Petition for Writ of Certiorari — Jantzen Verastique, et al., Petitioners v. City of Dallas, Texas, et al.

APPENDIX TABLE OF CONTENTS

Appendix A: United States Court of Appeals

for the Fifth Circuit, Opinion, July 8, 2024 . . . . . 1a

Appendix B: United States District Court

for the Northern District of Texas, Dallas

Division, Order, March 20, 2023 . . . . . . . . . . . . 30a

Appendix C: United States District Court

for the Northern District of Texas, Dallas

Division, Amended Rule 54(b) Judgment,

March 22, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 33a

Appendix D: United States District Court

for the Northern District of Texas, Dallas

Division, Plaintiffs’ Complaint, Excerpt,

May 31, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a

APPENDIX A

United States Court of Appeals

for the Fifth Circuit

No. 23-10395

[DATE STAMP]

United States Court of Appeals

Fifth Circuit

FILED

July 8, 2024

Lyle W. Cayce

Clerk

Jantzen Verastique; Dondi Morse; Parker Nevills;

Yolanda Dobbins; David Baker, also known as Dabi

Baker; Maggie Little,

Plaintiffs—Appellants,

versus

The City of Dallas, Texas; Dallas County;

Dallas County Sheriff’s Office,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:22-CV-1182

Before Smith, Elrod, and Graves, Circuit Judges.

Jerry E. Smith, Circuit Judge:

1a

Plaintiffs1 are self-described “lawful and peaceful

protestor[s]” who sued various governmental entities

and officers2 under 42 U.S.C. § 1983, seeking money

damages for myriad alleged constitutional

violations—all stemming from their participating in

the “George Floyd” demonstrations in Dallas. The

district court dismissed their claims against the City,

the County, and the Sheriff’s Office. On appeal,

plaintiffs contend that the district court erred in

dismissing their municipal liability claims against the

City. We affirm.

I.

A. Background

In 2020, major metropolitan areas were consumed

by demonstrations following the release of a video

depicting the well-known George Floyd incident in

Minneapolis. Texas was not spared: Some of its cities

suffered, inter alia, “widespread [and] severe damage,

injury, and property loss.”3 In Dallas, demonstrations

ultimately devolved into “several days of riots,

1

Jantzen Verastique, Dondi Morse, Parker Nevills, David

Baker, Maggie Little, and Yolanda Dobbins.

2

Including, inter alia, the City of Dallas, Dallas County,

and the Dallas County Sheriff’s Office.

3

Governor Greg Abbott, Proclamation (May 31, 2020),

tinyurl.com/mvxk222c.

2a

destruction of property, and assaults on police.”4

“[I]ndividuals[,] bent on rioting and looting[,]”

“rov[ed] throughout the downtown area,” and

“[d]estruction quickly followed as [they] began

damaging businesses, police vehicles, and starting

fires.” After Action Report at 10, 19. Agitators,

ignoring orders to disperse, “began inciting the crowd

to confront officers.” Id. at 12. Numerous

stores—including “[t]wo [f]irearm businesses”—were

looted and burglarized. Id. Rioters jumped onto police

vehicles and threw “various objects including bricks

and rocks at officers.” Id. at 10. Swarms of rioters

commandeered I-35E, “forcing motorists to swerve in

order to avoid striking pedestrians and eventually

stopping traffic.” Id.

All told, the riots inflicted extreme economic harm

on Dallas—with one initial damage estimate

ascertaining “over five million dollars of property

destruction . . . in the central business district alone.”

Id. at 7.

B. Plaintiffs Participate in the Dallas Demonstrations

4

Dallas Police Department, George Floyd Protests After

Action Report 4 (August 14, 2020), tinyurl.com/5n9braye

[hereinafter After-Action Report]. Plaintiffs referred extensively

to the After-Action Report in their complaint, see ROA.38–39, and

in responding to motions to dismiss, see ROA.314 & nn.9–10. We

“must consider . . . documents incorporated into the complaint by

reference.” Jackson v. City of Hearne, 959 F.3d 194, 204–05 (5th

Cir. 2020) (cleaned up).

3a

Verastique and Morse, two participants, joined a

crowd of demonstrators marching somewhere on or

alongside Reunion Boulevard.5 As the crowd

approached I-35E, Verastique and Morse allegedly saw

“a [b]lack woman on the ground crying out in pain.”

They further claim that officers from the Dallas Police

Department (“DPD”) began arresting demonstrators

who had “helped th[at] [b]lack woman to her feet.”

Verastique and Morse responded by approaching,

and engaging with, those officers—allegedly in an

“attempt[] to explain to the officers that the

[demonstrators] had not committed any crime[s].” That

prompted one of the officers—Roger Rudloff—to order

Verastique to “stop and place her hands in the air.”

Allegedly, she “immediately complied and remained a

lawful peaceful protestor.” She was arrested by Rudloff

after being subdued with a less-than-lethal PepperBall

round. Rudloff then ordered Morse to the ground and

arrested her as well.

While Rudloff was effecting Verastique’s and

Morse’s arrests, Nevills approached. Nevills alleges

that, running toward the three individuals, he was

“hoping to render aid” to Verastique. Nevills was then

subdued with PepperBall rounds and arrested.

5

Verastique’s and Morse’s precise position in relation to

Reunion Boulevard is somewhat unclear. Their briefing on appeal

states that they were walking on “a grassy slope near the

interstate.” But, when asked at oral argument whether “they were

on the field or the road,” plaintiffs’ counsel acknowledged that

“[t]here’s dispute . . . about where [his] clients were located.”

4a

Little and Baker participated in demonstrations

occurring in another part of Dallas. They ended up in

a parking garage after tear gas was deployed to

disperse the crowds. They allege that DPD officers

prevented them from leaving. After repeatedly asking

for the officers’ names and badge numbers, they

further allege they were roughed up and arrested.

Baker was released from custody shortly

thereafter on account of the alleged injuries. The other

plaintiffs spent one night in jail. All were charged with

various criminal offenses initially, though all charges

were dropped approximately two weeks later.6

Plaintiffs sued, as relevant here, the City of Dallas;

Dallas County; and the Dallas County Sheriff’s Office,

raising myriad claims under § 1983. All three

defendants filed motions to dismiss for failure to state

a claim. See Fed. R. Civ. P. 12(b)(6). Granting the

motions, the district court dismissed plaintiffs’ claims

with prejudice, and they appeal.

II.

Grants of Rule 12(b)(6) motions to dismiss are

reviewed de novo. Armstrong v. Ashley, 60 F.4th 262,

269 (5th Cir. 2023). Though we accept “all wellmoving party,’” we do not ....presume true a number of

categories of statements, including legal conclusions;

mere labels; threadbare recitals of the elements of a

6

Including charges for “obstruction of a roadway” and

“riot participation.”

5a

cause of action; conclusory statements; and naked

assertions devoid of further factual enhancement.’” Id.

(quoting Harmon v. City of Arlington, 16 F.4th 1159,

1162–63 (5th Cir. 2021)). “[A] complaint must contain

sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face” and to

survive a motion to dismiss. Johnson v. Harris Cnty.,

83 F.4th 941, 945 (5th Cir. 2023) (quoting Pena v. City

of Rio Grande City, 879 F.3d 613, 618 (5th Cir. 2018)).

III.

On appeal, plaintiffs challenge only the dismissal

of their Monell claims against the City.7 Those allege

that the City is liable for constitutional violations

resulting from its (A) failing adequately to discipline

its police officers and (B) promulgating General Order

609.00, an official—but allegedly facially

unconstitutional—policy relating to mass arrests.

To hold a municipality liable under § 1983, a

plaintiff must “show that <(1) an official policy (2)

promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional

right.’” Johnson, 83 F.4th at 946 (quoting Pena, 879

F.3d at 621). An unofficial policy or custom, such as

“the decisions of a government’s law-makers, the acts

of its policymaking officials, and practices,” can suffice

for purposes of showing the existence of an “official

7

They do not contest the dismissal of their claims against

the County and the Sheriff’s Office, or any of Dobbins’s claims.

Thus, any issues relating to those claims are forfeited. See Rollins

v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021).

6a

policy”—but only if it is “so persistent and widespread

as to practically have the force of law.” Id. (cleaned

up).

A. Failure to Discipline

Plausibly to plead a Monell claim in the context of

a failure-to-discipline claim, plaintiffs must show (1)

that the city’s failure to discipline amounted to

deliberate indifference and (2) a causal link between

the failure to discipline and the violation of their

rights. See Armstrong, 60 F.4th at 277. So, to survive

dismissal, plaintiffs must cite sufficiently numerous

prior incidents, each of which includes specific facts

that are sufficiently similar to those alleged here. See

Johnson, 83 F.4th at 946–47; see also Armstrong, 60

F.4th at 276. Plaintiffs utterly fail to make that

requisite showing.

1. Persistent and Widespread Practice

Though the complaint lists nineteen incidents

involving one officer, those incidents do not constitute

“any pattern of conduct—much less a pattern of

similar violations.” Johnson, 83 F.4th at 947. Most are

conclusory and devoid of critical factual enhancement.

What scant factual details plaintiffs provide

affirmatively proves that all nineteen incidents are

wholly inapposite to the case at hand.

For starters, of the nineteen incidents, eight not

only are devoid of factual support but are also

inscrutably vague. See id. Indeed, the complaint

describes those eight in one sentence: “Between 1998

7a

and 2000, another eight complaints were filed against

Defendant Rudloff for alleged physical and verbal

abuse.” Where did those incidents take place? Did all

eight involve both physical and verbal abuse? How did

the abuse occur? What even are the alleged

constitutional violations? How was each complaint

resolved? Plaintiffs do not say, and we have not a clue.

Needless to say, those eight incidents—vague and

barren of factual support—are patently incapable of

showing the existence of any pattern of conduct. Id. So,

even before we consider the eleven incidents that

remain, already unsustainable is plaintiffs’ assertion

that “the[ir] pleadings . . . provided highly specific

information detailing each [incident].”

Turning to those eleven: A hodge-podge of

unrelated allegations, they are but isolated examples

of, at most, deficient performance or bad

judgment—not to mention their stark factual

dissimilarities to what the plaintiffs allegedly

experienced.

First, and fatally, none of those remaining

incidents includes sufficient factual detail. Plaintiffs,

for example, cite five incidents allegedly involving a

flashlight or nightstick. Some are listed incident-byincident. But all still remain totally devoid of critical

facts. What prompted the encounters? Did the

individuals threaten Rudloff with physical harm? Were

they attempting to resist arrest?

Once again, the complaint does not say, and we are

left with nary an answer. So vague and so conclusory,

8a

the eleven remaining incidents plainly do not “raise a

right to relief above the speculative level.” Id. at 946

(quoting Armstrong, 60 F.4th at 270).

Second, and worse still, none even involves facts

remotely related to the specific violations in plaintiffs’

complaint. Four include no allegation of physical

conduct.8 None involved the use of “less-than-lethal”

weapons or occurred in the context of a large-scale,

multi-day, city-wide riot that became so violent and

deadly as to trigger a statewide disaster declaration.9

The complaint’s threadbare descriptions of those

incidents only further prove the point. In one, the

complaint states that Rudloff “and other officers

allegedly slammed a man’s head into the ground while

arresting him for public intoxication.” But plaintiffs

did not allege they were intoxicated. Another describes

an incident where Rudloff allegedly choked a man and

struck him with the palm of his hand. Not once did

plaintiffs allege they were choked. Also described are

two car-related incidents, one involving a traffic stop

and the other a carjacking. Yet, at the time they were

arrested, plaintiffs were marching on foot. So, plainly,

they were not driving a car—much less one that had

been reported stolen.

8

Indeed, in describing one of those incidents, plaintiffs

state that “Rudloff was radio with other officers.’” Offhand banter

between employees cannot establish that the City was deliberately

indifferent to allegations of excessive force.

9

See Abbott, supra note 3.

9a

All nineteen incidents described in the complaint

lack “similarity and specificity” and do not “point to

the specific violation in question.” Edwards v. City of

Balch Springs, 70 F.4th 302, 313 (5th Cir. 2023)

(cleaned up). Therefore, they cannot plausibly

establish a pattern of constitutional violations. The

district court correctly dismissed plaintiffs’ Monell

claims premised on the City’s failing adequately to

discipline its officers.

2. Deliberate Indifference

Assume, arguendo, that all nineteen incidents

listed in the complaint are sufficiently specific and

similar. Even so, plaintiffs’ failure-to-discipline claim

still fails on an alternate ground. Nothing in their

complaint suggests that it was “obvious that <the

highly predictable consequence’ of not supervising its

officers was that they could apply force in such a way

that the Fourth Amendment rights of [citizens] were at

risk.’” Peterson v. City of Fort Worth, 588 F.3d 838, 850

(5th Cir. 2009) (quoting Brown v. Bryan Cnty., 219

F.3d 450, 461 (5th Cir. 2000)).

According to plaintiffs, DPD investigated Rudloff’s

conduct nineteen times in twenty-three years. They

observe, however, that only five of those investigations

resulted in disciplinary actions—none of which, in

their opinions, was sufficiently severe. Further, they

allege that those disciplinary consequences were

functionally offset when DPD subsequently “showered

[Rudloff] with praise” and granted him more

supervisory responsibilities. Based on those

allegations, plaintiffs aver that DPD was

10a

constructively aware of—but deliberately indifferent

to—a department-wide pattern of constitutional rights

violations. Not so.

The complaint includes insufficiently numerous

incidents to create a pattern capable of providing

constructive notice. It took twenty-three years to

amass the nineteen incidents mentioned in the

complaint. Plaintiffs posit that the protracted time

span works in their favor. In their view, the fact that

the incidents occurred over two decades further

evinces a consistent pattern of failed discipline.

Incorrect.

Given a constant number of incidents, a longer

time span yields a lower rate of violations—militating

against constructive notice. Nineteen allegations over

the span of twenty-three years yields a mere

annualized incident rate of 0.826. In other words:

Plaintiffs—at most—show that, for over two decades,

Rudloff, on average, received fewer than one accusation

of misconduct per year.

Further cutting against plaintiffs’ claim of a

consistent pattern of failed discipline are the factors

our caselaw has identified as “relevant to determining

whether a series of incidents can be called a pattern,”

Peterson, 588 F.3d at 851–52 (citing Pineda v. City of

Houston, 291 F.3d 325, 329 (5th Cir. 2002)). Those

factors—such as department size and number of

arrests—provide the context necessary to evaluate

whether an alleged department-wide pattern is so

obvious as to impart constructive notice. See id. at 851.

11a

Absent those contextual factors, it is impossible to

identify the existence of a pattern—much less one that

imparts constructive notice. Given a constant number

of incidents, the percentage of conduct supporting a

pattern of illegality shrinks as the size of the police

department or the number of arrests increases.10

Accordingly, depending on context, an identical

number of incidents can strongly support—or render

“truly uncompelling”—an inference of a pattern of

illegality. Pineda, 291 F.3d at 329.11

Yet, inexplicably, the complaint eschews

discussing either factor. Lacking any context or frame

of reference, it trades rational analysis for a random

shot in the dark. Plaintiffs have no clue whether

nineteen incidents over twenty-three years is

sufficiently frequent to be obvious in the context of

DPD. So, though they purport to discover a pervasive

pattern of failure to discipline, in reality they have

alleged nothing at all.

Had plaintiffs taken a more reasoned approach,

they would have acknowledged that DPD employs

3,200 to 3,300 officers and serves one of the largest

10

To the point where the allegedly unconstitutional

incidents form but a tiny sliver of the arrests made in the

coterminous period, making the sample “just too small.” See

Pineda, 291 F.3d at 329.

11

See also id. (“Eleven incidents each ultimately offering

equivocal evidence of compliance with the Fourth Amendment

cannot support a pattern of illegality in one of the Nation’s largest

cities and police forces.”).

12a

cities in the nation.12 “Given the department’s size, and

absent any evidence of its total number of arrests

during the same time period,” only one conclusion can

reasonably follow: Nineteen incidents over twentythree years does not support any inference of a

department-wide pattern of illegality.13

In sum, the nineteen incidents are not sufficiently

similar, specific, or numerous. Therefore, the district

court correctly dismissed plaintiffs’ failure-todiscipline claim.

B. General Order 609.00

Plaintiffs attempt to establish the first and third

Monell elements14 by alleging that General Order

609.00 is unconstitutional on its face because it (1)

permits DPD officers “to conduct arrests as they saw

necessary to quell a civil unrest incident,” with (2) no

further “guidance or restrictions on arrests.” Put

another way, they fault the Order for (1) committing

certain decisions to the discretion of municipal

employees and (2) failing comprehensively to explain

every hypothetical stricture that might touch on the

12

As appellee’s counsel explained at oral argument.

13

Peterson, 588 F.3d at 851; see also id. at 851 & n.4

(“twenty-seven incidents in four years is not sufficient evidence of

a pattern rising to the level of a policy” given the department’s

employing “more than fifteen-hundred officers” (cleaned up)).

14

Namely, (1) an official policy that was (3) the moving

force behind the violation of a constitutional right. See Johnson,

83 F.4th at 946.

13a

legality of an arrest.

For purposes of a Monell claim, an official, written

policy is facially unconstitutional if it “affirmatively

allows or compels unconstitutional conduct.” Edwards,

70 F.4th at 309 (citation omitted). General Order

609.00 does neither. Indeed, plaintiffs’ own

characterization of General Order 609.00 describes—to

a tee—a facially valid policy. An official policy that

merely (1) “commits some decisions to an individual

officer’s on-the-scene discretion” or (2) “gives some

detailed instructions while omitting others” does not

“affirmatively allow[] or compel[]” unconstitutional

conduct.15 Edwards, 70 F.4th at 309.

General Order 609.00 in no way abrogates the

applicability or effectiveness of pre-existing

constitutional protections. See id. at 310. It does not

render DPD officers any less capable—or any less

obligated—to act in accordance with the Constitution’s

commands.16 Officers are not prohibited from

exercising the Order’s grants of discretion in a

constitutionally valid manner. Nor are they required

15

Unless “those features stem from the policymaker’s

deliberate indifference.” Edwards, 70 F.4th at 309; see also

Peterson, 588 F.3d at 850. But plaintiffs never allege that General

Order 609.00 was so enacted. So that theoretical possibility is of

no moment.

16

After all, discretion can be exercised constitutionally,

and omitted instructions can be obtained elsewhere. See id.

(noting that a recitation of “every jot and tittle of the applicable

caselaw . . . would produce a behemoth” of a policy “free of any

practical use”).

14a

to disregard restrictions or limitations not expressly

mentioned in the text of the Order itself. Indeed,

counsel for Verastique admitted at oral argument that

the Order “doesn’t specifically state [that officers] don’t

need probable cause” and that it “does not prohibit”

“individualized findings of probable cause.” Thus,

plaintiffs’ facial attack on the Order lacks merit.

For good reason too: Plaintiffs’ assault on General

Order 609.00 cannot be squared with the limitations

that § 1983 places on the scope of municipal liability.

Under their theory, a municipality’s official policy

must be unconstitutional on its face (1) if any one

employee’s “mere exercise of discretion . . . could give

rise to a constitutional violation” or (2) if it fails

expressly to provide, in detail, any “guidance that

might have averted a constitutional violation.”

Edwards, 70 F.4th at 309–10 (cleaned up) (emphasis

added). And since a “facially unconstitutional policy’s

mere existence satisfies the moving-force requirement

that is Monell’s third element,” id. at 308 (citation

omitted), plaintiffs’ theory would permit recovery from

municipalities merely on the basis of an “individual

violation perpetrated by a local government

employee”17—thereby making municipal liability

“indistinguishable from respondeat superior liability,”

Edwards, 70 F.4th at 309 (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 126 (1988)).

But that cannot be, for Monell claims predicated

17

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th

Cir. 2001) (cleaned up).

15a

on respondeat superior liability are wholly alien to the

plain meaning of § 1983.18 The statute does not

“impose liability vicariously on governing bodies solely

on the basis of the existence of an employer-employee

relationship with a tortfeasor.” Brown, 520 U.S. at 403

(citation and internal quotation marks omitted).

Accordingly, a municipality is liable only for its own

illegal acts.19 Yet, that’s precisely what plaintiffs’

theory does: It holds municipalities liable for the

unsanctioned and unordered acts of others. See id.

Unsurprisingly, that yields an end-state that the text

of § 1983 will not bear. Piotrowski, 237 F.3d at 578.

In sum, plaintiffs have not plausibly pleaded that

General Order 609.00 is unconstitutional on its face.

Dismissal of their claims premised on facial invalidity

was therefore proper.20

18

Id. (citing Bd. of Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 403 (1997)).

19

That is, acts “which the municipality has officially

sanctioned or ordered.” Edwards, 70 F.4th at 308 (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)); see also

Piotrowski, 237 F.3d at 578 (“isolated unconstitutional actions by

municipal employees will almost never trigger [municipal]

liability” (citations omitted)).

20

Plaintiffs also assert that former DPD Chief Reneé Hall

was the City’s policymaker whose actions resulted in their alleged

injuries. But their complaint does not plead sufficiently any

unconstitutional policy or custom, so “the specific identify [sic] of

the policymaker is neither here nor there.” Pena, 879 F.3d at 623

n.15 (cleaned up). Accordingly, we pretermit further consideration

of that assertion and, therefore, decline to address the district

court’s reference to Groden v. City of Dallas, 826 F.3d 280 (5th

16a

*****

Plaintiffs’ claims against the City of Dallas are

utterly meritless. The judgment of dismissal is

AFFIRMED.

James E. Graves, Jr., Circuit Judge, concurring in part

and dissenting in part:

The plaintiffs allege a long-running pattern of

violent misdeeds—a total of nineteen incidents—by a

Dallas police officer. They argue that Dallas

policymakers should have known about the officer’s

violent history and disciplined him accordingly. Thus,

they argue, the city is liable for the officer’s attack on

them at a protest against police brutality following the

murder of George Floyd.

According to the majority, the plaintiffs’ claims

against the city fail. They fail because even if the

officer did violently attack them, he did not beat them

with his nightstick, or beat them with his flashlight, or

beat them while they were intoxicated, or choke them,

or shoot at them while they were driving a car. That is,

he did not do to them what he allegedly did to others.

Thus, the majority says, the city could not expect that

he presented a risk of further harm to the community.

I concur in the majority’s conclusion that the

Cir. 2016), which held that “the final policymaker for the [C]ity of

Dallas is the Dallas city council,” id. at 286 (citing Bolton v. City

of Dallas, 541 F.3d 545, 550 (5th Cir. 2008) (per curiam)).

17a

plaintiffs’ claim based on General Order 609.00 is

foreclosed by Edwards v. City of Balch Springs, 70

F.4th 302 (5th Cir. 2023). But the majority’s

disposition of the plaintiffs’ failure to discipline claim

is not supported by the facts or the law. Accordingly, I

respectfully dissent from that part of the majority’s

opinion.

I.

At this stage of the case, we must take the

plaintiffs’ allegations as true and “draw all reasonable

inferences in [their] favor. Morgan v. Swanson, 659

F.3d 359, 370 (5th Cir. 2011) (en banc).

The majority begins its recitation of the facts with

information culled selectively from the police

department’s After-Action Report, cited in the

complaint. It sets a scene of “rioting and looting” and

includes details about rioters who threw bricks at

officers, burglarized gun stores, and forced drivers off

the highway. It then describes plaintiffs Jantzen

Verastique and Dondi Morse as “two participants.”

But there are no allegations connecting the

plaintiffs to those events. In their complaint, the

plaintiffs describe themselves as “lawful and peaceful

protestor[s].”1 They told police that they never threw

objects at officers and “were not around anyone else

1

“[T]he right to engage in peaceful and orderly political

demonstrations is, under appropriate conditions, a fundamental

a Amendment . . . .” Shuttlesworth v. City of Birmingham, 394

U.S. 147, 161 (1969) (Harlan, J., concurring).

18a

who did.” Rather, Verastique, who works at a nonprofit

serving at-risk children, told a reporter that she

marched that day out of concern for her two Black

sons.2 She carried a sign that said, “Not my sons, not

this mom, enough is enough.”3

The majority then addresses the plaintiffs’ actual

allegations, starting with Verastique and Morse’s

encounter with Dallas police officer Roger Rudloff. The

majority notes that Verastique was trying to explain to

officers, including Rudloff, that a demonstrator the

officers had surrounded had not done anything wrong.

Rudloff ordered Verastique to stop and put her hands

in the air, which she did. Then, the majority says, she

“was arrested by Rudloff after being subdued with a

less-than-lethal PepperBall round.”

What Verastique actually alleged was the

following: As she stood with her hands in the air,

Rudloff shot her in the chest, at close range, with a

rifle loaded with non-lethal chemical projectiles. A

photograph in the complaint shows the moment

2

Miles Moffeit et al., fire’: Photo shows Dallas police

officer shooting protester with pepper-ball gun, The Dallas

Morning News, Aug. 9, 2020, https://www.dallasnews.

com/news/investigations/2020/08/09/i-felt-like-my-chest-was-onfire-photo-shows-cop-blasting-a-peaceful-protester-with-a-pepperball-gun-atclose- range/. The complaint cites to this article and

one other that is cited below. Documents incorporated into the

complaint are properly examined on a motion to dismiss. Basic

Cap. Mgmt., Inc. v. Dynex Cap., Inc., 976 F.3d 585, 589 (5th Cir.

2020).

3

Id.

19a

immediately afterward, with Rudloff pointing his rifle

at Verastique as she lays on the ground facing away

from him. “I felt like my chest was on fire,” Verastique

told a reporter. “I didn’t know what that weapon was.

I was terrified.”4

Nothing in the complaint or even in the majority’s

retelling indicates that Verastique presented a threat

such that she needed to be “subdued” at all. Even

Rudloff later told a reporter that he fired on

Verastique only because “she wasn’t doing what we

told her to.”5 Morse later described the scene as “like

an ambush.”6

In a similarly abridged manner, the majority

relays that plaintiff Parker Nevills was “subdued with

PepperBall rounds.” It omits Nevills’s allegation that

after he was “subdued,” while he was standing still

with his hands behind his back, Rudloff kneed him in

the groin for no apparent reason.7 Rudloff also called

4

Id.

5

Id.

6

Id.

7

The Dallas Morning News reported that while Nevills

was putting his arms behind his back, police body camera footage

showed Rudloff “shov[ing] his knee into [Nevills’s] stomach.” Miles

Moffeit & Cassandra Jaramillo, Charges against cop to be

weighed, The Dallas Morning News, Nov. 12, 2021,

https://www.dallasnews.com/news/investigations/

2021/11/12/grand-jury-to-weigh-criminal-charges-against-dallasofficer-who-fired-pepper-balls-at-protester/.

20a

Nevills a “faggot,” according to Nevills, Verastique,

and a witness.8

Next, the majority writes that plaintiff Dabi Baker

was “roughed up” by officers. Her allegations are

significantly more detailed: that officers “slammed

[her] to the ground with such force that they broke her

glasses, which cut into the bridge of her nose”; that

they “beat her”; that she “suffered severe injuries to

her chest.” All because, Baker alleged, she asked the

officers for their names and badge numbers.

The plaintiffs alleged that there were nineteen

misconduct complaints against Rudloff that spanned

twenty-three years. Sixteen allegedly involved violence

against a member of the public.

These are the allegations that the majority

describes as “isolated examples of, at most, deficient

performance or bad judgment”:

In July 1998, Defendant Rudloff allegedly

threatened to beat a Black man with a

flashlight. According to the sworn statement

the man gave to DPD Internal Affairs,

Defendant Rudloff told him that he used the

flashlight to “beat n—s in the head.”

In October 1998, another complaint alleged

that Defendant Rudloff choked a driver after

stopping her for failure to use a turn signal.

8

Moffeit et al., supra note 2.

21a

...

In January 1999, after responding to a

disturbance call involving a man with a gun,

Defendant Rudloff handcuffed an unarmed

Black man, allegedly striking him with the

palm of his hand and choking him.

[Two 1999 lawsuits alleged that] Defendant

Rudloff assaulted Black men with his

flashlight.

In November 1999, Defendant Rudloff beat

Keith Burkins so severely with a flashlight

that Burkins required seven staples in his

head. A senior corporal who witnessed the

assault reported Defendant Rudloff to a

supervisor, but Defendant Rudloff . . . claimed

Burkins hit his head on a sidewalk.

...

In 2005, Defendant Rudloff was sued in his

individual capacity for assault and battery of

and use of excessive force against [a man who]

alleged that two officers ... transported him

from the scene of his arrest (one of whom the

City identified as Defendant Rudloff) [and]

assaulted him by repeatedly striking his face

and battering him with a nightstick. [The case

was settled two weeks before trial.]

In 2009 . . . Defendant Rudloff was yet again

accused of excessive force when he and other

22a

officers allegedly slammed a man’s head into

the ground while arresting him for public

intoxication.

In 2012, Defendant Rudloff and two other

officers fatally shot a carjacking suspect, firing

about thirty rounds into his car. Defendant

Rudloff was “admonished” by a supervisor

after the shooting for violating DPD policy by

using a firearm for which he was unqualified.9

Allegedly, there were ten other complaints of

misconduct against Rudloff that are not detailed in the

complaint. The police department only disciplined

Rudloff for five of the nineteen complaints, the

plaintiffs allege. The harshest punishment was

imposed after investigators concluded that Rudloff lied

about beating a Black man with a flashlight in 1999.

He was suspended for ten days. But he also allegedly

received more supervisory responsibilities. In fact, he

was promoted twice—ultimately to a position where he

supervised certain law enforcement activities at the

protest.

The substance of the plaintiffs’ allegations is this:

Officers, principally Rudloff, responded to the

plaintiffs’ compliance with their orders by assaulting

or shooting them. And Rudloff’s actions were only the

9

One of the articles incorporated into the complaint

explains that the carjacking suspect “put [his] vehicle in reverse

and drove it at [the officers]” before the officers fired. It reported

that a grand jury cleared Rudloff of wrongdoing. Moffeit et al.,

supra note 2.

23a

latest instance in his long and conspicuous history of

subjecting Dallas residents to brutal uses of force.

II.

The majority next finds three reasons to dismiss

the plaintiffs’ allegations against the city. It concludes

that Rudloff’s past misdeeds are not alleged with

enough specificity, are not similar enough to the

plaintiffs’ own experiences, and were not frequent

enough to put the city on notice of a problem. None of

those conclusions are supported by the law.

A. Specificity of the allegations

First, the majority concludes that the plaintiffs’

allegations are not specific enough. To successfully

allege that the city should be held liable for Rudloff’s

misconduct, the plaintiffs were required to plead

deliberate indifference—that is, a pattern of city

actions “so persistent and widespread as to practically

have the force of law.” Peña v. City of Rio Grande City,

879 F.3d 613, 621 (5th Cir. 2018) (quoting Connick v.

Thompson, 563 U.S. 51, 61 (2011)). That can include

the persistent failure to discipline officers who violate

the constitutional rights of members of the community.

Piotrowski v. City of Houston, 237 F.3d 567, 581–82

(5th Cir. 2001). But the plaintiffs’ allegations of such

a failure to discipline must be specific and nonconclusory. Johnson v. Harris County, 83 F.4th 941,

946–47 (5th Cir. 2023).

In my view, the complaint satisfies that standard.

It combines a more general allegation about the large

24a

number of excessive force complaints with specific

allegations about several of those complaints. The

pleading standard for deliberate indifference cases is

no higher than it is for other cases. Leatherman v.

Tarrant Cnty. Narcotics Intel. & Coordination Unit,

507 U.S. 163, 168 (1993). When that usual standard

applies, we require only enough details to make the

plaintiff’s basic claims plausible, not to affirmatively

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

570 (2007); Cicalese v. Univ. of Tex. Med. Branch, 924

F.3d 762, 768 (5th Cir. 2019) (explaining that

“scrutinizing” plaintiffs’ allegations is “more suited to

the summary judgment phase”).

Yet the plaintiffs’ allegations of Rudloff’s past

actions are not specific enough, the majority says,

because the allegations do not affirmatively state

whether Rudloff’s actions were justified. Maybe his

victims threatened him first, the majority speculates,

or maybe they were resisting arrest.

That analysis is wrong. We are supposed to make

inferences in the plaintiffs’ favor, not speculate about

how the defendants might overcome their allegations.

See Morgan, 659 F.3d at 370. The reasonable inference

here is there is no justification for an officer to beat a

man with a flashlight just because he wanted to “beat

n—s in the head,” or to beat another man so badly as

to require stitches and then lie about it, or to slam a

person’s head into the ground while making an

intoxication arrest. Yet at every turn, the majority

sews doubt into well-pled allegations by alternately

assuming Rudloff’s actions were provoked or that they

can be chalked up to “deficient performance or bad

25a

judgment.” If that is true, the city may prove it at

summary judgment or trial. Until then, the plaintiffs

need only allege that Rudloff’s history of violence,

which the complaint describes as “use[s] of excessive

force” and “allegations upon allegations of

constitutional violations,” put the city on notice of a

serious problem. They have done so.

B. Similarity of the allegations

Next, the majority concludes that the plaintiffs’

allegations about Rudloff’s past acts are not similar

enough to his actions here to constitute a pattern that

would have put the city on notice. As the majority

writes, past violations must be “similar” to constitute

an actionable pattern. See Connick, 563 U.S. at 61

(2011).

The complaint satisfies that standard as well. The

plaintiffs allege that Rudloff committed years of

aggressive, unnecessary, and unjustified violence

against members of the community. Their own

experiences are just the latest examples. Moreover, if

the allegations are true, they raise serious questions

about why Rudloff was allowed to continue patrolling

the streets.

Yet the majority discounts those egregious

allegations because they did not specifically involve

less-than-lethal projectiles or did not “occur[] in the

context of a large-scale, multi-day, city-wide riot.”

Alternatively, the plaintiffs were not intoxicated, were

not beaten with a nightstick, and were not choked. Our

cases simply do not support that punctilious approach.

26a

Past violations must be “similar”; they need not be

identical.

In Connick, plaintiffs brought a claim based on a

prosecutor’s failure to disclose a crime lab report.

Connick, 563 U.S. at 57. The Supreme Court implied

that a pattern of failure to disclose “physical or

scientific evidence of any kind” would have been

sufficient to show deliberate indifference. Id. at 62–63

(emphasis added).

The plaintiffs’ allegations demand a conclusion

quite the opposite of the majority’s. Because Rudloff’s

alleged unconstitutional actions were not limited to a

single context, or a single means of violence, they show

a propensity to use excessive force in any context, by

any method.

C. Frequency and seriousness of the allegations

Last, the majority explains that Rudloff’s

“annualized incident rate” of committing needless

violence against members of the community is too low

to put the city on notice. It bases that concept on

Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th

Cir. 2009). The majority’s approach was arguably

appropriate in that case. There, the plaintiffs, to show

deliberate indifference, pointed to twenty-seven

complaints of excessive force against the Fort Worth

police department. Id. We said that in a force of 1,500

officers, in a city with 67,000 incidents of crime per

year, twenty-seven complaints may not be enough to

put the city on notice of a problem. Id. at 852.

27a

This case is different. The plaintiffs point to

nineteen complaints of excessive force against a single

officer. When one officer is the problem, the city is not

faced with a scattering of bad apples across a large

police force. And indeed, there are allegations here

that the department knew about Rudloff’s violations.

In short, Peterson does not support the majority’s

analysis. The plaintiffs allege a pervasive pattern of

failure to discipline Rudloff for uses of excessive force.

I would therefore conclude that the plaintiffs

sufficiently alleged deliberate indifference on the part

of the city.

III.

The majority does not reach the other elements of

the plaintiffs’ failure to discipline claim. To sustain it,

the plaintiffs were also required to plead the

involvement of an official policymaker and to plead

that the city’s practice of failing to discipline Rudloff

was the “moving force” in their injuries. Hutcheson v.

Dallas County, 994 F.3d 477, 482 (5th Cir. 2021).

The plaintiffs alleged that former Dallas police

chief Reneé Hall was the city’s official policymaker on

policing. The district court concluded that Groden v.

City of Dallas, 826 F.3d 280 (5th Cir. 2016), foreclosed

that argument. But while Groden declared that “the

final policymaker for the [C]ity of Dallas is the Dallas

city council,” id. at 286, it did not address the

argument the plaintiffs make: that the city council

delegated policymaking authority to Hall. The

plaintiffs plausibly pled that a delegation occurred. See

Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th

28a

Cir. 2010).

The moving force inquiry requires a “direct causal

connection . . . between the policy and the alleged

constitutional deprivation.” Mason v. Lafayette CityPar. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015)

(citation omitted). If the city had addressed Rudloff’s

alleged string of violent behavior by, for example,

firing him, it would have prevented Verastique and

Nevills’s injuries. It is also plausible that the city’s

failure to discipline Rudloff emboldened him to commit

more wanton violence. And it is also plausible that the

example emboldened other officers, including the one

who allegedly assaulted Baker in the parking garage.

See Gentile v. County of Suffolk, 926 F.2d 142, 152–53

(2d Cir. 1991).

IV.

I would conclude that the plaintiffs plausibly pled

that the city failed to discipline Rudloff for repeated

use of excessive force, that its failure constituted

deliberate indifference to a risk of further harm, and

that such failure was the moving force in the plaintiffs’

injuries. I respectfully dissent from that part of the

majority’s opinion.

29a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JANTZEN VERASTIQUE, DONDI MORSE,

PARKER NEVILLS, YOLANDA DOBBINS ,

DAVID BAKER (aka Dabi Baker), and

MAGGIE LITTLE,

Plaintiffs,

v.

CITY OF DALLAS , DALLAS COUNTY,

DALLAS COUNTY SHERIFF'S

OFFICE, Et Al.,

Defendants.

Civil Action No. 3 :22-CV-1182-C

ORDER

The Court, having considered Defendant City of

Dallas's Motion to Dis miss , Plaintiffs' Response, and

the Reply, is of the opinion that the same should be

GRANTED. Accordingly , Plaintiffs' claims against

the City of Dallas are DISMISSED WITH

PREJUDICE for essentially th e reasons argued in

30a

the Motion and Reply.1

More specifically, Plaintiff Yolanda Dobbins has

already brought claims in other lawsuits a rising from

the same facts and circumstances giving rise to the

above-styled and -numbered civil action and res

judicata bars her claims from going forward in this

instant action. Further, Plaintiffs' allegations that the

Chief of the Dallas Police Department is the city

policymaker have already been rejected by precedent

in this Court and Plaintiffs have failed to allege any

facts that would change this determination. Likewise,

Plaintiffs' allegations of ratification are insufficient to

show adoption by an official policymaker. Finally, the

Complaint fails to state a Monell claim (or a failure to

train claim) against Defendant City of Dallas because

it fails to allege facts that amount to deliberate

indifference in any alleged unconstitutional policy,

practice, or procedure that was a moving force behind

the alleged constitutional violations-allegations that

may amount to negligence will not suffice.2 As argued

by Defendant City of Dallas in its Reply, Plaintiffs

cannot re-plead Monell liability against the City.

1

The Court notes that similar cases arising from the

same events have ruled the same. See Dobbins, et al. v. City of

Dallas, No. 3:20-CV-1727-K, 2021 WL 378 1927 (N.D. Tex. Aug.

25, 202 1) (Kinkeade. J.), appeal dismissed, No. 2 1-10983 , 202 l

WL 7829760 (5th Cir. Dec. 16, 2021) (per curiam ); Norkyke, et al.

v. City of Dallas, et al., No. 3:22-CV-1183-X (N.D. Tex Jan. 26,

2023) (Starr, J.).

2

Monell v. Dep't of Social Serve. of the City of N.Y., 436

U.S. 658 (1978). Plaintiffs, likewise, fail to plead facts that would

show the "single-incident exception" applies.

31a

Plaintiffs' request in passing at the end of their

Response seeking leave to amend is not a proper

motion before the Court.3

SO ORDERED.

Dated March 20, 2023.

/s/

SAM R. CUMMINGS

SENIOR UNITED STATES JUDGE

3

The Local Rules for the United States District Court for

the Northern District of Texas require any party seeking to amend

a pleading to file a copy of the proposed amended pleading with

the motion to amend. See L.R. 15.1 ("... a party must attach the

proposed amended pleading to the motion as an exhibit. ...").

Moreover, a party may file document seeking more than one form

of relief, but the document must be clearly titled as such. Here,

Plaintiffs failed to title their Response as an alternative motion

for leave to amend. See L.R. 10.1 ("In addition to the requirements

of the Federal Rules of Civil Procedure, each pleading, motion, or

other paper must: a. contain on its face a title clearly identifying

each included pleading, motion, or other paper. ... ").

32a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JANTZEN VERASTIQUE, DONDI MORSE,

PARKER NEVILLS, YOLANDA DOBBINS,

DAVID BAKER (aka Dabi Baker), and

MAGGIE LITTLE,

Plaintiffs,

v.

CITY OF DALLAS, DALLAS COUNTY,

DALLAS COUNTY SHERIFF'S

OFFICE, Et Al.,

Defendants.

Civil Action No. 3:22-CV-1182-C

AMENDED RULE 54(b) JUDGMENT1

In accordance with the Court’s Orders of even date

finding that Defendant City of Dallas’s Motion to

Dismiss should be GRANTED and Defendant Dallas

County and Dallas County Sheriff’s Office’s Motion to

Dismiss should be GRANTED,

1

The Court enters this amended judgment to clarify the

record that the Court’s judgment entered on March 20, 2023, is a

final judgment as to only the Parties and claims stated therein.

33a

IT IS ORDERED, ADJUDGED, AND

DECREED that Plaintiffs’ claims against Defendants

City of Dallas, Dallas County, and Dallas County

Sheriff’s Office are DISMISSED WITH

PREJUDICE. There is no just reason for delay in

entering a final judgment and final judgment should

be entered pursuant to Federal Rule of Civil Procedure

54(b) as to these Parties and claims only.

Signed this 22nd day of March, 2023.

/s/

SAM R. CUMMINGS

SENIOR UNITED STATES DISTRICT JUDGE

34a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JANTZEN VERASTIQUE, DONDI MORSE,

PARKER NEVILLS, YOLANDA DOBBINS,

DAVID BAKER (aka Dabi Baker), and

MAGGIE LITTLE,

Plaintiffs,

v.

CITY OF DALLAS, DALLAS COUNTY,

DALLAS COUNTY SHERIFF'S

OFFICE, Et Al.,

Defendants.

Civil Action No. 3:22-cv-1182

PLAINTIFFS’ COMPLAINT [Excerpt]

* * * * *

99. In September 2021, the DMN published an

article based on numerous police and court documents

describing the incidents that triggered these

investigations:

A.

In July 1998, Defendant Rudloff allegedly

threatened to beat a Black man with a

flashlight. According to the sworn

35a

statement the man gave to DPD Internal

Affairs, Defendant Rudloff told him that he

used the flashlight to “beat n-----s in the

head.”

B.

In October 1998, another complaint alleged

that Defendant Rudloff choked a driver

after stopping her for failure to use a turn

signal.

C.

Between 1998 and 2000, another eight

complaints were filed against Defendant

Rudloff for alleged physical and verbal

abuse.

D.

In January 1999, after responding to a

disturbance call involving a man with a

gun, Defendant Rudloff handcuffed an

unarmed Black man, allegedly striking him

with the palm of his hand and choking him.

E.

Two separate complaints and accompanying

federal lawsuits were filed against

Defendant Rudloff in 1999, alleging two

separate instances in which Defendant

Rudloff assaulted Black men with his

flashlight.

F.

In November 1999, Defendant Rudloff beat

Keith Burkins so severely with a flashlight

that Burkins required seven staples in his

head. A senior corporal who witnessed the

assault reported Defendant Rudloff to a

supervisor, but Defendant Rudloff denied

36a

any wrongdoing and claimed Burkins hit

his head on a sidewalk. DPD investigated

the allegations for nine months, during

which time Defendant Rudloff was allowed

to stay on patrol, and although investigators

concluded that Defendant Rudloff was

“untruthful” both in an account given to his

supervisor and in his written statement, the

sum total of DPD’s disciplinary action

against Defendant Rudloff was to place him

on a ten-day unpaid suspension.

G.

In 2002, Defendant Rudloff was accused of

racial profiling when he frisked a Black

man waiting at a bus stop, allegedly telling

the man that he was being searched

because Defendant was looking for a Black

suspect and he was Black.

H.

In 2005, Defendant Rudloff was sued in his

individual capacity for assault and battery

of and use of excessive force against Bret

Poat.7 Poat, the plaintiff, alleged that two

officers who transported him from the scene

of his arrest (one of whom the City

identified as Defendant Rudloff) assaulted

him by repeatedly striking his face and

battering him with a nightstick. Two weeks

before the case was scheduled for trial on

the assault and battery and excessive force

7

Orig. Cpt., ECF 1, Poat v. Scroggins (Dec. 28, 2005, N.D.

Tex.) (No. 3:05-cv-2516).

37a

claims, it was settled.

I.

In 2009, after his promotion to sergeant,

Defendant Rudloff was yet again accused of

excessive force when he and other officers

allegedly slammed a man’s head into the

ground while arresting him for public

intoxication.

J.

In 2012, Defendant Rudloff and two other

officers fatally shot a carjacking suspect,

firing about thirty rounds into his car.

Defendant Rudloff was “admonished” by a

supervisor after the shooting for violating

DPD policy by using a firearm for which he

was unqualified.

K.

And in 2018, Defendant Rudloff was

“rebuked” for “making a lewd comment

about a dead woman in a conversation over

a police radio with other officers.”

L.

Despite the numerous and near-continuous

allegations lodged against Defendant

Rudloff throughout his 20-plus year career,

the DPD’s ten-day suspension for the

incident involving Burkins, according to the

article, is the most significant disciplinary

consequence the DPD has imposed on

Defendant.

100. Rather than discipline or terminate

Defendant Rudloff, Defendant City of Dallas, through

the DPD, has showered him with praise. Defendant

38a

Rudloff was promoted to senior corporal in 2003, then

to sergeant in 2007. Upon information and belief, the

City of Dallas’ failure to discipline Defendant Rudloff

for constitutional violations is a common practice or

custom among its treatment of DPD law enforcement

officers.

* * * * *

39a