resisting arrest or

attempting to flee or to strike Sunny.” Id. at 523. The only act of resistance

Brown identified was Cooper’s understandable failure to raise his hands

while being bit by Sunny. Id. And, in any case, Cooper complied with

Brown’s order to roll onto his stomach. Id. Also relevant to our analysis was

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Brown’s failure to immediately command Sunny to release the bite; instead,

he waited until after Cooper had been handcuffed. Id. at 521, 523. In sum,

while explicitly noting that we were not creating a per se rule on

reasonableness, we concluded that “[u]nder the facts in this record,

permitting a dog to continue biting a compliant and non-threatening arrestee

is objectively unreasonable.” Id. at 524.

The present case is distinguishable from Cooper in at least two material

aspects. First, Sligh actively resisted seizure. See id. (“Our caselaw makes

certain that once an arrestee stops resisting, the degree of force an officer can

employ is reduced.” (emphasis added)). Second, Cooper involved a dog bite

that was intentionally prolonged. Sunny bit Cooper for one to two minutes

before the officer finally ordered Sunny to release. Id. at 521. Here, Sutton

repeatedly ordered Thor to release Sligh beginning about eight seconds after

the initial bite command. And when Thor failed to obey his repeated

commands, Sutton made affirmative efforts to release Thor by pulling his

collar about 36 seconds following the first release command. Such conduct

on Sutton’s part suggests that the amount of force intentionally used here

differs from Cooper, where the dog bit the plaintiff for one to two minutes and

the officer did not order the dog to release the plaintiff until after the suspect

was handcuffed. See id. at 524 (noting that “permitting a dog to continue

biting a compliant and non-threatening arrestee is objectively unreasonable”

(emphasis added)).

We find that Cooper’s precedent does not sufficiently “place[] the . . .

constitutional question beyond debate.” See Ashcroft, 563 U.S. at 741. Cooper

involved a nonresisting plaintiff and an intentionally prolonged application of

force. Because the present case involves an application of unintentionally

prolonged force against an actively resisting plaintiff, we do not find that

Sutton’s violation of Sligh’s constitutional right was clearly established.

Sutton is therefore entitled to qualified immunity.

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No. 22-40518

B. Bystander Liability Claim

We next consider Sligh’s failure-to-intervene/bystander liability

claim against Montes. To overcome Montes’s qualified immunity defense,

Sligh must identify law clearly establishing that Montes’s actions violated her

constitutional rights, i.e., she must show that “any reasonable officer would

have known that the Constitution required them to intervene.” Joseph, 981

F.3d at 345. She has not done so. We accordingly need not and do not reach

the question of whether Montes violated Sligh’s constitutional rights. See

Pearson, 555 U.S. at 236–37.

Sligh relies entirely on Cooper as clearly establishing the law relating

to Montes’s actions. But this reliance on Cooper is misplaced because Cooper

is wholly inapplicable to a bystander liability theory. The facts and analysis in

Cooper concerned only the conduct of the specific officer who controlled the

dog. There was consequently no discussion in Cooper of whether another

officer on site would be required to intervene as a bystander. Thus, Cooper

cannot clearly establish that Montes—a bystander—violated Sligh’s

constitutional rights by failing to intervene. Sligh points to no other case

clearly establishing the law on this issue. Accordingly, Montes is entitled to

qualified immunity on Sligh’s bystander liability claim.

C. Municipal Liability Claim

We next consider Sligh’s municipal liability claim against the City of

Conroe. For such a claim, Sligh must identify “(1) an official policy (or

custom), of which (2) a policymaker can be charged with actual or

constructive knowledge, and (3) a constitutional violation whose ‘moving

force’ is that policy or custom.” See Valle v. City of Houston, 613 F.3d 536,

541–42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328

(5th Cir. 2002)).

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Sligh asserts three separate theories of municipal liability. First, Sligh

argues that the City of Conroe had inadequate written policies concerning

police dogs. Second, Sligh contends that the City of Conroe failed to

adequately train Officer Sutton on the use of his police dog. Third, Sligh

asserts that the City of Conroe ratified Sutton’s actions by failing to punish

him or change their policies. We address each theory of municipal liability in

turn.

1. Inadequate Policies Claim

For an inadequate policies claim, “[a] plaintiff must show that (1) an

official policy (2) promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional right.” Peña v. City of

Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (quoting Hicks-Fields v.

Harris County, 860 F.3d 803, 808 (5th Cir. 2017)). A plaintiff must also show

that the policy was implemented with “deliberate indifference” to the

“known or obvious consequences” that constitutional violations would

result. Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir. 2018)

(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407

(1997)). Usually, a plaintiff must show “a pattern of similar violations” to

establish deliberate indifference. Valle, 613 F.3d at 547. “To show deliberate

indifference based on a single incident, there must be evidence that shows

that it should have been apparent or obvious to the policymaker that a

constitutional violation was the ‘highly predictable consequence’ of the

particular policy.” Alvarez, 904 F.3d at 391 (quoting Burge v. St. Tammany

Parish, 336 F.3d 363, 373 (5th Cir. 2003)).

Sligh’s policy-based claim fails because she has not adequately alleged

that an official policy was a moving force behind Officer Sutton’s violation of

her constitutional right. Sligh alleges that “the only policy that the City has

on the use of attack dogs is that they may be used on anyone: evading arrest;

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No. 22-40518

known to be armed; that has demonstrated violence; that has the potential

for violence; or has committed a felony.” Sligh mischaracterizes the policy

in question. Her quotations are misrepresentations of the relevant policy

language, which states that police dogs can be “released off leash to

apprehend any suspect evading arrest that is known to be armed, has

demonstrated violence, or the potential for violence, or has committed a

felony offense.”

Sligh cannot establish a “moving force” causal relationship between

this policy and Officer Sutton’s constitutional violation. The policy limits the

offensive employment of canines to a subset of suspects evading arrest, which

does not apply to Sligh. Because Sutton was not following this policy when

he sicced Thor on Sligh, we find that the policy cited by Sligh was not a

moving force behind Sutton’s constitutional violation.

Sligh also fails to adequately allege that the City’s canine policies were

deficient. She relies on Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994), an

out-of-circuit authority, to support her proposition that a failure to adopt a

departmental policy governing the use of police dogs constitutes deliberate

indifference. But in Chew, the court held that municipal liability could be

found “[w]here the city equips its police officers with potentially dangerous

animals, and evidence is adduced that those animals inflict injury in a

significant percentage of the cases in which they are used,” provided that the

city “fail[s] to engage in any oversight whatsoever of an important

departmental practice involving the use of force.” Id.

Sligh’s reference to the City’s policy, which limits the offensive use

of canines to apprehending a subset of suspects evading arrest, undermines

her assertion that the City’s canine policies were deficient. Additionally,

unlike the plaintiff in Chew, Sligh fails to allege a widespread pattern of

canine-related injury that would provide the City with “[a]ctual or

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No. 22-40518

constructive knowledge” that its canine policies were constitutionally

inadequate. See Burge, 336 F.3d at 370 (alteration in original) (quoting Bennett

v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)). She does not convincingly

argue why she need not show a pattern of violations here, arguing only that

this court should “infer” that such problems were “reoccurring.” Sligh’s

speculation is insufficient to establish deliberate indifference as necessary for

an inadequate policies claim.

Because the City’s actual canine policy was not a “moving force”

behind Officer Sutton’s constitutional violation, and because Sligh has not

alleged facts indicating that the City was deliberately indifferent to a known

or obvious risk that its canine policies would result in constitutional

violations, we find that the district court did not err in holding that Sligh

failed to adequately allege an inadequate policies claim against the City of

Conroe.

2. Failure-to-Train Claim

A failure-to-train theory of municipal liability requires Sligh to show

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.” See Peña, 879 F.3d at 623 (alteration in original) (quoting Thompson

v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001)).

Sligh’s failure-to-train claim fails because, as described above, she

cannot show deliberate indifference on the City of Conroe’s part. Sligh

argues that the need for more or different training here is so obvious that the

policymakers can reasonably be said to be deliberately indifferent. But she

rests the entirety of her conclusory argument on the single present incident

and pleads no pattern of prior incidents sufficient to place the City of Conroe

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on “actual or constructive notice that a particular omission in their training

program causes city employees to violate citizens’ constitutional rights.”

Connick v. Thompson, 563 U.S. 51, 61 (2011); cf. id. at 62 (“A pattern of similar

constitutional violations by untrained employees is ‘ordinarily necessary’ to

demonstrate deliberate indifference for purposes of failure to train.” (quoting

Brown, 520 U.S. at 409)). Because Sligh has failed to allege specific and non-

conclusory facts that would show that the City was deliberately indifferent in

adopting its training policy, we find that the district court did not err in

dismissing Sligh’s failure-to-train claim against the City of Conroe.

3. Ratification Claim

Concerning ratification, if “authorized policymakers approve a

subordinate’s decision and the basis for it, their ratification [is] chargeable to

the municipality because their decision is final.” World Wide Street Preachers

Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009) (quoting

City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). “The theory of

ratification, however, has been limited to ‘extreme factual situations.’” Id.

(quoting Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009)).

“Therefore, unless the subordinate’s actions are sufficiently extreme—for

instance, an obvious violation of clearly established law—a policymaker’s

ratification or defense of his subordinate’s actions is insufficient to establish

an official policy or custom.” Id.

Sligh’s ratification theory fares no better than her other theories of

municipal liability. Ratification is a limited theory of liability, and, for the

reasons stated above, the present circumstances are neither an obvious

violation of clearly established law nor an extreme factual circumstance

sufficient to support a municipal liability claim. Thus, Sligh’s ratification

theory fails.

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D. ADA and Rehabilitation Act Claims

Finally, we consider Sligh’s ADA and Rehabilitation Act claims

against the municipalities. 3 “Title II of the ADA provides that ‘no qualified

individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such

entity.’” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42

U.S.C. § 12132). Although her briefing is not particularly clear, Sligh appears

to be pursuing a failure-to-accommodate claim. 4

“To succeed on a failure-to-accommodate claim, a plaintiff must

prove: (1) he is a qualified individual with a disability; (2) the disability and

its consequential limitations were known by the covered entity; and (3) the

entity failed to make reasonable accommodations.” Ball v. LeBlanc, 792 F.3d

584, 596 n.9 (5th Cir. 2015). “Plaintiffs ordinarily satisfy the knowledge

element by showing that they identified their disabilities as well as the

resulting limitations to a public entity or its employees and requested an

accommodation in direct and specific terms.” Smith v. Harris County, 956

F.3d 311, 317 (5th Cir. 2020). “When a plaintiff fails to request an

_____________________

3

We adjudicate and refer to the ADA and Rehabilitation Act claims collectively as

the “ADA claims” below. See D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d

450, 453 (5th Cir. 2010) (“Because this court has equated liability standards under § 504

[of the Rehabilitation Act] and the ADA, we evaluate [Plaintiff’s] claims under the statutes

together.”).

4

Specifically, Sligh argues that the municipal Defendants-Appellees failed to

accommodate her mental disabilities by (1) using a police attack dog; (2) not educating and

training officers in caring for mentally disabled persons; (3) not using verbal de-escalation

techniques; (4) not protecting Sligh from further harm; (5) not allowing Sligh an

opportunity to account for her being surrounded; (6) not adopting a policy to protect the

mentally disabled; (7) not conducting self-evaluation plans under the ADA or

Rehabilitation Act; and (8) not modifying their programs and services to accommodate the

mentally disabled.

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accommodation in this manner, he can prevail only by showing that ‘the

disability, resulting limitation, and necessary reasonable accommodation’

were ‘open, obvious, and apparent’ to the entity’s relevant agents.” Id. at

317–18 (quoting Windham v. Harris County, 875 F.3d 229, 237 (5th Cir.

2017)).

Sligh does not meet this standard. Assuming arguendo that she is a

qualified individual with a disability under the ADA, Sligh pleads no facts

showing that she requested an accommodation or that her disability and

limitations were known by the covered entity. At this stage, we must take as

true her allegations that “Officer Sutton and Deputy Montes learned that

Olivia had cut herself, was suicidal, [and] that she was a mental health

patient.” But Sligh does not allege that she identified her disabilities or

resulting limitations; nor does she allege that she requested any of her

accommodations “in direct and specific terms” to the officers. See id. at 317.

The Video further corroborates that she did not request the accommodations

that she now alleges were denied.

Having failed to make such requests, Sligh can “prevail only by

showing that ‘the disability, resulting limitation, and necessary reasonable

accommodation’ were ‘open, obvious, and apparent’ to the entity’s relevant

agents.” See id. at 317–18 (quoting Windham, 875 F.3d at 237). But she does

not attempt to make this showing. Nor could she. Neither her limitations nor

her highly specific desired accommodations were open, obvious, and

apparent under the given facts, where a police dog was used to track a missing

person who then immediately began physically struggling with one of the

officers. Because Sligh has not shown that her disability and limitations were

known by the municipalities, her failure-to-accommodate claims under the

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No. 22-40518

ADA and Rehabilitation Act are inadequate and were appropriately

dismissed. 5

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

_____________________

5

Because we can “affirm on any ground supported by the record, including one

not reached by the district court,” we do not and need not consider the district court’s

invocation of the exigency exception to the ADA. See Ballew v. Cont’l Airlines, Inc., 668

F.3d 777, 781 (5th Cir. 2012).

18