Opposition Brief — Valerie Jackson, Petitioner v. Lupe Valdez, et al.

Supreme Court briefDec 15, 2021

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No. 21-710

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------VALERIE JACKSON,

Petitioner,

v.

LUPE VALDEZ; MARIAN BROWN;

DALLAS COUNTY, TEXAS,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF IN OPPOSITION

---------------------------------♦--------------------------------CHONG CHOE*

DALLAS COUNTY DISTRICT

ATTORNEY’S OFFICE – CIVIL DIVISION

500 Elm Street, Suite 6300

Dallas, Texas 75202

Telephone: (214) 653-7358

Facsimile: (214) 653-6134

chong.choe@dallascounty.org

Counsel for Respondents

*Counsel of Record

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

BRIEF IN OPPOSITION .....................................

1

OPINIONS BELOW.............................................

1

JURISDICTIONAL STATEMENT ......................

1

COUNTERSTATEMENT OF THE CASE ...........

1

REASONS FOR DENYING THE PETITION ......

5

I.

The Fifth Circuit Court of Appeals properly determined that recusal was not required .........................................................

5

II.

The Fifth Circuit Court of Appeals retained jurisdiction to replace its first unpublished opinion with its subsequent

unpublished opinion .................................. 12

III.

The Fifth Circuit properly determined

that the trial court’s granting of Respondents’ Motion to Dismiss under Rule

12(b)(6) should be affirmed ....................... 15

CONCLUSION..................................................... 30

ii

TABLE OF AUTHORITIES

Page

CASES

Andrade v. Chojnacki, 338 F.3d 448 (5th Cir.

2003) .................................................................... 5, 10

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................16

Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996) ..............15

Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520

U.S. 397 (1997) ........................................................19

Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007) ..................................................... 15, 16, 29, 31

Benavides v. County of Wilson, 955 F.2d 968 (5th

Cir. 1992) .................................................................27

Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.

1984) ........................................................................25

Brown v. Bryan Co., 219 F.3d 450 (5th Cir. 2000) .......26

Bryan v. City of Dallas, 188 F. Supp. 3d 611 (N.D.

Tex. 2016) ................................................................23

Burge v. St. Tammany Parish, 336 F.3d 363 (5th

Cir. 2003) .................................................................28

Campbell v. City of San Antonio, 43 F.3d 973

(5th Cir. 1995)..........................................................19

City of Canton v. Harris, 489 U.S. 378 (1989) ...... 26, 28

Collins v. City of Harker Heights, 503 U.S. 115

(1992) .......................................................................24

Connick v. Thompson, 563 U.S. 51 (2011) ...... 21, 23, 27

Cornish v. Corr. Servs. Corp., 402 F.3d 545 (5th

Cir. 2005) .................................................................17

iii

TABLE OF AUTHORITIES – Continued

Page

Cox v. City of Dallas, 430 F.3d 734 (5th Cir.

2005) ........................................................................17

Davis v. Bd. of Sch. Comm’rs of Mobile Cty., 517

F.2d 1044 (5th Cir. 1975) ....................................... 5, 9

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) .........17

Flanagan v. City of Dallas, 48 F. Supp. 3d 941

(N.D. Tex. 2014) ................................................. 20, 28

Fraire v. City of Arlington, 957 F.2d 1268 (5th

Cir. 1992) .................................................................19

Fuentes v. Nueces Cty., 689 F. App’x 775 (5th Cir.

2017) ............................................................ 20, 28, 29

Guidry v. Bank of LaPlace, 954 F.2d 278 (5th Cir.

1992) ........................................................................15

Henderson v. Dep’t of Pub. Safety & Corr., 901

F.2d 1288 (5th Cir. 1990) ....................................... 5, 9

Hicks-Fields v. Harris Cty., 860 F.3d 803 (5th Cir.

2017) ............................................................ 24, 25, 26

Higganbotham v. Oklahoma ex rel. Okla. Transp.

Comm’n, 328 F.3d 638 (10th Cir. 2003) ..................10

Kentucky v. Graham, 473 U.S. 159 (1985) ..................30

Kitchen v. Dallas Cty., 759 F.3d 468 (5th Cir.

2014) ........................................................................28

Littell v. Houston Indep. Sch. Dist., 894 F.3d 616

(5th Cir. 2018)..........................................................26

Longoria Next Friend of M.L. v. San Benito

Indep. Consol. Sch. Dist., 942 F.3d 258 (5th

Cir. 2019) .................................................................24

iv

TABLE OF AUTHORITIES – Continued

Page

Lopez-Rodriguez v. City of Levelland, Tex., 100 F.

App’x 272 (5th Cir. 2004) ........................................29

Malone v. City of Fort Worth, 297 F. Supp. 3d 645

(N.D. Tex. 2018) .......................................................25

McConney v. City of Houston, 863 F.2d 1180 (5th

Cir. 1989) ........................................................... 20, 22

Monell v. Dep’t of Social Servs., 436 U.S. 658

(1978) ............................................................. 3, 17, 18

Obergefell v. Hodges, 576 U.S. 644 (2015) ................ 6, 7

Parrish v. Bd. of Comm’rs of Ala. State Bar, 524

F.2d 98 (5th Cir. 1975) ...............................................5

Patterson v. Mobil Oil Corp., 335 F.3d 476 (5th

Cir. 2003) ............................................................... 5, 8

Pena v. City of Rio Grande City, 879 F.3d 613

(5th Cir. 2018).................................................... 21, 24

Peterson v. City of Fort Worth, 588 F.3d 838

(5th Cir. 2009), cert. denied, 562 U.S. 827

(2010) ............................................... 18, 20, 22, 26, 28

Pineda v. City of Houston, 291 F.3d 325 (5th Cir.

2002) ............................................................ 18, 20, 27

Piotrowski v. City of Houston, 237 F.3d 567 (5th

Cir. 2001) ............................................... 17, 18, 19, 20

Prince v. Curry, 423 F. App’x 447 (5th Cir. 2011) .... 22, 23

Quinn v. Guerrero, 863 F.3d 353 (5th Cir. 2017) .........27

Republican Party of Minn. v. White, 536 U.S. 765

(2002) .......................................................................10

v

TABLE OF AUTHORITIES – Continued

Page

Roberts v. City of Shreveport, 397 F.3d 287 (5th

Cir. 2005) .................................................................27

Spiller v. City of Texas City, Policy Dep’t, 130 F.3d

162 (5th Cir. 1997) ...................................................19

Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999) .........5

United States v. Cooley, 1 F.3d 985 (10th Cir.

1993) ..........................................................................9

United States v. Greenough, 782 F.2d 1556 (11th

Cir. 1986) .................................................................10

Valle v. City of Houston, 613 F.3d 536 (5th Cir.

2010) ........................................................................17

Webster v. City of Houston, 735 F.2d 838 (5th Cir.

1984) ............................................................ 18, 20, 25

World Wide Street Preachers Fellowship v. Town

of Columbia, 591 F.3d 747 (5th Cir. 2009) ..............28

Zarnow v. City of Wichita Falls, Tex., 614 F.3d

161 (5th Cir. 2010) ............................................. 20, 27

STATUTES

28 U.S.C. § 144 ................................................ 5, 8, 9, 12

28 U.S.C. § 455 ............................................... 5 9, 10, 12

28 U.S.C. § 1254(a) ........................................................1

42 U.S.C. § 1983 .................................................. passim

Fed. R. Civ. P. 12(b)(6) ......................................... passim

1

BRIEF IN OPPOSITION

OPINIONS BELOW

The Fifth Circuit Court of Appeals’ unpublished

Opinion affirmed: 1) the district court’s denial of Petitioner’s motion for recusal; and 2) the Rule 12(b)(6) dismissal of Respondents Dallas County and Sheriffs

Lupe Valdez and Marian Brown in their official capacities. The unpublished Opinion can be found at 852

Fed. App’x 129 (5th Cir. 2020). Pet. App. at 1. This unpublished opinion withdrew and superseded a previous unpublished opinion, which can be found at 2021

WL 1183020 (5th Cir. Mar. 29, 2021). Pet. App. at 23.

The Fifth Circuit Court of Appeals denied Petitioner’s Petition for Rehearing En Banc on June 15,

2021. Pet. App. at 92.

---------------------------------♦---------------------------------

JURISDICTIONAL STATEMENT

Respondents do not dispute this Court’s jurisdiction over this case pursuant to 28 U.S.C. § 1254(a), but

deny that the case satisfies the standard set forth in

Supreme Court Rule 10. Petitioner filed her Petition

for Writ of Certiorari on November 10, 2021.

---------------------------------♦---------------------------------

COUNTERSTATEMENT OF THE CASE

On November 2, 2018, Petitioner brought suit

through counsel, alleging that a strip search violated

her constitutional rights and filed a civil rights suit

2

under 42 U.S.C. § 1983 seeking unspecified damages

arising from her pretrial detention as an inmate of

the Dallas County Jail (“DCJ”). Pet. App. at 5. Subsequently, on May 22, 2019, Petitioner filed her First

Amended Complaint (“FAC”) against numerous Defendants, including Sheriff Lupe Valdez as former Sheriff of Dallas County; Sheriff Marian Brown, as current

Sheriff of Dallas County (hereinafter, Sheriffs Valdez

and Brown are collectively referred to as “Sheriffs”);

and Samuel Joseph and Lizyamma Samuel as employees of Dallas County (hereinafter, Samuel Joseph and Lizyamma Samuel are collectively referred

to as “Officers”); unknown Dallas County Employee III

(“Nurse”); and Dallas County, Texas (“County”). Petitioner’s FAC alleged that these Defendants, along with

other detention officers at the DCJ employed by the

Dallas County Sheriff ’s Department: 1) conducted an

invasive and unconstitutional strip search under the

Fourth and Fourteenth Amendments during Jackson’s

confinement in the DCJ; 2) violated her due process

rights under the Fifth and Fourteenth Amendments;

and 3) that Defendants Valdez and Brown failed to supervise and train employees.

On July 22, 2019, Defendants filed their Original

Answer to Petitioner’s FAC, in which they specifically

denied the general allegations asserted by Petitioner

and asserted qualified immunity and official immunity

as affirmative defenses. Defendants denied that they

violated the Petitioner’s constitutional rights. On August 12, 2019, Defendants filed their First Amended

Answer & Affirmative Defenses, asserting the same

3

general denial. Defendants also asserted the affirmative defenses of: 1) failure to state a claim; 2) qualified

and official immunity; 3) Monell v. Department of Social Services; and 4) proximate cause.

On July 22, 2019, Respondents filed a Motion to

Dismiss under Fed. R. Civ. P. 12(b)(6). On February 27,

2020, United States Magistrate Judge Irma Ramirez

issued her Findings, Conclusions, and Recommendation (“FCR”) to grant Respondents’ Motion to Dismiss.

Pet. App. at 46. On March 12, 2020, Petitioner filed her

objections to Judge Ramirez’s FCR. Subsequently, on

March 23, 2020, United States District Judge Brantley

Starr accepted Judge Ramirez’s FCR and granted partial judgment dismissing Petitioner’s claims against: 1)

Dallas County, Texas, and 2) Lupe Valdez and Marian

Brown, in their official capacities. That same day, Petitioner filed a Notice of Appeal.

In between Respondents’ filing of their motion to

dismiss and the notice of appeal filed by Petitioner, Petitioner also filed a motion to recuse seeking recusal of

the district judge. However, the district judge determined that recusal was unwarranted and denied Petitioner’s motion. Pet. App. at 76. Due to the denial of her

motion to recuse, on December 12, 2019, Petitioner

filed a petition for writ of mandamus with the Fifth

Circuit Court of Appeals, which was denied on December 19, 2019.

On March 29, 2021, the Fifth Circuit issued an unpublished opinion that: 1) affirmed the district court’s

decision to deny the motion to recuse, and 2) reversed

4

and remanded the district court’s decision granting

Respondents’ Rule 12(b)(6) motion so that the district

court could address an issue further. Pet. App. at 23.

However, prior to the issuance of a mandate, on April

7, 2021, an Opposed Motion to Correct the Opinion of

the Court by Third-Party Jeffrey C. Mateer was filed.

Petitioner filed a Response to Opposed Motion to Correct the Opinion of the Court by Non-Party Jeffrey C.

Mateer on April 8, 2021. A Reply In Support of Motion

to Correct the Opinion of the Court by Third-Party Jeffrey C. Mateer was then filed on April 9, 2021. Subsequently, the Fifth Circuit Court of Appeals issued an

unpublished opinion on May 18, 2021 that withdrew

and superseded the first unpublished opinion. This

opinion affirmed the judgment of the district court on

both the issue of recusal and the 12(b)(6) motion to dismiss. Pet. App. at 1. Concurrently, on the same date,

May 18, 2021, the Fifth Circuit Court of Appeals issued

an order denying as moot the movant Jeffrey C.

Mateer’s motion to correct the first unpublished opinion. Thereafter, on May 31, 2021, Petitioner filed a Petition for Rehearing En Banc, which was subsequently

denied on June 15, 2021. Pet. App. at 92. Petitioner

then filed her Petition for Writ of Certiorari on November 10, 2021.

---------------------------------♦---------------------------------

5

REASONS FOR DENYING THE PETITION

I.

The Fifth Circuit Court of Appeals properly

determined that recusal was not required.

On September 19, 2019, Petitioner filed a motion

to recuse in the trial court under 28 U.S.C. §§ 144 and

455. The standard of review for the denial of a motion

to recuse is abuse of discretion. Patterson v. Mobil Oil

Corp., 335 F.3d 476, 483 (5th Cir. 2003); Andrade v.

Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (citing Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999)). Furthermore, with respect to Section 144, it “applies only

to charges of actual bias.” Henderson v. Dep’t of Pub.

Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990). Additionally, a “judge must pass on the legal sufficiency

of the affidavit, buy may not pass on the truth of the

matter alleged.” Id. at 1296 (citing Davis v. Bd. of Sch.

Comm’rs of Mobile Cty., 517 F.2d 1044, 1051 (5th Cir.

1975)). There are three requirements for an affidavit to

be legally sufficient: “(1) the facts must be material and

stated with particularity; (2) the facts must be such

that if true they would convince a reasonable man that

a bias exists; and (3) the facts must show the bias is

personal, as opposed to judicial, in nature.” Id. (citing

Parrish v. Bd. of Comm’rs of Ala. State Bar, 524 F.2d

98, 100 (5th Cir. 1975)). The alleged bias must be a

“personal bias and prejudice against the party or in favor of the adverse of the party.” Parrish, 524 F.2d at

100.

Petitioner’s affidavit asserted that the district

judge, based on “positions advanced by the Court prior

6

to becoming a federal judge,” holds a bias or prejudice

against Jackson “as a member of the transgender community.” Petitioner attempted to support this claim

with examples of the district judge’s legal advocacy in

the course and scope of his prior employment with the

State of Texas, including litigation, panel discussions,

opinion letters, state congressional testimony, and

press releases. Specifically, Petitioner claimed that:

1

1)

“[W]hile a Deputy Attorney General for

the State of Texas, the judge presiding

over my case was involved in a lawsuit by

the State of Texas to restrict the rights of

transgender people.”

2)

In June 2016, “the presiding judge participated in an Attorney General opinion

concluding that the Fort Worth, Texas

school district violated state law in adopting

a policy to implement the Obama administration’s guidance permitting transgender students to use the bathroom of

their gender identity,” and that the “opinion was viewed as seeking to give states

like Texas a license to discriminate against

transgender students.”

3)

In an October 2015 panel discussion, “the

presiding judge over my case defended

the right of county clerks to refuse to issue marriage licenses to same-sex couples following the United States Supreme

Court’s opinion in Obergefell v. Hodges.”1

576 U.S. 644 (2015).

7

4)

“The Judge of this Court participated in

a June 2015 Attorney General opinion

making similar points written in the

wake of the Obergefell decision, referring

with apparent skepticism to ‘[t]his newly

minted federal constitutional right to

same-sex marriage.’ ”

5)

“[T]he judge presiding over my case has

also testified before the Texas legislature

supporting legislation to protect adoption

agencies to place children with same-sex

couples.”

6)

“[T]he judge of this Court supported the

judicial nomination of Jeffrey Mateer,

who was nominated in 2017 to preside

over a different Texas federal court, but

who was withdrawn in the wake of public

outcry for such reasons as a comment

that transgender children were part of

‘Satan’s plan.’ ” And although “claiming

not to have known of Mr. Mateer’s statement that transgender children were part

of ‘Satan plan’, the judge of this Court

does not appear to have disavowed such a

belief nor did he publicly withdraw his

support for Mr. Mateer.”

In addition to citing examples from the district

judge’s prior employment, Petitioner cited the district

judge’s responses to a questionnaire during his federal

judicial confirmation process:

1)

“[T]he judge of this Court refused to answer whether the Fourteenth Amendment

8

requires that states treat transgender

people the same as those who are not

transgender.”

2)

“The judge of this Court also refused to

answer a question as to whether history

and tradition should limit the rights afford to LGBT individuals, other than to

say he would apply binding precedent.”

3)

“The judge of this Court also refused to

answer whether he believes that the

government has a compelling interest in

eradicating discrimination against LGBT

people, other than to reference an irrelevant answer to another question.”

With these examples, Petitioner claimed “it is clear

the judge presiding over my case has a bias/prejudice

against me as a transgender individual.” While Petitioner seemingly would favor a literal reading of Section 144 to suggest that her affidavit alleging that the

district judge is biased against her is enough to automatically trigger the requirement for recusal, such an

interpretation would render Section 144 akin to a peremptory disqualification procedure and is incorrect.

Petitioner hung her argument on this interpretation

by noting that “[w]henever a party . . . makes and files

a timely and sufficient affidavit that the judge . . . has

a personal bias . . . against him . . . such judge shall

proceed no further.” See Patterson v. Mobil Oil Corp.,

335 F.3d 476, 483 (5th Cir. 2003). However, even the

language cited by Petitioner specifically indicates that

Petitioner must file a “sufficient affidavit.” Accordingly,

9

the district court properly took the time to evaluate Petitioner’s affidavit to determine whether it was “legally

sufficient.” Henderson, 901 F.2d at 1296 (citing Davis,

517 F.2d at 1051).

In reviewing the affidavit, both the trial court and

the Fifth Circuit Court of Appeals determined that Petitioner did not state facts in her affidavit showing that

the trial judge harbored an actual bias against Petitioner under Section 144, nor did she demonstrate

that the trial judge’s impartiality might reasonably be

questioned under Section 455(a). While Petitioner

cited examples of the trial judge’s past legal advocacy

in the course and scope of his employment for the State

of Texas, the statements reflected the legal positions of

the judge’s client and not the judge’s personal views.

Because attorneys regularly take legal positions on behalf of a client that he may or may not personally agree

with, and the statements made by the trial judge when

he was a Deputy Attorney General for the State of

Texas only involved legal issues he was actively taking

positions for on behalf of the State of Texas, the statements he made and positions he took were interpretations of statutes, case law, and administrative rules.

Therefore, those statements and positions did not

reflect any personal bias against Petitioner or the

LGBTQ community.

Respondents also note that “section 455 must not

be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest

unsubstantiated suggestion of personal bias or prejudice.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir.

10

1993). Section 455 “is not intended to give litigants a

veto power over sitting judges, or a vehicle for obtaining a judge of their choice.” Id. (citing United States v.

Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986)). Furthermore, while Petitioner attacks certain legal positions taken by the trial judge in his role as a litigator

prior to taking the bench, extrajudicial conduct does

not require the absence of preexisting views on the legal questions that the judge must decide. Republican

Party of Minn. v. White, 536 U.S. 765 (2002). Accordingly, the fact that a judge comes to a case with potentially preexisting views on the legal questions

presented, based on prior, extrajudicial learning, is no

grounds for disqualification. The standard for finding

bias and the objective test under Section 455 is that for

an objective observer, and not that of the “hypersensitive, cynical and suspicious person.” Andrade, 338 F.3d

at 462.

Furthermore, while Petitioner claims the facts

stated in her affidavit establish the trial judge’s partiality and bias, the general tone of those claims is a

contention that the district court maintains a partisan

or political affiliation that Petitioner presumes would

make the trial judge partial or biased in this case and

would be insufficient to establish a reason for recusal.

A judge’s prior participation in high-profile cases involving a group of people with which Petitioner identifies, without more, is insufficient to support a finding

of factual bias or an appearance of bias. See Higganbotham v. Oklahoma ex rel. Okla. Transp. Comm’n, 328

F.3d 638, 645 (10th Cir. 2003) (“It is, of course, an

11

inescapable part of our system of government that

judges are drawn primarily from lawyers who have

participated in public and political affairs.”) (internal

quotation marks and citation omitted).

Finally, Petitioner’s citations to responses in the

trial judge’s confirmation questionnaire fail to provide

any evidence of a personal bias against Petitioner, as

they indicate only a lack of a response or a response

that he would apply precedent. Declining to provide an

answer cannot be tantamount to evidence that a position for or against a proposition is being provided. Furthermore, since the plain language of the trial judge’s

responses during the judicial confirmation process

show that the trial judge answered that he would set

aside his personal beliefs and apply binding precedent

when asked about the legal treatment of LGBTQ individuals, those statements are insufficient to show a

personal bias against Petitioner. Accordingly, a reasonable person would be unable to conclude that the responses or lack of responses in a questionnaire are

evidence of the judge’s actual personal bias against Petitioner.

Lastly, while Petitioner attacked the trial judge’s

previous support of another judicial candidate based

on statements alleged to be attributed to that candidate, as noted by the Fifth Circuit Court of Appeals, a

judge’s previous support for another judicial candidate

does not amount to support of that nominee’s statements or beliefs.

12

In sum, the district court was correct in determining that Petitioner’s affidavit was legally insufficient

and that Petitioner failed to meet the test of showing

evidence of actual bias as determined from the viewpoint of an objectively reasonable person. Accordingly,

the Fifth Circuit did not err in its determination that

the trial judge’s decision to deny Petitioner’s motion to

recuse was not an abuse of discretion. Although Petitioner would propose that the trial judge was required

to recuse himself merely upon receipt of Petitioner’s affidavit, the trial judge properly took the time to analyze the affidavit for legal sufficiency and could readily

determine that it was insufficient to warrant his

recusal under Section 144 or 455(a).

II.

The Fifth Circuit Court of Appeals retained jurisdiction to replace its first unpublished opinion with its subsequent

unpublished opinion.

While Petitioner would attempt to pose that the

publication of the second unpublished opinion occurred

in a vacuum and that there was no justification for its

issuance, Petitioner failed to account for the filings

that the Fifth Circuit readily could determine permitted for the delay of the issuance of the mandate.

Petitioner correctly points out that on March 29,

2021, the Fifth Circuit issued an unpublished opinion

that: 1) affirmed the district court’s decision to deny

the motion to recuse, and 2) reversed and remanded

the district court’s decision granting Respondents’

13

Rule 12(b)(6) motion so that the district court could address an issue further. However, prior to any possible

deadline for the issuance of a mandate, on April 7,

2021, an Opposed Motion to Correct the Opinion of the

Court by Third-Party Jeffrey C. Mateer was filed. Petitioner filed a Response to Opposed Motion to Correct

the Opinion of the Court by Non-Party Jeffrey C.

Mateer on April 8, 2021. A Reply In Support of Motion

to Correct the Opinion of the Court by Third-Party Jeffrey C. Mateer was then filed on April 9, 2021. Subsequently, the Fifth Circuit Court of Appeals issued an

unpublished opinion on May 18, 2021 that withdrew

and superseded the first unpublished opinion; the second opinion affirmed the judgment of the district court

on both the issue of recusal and the 12(b)(6) motion

to dismiss. Concurrently, on that same date, May 18,

2021, the Fifth Circuit Court of Appeals issued an order denying as moot the movant Jeffrey C. Mateer’s

motion to correct the first unpublished opinion.

Petitioner would seemingly construe the requirement for a mandate to issue to be an immovable deadline, regardless of other motions that might be filed,

such as a post-decision motion to amend or correct, as

occurred in this case. However, Petitioner’s own actions

in filing a response to the Motion to Correct belie the

fact that Petitioner understood that the Fifth Circuit

Court of Appeals had before it a motion to be addressed

prior to the issuance of a final mandate as the deadline

to file a motion for rehearing could not have passed until after the Motion to Correct was addressed. As a

practical matter, to allow for the result advocated by

14

Petitioner would readily render motions to correct or

amend as an exercise in futility, as the appellate courts

would have great difficulty in reviewing and responding to such motions prior to Petitioner’s advocated

hard and fast deadline for an “informal mandate”

deadline being reached. Thereafter, long after Petitioner’s proposed deadline for an “informal mandate,”

on May 31, 2021, Petitioner filed a Petition for Rehearing En Banc, which was subsequently denied on June

15, 2021. If, as Petitioner contends, the deadline for

an “informal mandate” had passed, Petitioner would

seemingly have filed a frivolous petition for rehearing.

For all these reasons, Respondents would contend that

the Fifth Circuit Court of Appeals was well within its

prerogative to withdraw and supersede its original

opinion with its second unpublished opinion, as well as

to take the time necessary to review and rule on the

Motion to Correct that was before the court.

The Federal Rules of Appellate Procedure and the

Fifth Circuit’s rules also make clear that while the

mandate normally issues in most instances, there is no

hard and fast rule. As outlined in the Internal Operating Procedures for Fifth Circuit Rule 41, “Absent a motion for stay or a stay by operation of an order, rule, or

procedure, mandates will issue promptly on the 8th

day after the time for filing a petition for rehearing expires; or after entry of an order denying the petition.”

Furthermore, “[a]s an exception, and by court direction, the clerk will immediately issue the mandate

when the court dismisses a case for failure to prosecute

an appeal or for lack of jurisdiction, or in such other

15

instances as the court may direct.” Simply put, while

there may be a “regular process” for when the mandate

issues, there is no hard and fast “informal mandate”

deadline as suggested by Petitioner and it should go

without saying that a court can choose to issue or withhold the mandate “in such other instances as the

court may direct” – such as in a situation when the

court has a motion before it requesting affirmative relief, as was the case here. Accordingly, the Fifth Circuit

Court of Appeals issued the subsequent unpublished

opinion while it still maintained jurisdiction over the

case.

III. The Fifth Circuit properly determined

that the trial court’s granting of Respondents’ Motion to Dismiss under Rule 12(b)(6)

should be affirmed.

Rule 12(b)(6) allows a motion to dismiss for failure

to state a claim upon which relief can be granted. Fed.

R. Civ. P. 12(b)(6). Pleadings must show specific, wellpleaded facts, not mere conclusory allegations to avoid

dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281

(5th Cir. 1992). A court must accept those well-pleaded

facts as true and view them in the light most favorable

to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th

Cir. 1996). “[A] well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof of [the

alleged] facts is improbable, and ‘that a recovery is

very remote and unlikely.’ ” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 556 (2007). Nevertheless, a plaintiff

must provide “more than labels and conclusions, and a

16

formulaic recitation of the elements of a cause of action will not do.” Id. at 555; accord Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (emphasizing that “the tenet

that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions”). The alleged facts must “raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555.

Therefore, a complaint fails to state a claim upon

which relief may be granted when it fails to plead

“enough facts to state a claim to relief that is plausible

on its face.” Id. at 570.

A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that

the defendant is not liable for the misconduct

alleged. 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. Where a complaint

pleads facts that are “merely consistent with”

a defendant’s liability, it “stops short of the

line between possibility and plausibility of

‘entitlement to relief.’ ”

Iqbal, 556 U.S. at 678. When a plaintiff has “not

nudged their claims across the line from conceivable

to plausible, their complaint must be dismissed.”

Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678

(noting that “[d]etermining whether a complaint states

a plausible claim for relief will . . . be a context specific

task that requires the reviewing court to draw on its

judicial experience and common sense”).

17

To state a claim under Section 1983, a plaintiff

must allege facts that show: 1) deprivation of a right

secured by the Constitution and the laws of the United

States; and 2) the deprivation occurred under color of

state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545,

549 (5th Cir. 2005). In their motion to dismiss, Respondents requested dismissal of Petitioner’s claims of

municipal liability under Section 1983 for failure to

plead sufficient facts to support the existence of an official policy. A municipality may be liable under Section

1983 if the execution of one of its customs or policies

deprives a plaintiff of his or her constitutional rights.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91

(1978). Additionally, a municipality cannot be liable

under a theory of respondeat superior. Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). “Under the decisions of the Supreme Court and [the Fifth

Circuit], municipal liability under Section 1983 requires proof of three elements: a policy maker, an official policy; and a violation of constitutional rights

whose ‘moving force’ is the policy or custom.” Id. (citing

Monell, 436 U.S. at 694); see also Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010); Cox v. City of

Dallas, 430 F.3d 734, 748 (5th Cir. 2005).

“Official policy” is defined as:

1.

A policy statement, ordinance, regulation,

or decision that is officially adopted and

promulgated by the municipality’s lawmaking officers or by an official to whom

18

the lawmakers have delegated policymaking authority; or

2.

A persistent, widespread practice of city

officials or employees, which, although

not authorized by officially adopted and

promulgated policy, is so common and

well settled as to constitute a custom that

fairly represents municipal policy. Actual

or constructive knowledge of such custom

must be attributable to the governing

body of the municipality or to an official

to whom that body had delegated policymaking authority. Actions of officers or

employees of a municipality do not render

the municipality liable under § 1983 unless they execute official policy as above

defined.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.

1984) (per curiam); accord Pineda v. City of Houston,

291 F.3d 325, 328 (5th Cir. 2002). Where a policy is facially constitutional, a plaintiff must demonstrate that

it was promulgated with deliberate indifference to

known or obvious consequences that constitutional violations would result. Piotrowski, 237. F3d at 578-80 &

n.22; accord Peterson v. City of Fort Worth, 588 F.3d

838, 849-50 (5th Cir. 2009), cert. denied, 562 U.S. 827

(2010). “Deliberate indifference of this sort is a stringent test, and ‘a showing of simple or even heightened

negligence will not suffice’ to prove municipal culpability.” Piotrowski, 237 F.3d at 579 (stressing that “Monell plaintiffs [need] to establish both the causal link

19

(‘moving force’) and the City’s degree of culpability (‘deliberate indifference’ to federally protected rights)”).

“The description of a policy or custom and its relationship to the underlying constitutional violation . . .

cannot be conclusory; it must contain specific facts.”

Spiller v. City of Texas City, Policy Dep’t, 130 F.3d 162,

167 (5th Cir. 1997); accord Piotrowski, 237 F.3d 578-79.

“[A] complaint must contain either direct allegations

on every material point necessary to sustain a recovery

. . . or contain allegations from which an inference

fairly may be drawn that evidence on these material

points will be introduced at trial.” Campbell v. City

of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). In

Spiller, this Court found the allegation that “[an officer] was acting in compliance with the municipality’s

customs, practices or procedures” insufficient to adequately plead a claim of municipal liability. 130 F.3d at

167 (citing Fraire v. City of Arlington, 957 F.2d 1268,

1278 (5th Cir. 1992)).

In their motion to dismiss, Respondents noted that

Petitioner failed to plead sufficient facts to show an official policy of improperly searching and classifying

transgender inmates, as evidenced by custom. A plaintiff basing a municipal liability claim on an alleged

“ ‘custom’ that has not been formally approved by an

appropriate decision-maker may fairly subject a municipality to liability on the theory that the relevant

practice is so widespread as to have the force of law.”

Bd. Of County Comm’rs of Bryan City v. Brown, 520

U.S. 397, 404 (1997). A plaintiff may prove the existence of a custom by alleging “a pattern of abuses that

20

transcends the errors made in a single case.” Piotrowski, 237 F.3d at 582; see also Zarnow v. City of

Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir. 2010)

(explaining a plaintiff may prove the existence of a custom by showing a pattern of unconstitutional conduct

by municipal employees).

“Where prior incidents are used to prove a pattern,

they ‘must have occurred for so long or so frequently

that the course of conduct warrants the attribution to

the governing body of knowledge that the objectionable

conduct is the expected, accepted practice of city employees.’ ” Peterson, 588 F.3d at 850 (quoting Webster,

735 F.2d at 842). “A pattern requires similarity and

specificity.” Id. at 851. It “also requires ‘sufficiently numerous prior incidents,’ as opposed to isolated instances.” Id. (quoting McConney v. City of Houston, 863

F.2d 1180, 1184 (5th Cir. 1989)); see also Fuentes v.

Nueces Cty., 689 F. App’x 775, 778 (5th Cir. 2017) (quoting McConney, 863 F.2d at 1184). “Although there is no

rigid rule regarding numerosity, [the Fifth Circuit has

found] that 27 prior incidents of excessive force over a

three-year period . . . and 11 incidents offering “unequivocal evidence’ of unconstitutional searches over a

three-year period . . . were not sufficiently numerous

to constitute a pattern.” Fuentes, 689 F. App’x at 778;

compare Peterson, 588 F.3d at 850-52 (finding 27 incidents over three years insufficient, and Pineda, 291

F.3d at 329 (finding 11 incidents over three years insufficient), with Flanagan v. City of Dallas, 48 F. Supp.

3d 941, 954 (N.D. Tex. 2014) (finding that “[w]hile it

was a close call,” 12 shootings in the same year as the

21

shooting at issue, along with other facts regarding

prior shootings, were sufficient to infer a “persistent,

widespread practice by DPD officers” at the motion to

dismiss stage).

In this case, Petitioner’s complaint alleged that

there “was a widespread practice within the Dallas

County Sheriff ’s Office to conduct genital searches to

determine gender identity and to place inmates based

off of genitalia rather than the gender with which they

identify when confronted with a transgender inmate in

the Dallas County jail,” and that it was so “widespread

as to constitute a custom” of the County. However, although Petitioner points to her three prior detentions

at the Dallas County jail and a 2013 incident involving

C.W., Petitioner did not plead similar specific instances

of genital searches for the purposes of placement. Petitioner alleged that she had to show her genitalia when

she was booked in 2016, but did not allege that she was

subjected to a search when she was booked in 2017 and

2018. Petitioner also alleged a 2013 incident involving

C.W. as a transgender female forced to undress and

spread her buttocks prior to being given male attire.

However, Petitioner did not specifically allege that

C.W. was subjected to a genital search to verify gender.

Accordingly, Petitioner alleged only a single incident,

which is insufficient to infer a custom. Absent proof of

a pattern, deliberate widespread as to “practically

have the force of law,” a plaintiff must do more than

describe the incident that gave rise to his injury. Pena

v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir.

2018) (quoting Connick v. Thompson, 563 U.S. 51, 61

22

(2011)). A pattern requires similarity and specificity, as

well as “sufficiently numerous prior incidents” as opposed to “isolated instances.” Peterson v. City of Fort

Worth, 588 F.3d 838, 851 (5th Cir. 2009) (quoting

McConney v. City of Houston, 863 F.2d 1180, 1184 (5th

Cir. 1989)); see also Prince v. Curry, 423 F. App’x 447,

451 (5th Cir. 2011) (affirming dismissal of municipal

liability claims where the alleged “existence of only

one or, at most, two other similarly situated defendants” or “of one or two prior incidents” do not “plausibly

suggest that [defendant county] has a policy or custom

of unconstitutionally subjecting sex offenders to enhanced sentences”).

Petitioner candidly admitted in her appellate

brief to the Fifth Circuit Court of Appeals that she

was not strip searched on all three occasions. As such,

Petitioner relied on an argument that the population

of transgender detainees is very small, preventing a

greater number of incidents to establish a pattern from

occurring. At the same time that Petitioner argues

there is a small population preventing a greater number of incidents, she attempts to argue that there was

a widespread and common custom or policy in place;

these two arguments contradict each other as a small

population preventing a greater number of incidents

would seemingly indicate that it would not be possible

to establish any type of widespread and common custom. Regardless, even read in the light most favorable

to Petitioner, Petitioner has only alleged two genital

searches, and four instances of gender classifications

based on genitalia at the Dallas County jail. Based on

23

this reading, Petitioner claims that pleading facts for

only two such genital searches over a five-year period

is somehow sufficient to establish a widespread custom. Since Petitioner failed to plead additional instances, the failure to do should not be somehow

skirted over, since the entire reason for filing a Rule

12(b)(6) motion was due to Petitioner’s failure to allege

facts showing a custom “so persistent and widespread

as to practically have the force of law.” Connick, 563

U.S. at 61; see also Prince, 423 F. App’x at 451.

In any event, Petitioner additionally attempts to

argue that she had sufficiently pleaded a policy because she alleged that the County’s employees expressly acknowledged the policy and attributed it to a

policymaker, Sheriff Lupe Valdez. Petitioner alleges

that Officers and Nurse twice acknowledged a policy to

search genitalia for purposes of determining placement that they impliedly attributed to Sheriff Valdez, and that Captain Shelly Knight with the Dallas

County Sheriff ’s Department stated that she “could

see where some of the policy was misconstrued and

other parts were not followed.” However, a plaintiff ’s

allegations regarding a non-policymaker’s statements

that her actions were based upon her training (i.e., the

alleged policy) and the admissions of institutional failures by the official policymakers is not necessarily sufficient to plead an official policy to “inch[ ] past the

Rule 12(b)(6) threshold to survive dismissal.” Bryan v.

City of Dallas, 188 F. Supp. 3d 611, 618 (N.D. Tex.

2016).

24

In the present case, Petitioner referenced three

statements by County employees referring to a policy

impliedly attributed to Sheriff Valdez, two of which

were made by the same person, and a third that did

not specifically reference the supposed policy. Here

again, even viewed in the light most favorable to Petitioner, she has pled no facts that “adequately connected a policy to the policymaker.” Longoria Next

Friend of M.L. v. San Benito Indep. Consol. Sch. Dist.,

942 F.3d 258, 271 (5th Cir. 2019). Petitioner has pled

no institutional admissions or statements by a policymaker, only by non-policymaking employees. As noted

by this Court, the wrongful conduct of an employee

without policymaking authority cannot be considered

a municipal policy. Collins v. City of Harker Heights,

503 U.S. 115, 121 (1992). Since Petitioner relies only on

statements from non-policymaking employees to show

a policy or custom of searching genitalia for purposes

of transgender detainee placement, Petitioner has not

sufficiently alleged an official policy, as evidenced by a

persistent widespread practice so common and well

settled as to constitute a custom that fairly represents

municipal policy.

Respondents would also note that Petitioner failed

to plead any facts from which the knowledge of a custom or policy by a specific policymaker can reasonably be inferred. A municipality “cannot be liable for

an unwritten custom unless ‘[a]ctual or constructive

knowledge of such custom’ is attributable to a city policymaker.” Pena v. City of Rio Grande City, 879 F.3d

613, 623 (5th Cir. 2018 (citing Hicks-Fields v. Harris

25

Cty., 860 F.3d 803, 808 (5th Cir. 2017)). To establish

municipal liability under § 1983 based on an alleged

“persistent widespread practice or custom that is so

common it could be said to represent municipal policy,

actual or constructive knowledge of such practice or

custom must be shown.” Malone v. City of Fort Worth,

297 F. Supp. 3d 645, 654 (N.D. Tex. 2018) (citing HicksFields, 860 F.3d at 808). “Actual knowledge may be

shown by such means as discussion at council meetings or receipt of written information.” Hicks-Fields,

860 F.3d at 808 (quoting Bennett v. City of Slidell, 728

F.2d 762, 768 (5th Cir. 1984)). “Constructive knowledge may be attributed to the governing body on the

ground that it would have known of the violations if it

had properly exercised its responsibilities, as, for example, where the violations were so persistent and

widespread that they were the subject of prolonged

public discussion or a high degree of publicity.” Id.

In this case, Petitioner alleges that either “Valdez

or [ ] Brown served as a policy maker for Dallas County

in relation to the policies, written and unwritten, regarding detainees held in the custody of the Dallas

County Sheriff’s Department and confined in the

Dallas County jail.” However, even if Petitioner had

alleged facts of a widespread practice of genitalia

searches for gender classification by jail staff at the

Dallas County jail, she has not alleged facts to show

“ ‘actual or constructive knowledge of such custom’ by

the municipality or the official who had policymaking

authority.” Hicks-Fields, 860 F.3d at 808 (citing Webster, 735 F.2d at 841). There are no allegations that

26

issues involving transgender detainees at the Dallas

County jail were considered at an official meeting attended by Sheriffs, or that information about the purported custom had been directed to Sheriffs. See

Hicks-Fields, 860 F.3d at 808. Accordingly, Petitioner

failed to allege facts that any policymaker had constructive knowledge of a custom of searching genitalia

for purposes of determining placement of transgender

detainees at the Dallas County jail.

Next, Petitioner’s claims for failure to train, supervise and discipline were properly dismissed because

Petitioner failed to plead sufficient facts to permit a rational inference to support an official adopted or promulgated policy regarding failure to train. Petitioner

further failed to plead sufficient facts to permit a rational inference of policymaker deliberate indifference

on her failure to train claim. “[W]hen a municipal entity enacts a facially valid policy but fails to train its

employees to implement it in a constitutional manner,

that failure constitutes ‘official policy’ that can support

municipal liability if it ‘amounts to deliberate indifference.’ ” Littell v. Houston Indep. Sch. Dist., 894 F.3d 616,

624 (5th Cir. 2018) (quoting City of Canton v. Harris,

489 U.S. 378, 388 (1989)); see Peterson, 588 F.3d at 849

(citing Brown v. Bryan Co., 219 F.3d 450, 458 (5th Cir.

2000), cert. denied, 131 S. Ct. 66 (2010)) (“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.”) Nevertheless, “[a] municipality’s culpability for a deprivation of

27

rights is at its most tenuous where a claim turns on a

failure to train.” Connick v. Thompson, 563 U.S. 51, 61

(2011). To establish municipal liability based on a failure to train in the Fifth Circuit, a plaintiff must show:

1) inadequate training procedures; 2) that inadequate

training caused the constitutional violation; and 3) the

deliberate indifference of municipal policymakers.

Quinn v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017)

(quoting Pineda, 291 F.3d at 332). “In addition, for liability to attach based on an ‘inadequate training’ claim,

a plaintiff must allege with specificity how a particular training program is defective.” Roberts v. City of

Shreveport, 397 F.3d 287, 293 (5th Cir. 2005) (citing Benavides v. County of Wilson, 955 F.2d 968, 973 (5th Cir.

1992)).

Petitioner completely failed to plead any facts establishing any level of specificity for how a particular

training program was defective. Petitioner generally

alleged that the County “failed to provide constitutionally adequate training and supervision regarding the

use of searches to determine gender and placement of

transgender inmates.” Petitioner did not identify a

specific training policy and provided only conclusory

allegations that the County’s training policies or procedures were inadequate. See Roberts, 397 F.3d at 293.

As Petitioner failed to allege even the existence of an

allegedly inadequate training policy or procedure, she

failed to sufficiently plead the first element that “a

training policy or procedure was inadequate.” Zarnow,

614 F.3d at 170 (quoting Roberts, 397 F.3d at 293).

28

However, even if a Court were to presume that Petitioner had somehow properly pleaded facts establishing with specificity how a particular training program

was defective, Petitioner also failed to allege facts

showing deliberate indifference. “The failure to train

[or supervise] must reflect a ‘deliberate’ or ‘conscious’

choice by a municipality.” World Wide Street Preachers

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

2009) (quoting City of Canton, 489 U.S. at 389). To show

that a municipality acted with deliberate indifference,

a plaintiff must demonstrate “at least a pattern of similar violations arising from training that is so clearly

inadequate as to be obviously likely to result in a constitutional violation.” Burge v. St. Tammany Parish,

336 F.3d 363, 370 (5th Cir. 2003); see Flanagan v. City

of Dallas, 48 F. Supp. 3d 941, 956 (N.D. Tex. 2014)

(quoting Kitchen v. Dallas Cty., 759 F.3d 468, 484 (5th

Cir. 2014)) (stating that the most common approach to

assert a failure to train claim is to demonstrate a pattern of similar violations that “were ‘fairly similar to

what ultimately transpired’ when the plaintiff ’s own

constitutional rights were violated.”). As previously

noted, the alleged pattern of prior incidents require

“similarity and specificity” and must be “sufficiently

numerous.” See Fuentes, 689 F. App’x at 778; Peterson,

588 F.3d at 851.

In the present case, Petitioner generally alleged

that the defendants were “deliberately indifferent to

[her] safety and dignity” because they knew or should

have known that the County’s employees would have

to deal with processing transgender detainees on a

29

regular basis, and that the situation “had the real potential for injury and/or serious harm to a citizen,” but

they “provided no training or inadequate training to

employees on how to deal with this situation.” Petitioner then claims that the County’s “practices, policies, customs and/or the constitutionally inadequate

training were the moving forces behind the constitutional violations that resulted in [her] mental/emotional

injuries.” However, in support thereof, Petitioner included in her pleadings only the three times she was

booked in the Dallas County jail and the 2013 incident

involving C.W. As noted above, the incidents pled by

Petitioner do not rise to the level of a pattern of constitutional violations. See Fuentes, 689 F. App’x at 778.

Since these incidents are distinguishable from each

other and are not sufficiently numerous to establish a

pattern, they are insufficient to show a custom or policy supporting municipal liability under the theories

of failure to train, supervise or discipline. See LopezRodriguez v. City of Levelland, Tex., 100 F. App’x 272,

274 (5th Cir. 2004); see also Fuentes, 689 F. App’x at

778. Without such a pattern, the need for training

could not have been “plainly obvious” to Dallas County

or its policymakers.

Even if a Court were to accept Petitioner’s wellpleaded facts as true and viewed them in the light most

favorable to her, Petitioner has utterly failed to nudge

her failure to train, supervise, or discipline claim

across the line from conceivable to plausible. See

Twombly, 550 U.S. at 555. For all these reasons, Petitioner failed to plead sufficient facts to support a

30

finding of municipal liability under Section 1983.

Furthermore, Petitioner sued the Sheriffs in their official capacities and official capacity claims are merely

another way of pleading an action against the entity of

which the individual defendant is an agent. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore,

Petitioner’s Section 1983 claims against Sheriffs in

their official capacities were essentially claims against

their employer, Dallas County. See Graham, 473 U.S.

at 165. But, since Petitioner failed to state a claim for

municipal liability against Dallas County, the district

court properly determined that the official capacity

claims against Sheriffs under Section 1983 also failed.

Id. For all these reasons, the Fifth Circuit did not err

in affirming the decision of the trial court to grant Respondents’ Rule 12(b)(6) motion to dismiss.

---------------------------------♦---------------------------------

CONCLUSION

The Fifth Circuit properly determined that the

district court did not abuse its discretion in denying

the Petitioner’s motion to recuse and the Fifth Circuit’s

review of that decision does not warrant review. Petitioner has failed to demonstrate that any prior precedent of this Court, or the Fifth Circuit, placed this

determination as being unwarranted. Furthermore,

the Fifth Circuit was well within its rights to provide

a substituted opinion as the court had not issued a

mandate and, per the Internal Operating Procedures

of Fifth Circuit Rule 41, the court was well within its

rights to withhold issuance of the mandate until it was

31

ready to do so. Finally, pursuant to this Court’s standards set forth in Monell, Iqbal and Twombly, Petitioner failed to plead allegations with sufficient detail

to establish a right to relief and the Fifth Circuit Court

of Appeals did not err in affirming the trial court’s decision to grant Respondents’ 12(b)(6) motion to dismiss.

Accordingly, Respondents respectfully request that

this Court deny Petitioner’s Petition for Writ of Certiorari.

Respectfully submitted,

CHONG CHOE*

DALLAS COUNTY DISTRICT

ATTORNEY’S OFFICE – CIVIL DIVISION

500 Elm Street, Suite 6300

Dallas, Texas 75202

Telephone: (214) 653-7358

Facsimile: (214) 653-6134

chong.choe@dallascounty.org

Counsel for Respondents

*Counsel of Record

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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Opposition Brief — Valerie Jackson, Petitioner v. Lupe Valdez, et al. | Frix