Petition for Writ of Certiorari — Nicole Hutcheson, et al., Petitioners v. Dallas County, Texas, et al.

Supreme Court briefOct 8, 2021

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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.

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