The opinion
Case: 23-50476 Document: 00517021649 Page: 1 Date Filed: 01/04/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
____________ January 4, 2024
Lyle W. Cayce
No. 23-50476 Clerk
____________
April Johnson, an individual and as next friend of A.N.E.R., a minor;
A. N.E. R., a minor child, an individual,
Plaintiffs—Appellants,
versus
The City of San Antonio; Jessica Osoria, Officer, Badge
#1422, individually and in her official capacity; Gary Tuli, Officer, Badge
#517, individually and in his official capacity,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-733
______________________________
Before Dennis, Elrod, and Wilson Circuit Judges.
Per Curiam: *
Plaintiff-Appellant A’Mynae Roberts was arrested for the alleged
assault of a police officer during a violent altercation at a Quinceañera in San
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50476 Document: 00517021649 Page: 2 Date Filed: 01/04/2024
No. 23-50476
Antonio, Texas, on May 20, 2017. 1 She sued several police officers and the
City of San Antonio (“the City”) for falsely arresting her and using excessive
force to make the arrest. Specifically, Roberts alleged that the City violated
42 U.S.C. § 1983 by negligently hiring, retaining, supervising, and training its
officers. Roberts also brought various state law and § 1983 claims against
three individual officers: Officers Tuli, Osoria, and Groce. 2
All parties moved for summary judgment. The district court denied
Roberts’s motion for summary judgment, granted the City’s cross-motion
for summary judgment, and granted in part and denied in part Officer Tuli’s
and Officers Groce and Osoria’s cross-motions for summary judgment. The
district court then dismissed the state-law claims against all parties as well as
the § 1983 claims against Officer Groce and the City. Both Roberts and the
individual officers appealed. On appeal, we held that we lacked jurisdiction
to consider Roberts’s appeal of the district court’s grant of summary
judgment in favor of the City. Additionally, we reversed the district court’s
denial of qualified immunity for the individual officers based on video and
audio footage, explicitly finding that the officers did not violate Roberts’s
constitutional rights. On remand, judgment of dismissal was entered on May
_____________________
1
In a previous appeal Roberts’s attorney confirmed that Roberts is the only plaintiff
in the action. Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686, at *1 n.2
(5th Cir. Apr. 20, 2023). The facts are thoroughly recounted in our previous opinion.
2
Roberts brought claims for excessive force, assault and battery, and unlawful
arrest and false imprisonment, all under § 1983; and state-law claims of intentional
infliction of emotional distress and defamation against Officer Tuli. Roberts brought claims
for unlawful arrest and false imprisonment under § 1983 and state-law claims of intentional
infliction of emotional distress and defamation against Officers Groce and Osoria. Roberts
brought claims for unlawful arrest and false imprisonment, intentional infliction of
emotional distress, as well as negligent hiring, supervision, training, and retention against
the City.
2
Case: 23-50476 Document: 00517021649 Page: 3 Date Filed: 01/04/2024
No. 23-50476
24, 2023. Roberts now appeals only the dismissal of her claims against the
City. For the following reasons, we AFFIRM.
Roberts first argues that the district court erred in dismissing her §
1983 claims against the City, as there are genuine disputes of material fact.
Roberts’s arguments lack merit. A municipality’s liability under § 1983 is
analyzed under the framework articulated in Monell v. Dep’t of Soc. Svcs., 436
U.S. 658 (1978). The Monell framework requires the plaintiff to “show that
(1) an official policy (2) promulgated by the municipal policymaker (3) was
the moving force behind the violation of a constitutional right” to succeed on
a § 1983 claim against a municipality. Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009) (citing Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001)). “As is well established, every Monell claim requires ‘an
underlying constitutional violation.’” Hicks-Fields v. Harris Cty., 860 F.3d
803, 808 (5th Cir. 2017) (citing Kitchen v. Dall. Cty., 759 F.3d 468, 476 (5th
Cir. 2014) (abrogated on other grounds)). A previous panel of our Court
reviewed the record and determined that Roberts suffered no constitutional
harm. Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686 (5th
Cir. Apr. 20, 2023). This is dispositive. “It is a well-settled Fifth Circuit rule
of orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory
amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat’l
Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Our previous ruling
forecloses Roberts’s § 1983 claim against the City.
Additionally, Roberts argues that the district court erred in dismissing
her state law claims against the City. Roberts’s state law claims against the
City include negligent hiring, supervision, training, and retention, as well as
intentional infliction of emotional distress. The City argues that the state law
claims are barred by governmental immunity. The district court found that
“[the City] is entitled to judgment as a matter of law as to all state law claims
3
Case: 23-50476 Document: 00517021649 Page: 4 Date Filed: 01/04/2024
No. 23-50476
for intentional torts” because the Texas Tort Claims Act “provides that
immunity is not waived for claims of assault and battery, and intentional
infliction of emotional distress is an intentional tort . . .” Johnson v. City of
San Antonio, No. 5:19-CV-733, 2022 WL 20209377, at *16 (W.D. Tex. Apr.
20, 2023) (citations omitted). As the district court found, the Texas Civil
Practice & Remedies Code explicitly provides in § 101.021(2) that local
governments do not waive their immunity for conduct “arising out of . . . any
. . . intentional tort.” Because intentional infliction of emotional distress is an
intentional tort, we hold that the district court did not err in dismissing this
claim.
Further, the district court correctly found that the claim against the
City for negligent hiring, supervision, training, and retention was also barred
by the Texas Tort Claims Act. Id. at *16. The Texas Supreme Court has held
that “a cause of action for negligent supervision or training must satisfy the
TTCA’s use of tangible property requirement.” Tex. Dep’t of Crim. Justice-
Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012).
Here, Roberts fails to allege that any physical property was used in causing
her injuries. Therefore, the district court did not err when it dismissed her
state law claim against the City. For the foregoing reasons, we AFFIRM the
district court’s judgment.
4