Petition for Writ of Certiorari — Nicole Hutcheson, et al., Petitioners v. Dallas County, Texas, et al.
Supreme Court briefOct 8, 2021
Ask Donna
What actually matters in this document.
Text
APPENDIX
App.i
APPENDIX TABLE OF CONTENTS
Appendix A: Fifth Circuit’s Per Curiam Opinion
Denying Petition for Rehearing en Banc
(May 11, 2021).................................App.1
Appendix B: Fifth Circuit’s Panel Opinion Affirming
the District Court’s Rulings
(April 12, 2021)................................App.3
Appendix C: United States District Court for the
Northern District of Texas’s Final
Judgment
(April 7, 2021)……....................... App.17
Appendix D: United States District Court for the
Northern District of Texas’s
Memorandum and Order on
Respondent’s Motion for Summary
Judgment
(April 7, 2021)……....................... App.18
Appendix E: United States District Court for the
Northern District of Texas’s
Memorandum Opinion and Order
Denying Limited Discovery on Qualified
Immunity
(May 2, 2019) ................................App.70
App.1
United States Court of Appeals
for the Fifth Circuit
No. 20-10383
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
ON PETITION FOR REHEARING EN BANC
(Opinion April 12, 2021, 994 F.3d 477)
Before Higginbotham, Smith, and Dennis, Circuit
Judges.
Per Curiam:
App.2
Treating the petition for rehearing en banc as a
petition for panel rehearing, the petition for panel
rehearing is DENIED. No member of the panel or
judge in regular active service having requested that
the court be polled on rehearing en banc (Fed. R.
App. P. 35; 5th Cir. R. 35), the petition for rehearing
en banc is DENIED.
FILED May 11, 2021
App.3
United States Court of Appeals
for the Fifth Circuit
No. 20-10383
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-
App.4
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.
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 moving. The officers
placed him in a seated position, and a few minutes
App.5
later a nurse came to the scene. Minutes after that,
paramedics arrived and performed 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 system and the stress from his struggle with
and restraint by the officers.
II.
The plaintiffs sued four officers and the county.
They brought three 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
App.6
dismissal of their failure-to-train claim, or, in the
alternative, 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 nonmovant’s description 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).
B.
The officers raised the defense of QI, which
provides government officials with immunity from
suit so long as they do not “violate clearly established
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
App.7
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 constitutional 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
unreasonable.” Pena v. City of Rio Grande City, 879
F.3d 613, 619 (5th Cir. 2018) (internal quotations
omitted). The “second and third elements collapse
into a single 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 violation 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 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
App.8
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
excessive 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 Hutcheson, who was resisting. Thus, for the
same reasons that the plaintiffs’ reliance on Darden
is unavailing, so too is their invocation of Joseph.
Because Hutcheson “was not in the midst of
App.9
harming other individuals 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, 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
enforcement 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). Second, if the
pleadings assert such facts, the district court issues a
App.10
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 Hutcheson’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
evidence, 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.
App.11
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, 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.” §
App.12
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 constitutional
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.” Peterson 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 rights.” Pena, 879 F.3d at 623 (cleaned
App.13
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
indifference 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.
App.14
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 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. Moreover, if we adopted the plaintiffs’
logic, it would result in the imposition of respondeat
superior liability on municipalities—and it is “wellestablished 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 indifference. They concede that
they do not allege a pattern of similar constitutional
violations, see Pena, 879 F.3d at 623; instead, they
contend that their claim falls within the singleincident exception. But the plaintiffs cannot avail
App.15
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 interactions 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 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.
App.16
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.
FILED April 12, 2021
App.17
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NICOLE HUTCHESON,
ET AL.,
§
§
§
Plaintiffs,
§
§
V.
§
§
DALLAS COUNTY, TEXAS, §
ET AL.,
§
§
Defendants.
§
No. 3:17-cv-2021
JUDGMENT
For the reasons stated in the Memorandum
Opinion and Order filed today, the Court GRANTS
the motions to dismiss and converted motion for
summary judgment as to qualified immunity [Dkt.
No. 41] and therefore DISMISSES this action with
prejudice and VACATES its previous order referring
it to mediation [Dkt. No. 35].
DATED: April 7, 2020
/s/ David L. Horan
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
App.18
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NICOLE HUTCHESON,
ET AL.,
§
§
§
Plaintiffs,
§
§
V.
§
§
DALLAS COUNTY, TEXAS, §
ET AL.,
§
§
Defendants.
§
No. 3:17-cv-2021
MEMORANDUM OPINION AND ORDER
At 10:30 a.m. on Saturday, August 1, 2015,
Joseph Hutcheson entered the front lobby of the Lew
Sterrett Justice Center, commonly known as the
Dallas County Jail. Hutcheson, acting erratically,
was eventually detained by officers, administered
CPR, and transported to Parkland Hospital, where
he died at 11:31 a.m.
The medical examiner’s report, referenced in the
amended complaint, classified his death “as
‘homicide’ caused by ‘physiologic stress associated
with struggle and restraint.’” Dkt. No. 40, ¶ 4.58; see
also Dkt. No. 42 (complete autopsy report filed in
support of motion to dismiss, concluding that, “[d]ue
to the temporal relationship between the struggle,
restraint and his collapse, the manner of death is
App.19
homicide”).1
This lawsuit, brought by Plaintiffs Nicole
Hutcheson, decedent’s wife at the time that he died,
and Ruth Boatner, his mother, alleges that four
individual defendants — Fernando Reyes, Trenton
Smith, Betty Stevens, and Elvin Hayes, on the day of
the incident either Detention Security Officers or
Sheriff’s
Deputies
—
violated
Hutcheson’s
constitutional right to be free from excessive force
and that Defendant Dallas County failed to train its
officers, making the County liable for the alleged
constitutional violation under a theory of municipal
liability. Plaintiffs also possibly assert a claim under
Texas’s wrongful death statute.
After the parties filed a written consent, the Court
referred this action to the undersigned United State
magistrate judge on February 14, 2019 for all further
proceedings, including entry of judgment. See Dkt.
Nos. 38 & 39; see also 28 U.S.C. § 636(c).
Prior to that, the Court denied Defendants’ first
amended motion to dismiss, and noted that, “[a]t the
motion hearing held on January 17, 2019, Plaintiffs,
through counsel, orally moved to amend their
Complaint as to the failure to train claim and the
1 See also Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498–99 (5th Cir. 2000) (noting that documents “attache[d] to a
motion to dismiss are considered to be part of the pleadings, if
they are referred to in the plaintiff’s complaint and are central
to her claim” (citation omitted)); Delacruz v. City of Port Arthur,
No. 1:18-CV-11, 2019 WL 1211843, at *6 (E.D. Tex. Mar. 14,
2019) (applying Collins to consider an autopsy report attached
to a motion to dismiss where, like here, injury is an element of
an excessive force claim).
App.20
qualified immunity issue. Defendants did not oppose
the oral motion, and the Court granted the motion to
amend on the record.” Dkt. No. 37.
As ordered, see id., Plaintiffs filed a first amended
complaint, see Dkt. No. 40. Defendants then moved
to dismiss that complaint under Federal Rules of
Civil Procedure 12(b)(6) and 12(b)(1), see Dkt. Nos. 41
& 42, asserting qualified immunity as the basis for
dismissal by the individual defendants, see Dkt. No.
41 at 12–23.
The Court converted those portions of the motion
to dismiss raising the individual officer defendants’
entitlement to qualified immunity to a Federal Rule
of Civil Procedure 56 motion for summary judgment
on each officer’s qualified immunity defense. See Dkt.
No. 43; see also Fed. R. Civ. P. 12(d).
The Court allowed Plaintiffs to file a motion for
leave to conduct limited discovery in order to respond
to the qualified immunity issues raised in the
converted summary judgment motion. See Dkt. No.
43. And, after Plaintiffs filed their motion for leave,
see Dkt. No. 46, and Defendants responded, see Dkt.
No. 47, the Court denied the motion, see Hutcheson v.
Dallas Cnty., Tex., No. 3:17-cv-2021-BN, 2019 WL
1957997 (N.D. Tex. May 2, 2019) (“Plaintiffs’ attempt
to obtain any evidence that may support a version of
the facts that may defeat summary judgment on
qualified immunity does not fit within the limited
scope of a discovery request ‘narrowly tailored to
uncover only those facts needed to rule on the
immunity claim,’” because “open-ended requests—to
uncover any facts, as opposed to specific questions of
App.21
fact, that may be helpful to their version of events—
fail to advance the second step of the ‘careful
procedure’” established by the United States Court of
Appeals for the Fifth Circuit. (citations omitted)).
Plaintiffs then filed a court-ordered response to
the motion to dismiss and (as converted in part) for
summary judgment. See Dkt. No. 52. And Defendants
replied. See Dkt. No. 55.
For the reasons explained below, the Court
GRANTS the motion to dismiss and converted motion
for summary judgment as to qualified immunity and
therefore DISMISSES this action with prejudice.
Legal Standards and Analysis
I. Motion to Dismiss as to Municipal Liability
A. Legal Standards
In deciding a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief may be granted, the Court
“accepts all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205–06
(5th Cir. 2007). But a plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), and must plead those facts with enough
specificity “to raise a right to relief above the
speculative level,” id. at 555.
“A claim has facial plausibility when the plaintiff
App.22
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 plausibility standard is
not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has
acted unlawfully.” Id. “A claim for relief is
implausible on its face when ‘the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct.’” Harold H. Huggins
Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir.
2011) (quoting Iqbal, 556 U.S. at 679); see also
Inclusive Communities Project, Inc. v. Lincoln Prop.
Co., 920 F.3d 890, 899 (5th Cir. 2019) (“Where the
well-pleaded facts of a complaint do not permit a
court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’”
(quoting Iqbal, 556 U.S. at 678 (quoting, in turn, Fed.
R. Civ. P. 8(a)(2)))).
While, under Federal Rule of Civil Procedure
8(a)(2), a complaint need not contain detailed factual
allegations, a plaintiff must allege more than labels
and conclusions, and, while a court must accept all of
a plaintiff’s allegations as true, it is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). A threadbare or formulaic recitation
of the elements of a cause of action, supported by
mere conclusory statements, will not suffice. See id.
Instead, “to survive a motion to dismiss” under
Twombly and Iqbal, a plaintiff need only “plead facts
sufficient to show” that the claims asserted have
“substantive plausibility” by stating “simply,
App.23
concisely, and directly events” that the plaintiff
contends entitle him or her to relief. Johnson v. City
of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)
(citing Fed. R. Civ. P. 8(a)(2)–(3), (d)(1), (e)); see also
Inclusive Communities Project, 920 F.2d at 899
(“‘Determining whether a complaint states a
plausible claim for relief’ is ‘a context-specific task
that requires the reviewing court to draw on its
judicial experience and common sense.’” (quoting
Iqbal, 556 U.S. at 679; citing Robbins v. Oklahoma,
519 F.3d 1242, 1248 (10th Cir. 2008) (“[T]he degree of
specificity necessary to establish plausibility and fair
notice, and therefore the need to include sufficient
factual allegations, depends on context.”)).
Aside from “matters of which judicial notice may
be taken under Federal Rule of Evidence 201,”
Inclusive Communities Project, 920 F.2d at 900
(citations omitted), a court cannot look beyond the
pleadings in deciding a Rule 12(b)(6) motion. Spivey
v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
Pleadings in the Rule 12(b)(6) context include
attachments to the complaint. In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Documents “attache[d] to a motion to dismiss are
considered to be part of the pleadings, if they are
referred to in the plaintiff’s complaint and are central
to her claim.” Collins, 224 F.3d at 498–99 (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)).
While the Fifth Circuit “has not articulated a test
for determining when a document is central to a
plaintiff’s claims, the case law suggests that
documents are central when they are necessary to
App.24
establish an element of one of the plaintiff’s claims.
Thus, when a plaintiff’s claim is based on the terms
of a contract, the documents constituting the contract
are central to the plaintiff’s claim.” Kaye v. Lone Star
Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex.
2011). “However, if a document referenced in the
plaintiff’s complaint is merely evidence of an element
of the plaintiff’s claim, then the court may not
incorporate it into the complaint.” Id.
And a plaintiff may not amend his allegations
through a response to a motion to dismiss. “[A] claim
for relief” must be made through a pleading, Fed. R.
Civ. P. 8(a), and a response to a motion is not among
the “pleadings [that] are allowed” under the Federal
Rules of Civil Procedure, Fed. R. Civ. P. 7(a); see, e.g.,
Klaizner v. Countrywide Fin., No. 2:14-CV-1543 JCM
(PAL), 2015 WL 627927, at *10 (D. Nev. Feb. 12,
2015) (“All claims for relief must be contained in a
pleading. A response to a motion is not a pleading
and it is improper for the court to consider causes of
action not contained in the pleadings.” (citations
omitted)).
B. Analysis
“A municipality and/or its policymakers may be
held liable under § 1983 ‘when execution of a
government’s policy or custom ... by those whose
edicts or acts may fairly be said to represent official
policy, inflicts the [constitutional] injury.’” SalazarLimon v. City of Houston, 826 F.3d 272, 277 (5th Cir.
2016) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978); citation omitted). That is, “[t]here is
no vicarious municipal liability under § 1983; rather,
App.25
plaintiffs ‘must prove that “action pursuant to official
municipal policy” caused their injury.’” Three Legged
Monkey, L.P. v. City of El Paso, Tex., 652 F. App’x
236, 239 (5th Cir. 2016) (quoting Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quoting, in turn,
Monell, 436 U.S. at 691)).
To assert liability under Monell, a plaintiff must
allege “(1) an official policy (2) promulgated by the
municipal policymaker (3) 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) (citing Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001)). “Official policy can
arise in various forms. It usually exists in the form of
written policy statements, ordinances, or regulations,
but may also arise in the form of a widespread
practice that is ‘so common and well-settled as to
constitute a custom that fairly represents municipal
policy.’” James v. Harris Cnty., 577 F.3d 612, 617
(5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579
(quoting, in turn, Webster v. City of Houston, 735
F.2d 838, 841 (5th Cir. 1984) (en banc))).
“To proceed beyond the pleading stage, a
complaint’s ‘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) (quoting Spiller v. City
of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.
1997); footnote omitted); see also Pinedo v. City of
Dallas, Tex., No. 3:14-cv-958-D, 2015 WL 5021393, at
*5 (N.D. Tex. Aug. 25, 2015) (“To establish a custom,
a plaintiff must demonstrate (and, at the pleading
App.26
stage, must plausibly plead) ‘a pattern of abuses that
transcends the error made in a single case.’” (quoting
Piotrowski, 237 F.3d at 582)).
Plaintiffs contend that, under Monell, the County
is liable for its failure to train the four individual
defendants here. See Dkt. No. 40 at 10–12, 16–18.
“Failure to train is a separate theory of municipal
liability, but the same standard applies both to a
failure to train claim and to a municipal liability
claim.” Pinedo, 2015 WL 5021393, at *9 (citations
omitted); cf. Anderson v. Marshall Cnty., Miss., 637
F. App’x 127, 134 (5th Cir. 2016) (per curiam) (“Even
within the difficult world of Monell liability, failureto-train claims are especially difficult to establish.”
(citing Connick, 563 U.S. at 61 (“A municipality’s
culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train.”))).
Plaintiffs allege the following facts to support
their failure-to-train theory of municipal liability:
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel that the head and neck
area are considered “no-impact zones” unless
deadly force is justified, due to the high risk of
serious injury or death to the suspect.
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel that after suspects are
handcuffed, they should be sat upright or
placed on their side to prevent what is known
App.27
as “positional asphyxia.”
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel that “hog tying” suspects
(the act of forcing their legs against their
buttocks) has been banned nationwide for
decades because of its tendency to cause
“positional asphyxia.”
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel on how to accommodate
their usual practices when encountering
suspects who are mentally ill or those who
suffer from a drug-induced psychosis.
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel to use de-escalation
techniques when confronting suspects who are
unarmed and are not a physical danger to
themselves or others.
The Dallas County Sheriff’s Department’s
General Orders instruct law enforcement and
detention personnel to provide CPR properly to
nonresponsive suspects.
In a January 2011 article from PoliceOne.com
entitled “Key Considerations for Good Use of
Force Policies,” Terrance P. Dwyer, a 22-year
veteran of the New York State Police, a
licensed attorney, and a tenured Professor in
the
Justice
and
Law
Administration
App.28
Department at Western Connecticut State
University, wrote:
Merely having a policy in place is not
enough; it must be implemented and
followed. Ideally the Policy and the
Practice should mirror each other.
Having a policy in place on the use of
force but not training officers in the
proper execution of that policy can lead
to liability for an unconstitutional policy
by failing to train or to supervise. These
claims may give rise to a claim of
deliberate
indifference
against
supervisors and the municipality, which
is akin to alleging an unwritten policy of
unconstitutional behavior.
Accordingly, the Dallas County policymakers
who order and/or provide the training
discussed in paragraphs 4.61 to 4.66 must take
affirmative measures to ensure that the law
enforcement and detention personnel who
receive the training actually retain the
information provided in the training.
Similarly, the Dallas County policymakers
who order and/or provide the training
discussed in paragraphs 4.61 to 4.66 must take
affirmative measures to ensure that the law
enforcement and detention personnel who
receive the training actually perform their
duties in accordance with that training.
Dkt. No. 40, ¶¶ 4.61–4.69.
App.29
“[T]he failure to provide proper training may
fairly be said to represent a policy for which
the [municipality] is responsible, and for which
[it] may be held liable if it actually causes
injury.” “In resolving the issue of a
[municipality’s] liability, the focus must be on
adequacy of the training program in relation to
the tasks the particular officers must perform.”
A
plaintiff
must
[allege
and—then
ultimately—]show that (1) the municipality’s
training policy or procedure was inadequate;
(2) the inadequate training policy was a
“moving force” in causing violation of plaintiff’s
rights; and (3) the municipality was
deliberately indifferent in adopting its training
policy.
Shumpert v. City of Tupelo, 905 F.3d 310, 317 (5th
Cir. 2019) (quoting City of Canton v. Harris, 489 U.S.
378, 390 (1989); then citing Sanders-Burns v. City of
Plano, 594 F.3d 366, 381 (5th Cir. 2010); Valle v. City
of Houston, 613 F.3d 536, 544 (5th Cir. 2010); Pineda
v. City of Houston, 291 F.3d 325, 332 (5th Cir. 2002)).
As for the second requirement, “‘the connection
must be more than a mere ‘but for’ coupling between
cause and effect.’ ‘The deficiency in training must be
the actual cause of the constitutional violation.’” Id.
(quoting Valle, 613 F.3d at 546).
And “[d]eliberate indifference is a stringent
standard, requiring proof that a municipal actor
disregarded a known or obvious consequence of his
action.” Valle, 613 F.3d at 547. As such, “a plaintiff
must [allege—and then ultimately—]show that
App.30
in light of the duties assigned to specific
officers or employees the need for more or
different training is so obvious, and the
inadequacy so likely to result in the violation
of constitutional rights, that the policymakers
of the city can reasonably be said to have been
deliberately indifferent to the need.
Wright v. City of Garland, Tex., No. 3:10-cv-1852-D,
2014 WL 5878940, at *4–*5 (N.D. Tex. Nov. 13, 2014)
(quoting Valle, 613 F.3d at 547 (quoting, in turn, City
of Canton, 489 U.S. at 390)).
Deliberate indifference may be found in two
types of situations: (1) a general failure to
provide adequate training in light of the
foreseeable serious consequences that could
result, and (2) a municipality fails to act in
response to the specific need to train a
particular officer. See City of Canton, 489 U.S.
at 390; Brown v. Bryan Cnty., 219 F.3d 450,
457 (5th Cir. 2000).
Hobart v. Estrada, 582 F. App’x 348, 357 (5th Cir.
2014) (citations modified).
Plaintiffs do not allege that the County failed to
respond to a specific need to train any particular
officer defendant. Their complaint therefore appears
to invoke the first situation, which “usually” would
also require allegations to “show a pattern of similar
violations.” Id. (citing Valle, 613 F.3d at 547); see also
Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 624
(5th Cir. 2018) (“This proof-by-pattern method is
‘ordinarily necessary.’” (quoting Bd. of Cnty. Comm’rs
App.31
v. Brown, 520 U.S. 397, 409, 117 (1997))). Plaintiffs
allege no pattern of similar violations.
But even absent proof of pattern, deliberate
indifference can still be inferred if the
factfinder determines that the risk of
constitutional violations was or should have
been an “obvious” or “highly predictable
consequence”
of
the
alleged
training
inadequacy. Such an inference is possible in
only very narrow circumstances: The
municipal entity must have “fail[ed] to train
its employees concerning a clear constitutional
duty implicated in recurrent situations that a
particular employee is certain to face.”
Thus, for example, if a city policymaker
opts to provide no training whatsoever to
police officers concerning the established and
recurring constitutional duty not to use
excessive deadly force, a factfinder may
reasonably infer that the city acted with the
requisite deliberate indifference. The [United
States] Supreme Court explained as much in
Canton, by way of hypothetical:
[C]ity policymakers know to a moral
certainty that their police officers will be
required to arrest fleeing felons. The
city has armed its officers with firearms,
in part to allow them to accomplish this
task. Thus, the need to train officers in
the constitutional limitations on the use
of deadly force, can be said to be “so
obvious[ ]” that failure to do so could
App.32
properly be characterized as “deliberate
indifference” to constitutional rights.
“Under those circumstances there is an
obvious need for some form of training.”
Otherwise, the Supreme Court has said, there
would be “no way for novice officers to obtain
the legal knowledge they require” to conform
their behavior to their clear and recurring
constitutional obligations.
Littell, 894 F.3d at 624–25 (citations and footnote
omitted); see also Anderson, 637 F. App’x at 134–35
(“To qualify for the single incident exception,
[Plaintiffs] must show that [Dallas] County’s training
was so inadequate that the [C]ounty should have
predicted that an untrained officer would have
[harmed Hutcheson] in the way [the officer
defendants] allegedly did. Importantly, ‘[i]t is not
enough to say that more or different training or
supervision would have prevented’ [his death]. More
specificity is required to resolve such a claim.”
(quoting Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375 (5th Cir. 2005))).
In sum, to plead Monell liability under the singleincident exception where deliberate indifference is
based on a general failure to provide adequate
training, a plaintiff must allege factual content
showing (or from which it may be inferred) that the
training provided by the municipality was so
inadequate that it should have predicted that those
deficiencies would have caused the specific harm
alleged, not that more or different training would
have prevented it.
App.33
Measured against these standards, Plaintiffs’
pleading is deficient. Based on the facts alleged, as
set out above, they assert:
If Dallas County failed to train its law
enforcement and detention personnel on the
mandates discussed in paragraphs 4.61 to
4.66, above, it acted with deliberate
indifference
to
Mr.
Hutcheson’s
constitutionally protected rights, because the
consequences of failing to provide such
training are known or obvious.
Alternatively, if Dallas County provided its
law enforcement and detention personnel with
the training discussed in paragraphs 4.61 to
4.66, but failed to ensure that its law
enforcement and detention personnel actually
retained the information provided in the
training, it acted with deliberate indifference
to Mr. Hutcheson’s constitutionally protected
rights, because the consequences of failing to
ensure that its officers understood the training
they received are known or obvious.
Alternatively, if Dallas County provided its
law enforcement and detention personnel with
the training discussed in paragraphs 4.61 to
4.66, but failed to ensure that its law
enforcement and detention personnel actually
performed their duties in accordance with the
information provided in the training, it acted
with deliberate indifference to Mr. Hutcheson’s
constitutionally protected rights, because the
consequences of failing to ensure that its
App.34
officers comply with the training are known or
obvious.
The fact that this incident occurred at all
demonstrates the obvious need for Dallas
County to provide its officers with additional
or different training.
But for Dallas County’s failure to train law
enforcement and detention personnel with
mandates discussed in paragraphs 4.61 to
4.66, or alternatively, its failure to ensure that
its officers understood these mandate they
received, or alternatively, its failure to ensure
that its officers complied with these mandates,
directly caused (and was therefore a “moving
force”) of Joseph Hutcheson’s death because,
had they acted in accordance with these
mandates, Joseph Hutcheson would not have
suffered the “physiologic stress associated with
struggle and restraint,” which the medical
examiner identified as a cause of his death.
Dkt. No. 40, ¶¶ 5.21–5.25.
In their response to Dallas County’s motion to
dismiss, “Plaintiffs concede that they have not
alleged a pattern of similar incidents” but take issue
with the County’s argument that they did not allege
that the County failed to train its officers: “that is
exactly what Plaintiffs have alleged in paragraph
5.21 of its amended complaint: ‘If Dallas County
failed to train its law enforcement and detention
personnel on the mandates discussed...above, it acted
with deliberate indifference to Mr. Hutcheson’s
App.35
constitutionally protected rights, because the
consequences of failing to provide such training are
known or obvious.’” Dkt. No. 52 at 30–31.
But that allegation is not the same as the
hypothetical posed in Canton, in which the United
States Supreme Court discussed broad training on an
area of the law, “the constitutional limitations on the
use of deadly force,” not the failure to train as to
specified subjects within a broader subject matter—
such as those Plaintiffs set out in paragraphs 4.61—
4.66 of the amended complaint.
For example, a panel of the Fifth Circuit found
that Canton’s single-incident hypothetical applied to
the allegations in Littell, where
the alleged facts, taken together and assumed
to be true, permit the reasonable inference—
i.e., the claim has facial plausibility—that the
risk
of
public
officials’
conducting
unconstitutional searches was or should have
been a “highly predictable consequence” of the
school district’s decision to provide its staff no
training
regarding
the
Constitution’s
constraints on searches. Indeed, Plaintiffs’
allegations mirror Canton’s hypothetical in all
material respects.
Littell, 894 F.3d at 625; see id. at 626–27 (“In these
circumstances, the Supreme Court has said, ‘there is
an obvious need for some form of training.’ But,
critically, the school district here allegedly provides
‘no training whatsoever’ as to how to conduct a lawful
search. This straightforward factual allegation
App.36
carries straightforward doctrinal consequences. It
means that, for purposes of resolving the school
district’s motion to dismiss, we must assume that
this is not a case in which “an otherwise sound
[training] program has occasionally been negligently
administered,” or in which an officer received
appropriate training that she then failed properly to
obey. Nor do Plaintiffs rely on only a ‘nuance[d]’ flaw
in an existing training regime, or attempt to derive
municipal liability from the mere fact that ‘additional
training would have been helpful.’ Instead, we must
credit Plaintiffs’ factual allegations and proceed on
the assumption that the school district has made the
conscious choice to take no affirmative steps to
instruct any of its employees on the constitutional
rules governing student searches—even though at
least some of those employees are regularly called
upon to conduct such searches. In short, this case
presents an alleged ‘complete failure to train’ of the
kind we have found actionable. Plaintiffs’ allegations
of deliberate indifference survive a motion to
dismiss.” (citations omitted)).
At most, Plaintiffs’ factual allegations raise an
inference that, had the County provided more
adequate training as to the specific general orders
Plaintiffs cite, or had the County more competently
administered its training program, the harm could
have been prevented
But, as the cases discussed above explain, such
allegations do not reflect that the County consciously
chose to not train its officers—“not even at all”—as to
the use of deadly force. Jason v. Tanner, 938 F.3d
191, 199 (5th Cir. 2019) (“We found that the facts [in
App.37
Littell] ‘mirror[ed] Canton’s hypothetical in all
material respects.’ But here, there was training.
There was also a monitoring system in place. Again,
it just failed to prevent the attack. Put differently:
square peg, round hole. Littell was about a
supervisor who didn’t train his subordinates; not
even at all. Had he adequately trained them, they
would’ve known not to strip search young girls.”
(footnote omitted)).
As such, the amended complaint fails to plausibly
allege Monell liability under the facts and the theory
that Plaintiffs advance. The Court therefore grants
Dallas County’s motion to dismiss with prejudice, as
Plaintiffs have already been afforded an opportunity
to amend their allegations against the County.
II. Motion for Summary Judgment as to Qualified
Immunity
Qualified immunity is only “nominally an
affirmative defense.” Brumfield v. Hollins, 551 F.3d
322, 326 (5th Cir. 2008). In reality, it is an immunity
from suit and must therefore be resolved “at the
earliest possible stage.” Hunter v. Bryant, 502 U.S.
224, 227 (1991) (“[B]ecause the entitlement is an
immunity from suit rather than a mere defense to
liability, we repeatedly have stressed the importance
of resolving immunity questions at the earliest
possible stage in litigation.”).
It may be raised and considered through a motion
on the pleadings, and when this occurs, the Court
focuses on the sufficiency of a plaintiff’s pleadings to
resolve the factual prong of the analysis. See, e.g.,
App.38
McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2018)
(“When the motion to dismiss raises the defense of
qualified immunity, the plaintiff ‘must plead specific
facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm ...
alleged and that defeat a qualified immunity defense
with equal specificity.’” (quoting Zapata v. Melson,
750 F.3d 481, 485 (5th Cir. 2014) (quoting, in turn,
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir.
2012)))); cf. Shaw v. Villanueva, 918 F.3d 414, 416–
17 (5th Cir. 2019) (“When a defendant asserts
qualified immunity, the plaintiff bears the burden of
pleading facts that demonstrate liability and defeat
immunity.” (citing Zapata, 750 F.3d at 485;
McClendon v. City of Columbia, 305 F.3d 314, 323
(5th Cir. 2002) (en banc) (per curiam))).
But considering the nominal affirmative defense
in this posture is difficult if, like here, the record
reflects that a video of the use-of-force incident
exists, see Dkt. Nos. 27, 28, because, to the extent
that the video “‘discredits [Plaintiffs’] description of
facts, a court will[—at least by the summaryjudgment stage—] consider the facts in the light
depicted by the videotape,’” Shepherd v. Shreveport,
920 F.3d 278, 283 (5th Cir. 2019) (quoting Carnaby v.
City of Houston, 636 F.3d 183, 187 (5th Cir. 2011));
see also Scott v. Harris, 550 U.S. 372, 381 (2007).
The existence of the video—and its centrality to
whether qualified immunity attaches to any officer
defendant’s actions—prompted the Court to convert
those portions of the motion to dismiss raising
entitlement to qualified immunity to a Rule 56
motion for summary judgment on each officer’s
App.39
qualified immunity defense. See Dkt. No. 43. This
conversion (and the Court’s granting Plaintiffs an
opportunity to move for leave to conduct focused
qualified immunity discovery) also furthered the
Supreme Court’s mandate that lower federal courts
must resolve an entitlement to qualified immunity at
the earliest possible stage of the litigation. Here, it
would have made little sense to address qualified
immunity on the pleadings, ignoring the video, and
then, if the defense was not resolved on the
pleadings, to consider the video in ruling on a laterfiled motion for summary judgment.
The Court explains this preliminarily because it
seems that Plaintiffs may misunderstand how “[a]
good-faith qualified immunity defense alters the
usual summary judgment burden of proof.” Valderas
v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 2019)
(per curiam).
Plaintiffs explain in their response
converted summary judgment motion
to
that it is somewhat difficult to “respond” to
arguments that the individual defendants
never actually made. The substance of section
1-A of their amended motion to dismiss is
devoted to rehashing the allegations in
Plaintiffs’ amended complaint and then
arguing that the allegations did not assert a
plausible claim for relief, (as if Plaintiffs had
admitted that the force used was “minimal”
and “routine.”) The individual Defendants
further argued that Plaintiffs’ allegations did
not
describe
objectively
unreasonable
the
App.40
conduct—or in the alternative, that it did not
violate clearly established law.
Because the individual Defendants never filed
a motion for summary judgment, they never
advanced an argument that either (a) the
evidence filed in support of their motion to
dismiss conclusively establishes the absence of
a fact issue on either of these elements; or (b)
that Plaintiffs cannot come forward with any
evidence that would do so. It is wellestablished that a court may not grant a
motion for summary judgment on a ground not
stated in the motion. But in light of this
Court’s order denying Plaintiffs an opportunity
for limited discovery and requesting a response
to the motion as it presently stands, Plaintiffs
presume that the individual Defendants are
arguing that the [ ] evidence they filed in
support of their motion to dismiss conclusively
establishes the absence of a material fact on
the elements of this defense.
To that end, if the individual Defendants
believe that an entirely silent video
“conclusively establishes” their qualifiedimmunity defense, they are mistaken. Last
year, the Fifth Circuit in Darden v. City of Fort
Worth, Texas,...not only held that “a police
officer uses excessive force when the officer
strikes, punches, or violently slams a suspect
who is not resisting arrest,” it also held that
this law was “clearly established” for an
incident that occurred in May 2013—more
than two years before the incident that is the
App.41
subject of this suit. Accordingly, if the evidence
that Defendants produced shows that Joseph
was not resisting arrest at the time he was
first slammed to the ground, Defendants are
not entitled to summary judgment on their
qualified immunity defense.
Dkt. No. 52 at 9–10 (footnotes and emphasis
omitted).
Unlike a traditional affirmative defense when
considered at summary judgment where its movant
“must establish beyond peradventure all of the
essential elements of the...defense to warrant
judgment in his favor,” Fontenot v. Upjohn Co.,780
F.2d 1190, 1194 (5th Cir. 1986), once a defendant
asserts qualified immunity—regardless how—the
burden shifts to the plaintiff “to demonstrate the
inapplicability of the defense,” McClendon, 305 F.3d
at 323. So, here, although the Court will “view the
evidence in the light most favorable to the nonmoving
party[—except to the extent that video evidence
discredits the nonmovant’s pleaded facts—]the
plaintiff bears the burden of demonstrating that a
defendant is not entitled to qualified immunity.”
Valderas, 937 F.3d at 389 (citation omitted); compare
id. (“‘To negate a defense of qualified immunity and
avoid summary judgment, the plaintiff need not
present “absolute proof,” but must offer more than
“mere allegations.”’” (quoting Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)
(quoting, in turn, Reese v. Anderson, 926 F.2d 494,
499 (5th Cir. 1991)))), with Mendez v. Poitevent, 823
F.3d 326, 331 (5th Cir. 2016) (noting that the burden
at summary judgment “‘to rebut a claim of qualified
App.42
immunity once the defendant has properly raised it
in good faith’ ... ‘is a demanding [one]’” (citations
omitted)).
A. Legal Standards
“A plaintiff makes out a § 1983 claim if he ‘shows
a violation of the Constitution or of federal law, and
then shows that the violation was committed by
someone acting under color of state law,’” Rich v.
Palko, 920 F.3d 288, 293–94 (5th Cir. 2019) (quoting
Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008);
brackets omitted). “But government officials
performing discretionary duties” can respond to such
a claim by asserting qualified immunity. Id. at 294
(citing Haverda v. Hays Cnty., 723 F.3d 586, 598 (5th
Cir. 2013)). If they do, a court must consider each
official’s actions separately. See, e.g., Meadours v.
Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007).
“Qualified immunity attaches when an official’s
conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.’” White v. Pauly, 137 S. Ct. 548,
551 (2017) (per curiam) (quoting Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam)); accord
Pearson v. Callahan, 555 U.S. 223, 231 (2009);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This
“gives government officials breathing room to make
reasonable but mistaken judgments, and protects all
but the plainly incompetent or those who knowingly
violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013)
(per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 743 (2011); internal quotation marks omitted);
accord City & Cnty. of San Francisco v. Sheehan, 575
App.43
U.S. 600, 135 S. Ct. 1765, 1774 (2015); cf. Rich, 920
F.3d at 294 (“In sum, QI ‘represents the norm, and
courts should deny a defendant immunity only in
rare circumstances.’” (quoting Romero v. City of
Grapevine, 888 F.3d 170, 176 (5th Cir. 2018)));
Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir.
2019) (Courts “must think twice before denying
qualified immunity.”).
Review of a motion for summary judgment based
on qualified immunity is accomplished in two steps,
and, while a court may conduct the required two-step
examination in any order, see Pearson, 555 U.S. at
236, “deciding the two prongs in order ‘is often
beneficial,’” Darden v. City of Fort Worth, 866 F.3d
698, 702 (5th Cir. 2017) (quoting Pearson, 555 U.S. at
236).
Regardless which prong is addressed first, a court
must decide “whether the facts, taken in the light
most favorable to the plaintiff, show the officer’s
conduct violated a federal constitutional or statutory
right.” Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir.
2014) (citing Tolan v. Cotton, 572 U.S. 650, 655–56
(2014) (per curiam); Flores v. City of Palacios, 381
F.3d 391, 395 (5th Cir. 2004)), reversed on other
grounds, 136 S. Ct. 305 (2015). Put differently, under
the first prong, a court simply must decide “whether
the plaintiff has alleged a violation of a constitutional
right.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir.
2008).
A court must also decide “whether the defendant’s
actions violated clearly established statutory or
constitutional rights of which a reasonable person
App.44
would have known.” Flores, 381 F.3d at 395. This
second prong of the analysis requires a court to
determine “whether the defendant’s conduct was
objectively reasonable in light of the clearly
established law at the time of the incident.” Charles,
522 F.3d at 511. That is, “whether it would have been
clear to a reasonable [official] in the [defendants’]
position that their conduct was unlawful in the
situation they confronted.” Wood v. Moss, 572 U.S.
744, 758 (2014) (quoting Saucier v. Katz, 533 U.S.
194, 202 (2001); internal quotation marks and
original brackets omitted); see also Mullenix, 136 S.
Ct. at 308 (“[a] clearly established right is one that is
‘sufficiently clear that every reasonable official would
have understood that what he is doing violates that
right’”(quoting Reichle v. Howards, 566 U.S. 658, 664
(2012))).
This inquiry “must be undertaken in light of
the specific context of the case, not as a broad
general proposition.” Mullenix, 136 S. Ct. at
308 (quoting Brosseau v. Haugen, 543 U.S.
194, 198–99 (2004)). The [United States]
Supreme Court does “not require a case
directly on point, but existing precedent must
have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at
741 “It is the plaintiff’s burden to find a case in
[her] favor that does not define the law at a
‘high level of generality.’” Vann v. City of
Southaven, 884 F.3d 307, 310 (5th Cir. 2018)
(quoting Cass v. City of Abilene, 814 F.3d 721
733 (5th Cir. 2016)).
Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214,
App.45
222 (5th Cir. 2018) (citations modified).2
The Supreme Court recently explained this
inquiry in the Fourth Amendment context:
Where
constitutional
guidelines
seem
inapplicable or too remote, it does not suffice
for a court simply to state that an officer may
not use unreasonable and excessive force, deny
qualified immunity, and then remit the case
for a trial on the question of reasonableness.
An officer “cannot be said to have violated a
clearly established right unless the right’s
contours were sufficiently definite that any
reasonable official in the defendant’s shoes
would have understood that he was violating
it.” That is a necessary part of the qualifiedimmunity standard.
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per
2 See also Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir.
2011) (en banc) (A court “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.” (footnote and internal quotation marks
omitted)); Lincoln v. Turner, 874 F.3d 833, 850 (5th Cir. 2017)
(“While we may look to other circuits to find clearly established
law, we must consider ‘the overall weight’ of such authority. A
‘trend’ alone is just that. As of December 2013, only two circuits
had weighed in on the ‘contours of the right.’ These cases alone
do not provide sufficient authority to find that the law was
clearly established.” (footnote omitted)); Bustillos, 891 F.3d at
222 (holding that the plaintiff failed to shoulder her burden to
“point[] ... to any case that shows, in light of the specific context
of this case, that the [defendants’] conduct violated clearly
established law” and that, although the court’s “independent
review [ ] uncovered” persuasive authority, “a single, fifty year
old case from another circuit is [not] sufficient in this instance
to have ‘placed the ... constitutional question [at issue] beyond
debate’” (quoting al-Kidd, 563 U.S. at 741)).
App.46
curiam) (quoting Plumhoff v. Rickard, 572 U.S. 765,
778–79 (2014); reversing denial of summary
judgment on a qualified immunity defense); see also
Sause v. Bauer, 138 S. Ct. 2561, 2562–63 (2018) (per
curiam) (reversing dismissal of a pro se complaint
based on the defendants’ entitlement qualified
immunity where the district court failed to liberally
interpret the Fourth Amendment claims).
B. Analysis
“To prevail on a Section 1983 excessive force
claim, ‘a plaintiff must establish: (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.’” Shepherd, 920
F.3d at 283 (quoting Harris v. Serpas, 745 F.3d 767,
772 (5th Cir. 2014) (quoting, in turn, Ramirez v.
Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)); citing
Graham v. Connor, 490 U.S. 386, 393–97 (1989)).
Accidental contact between an officer and a
civilian is not a Fourth Amendment seizure—
even if it injures the civilian—so a § 1983
plaintiff claiming excessive force must show
that force was applied intentionally. See
Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97
(1989) (explaining that a seizure occurs only
when a suspect’s “freedom of movement” is
terminated “through means intentionally
applied” by the governmental actor); Gorman
v. Sharp, 892 F.3d 172, 175 (5th Cir. 2018)
(holding there can be no § 1983 liability for
excessive force “in the absence of intentional
conduct”). And even if the seizure involves
App.47
intentional conduct, the district court must
consider whether it was unreasonable under
the specific circumstances of the seizure. See,
e.g., City of Escondido v. Emmons, 139 S. Ct.
500, 503–04 (2019) (per curiam) (reversing the
denial of qualified immunity where officers
threw a man to the ground during an arrest).
McDonald v. McClelland, 779 F. App’x 222, 225–26
(5th Cir. 2019) (per curiam).
In excessive-force claims under the Fourth
Amendment, the reasonableness of an official’s
conduct
depends
on
“the
facts
and
circumstances of each particular case,
including the severity of the crime at issue,
whether the suspect poses an immediate
threat to the safety of the officers or others,
and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham,
490 U.S. at 396. The court must adopt “the
perspective of a reasonable officer on the
scene, rather than [judge] with the 20/20
vision of hindsight.” Id. “The calculus of
reasonableness must embody allowance for the
fact that police officers are often forced to
make
split-second
judgments—in
circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force
that is necessary in a particular situation.” Id.
at 396–97. “As in other Fourth Amendment
contexts, however, the ‘reasonableness’ inquiry
in an excessive force case is an objective one:
the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and
App.48
circumstances confronting them, without
regard to their underlying intent or
motivation.” Id. at 397.
Brothers v. Zoss, 837 F.3d 513, 518–19 (5th Cir. 2016)
(footnote omitted).
Plaintiffs allege:
“Mr. Hutcheson entered the lobby wearing
a ball cap, Dallas Cowboys jersey, and shorts.
Mr. Hutcheson appeared to be panicked
when he entered the lobby.
Mr. Hutcheson appeared to be physically
unstable when he entered the lobby.
It was clear that Mr. Hutcheson had
nothing in his hands when he entered the
lobby.
It was clear that Mr. Hutcheson was not
armed with any type of weapon when he
entered the lobby.
Mr. Hutcheson did not make any threats to
anyone after he entered the lobby.
Immediately after Mr. Hutcheson entered
the lobby, he slowed his pace, walked towards
a single row of benches along the wall, and sat
down.
As Mr. Hutcheson entered the lobby, he
App.49
stated to numerous individuals, “It’s okay,”
“I’m not going to hurt anyone,” and “I need
some help.”
Several of the individuals to whom Mr.
Hutcheson spoke directed him towards
Defendant Hayes, a Detention Security Officer
who was present in the lobby.
Defendant
Hayes
approached
Mr.
Hutcheson and engaged him in conversation.
Defendant Reyes, a Dallas County
Sherriff’s Deputy, was working in the lobby’s
information booth when Mr. Hutcheson
entered the lobby. After seeing Mr. Hutcheson
speaking to Defendant Hayes,
Defendant Reyes left the information booth
walked towards them.
Mr. Hutcheson calmly walked away from
both Defendants Reyes and Hayes and re-took
a seat on the bench.
Defendants Reyes and Hayes followed Mr.
Hutcheson and began to talk to him as he was
seated.
While seated, Mr. Hutcheson showed
Defendants Reyes and Hayes that he had
nothing in his hands and no weapons in his
pockets.
After approximately thirty seconds, Mr.
App.50
Hutcheson stood up and began to follow
Defendant Reyes towards the information
booth.
Following the conversation with Mr.
Hutcheson and Defendant Reyes, Defendant
Hayes left the building.
Following the conversation with Mr.
Hutcheson and Defendant Hayes, Defendant
Reyes returned to the information booth.
Following the conversation with Defendant
Reyes and Defendant Hayes, Mr. Hutcheson
began to pace around the lobby.
While pacing around the lobby, Mr.
Hutcheson did not make physical contact with
anyone.
While pacing around the lobby, Mr.
Hutcheson did not say anything to anyone.
While pacing around the lobby, Mr.
Hutcheson repeatedly grabbed his abdomen.
While pacing around the lobby,
Hutcheson appeared physically unstable.
Mr.
While pacing around the lobby, Mr.
Hutcheson appeared to be in a state of
distress.
....
App.51
While he was pacing around the lobby,
neither Defendant Stevens nor Defendant
Smith—both of whom were working as
Detention Security Officers in the lobby—
appeared concerned with Mr. Hutcheson’s
behavior.
Upon seeing Mr. Hutcheson pacing in the
lobby, Defendant Reyes quickly left the
information booth and directly approached Mr.
Hutcheson.
Defendant Reyes did not make verbal
contact with Defendant Stevens or Defendant
Smith before approaching Mr. Hutcheson.
Immediately
upon
approaching
Mr.
Hutcheson, Defendant Reyes grabbed Mr.
Hutcheson by the arms and torso and
attempted to force Mr. Hutcheson onto the
ground.
Mr. Hutcheson turned away from
Defendant Reyes with his arms extended, his
hands open, and his palms facing down.
Defendant Reyes’s grabbed Mr. Hutcheson
from behind forcing Mr. Hutcheson’s feet out
from under him, and Mr. Hutcheson landed on
his buttocks on the lobby floor.
Once Mr. Hutcheson’s buttocks were on the
floor, Defendant Reyes attempted to turn Mr.
Hutcheson over so that he was in a prone
position (face down) on the lobby floor.
App.52
After Defendant Reyes turned Mr.
Hutcheson to a prone position, Defendants
Stevens and Smith ran over to assist
Defendant Reyes.
Defendant Smith placed his knee on Mr.
Hutcheson’s shoulder and neck area while
leaning forward and placing pressure on Mr.
Hutcheson. Defendant Reyes attempted to
place Mr. Hutcheson in handcuffs.
To assist Defendant Reyes, Defendant
Stevens placed her knee on Mr. Hutcheson’s
back.
While Defendants Reyes, Smith, and
Stevens were engaged in the above, Mr.
Hutcheson was [writhing] in pain.
While Defendants Reyes, Smith, and
Stevens were engaged in the above, Mr.
Hutcheson was screaming in pain.
After Defendants Reyes, Smith, and
Stevens handcuffed Mr. Hutcheson, they
allowed him to remain lying on the floor of the
lobby in a prone position for more than two
minutes.
While Mr. Hutcheson was handcuffed and
lying on the floor of the lobby in a prone
position, Defendant Hayes returned to the
lobby and immediately stepped on Mr.
Hutcheson’s feet.
App.53
Defendant Hayes then grabbed Mr.
Hutcheson’s feet, crossed Mr. Hutcheson’s legs,
pushed Mr. Hutcheson’s feet towards Mr.
Hutcheson’s buttocks, and held them there for
approximately thirty seconds.
After Defendant Hayes released Mr.
Hutcheson’s legs, Mr. Hutcheson does not
move again by his own volition.
Defendants placed Mr. Hutcheson into a
seated position for nearly ninety seconds after
Defendant Hayes released him.
After Defendants placed Mr. Hutcheson in
a seated position, they had to support him to
keep him from falling over.
While Mr. Hutcheson was in a seated
position, Defendants tapped and nudged Mr.
Hutcheson’s shoulder, but obtained no visible
or audible response.
Four minutes after Defendants placed Mr.
Hutcheson in a seated position, a nurse
arrived in the lobby, but he did not administer
first aid nor perform CPR.
CPR was not administered to Mr.
Hutcheson for more than seven minutes after
Defendant Hayes released him.
Mr. Hutcheson was eventually transported
to Parkland Hospital. Mr. Hutcheson died at
Parkland Hospital at 11:31 a.m.
App.54
The medical examiner’s report noted a sixinch bruise on the back of Mr. Hutcheson’s
neck.
The medical examiner’s report noted that
Mr. Hutcheson sustained fractured ribs as a
result of the CPR.
The medical examiner’s report classified
the Mr. Hutcheson’s death as a “homicide”
caused by “physiologic stress associated with
struggle and restraint.”
Dkt. No. 40, ¶¶ 4.04–4.26, 4.34–4.60; see also Dkt.
No. 42 (autopsy report) at 9 (explaining that, “[p]er
medical records, the decedent left Parkland Hospital
on August 1, 2015 at 9:48 am after presenting to the
emergency department complaining of abdominal
pain
following
methamphetamine
use”
and
concluding that he “died as a result of the combined
toxic effects of cocaine and methamphetamine,”
which “effects were compounded by hypertensive
cardiovascular disease and physiologic stress
associated with struggle and restraint by police”).”
After the Court converted the qualified-immunity
aspects of the motion to dismiss to a motion for
summary judgment, the individual defendants moved
to file the previously-docketed video and its
authenticating business records affidavit [Dkt. Nos.
28 & 27] as evidence in support of their summary
judgment motion, see Dkt. No. 44, Plaintiffs did not
oppose this request, see id., and the Court granted
the motion, see Dkt. No. 45. But when Plaintiffs later
responded to the summary judgment motion, they
App.55
failed to provide their own evidence, see Dkt. No. 52.
And their amended complaint is not verified. See
Dkt. No. 40.3
The qualified immunity inquiry at this stage
requires that the Court “accept the plaintiff’s version
of the facts (to the extent reflected by proper
summary judgment evidence) as true.” Haggerty v.
Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004); see
Tolan, 572 U.S. at 651 (“In articulating the factual
context of the case, the Fifth Circuit failed to adhere
to the axiom that in ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be
drawn in his favor.’” (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986))). But the only
evidence before the Court that supports any version
of the use-of-force incident is the video.
And, while Plaintiffs argue that the video itself
cannot establish that the officers’ conduct did not
violate a federal constitutional or statutory right
3 See also Falon v. Holly, 480 F. App’x 325, 326 (5th Cir. 2012)
(per curiam) (“[V]erified complaint[s] and other verified
pleadings serve as competent summary judgment evidence.”
(citing Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003))); see
also, e.g., Mitchell v. Cervantes, 453 F. App’x 475, 477–78 (5th
Cir. 2011) (per curiam) (“Mitchell’s allegations in his verified
complaint serve as competent summary judgment evidence and
suggest a possible constitutional violation. ...Based on Mitchell’s
proffered facts, the appellants’ use of force was not made in a
‘good faith effort to maintain or restore discipline’ and was not
‘nontrivial’ but disproportionate to any possible provocation. ...
On Mitchell’s allegations, as summarized by the district court,
the appellants have not shown that their course of conduct was
not objectively unreasonable under clearly existing law.
Accordingly, they have not demonstrated that they are entitled
to qualified immunity as a matter of law.” (citations omitted)).
App.56
because it is “entirely silent,” e.g., Dkt. No. 52 at 10,
Plaintiffs’ failure to offer evidence to support their
version of the facts removes this case from one in
which, because the video is “‘not dispositive,’” “the
Court should assume that those events captured by
the video occurred in the manner depicted by the
video but ‘resolve any remaining factual questions ...
in [the nonmovants’] favor,’” Blakely v. Kelly, No.
3:16-cv-2801-K-BN, 2020 WL 890383, at *12 (N.D.
Tex. Jan. 21, 2020) (quoting Davidson v. AT&T
Mobility, LLC, No. 3:17-cv-06-D, 2019 WL 486170, at
*2 (N.D. Tex. Feb. 7, 2019)), rec. accepted, 2020 WL
888522 (N.D. Tex. Feb. 24, 2020); cf. Brothers, 837
F.3d at 517 (“The district court ruled that there were
genuine disputes as to material facts. The officers
urge us to review the genuineness in light of the
video evidence and Harris’s exception to the
jurisdictional limitation. We agree with the plaintiffs,
however, that the video evidence does not
unequivocally disprove their version of events, which
we therefore accept for purposes of this appeal.”
(footnote omitted)).
In sum, the version of events depicted by the
video determines, for present purposes, whether any
particular officer defendant violated Hutcheson’s
constitutional right to be free from excessive force.
Cf. Meadours, 483 F.3d at 421–22.
The video depicts that Hutcheson behaved
erratically as soon as entered the lobby, running
through the front door and then slowing down to
walk toward approximately ten civilians waiting on a
row of benches in the lobby. After he appears to
speak to them, as he then sits down, they all abruptly
App.57
vacate the benches, scattering throughout the lobby.
An officer appears at the upper right corner of the
video. Some of the civilians who were on the benches
notice the officer and point toward to Hutcheson.
Hutcheson then gets up from the bench, and he and
the officer walk toward each other. At this point,
Hutcheson has only been in the lobby approximately
30 seconds.
Hutcheson and the officer appear to speak to each
other. Hutcheson walks past the officer toward the
information booth. Another officer emerges from the
booth. He walks toward Hutcheson. The first officer
places a hand on Hutcheson, who shrugs it off, walks
back to the benches, and sits down. Both officers
appear to speak to Hutcheson, who appears to empty
his pockets to presumably show that he is not armed.
Two more officers enter the lobby. Hutcheson then
stands up. And he and three of the officers walk
toward the upper right corner of the screen, across
from the booth. At this point, Hutcheson has now
been in the lobby approximately two minutes.
Hutcheson then turns around, dropping his
shoulder to pass through the officers, and stumbles
back toward the middle of the lobby. He reaches the
door, quickening his step as he does, but turns
around to face the booth as one officer walks toward
him from the area of the lobby proximate to the
booth—and as the crowd in the lobby moves away
from Hutheson and the approaching officer. That
officer then apprehends Hutcheson, forcing him to
the ground on his bottom. He then attempts to turn
Hutcheson on to his stomach, but Hutcheson resists.
The two other officers approach to assist in
App.58
restraining Hutcheson, who appears to struggle
against the officers, as he shifts from his stomach to
his side. The three officers continue to attempt to
handcuff Hutcheson, who continues to struggle,
shifting from side to stomach and kicking his legs.
After approximately 90 seconds, the fourth officer
enters the lobby and does place his foot on top of
Hutcheson’s foot. Hutcheson kicks back at one point,
and the fourth officer does bend Hutcheson’s legs
toward his backside. Two new officers now approach.
And it is apparent that, at this point—approximately
five minutes after he first entered—Hutcheson is no
longer resisting, as he lies cuffed on his stomach.
As depicted by the video, medical professionals
arrive approximately five minutes later. CPR is
initiated less than two minutes later, and the lobby is
cleared CPR is continued until, after eight more
minutes,
paramedics
arrive
and
continue
administering CPR to Hutcheson.
As depicted by the video and from the perspective
of a reasonable officer on the scene, the Court cannot
find that any officer defendant used excessive force
against Hutcheson, as the video reflects that he
struggled at the moment he was physically
restrained, continued to resist arrest once physically
restrained, and that, prior to being physically
restrained, Hutcheson evaded the three officers who
had escorted him from the center of the lobby and
was moving quickly toward the exit when he stopped,
seconds before he was physically restrained.
The events depicted by the video played out
App.59
rapidly. Hutcheson’s erratic moves plausibly created
an uncertain atmosphere that was likely also tense,
as further shown by the bystanders’ reactions to him.
Notably, the video shows that officers initially tried
to diffuse the situation by escorting Hutcheson away
from the main lobby (and the civilian bystanders).
Force was not used until Hutcheson reversed course,
slipping past the officers and returning to the center
of the lobby and toward the exit.
This determination, that Plaintiffs have not
shown a constitutional violation, could end the
qualified immunity analysis, as they have not carried
their burden on the first prong. But, even if they had
shown a constitutional violation, they also fail to
carry their burden on the “clearly established” prong
of this analysis.
As the legal standards set out above state, and as
the Supreme Court and the Fifth Circuit have
“repeatedly stressed” to lower courts, “[t]he ‘clearly
established’ standard [ ] requires that the legal
principle clearly prohibit the officer’s conduct in the
particular circumstances before him. The rule’s
contours must be so well defined that it is ‘clear to a
reasonable officer that his conduct was unlawful in
the situation he confronted.’ This requires a high
“degree of specificity.’” Dist. of Columbia v. Wesby,
138 S. Ct. 577, 590 (2018) (quoting Saucier, 533 U.S.
at 202; Mullenix, 136 S. Ct. at 309); see also id.
(“[C]ourts must not ‘define clearly established law at
a high level of generality, since doing so avoids the
crucial question whether the official acted reasonably
in the particular circumstances that he or she faced.’”
(quoting Plumhoff, 572 U.S. at 779)); cf. Emmons,
App.60
139 S. Ct. at 503 (“In this case, the Court of Appeals
contravened those settled principles. The Court of
Appeals should have asked whether clearly
established law prohibited the officers from stopping
and taking down a man in these circumstances.
Instead, the Court of Appeals defined the clearly
established right at a high level of generality by
saying only that the ‘right to be free of excessive
force’ was clearly established.”).
Thus, Plaintiffs “must point to case law clearly
establishing that [the officers] acted unreasonably
based on facts similar to the particular circumstances
they faced,” E.g., Hale v. City of Biloxi, Miss., 731 F.
App’x 259, 264 (5th Cir. 2018) (per curiam) (the
“particular circumstances” there: “the use of deadly
force and a taser where a person suspected of a
nonviolent crime ignores repeated warnings to keep
his hands visible and step outside of a confined area
when he knows the people warning him are armed
police officers, even if they have not told him he is
under arrest”); see also Vann, 884 F.3d at 310 (“It is
[Plaintiffs’] burden to find a case in [their] favor that
does not define the law at a ‘high level of
generality.’”); cf. Valderas, 937 F.3d at 389 (“[T]he
plaintiff bears the burden of demonstrating that a
defendant is not entitled to qualified immunity.”
(citation omitted)).
They have not carried this burden. As set out
above, Plaintiffs point to Darden, which they
characterize as holding “that ‘a police officer uses
excessive force when the officer strikes, punches, or
violently slams a suspect who is not resisting arrest.’”
Dkt. No. 52 at 10 (citing Darden, 880 F.3d at 725–
App.61
31).
But the particular circumstances in Darden were
not those faced by the officers here. And the
particular force applied in Darden was not the type of
force used here. As the Fifth Circuit set out the
factual background in its decision,
[i]n 2013, the Fort Worth Police Department
investigated claims that cocaine was being sold
from a private residence. A magistrate judge
issued a warrant that allowed the officers to
enter the residence without first knocking and
announcing themselves. On May 16, 2013, a
large team of heavily armed police officers
executed the warrant. Officer Snow was
assigned to the entry team, which was tasked
with breaking down the front door, entering
the residence, and securing the premises.
Officer Romero drove the van that transported
the team to the residence. He was also
assigned to stand guard near the front door
while other officers entered the residence and
arrested the people inside. Two other members
of the team wore cameras on their helmets,
which captured on video some but not all of the
events that transpired as the warrant was
executed.
When the police first arrived at the house, the
entry team broke down the front door with a
battering ram, yelled that they were police,
and ordered everyone to get down. A large
man, later identified as Darden, was kneeling
on the seat of a couch near the door when the
App.62
officers first entered, and he immediately
raised his hands in the air. Darden weighed
approximately 340 pounds. Several other
people were sitting and standing in a nearby
dining room. As Officer Snow entered the
residence, he reached out and ripped the shirt
off Darden’s back, apparently in an attempt to
get Darden from the couch to the ground. The
videos do not show what happened during the
twenty-five seconds that followed, and there is
conflicting testimony about what transpired.
According to witnesses for the plaintiff,
Darden “had no time to react” before “[h]e was
thrown on the ground” by the officers.
Witnesses also testified that Darden never
made any threatening gestures and did not
resist arrest.
After approximately twenty-five seconds, it
became apparent that some sort of incident
was occurring in the front room. One of the
videos shows Darden lying on the ground face
up. An officer in the front room yelled, “Roll
over on your face,” at which point, Darden
appeared to follow directions and rolled over
onto his stomach. The video then pans away
from the scene and does not turn back for
approximately fifteen seconds. The second
video shows that Officer Romero then ran into
the house to assist. However, in that video,
much of the interaction between Darden and
the officers is totally obscured by the couch.
Although not captured by the video,
eyewitnesses testified that Officer Romero
proceeded to choke Darden and to repeatedly
App.63
punch and kick Darden in the face.
At one point, Darden’s body appeared to come
up off the ground for a moment, but it is not
clear from the video footage whether he came
up of his own volition or was pulled up by
police. The officers then backed away, and
Officer Snow used a Taser on Darden. Shortly
thereafter, Darden rolled over onto his
stomach and appeared to push himself up on
his hands. He was immediately pushed back
down into the ground by police. Throughout
these events, other people in the house
repeatedly yelled, “He’s got asthma,” and “He
can’t breathe.” Eyewitnesses also testified that
Darden himself told the officers he could not
breathe.
A few seconds later, the videos briefly show
Darden on his knees, with his hands in the air,
before Officer Snow tased him a second time.
Darden fell to the ground and rolled onto his
back, where he lay face up for a few seconds.
Officer Romero then pushed Darden over onto
his stomach and pressed his face into the
ground. As Officer Romero tried to pull
Darden’s left arm behind his back, Darden
seemed to pull his arm away. The officers then
pushed Darden back into the ground, and one
officer appeared to put him in a choke hold.
At that point, other people in the residence
were still yelling that Darden could not
breathe.
Nevertheless,
several
officers
continued to push Darden’s body into the
App.64
ground face down, pressed his face and neck
into the floor, and pulled his arms behind his
back so that Officer Romero could handcuff
him. As Officer Romero finished securing the
handcuffs, Darden’s body went limp. The
officers then pulled Darden’s debilitated body
up into a sitting position and left him there.
Darden appeared to be unconscious, and his
head hung down on his chest. It was
subsequently determined that Darden had
suffered a heart attack and died.
Darden, 880 F.3d at 725–27 (footnoted omitted); see
also id. at 731 (“We have previously suggested that a
constitutional violation occurs when an officer tases,
strikes, orviolently slams an arrestee who is not
actively resisting arrest. Thus, if a jury finds that
Darden was not actively resisting arrest, then a jury
could likewise conclude that Officer Snow used
excessive force by throwing Darden to the ground
and tasing him twice.” (citations omitted)); id. at 732
(“As stated, we have found that a police officer uses
excessive force when the officer strikes, punches, or
violently slams a suspect who is not resisting arrest.
Thus, if a jury finds that no reasonable officer on the
scene would have perceived Darden to be actively
resisting arrest, then a jury could also conclude that
Officer Romero used excessive force by choking
Darden and repeatedly punching and kicking him in
the face.” (citations omitted)).
First, “[a]ssuming without deciding that a court of
appeals decision may constitute clearly established
law for purposes of qualified immunity,” Emmons,
139 S. Ct. at 503 (citing Sheehan, 135 S. Ct. at 1776),
App.65
Plaintiffs make “no effort to explain how [Darden]
prohibited [the officers’] actions in this case. That is a
problem under [controlling] precedents:
“[The Supreme Court has] stressed the need to
identify a case where an officer acting under
similar circumstances was held to have
violated the Fourth Amendment. While there
does not have to be a case directly on point,
existing precedent must place the lawfulness
of the particular [action] beyond debate. Of
course, there can be the rare obvious case,
where the unlawfulness of the officer’s conduct
is sufficiently clear even though existing
precedent
does
not
address
similar
circumstances. But a body of relevant case law
is usually necessary to clearly establish the
answer. ”
Id. at 503–04 (quoting Wesby, 138 S. Ct., at 581); see
also Kisela, 138 S. Ct. at 1153 (“Precedent involving
similar facts can help move a case beyond the
otherwise ‘hazy border between excessive and
acceptable force’ and thereby provide an officer notice
that a specific use of force is unlawful. ‘Of course,
general statements of the law are not inherently
incapable of giving fair and clear warning to officers.’
But the general rules set forth in “[Tennessee v.
Garner, 471 U.S. 1 (1985),] and Graham do not by
themselves create clearly established law outside an
‘obvious case.’” (citations omitted); Morrow, 917 F.3d
at 876 (“[O]vercoming qualified immunity is
especially difficult in excessive-force cases,” as those
“claims often turn on ‘split-second decisions’ to use
lethal force. That means the law must be so clearly
App.66
established that—in the blink of an eye, in the
middle of a high-speed chase—every reasonable
officer would know it immediately.” (citation
omitted)).
As the Court’s description of the video shows, this
is not an obvious case where every reasonable officer
confronting the situation depicted by the video would
know immediately that the force used against
Hutcherson was unlawful, which means that, by
failing to identify precedent with similar facts,
Plaintiffs have not carried their burden as to the
“clearly established” prong of qualified immunity.
In sum, the Court dismisses the excessive force
claims with prejudice.
III.State Wrongful Death Act
In their amended complaint, Plaintiffs’ allegations
implicating Texas’s wrongful death statute are
limited to the following:
Plaintiffs are therefore entitled to bring, and
do bring, this action under Chapter 71 of the
Texas Civil Practice and Remedies Code, also
known as the Wrongful Death Act of the State
of Texas.
As a result of this claim under the Wrongful
Death Act, Plaintiff[s are] entitled to recover
damages arising from the death of Joseph
Hutcheson within the jurisdictional limits of
this court [as further particularized.]
App.67
Dkt. No. 40, ¶¶ 5.26 & 5.27.
Defendants briefed these allegations “in an
abundance of caution,” Dkt. No. 41 at 30 (“It is
unclear whether Plaintiffs’ allegations support
wrongful death damages pursuant to 42 U.S.C. §
1983, as allowed pursuant to state law, or whether
Plaintiffs raise a state law wrongful death claim
against Dallas County.”), moving to dismiss such a
claim against the individual defendants (under the
statutory election-of- remedies provision) and against
the County (as barred by governmental immunity),
see id. at 30–31. And Plaintiffs, in their response,
failed to address whether they are indeed bringing a
separate state law wrongful death claim. See
generally Dkt. No. 52.
But, to the extent that they do assert a state law
wrongful death claim against the County and its
employees, such a claim is dismissed with prejudice.
“Municipal governments are immune from tort
suits except to the extent that immunity has been
waived by the Texas Tort Claims Act (‘TTCA’).”
Hatcher v. City of Grand Prairie, No. 3:14-cv-432-M,
2014 WL 3893907, at *7 (N.D. Tex. Aug. 6, 2014)
(citations omitted). The TTCA “waives the state’s
immunity from suit in certain circumstances”;
“covers all tort theories that may be alleged against a
governmental entity whether or not it waives that
immunity”; and provides that, “‘[i]f a suit is filed
under this chapter against both a governmental unit
and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by
the governmental unit.’” Gil Ramirez Group L.L.C. v.
App.68
Houston Indep. Sch. Dist., 786 F.3d 400, 415 (5th Cir.
2015) (quoting Tex. Civ. Prac. & Rem. Code §
101.106(e); citation omitted).
“Although the TTCA waives immunity in certain
limited circumstances, the waiver does not extend to
claims ‘arising out of assault, battery, false
imprisonment, or any other intentional tort.’”
Hatcher, 2014 WL 3893907, at *7 (citing Tex. Civ.
Prac. & Rem. Code § 101.021; then quoting Tex. Civ.
Prac. & Rem. Code § 101.057(2)); see also Calhoun v.
Vila, 761 F. App’x 297, 300 (5th Cir. 2019) (per
curiam) (“Texas law protects governmental entities
from suit through sovereign immunity, unless the
area of liability is specifically waived by the Texas
Tort Claims Act, such as injury by an employee’s
motor vehicle, injury caused by property conditions,
and claims arising from defects in premises. None of
Calhoun’s claims fall under these categories.
Additionally, under Texas law, ‘[i]f a suit is filed ...
against both a governmental unit and any of its
employees, the employees shall immediately be
dismissed on the filing of a motion by the
governmental unit.’ Therefore, Calhoun’s state law
claims against both governmental entities and
individual defendants were properly dismissed.”
(citations omitted)).
Conclusion
The Court GRANTS the motion to dismiss and
converted motion for summary judgment as to
qualified immunity [Dkt. No. 41] and therefore
DISMISSES this action with prejudice and
VACATES its previous order referring this case to
App.69
mediation [Dkt. No. 35].
SO ORDERED.
DATED: April 7, 2020
/s/ David L. Horan
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
App.70
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NICOLE HUTCHESON,
ET AL.,
§
§
§
Plaintiffs,
§
§
V.
§
§
DALLAS COUNTY, TEXAS, §
ET AL.,
§
§
Defendants.
§
No. 3:17-cv-2021
MEMORANDUM OPINION AND ORDER
After the parties filed a written consent, the
Court, on February 14, 2019, referred this action to
the undersigned United State magistrate judge for
all further proceedings, including entry of judgment.
See Dkt. Nos. 38 & 39; see also 28 U.S.C. § 636(c).
On March 6, 2019, the Court converted those
portions of Defendants Dallas County, Texas,
Fernando Reyes, Trenton Smith, Betty Stevens, and
Elvin Hayes’s motion to dismiss Plaintiffs Nicole
Hutcheson and Ruth Boatner’s amended complaint
under Federal Rules of Civil Procedure 12(b)(6) and
12(b)(1) [Dkt. No. 41] raising the individual officer
defendants’ entitlement to qualified immunity to a
Federal Rule of Civil Procedure 56 motion for
summary judgment on each officer’s qualified
immunity defense. See Dkt. No. 43; see also Fed R.
App.71
Civ. P. 12(d). The Court then allowed Plaintiffs to file
a motion for leave to conduct limited discovery in
order to respond to the qualified immunity issues
raised in the converted summary judgment motion.
See Dkt. No. 43. Plaintiffs filed their motion for leave
on April 5, 2019. See Dkt. No. 46. And Defendants
filed a response opposing leave on April 19, 2019. See
Dkt. No. 47.
Legal Standards and Analysis
Plaintiffs allege under 42 U.SC. § 1983 that each
officer
defendant
violated
Decedent
Joseph
Hutcheson’s constitutional right to be free from
excessive force. See Dkt. No. 40 at 13–16. “A plaintiff
makes out a § 1983 claim if he ‘shows a violation of
the Constitution or of federal law, and then shows
that the violation was committed by someone acting
under color of state law,’” Rich v. Palko, 920 F.3d
288, 293-94 (5th Cir. 2019) (quoting Brown v. Miller,
519 F.3d 231, 236 (5th Cir. 2008); brackets omitted);
see also Shepherd v. Shreveport, 920 F.3d 278, 283
(5th Cir. 2019) (“To prevail on a Section 1983
excessive force claim, ‘a plaintiff must establish: (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.’”
(quoting Harris v. Serpas, 745 F.3d 767, 772 (5th Cir.
2014) (quoting, in turn, Ramirez v. Knoulton, 542
F.3d 124, 128 (5th Cir. 2008)); citing Graham v.
Connor, 490 U.S. 386, 393–97 (1989))).
“But government officials performing discretionary
duties” can respond to such a claim by asserting
qualified immunity. Rich, 920 F.3d at 294 (citing
App.72
Haverda v. Hays Cnty., 723 F.3d 586, 598 (5th Cir.
2013)).
And “[w]hen a defendant asserts qualified immunity,
the plaintiff bears the burden of pleading facts that
demonstrate liability and defeat immunity.” Shaw v.
Villanueva, 918 F.3d 414, 416–17 (5th Cir. 2019)
(citing Zapata v. Melson, 750 F.3d 481, 485 (5th Cir.
2014); McClendon v. City of Columbia, 305 F.3d 314,
323 (5th Cir. 2002) (en banc)); see also McLin v. Ard,
866 F.3d 682, 688 (5th Cir. 2018) (“When the motion
to dismiss raises the defense of qualified immunity,
the plaintiff ‘must plead specific facts that both allow
the court to draw the reasonable inference that the
defendant is liable for the harm ... alleged and that
defeat a qualified immunity defense with equal
specificity.’” (quoting Zapata, 750 F.3d at 485
(quoting, in turn, Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012)))).
To overcome immunity, “[t]he plaintiff must show
‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.’”
Shaw, 918 F.3d at 417 (quoting Whitley v. Hanna,
726 F.3d 631, 638 (5th Cir. 2013)); see also Rich, 920
F.3d at 294 (“Once an officer invokes the defense, the
plaintiff must rebut it by establishing (1) that the
officer violated a federal statutory or constitutional
right and (2) that the unlawfulness of the conduct
was ‘clearly established at the time.’” (quoting Dist.
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018));
Harris, 745 F.3d at 771 (“Once the defendant raises
the qualified immunity defense, ‘the burden shifts to
the plaintiff to rebut this defense by establishing that
App.73
the official’s allegedly wrongful conduct violated
clearly established law.’” (quoting Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008))).
All discovery is typically stayed pending a ruling
on a defendant’s entitlement to the defense of
qualified immunity. See Wicks v. Miss. State
Employment Servs., Inc., 41 F.3d 991, 994–95 (5th
Cir. 1995); accord Foreman v. Texas A&M Univ. Sys.
Health Sci. Ctr., No. 3:08-cv-1469-L, 2008 WL
494267, at *4 (N.D. Tex. Nov. 12, 2008) (citing Wicks
in ruling that discovery is stayed pending a ruling on
an individual defendant’s dispositive motion); see also
Zapata, 750 F.3d 481; Backe, 691 F.3d 645; Lion
Boulos v. Wilson, 834 F.2d 504 (5th Cir. 1987); Webb
v. Livingston, 618 F. App’x 201 (5th Cir. 2015) (per
curiam).
But, where a defendant has asserted a qualified
immunity defense, the Court may, under certain
circumstances, permit limited discovery that is
narrowly tailored to uncover facts that the Court
needs to rule on that defense. See Wicks, 41 F.3d at
994; Backe, 691 F.3d at 648 (“[T]his court has
established a careful procedure under which a
district court may defer its qualified immunity ruling
if further factual development is necessary to
ascertain the availability of that defense.”); see also
Burkett v. Kenner Police Dep’t, No. Civ. A. 02-1858,
2003 WL 1340294, at *1 (E.D. La. Mar. 17, 2003)
(allowing the exchange of initial disclosures targeted
at identifying officers involved in incident at issue
after finding that plaintiff’s Rule 7(a) reply met the
heightened pleading requirement).
App.74
As the Court set out in the March 6, 2019 order, any
motion for leave to conduct limited discovery in order
to respond to the qualified immunity issues raised in
the converted summary judgment motion
must include: (1) the specific interrogatories, if
any, that Plaintiffs want to send to
Defendants; (2) a list of the specific documents
or specific categories of documents, if any, that
Plaintiffs want to obtain from Defendants; and
(3) an explanation of why this discovery is
necessary to enable Plaintiffs to respond to the
specific qualified immunity issues raised in the
converted motion for summary judgment. The
requested discovery must be narrowly tailored
to uncover only those facts needed for the
Court to rule on the qualified immunity
defense and will only be permitted if
Defendants’ immunity defense turns at least
partially on a factual question and the Court is
unable to rule on the immunity defense
without further clarification of the facts.
Dkt. No. 43 at 4–5 (citing Lion Boulos, 834 F.2d at
507–08; Webb, 618 F. App’x at 206 (“If the complaint
alleges facts sufficient to overcome the defense of
qualified immunity, and the district court is ‘unable
to rule on the immunity defense without further
clarification of the facts,’ then it may allow discovery
‘narrowly tailored to uncover only those facts needed
to rule on the immunity claim.’” (quoting Backe, 691
F.3d at 648 (in turn quoting Lion Boulos, 834 F.2d at
507–08))); Hinojosa v. Livingston, 807 F.3d 657, 670
(5th Cir. 2015) (“[A] district court may elect the
defer-and-discover approach ‘when the defendant’s
App.75
immunity claim turns at least partially on a factual
question’ that must be answered before a ruling can
issue.” (quoting Lion Boulos, 834 F.2d at 507))).4
Plaintiffs request leave to serve 3 interrogatories
and 2 related requests for production asking that
Defendants “identify the name, address, telephone
number, and e-mail address of all individuals
interviewed in your investigation of the incident that
is the subject of this suit” and answer whether they
are “in possession of [1] any witness statements
regarding the incident that is the subject of this suit,
whether written or recorded by audio or video ... [and
2] any notes or audio or video recordings that
summarize or comment on any witness’s statements
regarding the incident that is the subject of this suit.”
See also Dyer v. City of Mesquite, Tex., No. 3:15-cv-2638-B,
2017 WL 118811, at *3 (N.D. Tex. Jan. 12, 2017) (“While
Defendants are correct in their assertion that qualified
immunity protects defendants asserting the defense from
pretrial discovery, there are exceptions to this principle.
Specifically, ‘“if further factual development is necessary to
ascertain the availability of ... the qualified immunity defense,’”
discovery, ‘narrowly tailored to uncover only those facts needed
to rule on the immunity claim’ may be permitted. But first, the
district court must carefully ascertain that the plaintiff has
alleged ‘“specific facts that both allow the court to draw the
reasonable inference that the defendant is liable for the harm
he has alleged and that defeat a qualified immunity defense
with equal specificity.”’ This inquiry ‘incorporates the pleading
standards established in [Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009 )].’
Assuming the allegations meet this standard, then and only
then, if the court still cannot resolve the qualified immunity
defense without further factual development, the court may
defer its qualified immunity ruling and order discovery
‘“narrowly tailored to uncover only those facts needed to rule on
the immunity claim.’” And, given what is at stake—overcoming
qualified immunity’s protection from pretrial discovery—the
district court’s review process has been described as a “careful
procedure.” (citations and original brackets omitted)).
4
App.76
Dkt. No. 46 at 6.
Plaintiffs argue that this discovery is legally
necessary at this time “so that they can learn
whether Defendants are in possession of any
information that could contradict the version of
events that they advanced in their Amended Motion
to Dismiss.” Id. at 2; compare id. at 4 (“[I]f Plaintiffs
can produce evidence that Joseph was not resisting
arrest at the time he was first stricken, punched, or
slammed to the ground, Defendants are not entitled
to summary judgment on their qualified immunity
defense.”) & id. at 4–5 (“Plaintiffs acknowledge that
they are currently in possession of a redacted version
of Defendants’ internal affairs investigation, but the
only non-redacted portions are statements from
Defendants and other Dallas County employees that
support their version of events. The accounts of other
eyewitnesses—along with their identity and contact
information—has not been provided to Plaintiffs.
Should these witnesses have information that
contradict the sworn statements of Defendants and
their co-workers, such information would certainly
fall within the scope of discoverable information.”
(footnote omitted)), with Nance v. Meeks, No. 3:17-cv1882-L-BN, 2018 WL 5624202, at *4 (N.D. Tex. Aug.
1, 2018) (“[A] court’s qualified immunity inquiry at
[the summary judgment] stage [generally] requires
that the Court ‘accept the plaintiff’s version of the
facts (to the extent reflected by proper summary
judgment evidence) as true.’” (quoting Haggerty v.
Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004);
citations omitted)), rec. accepted, 2018 WL 5620469
(N.D. Tex. Oct. 30, 2018); Shepherd, 920 F.3d at 283
(“However, when there is a videotape that discredits
App.77
the non-movant’s description of facts, [a court] will
‘consider “the facts in the light depicted by the
videotape.”’” (quoting Carnaby v. City of Houston, 636
F.3d 183, 187 (5th Cir. 2011) (quoting, in turn, Scott
v. Harris, 550 U.S. 372, 381 (2007)))).
Plaintiffs’ attempt to obtain any evidence that
may support a version of the facts that may defeat
summary judgment on qualified immunity does not
fit within the limited scope of a discovery request
“narrowly tailored to uncover only those facts needed
to rule on the immunity claim.” Backe, 691 F.3d at
648; Lion Boulos, 834 F.2d at 507–08.
And Plaintiffs’ open-ended requests—to uncover
any facts, as opposed to specific questions of fact, that
may be helpful to their version of events—fail to
advance the second step of the “careful procedure” set
forth in Backe, Wicks, and Lion Boulos, which
requires that the district court “identify any
questions of fact it need[s] to resolve before it would
be able to determine whether the defendants [are]
entitled to qualified immunity.” Zapata, 750 F.3d at
485; see also Zanitz v. Seal, 602 F. App’x 154, 163
(5th Cir. 2015) (per curiam) (“Even a ‘limited
discovery’ order does not satisfy the second step if
‘the district court [does] not identify any questions of
fact it need[s] to resolve before it would be able to
determine whether the defendants [are] entitled to
immunity.’” (citation omitted)).
Tellingly, in the motion for leave, Plaintiffs argue
that, “[s]hould” witnesses identified in response to
the requested discovery “have information that
contradict sworn statements of Defendants and their
App.78
co-workers, such information would certainly fall
with the scope of discoverable information” under
Federal Rule of Civil Procedure 26(b)(1). Dkt. No. 46
at 5–6. But Rule 26(b)(1) defines what is relevant
very broadly. See, e.g., Merrill v. Waffle House, Inc.,
227 F.R.D. 467, 470–71 (N.D. Tex. 2005) (“When the
discovery sought appears relevant, the party
resisting the discovery has the burden to establish
the lack of relevance by demonstrating that the
requested discovery either does not come within the
broad scope of relevance as defined under [Rule]
26(b)(1) or is of such marginal relevance that the
potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad
disclosure.” (quoting Scott v. Leavenworth Unified
Sch. Dist. No. 453, 190 F.R.D. 583, 585 (D. Kan.
1999))); Rangel v. Gonzalez Mascorro, 274 F.R.D. 585,
590 (S.D. Tex. 2011) (“Although Rule 26(b)(1) limits
the scope of discovery to nonprivileged and relevant
matter, relevance is construed broadly to include
‘[a]ny matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue
that is or may be in the case.’” (footnote and citations
omitted)). That rule’s “broad scope of relevance” far
exceeds the scope of discovery allowed prior to the
Court’s resolution of a qualified immunity defense.
See, e.g., Baptiste v. Colonial Sugars, Inc., Civ. A. No.
92-3513, 1995 WL 491153, at *4 (E.D. La. Aug. 16,
1995) (“With regard to plaintiffs’ state law claims and
official capacity claim against Sheriff Martin,
plaintiffs are entitled to conduct discovery to the full
extent allowable under Rule 26(b)(1) .... Until the
qualified immunity issue is decided, discovery from
Nassar must be limited as outlined in this order.”).
App.79
Conclusion
The Court DENIES Plaintiffs’ motion for leave to
conduct limited discovery in order to respond to the
qualified immunity issues raised in the converted
summary judgment motion [Dkt. No. 46].
And the Court ORDERS Plaintiffs to file a written
response to the motion to dismiss amended complaint
and motion for summary judgment, see Dkt. Nos. 41,
42, & 43, by June 3, 2019.
The response must be accompanied by or
incorporate a brief, and the response and the brief
shall not together exceed 30 pages in length,
excluding any table of contents and table of
authorities. See N.D. Tex. L. Civ. R. 56.5(b) (as
modified). The responding party’s brief shall discuss
whether the responding party agrees with the
moving party’s identification of the live pleadings for
each party who has appeared in the action and, if
not, why not. Any affidavits, depositions, written
discovery materials, or other summary judgment
evidence must be included in a separate appendix.
The responding party must bracket in the margin of
each document in the appendix the portions of the
document on which the respondent relies, and, when
citing materials in the record, the responding party
must support each assertion by citing each relevant
page of its own or another party’s appendix. The
appendix shall be numbered sequentially from the
first page through the last and include an index of all
documents contained therein. An envelope that
contains a non-documentary or oversized exhibit
must be numbered as if it were a single page. See
App.80
N.D. Tex. L. Civ. R. 56.6(b). Additionally, except to
the extent any requirement is modified herein, the
response and brief must comply with the
requirements of Local Civil Rules 56.4(a)–(c), 56.5(a),
56.5(c), and 56.6(a)–(b).
A motion for continuance made under Federal
Rule of Civil Procedure 56(d) must be filed separately
and may not be included in the response to the
motion for summary judgment, brief in support
thereof, or any other document.
Defendants may file a reply brief, but no
additional evidence, by June 18, 2019. The reply
shall not exceed 15 pages in length. See N.D. Tex. L.
Civ. R. 56.5(b) (as modified). No supplemental
pleadings, briefs, or summary judgment evidence or
other documents may be filed in connection with the
motion for summary judgment or response thereto
without leave of court. See N.D. Tex. L. Civ. R. 56.7.
Further, prior to the parties’ filing their written
consent under Section 636(c), United States District
Judge Karen Gren Scholer entered an order referring
this case to mediation. See Dkt. No. 35. Because the
parties’ mediation efforts may make it unnecessary
to consider the motion to dismiss and for summary
judgment, the Court requests that the parties file a
joint status report regarding the timing of these
efforts, if any, by June 3, 2019.
SO ORDERED.
DATED: May 2, 2019.
App.81
/s/ David L. Horan
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.