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The Fifth Circuit Court of Appeals retained jurisdiction to replace its first unpublished opinion with its subsequent
unpublished opinion .................................. 12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.