Petition for Writ of Certiorari — Benjamin Benfer, Petitioner v. City of Baytown, Texas, et al.

Supreme Court briefJan 30, 2025

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No. 24-______

In the

Supreme Court of the United States

BENJAMIN BENFER,

Petitioner,

versus

CITY OF BAYTOWN; BARRY CALVERT,

Individually,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Randall Kallinen

Kallinen Law PLLC

511 Broadway Street

Houston, Texas 77012

(713) 320-3785

attorneykallinen@aol.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the Fourth Amendment can countenance an extended bite by a police attack dog

where no adequate warning was given, and the

suspect was unarmed and subdued, and the

Fifth Circuit bucks the great weight of authority from other Circuit Courts of Appeals.

2. Whether this Court should correct the Fifth Circuit’s departure from this Court and other

Circuit Courts of Appeals with respect to allowing a detention and arrest where the officer did

not need to make a stop at all in order to investigate the claimed justification of the stop, and

the detainee was merely trying to return home.

3. Whether this Court should correct the Fifth Circuit’s departure from the other Circuit Courts

of Appeals with respect to a City’s lack of adequate training and policies in a known problem

area.

4. Whether this Court should revisit the propriety

of the qualified immunity defense.

PARTIES TO THE PROCEEDINGS

Petitioner Benjamin Benfer was the plaintiff in the

district court proceedings, and the appellant in the

appellate court proceedings. Respondents City of

Baytown and Barry Calvert were the defendants

in the district court proceedings and appellees in

the appellate court proceedings.

RELATED CASES

Benfer v. City of Baytown, No. 4:22-cv-2196,

United States District Court for the Southern District of Texas. Judgment entered October 4th,

2023.

Benfer v. City of Baytown, No. 23-20543, United

States Court of Appeals for the Fifth Circuit. Judgment entered November 1st, 2024.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

RELATED CASES

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. IV

U.S. Const. amend. XIV sec. 1

42 U.S.C. § 1983

Texas Penal Code § 38.03(a)–(b)

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

I. The Fifth Circuit’s published opinion directly

contravenes the accepted application of

detention and excessive force jurisprudence,

and in doing so, it has both departed from the

accepted and usual course of judicial

proceedings, and come in conflict with the other

Courts of Appeals.

A. Excessive Force

B. Unlawful Detention and False Arrest

II. The Fifth Circuit’s opinion also contravenes

other Circuit authority with respect to Monell

liability.

III. Qualified immunity is a fundamentally

flawed doctrine that should cease to exist.

CONCLUSION

TABLE OF CONTENTS

OF THE APPENDIX

Opinion of the United States Court of

Appeals for the Fifth Circuit,

Issued: November 1st, 2024

Judgment of the United States Court of

Appeals for the Fifth Circuit,

Issued: November 1st, 2024

24a

Order of the United States District Court

for the Southern District of Texas,

Issued: October 4th, 2023

26a

TABLE OF AUTHORITIES

CASES

Bey v. Cimarossa,

202 F.3d 272 (7th Cir. 2000) .............................. 9

Burrows v. City of Tulsa,

25 F.3d 1055 (10th Cir. 1994) ............................ 9

Campbell v. City of Springboro,

700 F.3d 779 (6th Cir. 2012) .............................. 8

Chatman v. City of Johnstown,

131 F. App’x 18 (3d Cir. 2005) ........................... 9

Escobar v. Montee,

895 F.3d 892 (5th Cir. 2018) ............................ 10

Florida v. Bostick,

501 U.S. 429 (1991) .......................................... 12

Florida v. Royer,

460 U.S. 491 (1983) ...................................... 7, 12

Glisson v. Indiana Department of Corrections,

849 F.3d 372 (7th Cir. 2017) ............................ 13

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ...................................... 16

Illinois v. Wardlow,

528 U.S. 119 (2000) ...................................... 7, 12

J.K.J. v. Polk County,

960 F.3d 367 (7th Cir. 2020) ............................ 13

Kuha v. City of Minnetonka,

365 F.3d 590 (8th Cir. 2003) .............................. 9

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ........................... 15

Octane Fitness, LLC v. ICON Health & Fitness,

Inc., 572 U.S. 545 (2014) .................................. 16

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023) ............................ 17

vii

Ross v. Blake,

578 U.S. 632 (2016) .......................................... 16

Sosa v. Martin Cty.,

57 F.4th 1297 (11th Cir. 2023) ........................ 15

Vathekan v. Prince George’s County,

154 F.3d 173 (4th Cir. 1998) .............................. 9

Werner v. Wall,

836 F.3d 751 (7th Cir. 2016) ............................ 16

OPINIONS BELOW

The Fifth Circuit’s opinion is reported at Benfer v.

City of Baytown, 120 F.4th 1272 (5th Cir. 2024),

and reproduced at 1a–23a. The opinion of the District Court for the Southern District of Texas is

reproduced at 26a–78a.

JURISDICTION

The Court of Appeals entered judgment on November 1st, 2024. 24a. This petition is timely filed on

or before January 30th, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. IV

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

U.S. Const. amend. XIV sec. 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person

of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protection of the laws.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress . . .

Texas Penal Code § 38.03(a)–(b)

(a) A person commits an offense if he intentionally

prevents or obstructs a person he knows is a peace

officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest,

search, or transportation of the actor or another by

using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

STATEMENT OF THE CASE

Respondent Barry Calvert was a K9 officer en

route to help his fellow officers with a situation

that required his skills. Instead of helping his officers like he was tasked with doing, he initiated a

minor traffic stop over a non-existent red light violation at a clear intersection, along with a claimed

possible identification of a silver Toyota SUV for

which there was a BOLO. In the roughly 60 seconds

it took him to follow the vehicle a short distance

into an apartment complex, he could see the vehicle’s license plate, and that it was a Mitsubishi.

Based on that alone, he could have written the

plate number down, had a ticket sent to the registered owner’s address, and gone to help his fellow

officers, but he chose not to do that. Instead, he ultimately sicced his attack dog on the driver, Mr.

Benfer, over this alleged red light violation despite

facing no threat or aggression from Mr. Benfer.

Calvert chose to escalate the situation, severely injure Mr. Benfer with near-lethal force, and require

the assistance of yet more officers that could have

been attending to the original scene that he had

chosen to abandon, all so that he could issue a

ticket.

Calvert’s decision to abandon his duty to his fellow officers in favor of initiating a traffic stop for a

minor violation was outside of his purview as a K9

officer. Although he claims that he later thought

that Petitioner’s silver Mitsubishi crossover might

be a stolen Toyota SUV, the video evidence in the

case shows that the Mitsubishi logo on Petitioner’s

car was clearly visible to Calvert as he followed Petitioner, and that he did not radio dispatch to

determine whether the vehicle in front of him

matched the BOLO. Calvert also claimed that he

wanted to stop Mr. Benfer’s vehicle due to a potential red light violation, but Petitioner pled that no

such violation occurred, and the video begins with

Mr. Benfer’s completion of legal travel through the

clear intersection. In short, Calvert abandoned his

duty to assist his fellow officers for, at the absolute

worst, issuing a minor traffic citation that was not

his job to issue. As a result, Calvert’s subsequent

decisions to violate Petitioner’s rights in numerous

ways may not be all that surprising given that the

stop was ill-fated and ill-advised from its inception.

The video evidence in this case speaks for itself,

but in short, it shows that: Mr. Benfer never did

anything more than try to walk calmly toward his

home; Calvert was never at risk in any way; Calvert gave no indication that Mr. Benfer or his wife

were being arrested, or why he was interacting

with them at all; although Calvert stated “I have a

dog,” he did not give Mr. Benfer a warning to comply with a specific directive or give Mr. Benfer an

opportunity to comply before the dog was released

despite the opportunity to do so; he had shoved Mr.

Benfer into bushes, and then had him in hand

when the bite command was issued, while Mrs.

Benfer was on the ground; he did not release the

bite until after the handcuffing was complete despite the dog interfering with the handcuffing

process and despite Mr. Benfer’s compliance at

that point.

Petitioner brought suit for violations of his civil

rights. He alleged that the stop and arrest violated

his Fourth and Fourteenth Amendment rights because they were not supported by reasonable

suspicion or probable cause, and because excessive

force was used. The district court dismissed Petitioner’s claims, Petitioner timely appealed, and

the Panel of the Fifth Circuit affirmed the dismissal.

REASONS FOR GRANTING THE PETITION

As the Constitution guarantees, law enforcement officers are not allowed to simply grab people

off the street without reason, and conversely, citizens are free to ignore officers’ requests that fall

short of lawful commands. Here, Mr. Benfer did

not do anything that would have justified his detention in the first instance, and Calvert did not

issue a lawful command indicating that Benfer

was under arrest or otherwise being detained, and

thus had the right to keep walking toward his

home. That understanding was evident by the fact

that he asked Calvert to stop touching him, and

that even when Calvert sicced the dog on him and

was handcuffing his partner, they both repeatedly

needed to ask him “what are you doing?,” because

he never issued a lawful command.

Despite these clear facts, the Fifth Circuit decided to affirm the dismissal of Petitioner’s case at

the pleading stage, which created a clear split with

the other Circuit Courts of Appeals. To that end,

Petitioner respectfully shows as follows:

I. The Fifth Circuit’s published opinion directly contravenes the accepted application

of detention and excessive force jurisprudence, and in doing so, it has both departed

from the accepted and usual course of judicial proceedings, and come in conflict with

the other Courts of Appeals.

Petitioner brought 3 claims under the Fourth

and Fourteenth Amendments: excessive force, unlawful detention, and false arrest.

A. Excessive Force

Beginning with excessive force, the Fifth Circuit’s opinion both sets a dangerous precedent and

conflicts with the other Circuits in several ways.

First, it over-emphasizes Mr. Benfer’s attempt to

ignore Calvert and continue walking toward his

home. See, e.g., 12a. Indeed, “when an officer, without reasonable suspicion or probable cause,

approaches an individual, the individual has a

right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000)

(citing Florida v. Royer, 460 U.S. 491, 498 (1983)).

Instead of recognizing this right, the Fifth Circuit

chose to consider it on par with those who actively

resist arrest by violence. See, e.g., 15a. Moreover,

it did so despite the fact that the video shows a

clear lack of communication to Mr. Benfer that he

was under arrest. Taken together, the Fifth Circuit’s opinion on these facts effectively gives law

enforcement officers the right to physically grab

citizens without justification, then use force and

affect an arrest if the innocent citizen exercises

their right to ignore the officer.

Second, it held that the initial bite was justified

despite clear out-of-circuit authority that Calvert

should not have sicced his dog on Mr. Benfer without an adequate warning. See 11a–12a. Notably, it

avoids this issue by stating that “Benfer ignored

Calvert’s warning that he had a dog who would

bite Benfer if he continued to resist.” 12a. Not only

was Mr. Benfer was not “resisting” an arrest attempt, Calvert simply did not issue such a

warning. The video evidence shows that while he

said “I got a dog, he will bite you,” he gave no indication whatsoever as to what would precipitate the

bite, then released the attack command approximately 12 seconds later, while he had Mr. Benfer

in hand.

Calvert’s threat was not the type of clear warning with an opportunity to comply that the law

requires. There is a consensus of authority among

the Circuits that it is unlawful for an officer to issue a bite command without warning or

opportunity to comply when feasible to provide

one, including when there is no threat, when a

plaintiff is unarmed, or when a plaintiff is surrounded by officers. See, e.g., Campbell v. City of

Springboro, 700 F.3d 779, 789 (6th Cir. 2012) (no

qualified immunity where officer “failed to give

warnings” during two incidents before allowing a

bite to unarmed suspects when they “were not believed to be a threat to anyone at the time the

canine unit was called in,” had “no ability to evade

police custody” due to proximity to officers); Chatman v. City of Johnstown, 131 F. App’x 18, 20 (3d

Cir. 2005) (when police used a dog to apprehend

plaintiff, who was wanted on an outstanding warrant and spotted walking on a city street, the issue

of “[w]hether plaintiff received a warning before

the dog was released or not until afterwards is a

material question of fact” precluding summary

judgment); Kuha v. City of Minnetonka, 365 F.3d

590, 598 (8th Cir. 2003) (acknowledging that

“there may be exceptional cases where a warning

is not feasible,” but holding in the context of a suspect who fled from a routine traffic stop and hid,

“the allegation that the police officers failed to give

a verbal warning prior to using a police dog trained

to bite and hold is sufficient to state a Fourth

Amendment claim”); Bey v. Cimarossa, 202 F.3d

272 (7th Cir. 2000) (denying summary judgment to

an officer based on plaintiff’s testimony that he

was not fleeing and the officer “failed to issue a

warning” and “never gave him an opportunity to

peacefully surrender before ordering the dog to attack”); Vathekan v. Prince George’s County, 154

F.3d 173, 175 (4th Cir. 1998) (“it was clearly established in 1995 that it is objectively unreasonable

for a police officer to fail to give a verbal warning

before releasing a police dog to seize someone”);

Burrows v. City of Tulsa, 25 F.3d 1055 (10th Cir.

1994) (holding that a jury could have found the

“failure to warn” plaintiff before putting a dog over

the fence to find and bite the plaintiff to be objectively unreasonable).

Third, it also bucks the consensus of authority

among the Circuits that a bite of this duration—

nearly 2 minutes—was justified under these circumstances, comparing Mr. Benfer’s actions to a

case where a suspect was bitten for approximately

1 minute after having fled through back yards and

hidden, and had a knife within reach. 14a–15a (citing Escobar v. Montee, 895 F.3d 892, 394 (5th Cir.

2018)). The video shows that Mr. Benfer was unarmed, and was subdued quickly by the dog, yet

Calvert let the bite continue until Mr. Benfer was

handcuffed. The consensus among the Circuits is

that bites of an extended duration constitute excessive force when a suspect is unarmed and

subdued. Compare, e.g., Kuha, 365 F.3d at 601 (ten

to fifteen seconds is reasonable while officers

caught up to dog and confirmed no weapons in suspect’s reach); Maney v. Garrison, 681 F. App’x 210,

218 (4th Cir. 2017) (eight seconds was objectively

reasonable); and Miller v. Clark Cty., 340 F.3d 959,

962, 967 (9th Cir. 2003) (up to sixty seconds was

“an unusually long bite duration,” but reasonably

necessary in the circumstances) with Priester v.

City of Riviera Beach, 208 F.3d 919, 927 (11th Cir.

2000) (attack lasting as long as two minutes was

excessive force); Becker v. Elfreich, 821 F.3d 920,

929 & n.2 (7th Cir. 2016) (up to three minutes);

and Watkins v. City of Oakland, 145 F.3d 1087,

1090, 1093 (9th Cir. 1998) (bite lasted around 30

seconds in the officers’ view, but began before).

And as a final note, the Fifth Circuit also put

heavy weight on Mrs. Benfer’s actions to justify the

employment of Calvert’s attack dog against Mr.

Benfer, but never articulated a reason as to how

Mr. Benfer posed a threat to Calvert or anyone else

during the entire incident. See, e.g., 14a (finding,

inexplicably, that “[Mr.] Benfer posed an objective

threat to Calvert”).

B. Unlawful Detention and False Arrest

With respect to Petitioner’s other claims, the

Fifth Circuit hangs its hat entirely on the BOLO

that Calvert later claimed he was investigating. 7a

n. 7. It claims that “decreased visibility” and the

fact that Petitioner’s car was “similar-looking” to

the BOLO gave Calvert reasonable suspicion. 7a.

However, the video evidence shows that the make

and model of Petitioner’s car was visible throughout the encounter, and there is no evidence that

the two vehicles were “similar-looking.” The Fifth

Circuit went on to hold that the stop “lasted no

longer than was necessary to effectuate its purpose,” (i.e. identify whether Petitioner’s car

matched the BOLO), 7a (citing United States v.

Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en

banc) (cleaned up)), despite the fact that Petitioner

directly pled (and the video supports) that Calvert

could have consulted with dispatch to identify the

vehicle as he followed the Benfers into their apartment complex, and the fact that Calvert could see

and identify the vehicle the entire time he followed

it, including after it parked. Detaining and siccing

an attack dog on Mr. Benfer was not necessary to

“effectuate” Calvert’s “purpose.” Absent the BOLO,

the stop was not “justified at its inception,” and

was thus clearly unconstitutional.

And as noted supra, “when an officer, without

reasonable suspicion or probable cause, approaches an individual, the individual has a right

to ignore the police and go about his business. And

any ‘refusal to cooperate, without more, does not

furnish the minimal level of objective justification

needed for a detention or seizure.’” Illinois v.

Wardlow, 528 U.S. 119, 125 (2000) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)) (also citing

Florida v. Royer, 460 U.S. 491, 498 (1983)). Here,

the video does not show Mr. Benfer using force

against Calvert, only that he is facing away and is

trying to continue walking toward his home. But

this entire analysis with respect to “resisting arrest” presupposes Mr. Benfer knowing that he was

being arrested, which should not be assumed given

that Calvert never told him that he was under arrest, nor what he was being arrested for; Calvert

only asked Mr. Benfer to “stop,” which does not

necessarily imply an arrest.

II. The Fifth Circuit’s opinion also contravenes other Circuit authority with respect to

Monell liability.

Authority among the Circuits makes clear that

the absence of or failure to adopt an appropriate

policy can be considered a policy in the same way

that an affirmative policy is, especially when a city

is aware of the need for a policy. See, e.g., J.K.J. v.

Polk County, 960 F.3d 367, 370, 375–76, 384 (7th

Cir. 2020) (en banc) (internal citations omitted);

Glisson v. Indiana Department of Corrections, 849

F.3d 372, 378–80, 382 (7th Cir. 2017) (internal citations omitted). Notably, the Seventh Circuit in

Glisson looked at Indiana Department of Corrections’ guidelines as evidence that a jail medical

provider had the knowledge of the need for a policy

but chose not to act. Glisson, 849 F.3d at 380. More

strikingly, the en banc Seventh Circuit in J.K.J.

looked at the risk of sexual assault in a county jail,

despite policies against such conduct, and determined that because it took no action with respect

to detection, prevention, or training, that a jury

was reasonable in holding the county liable under

Monell. J.K.J., 960 F.3d at 370, 384.

Here, Petitioner clearly pled a plausible Monell

claim on the basis that the City of Baytown chose

not to implement necessary training and policies.

Petitioner alleged 5 incidences in the last 3 years

of improper use of attack dogs by the City of Baytown, including other incidents perpetrated by

Calvert. Since the use of attack dogs is naturally

low due to low supply and low need, 5 incidences

in 3 years in a town of under 83,000 people is a

large number that only the courts can correct since

the City is clearly unwilling to address the problem. Those incidences are a custom of misuse of

attack dogs, of which Baytown policymakers are

aware, that directly caused Mr. Benfer’s injuries.

Moreover, Mr. Benfer specifically alleged numerous areas where training was clearly deficient

based on his limited knowledge prior to discovery

that can obviously lead to exactly this type of harm

if left unaddressed. Specifically, Petitioner alleged

that failing to train its dog-handling officer on

how, when, or why he should use his attack dog as

a weapon will inevitably result in the dog being deployed unconstitutionally, as it was here. Not

surprisingly, a specially trained “find and bite” dog

is not particularly adept at “finding” without “biting,” nor is its handler equipped to properly control

the dog in such a situation if they are not trained

on it. Moreover, it has been held that

[w]here the city equips its police officers

with potentially dangerous animals, and evidence is adduced that those animals inflict

injury in a significant percentage of the

cases in which they are used, a failure to

adopt a departmental policy governing their

use, or to implement rules or regulations regarding the constitutional limits of that use,

evidences a ‘deliberate indifference’ to constitutional

rights.

Under

such

circumstances, a jury could, and should,

find that Chew's injury was caused by the

city's failure to engage in any oversight

whatsoever of an important departmental

practice involving the use of force.

Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994)

(citations omitted). Here, Petitioner’s allegation

that the City lacked a sufficiently specific policy

with respect to its use of attack dogs, in light of

previous instances, should have easily passed

muster at the pleading stage to make a Monell

claim.

III. Qualified immunity is a fundamentally

flawed doctrine that should cease to exist.

A foundational principle of the legal system is

that “where there is a legal right, there is also a

legal remedy by suit or action at law, whenever

that right is invaded. . . . for it is a settled and invariable principle . . . that every right, when

withheld, must have a remedy, and every injury its

proper redress.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803). Based on that bedrock

understanding of the nature of legal rights, it must

be the case that the qualified immunity defense

has the power to negate the existence of constitutional rights altogether in certain cases by

recognizing the existence of constitutional harms,

but foreclosing the availability of a remedy.

Whether or not a person’s rights are erased is determined by an ultimately arbitrary standard

(clear establishment) that also has the effect of

shrinking the number of actionable claims as society and technology evolve past the factual

scenarios that can currently be said to “clearly establish” any given right. Circuit Judges from the

various federal Courts of Appeals are also beginning to question the propriety of the doctrine. See,

e.g., Sosa v. Martin Cty., 57 F.4th 1297, 1304 (11th

Cir. 2023) (en banc) (Jordan, J., concurring in the

judgment).

Indeed, qualified immunity is a “legal fiction”

that came from the faulty interpretation of § 1983.

Id.; accord Werner v. Wall, 836 F.3d 751, 768 (7th

Cir. 2016) (Hamilton, J., dissenting). “[S]tatutory

interpretation, as we always say, begins with the

text,” Ross v. Blake, 578 U.S. 632, 638 (2016), and

often “ends” there as well. Octane Fitness, LLC v.

ICON Health & Fitness, Inc., 572 U.S. 545, 553

(2014). And § 1983’s text is clear: “Every person

who, under color of any statute . . . subjects . . . any

citizen of the United States . . . to the deprivation

of any rights, privileges, or immunities . . . shall be

liable to the party injured in an action at law.” 42

U.S.C. § 1983 (emphasis added). Nowhere in that

text does Congress mention or provide for immunity. See, e.g., Hoggard v. Rhodes, 141 S. Ct. 2421,

2421 (2021) (Thomas, J., concurring in denial of

certiorari) (contemporary two-part qualified immunity “test cannot be located in § 1983’s text and

may have little basis in history.”); William Baude,

Is Qualified Immunity Unlawful?, 106 Calif. L.

Rev. 45, 47 (2018) (examining and rejecting various rationales for qualified immunity as a proper

textualist interpretation of §1983). Moreover, §

1983’s original text held actors liable when acting

under color of state law, “any such law, statute, ordinance, regulation, custom, or usage of the State

to the contrary notwithstanding.” Alexander A.

Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif. L. Rev. 201, 235 (2023) (quoting

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13).

That phrase was “meant to encompass” existing

common law defenses and immunities—and make

them unavailable to defendants. Id. As a result,

“modern [qualified] immunity jurisprudence is not

just atextual but countertextual.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th Cir. 2023) (emphasis in

original) (Willett, J., dissenting).

CONCLUSION

For the foregoing reasons, this Court should

grant a writ of certiorari.

Respectfully submitted,

Randall Kallinen

Kallinen Law PLLC

511 Broadway Street

Houston, Texas 77012

(713) 320-3785

attorneykallinen@aol.com

Counsel for Petitioner

January 30th, 2025

APPENDIX

APPENDIX TO THE PETITION FOR

A WRIT OF CERTIORARI

TABLE OF CONTENTS

Opinion of the United States Court of

Appeals for the Fifth Circuit,

Issued: November 1st, 2024

Judgment of the United States Court of

Appeals for the Fifth Circuit,

Issued: November 1st, 2024

24a

Order of the United States District Court

for the Southern District of Texas,

Issued: October 4th, 2023

26a

United States Court of Appeals

for the Fifth Circuit

No. 23-20543

FILED

November 1, 2024

BENJAMIN BENFER,

Plaintiff—Appellant,

versus

CITY OF BAYTOWN, TEXAS; BARRY CALVERT,

Individually,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-2196

Before JONES, SMITH, and HO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Officer Barry Calvert pulled over Benjamin

Benfer and his wife for allegedly running a red

light and because their vehicle appeared to match

the description of a car that had been reported as

stolen. As Calvert exited his patrol car, Benfer and

his wife also exited their vehicle. A confrontation

ensued, ending with Calvert’s siccing his K-9 on

Benfer. Benfer and his wife were arrested and

prosecuted for resisting arrest and interference

with public duties, though all charges were

dismissed.

Benfer sued Calvert and the City of Baytown

under 42 U.S.C. § 1983 and state law, asserting

myriad claims relating to the encounter. The

district court granted Calvert and the City’s

motion to dismiss, finding that Calvert had not

violated Benfer’s constitutional rights, that

Benfer’s state tort claims were not cognizable

under Texas law, and that Benfer had pleaded

insufficient facts to support his Monell claims. We

affirm.

On the night of February 14, 2021, Calvert was

on patrol when he received an alert to look for a

stolen silver 2020 Toyota RAV4.1 At 10:42 pm, he

spotted a vehicle that appeared to match the

description of the stolen vehicle, so he followed it

into an apartment complex’s parking lot and

engaged his emergency lights. The car was

Benfer’s silver 2020 Mitsubishi Crossover, not the

stolen RAV4, but the angle of Calvert’s headlights

and the lack of natural light made it difficult for

Calvert to see the exact make and model of the car

he was stopping.

After pulling Benfer over, Calvert immediately

exited his patrol car. Benfer also got out of his car

and walked toward Calvert, ignoring commands to

stop. As Benfer neared Calvert, Calvert tried to

restrain him, but Benfer repeatedly broke free of

1 The alert did not provide the license plate number.

Calvert’s grasp and ignored even more commands.

During their tussle, Calvert warned Benfer that he

had a dog that would bite Benfer if he continued to

resist.

During their struggle, Mrs. Benfer began

approaching Calvert. At that time, and in a move

to subdue Benfer, Calvert pushed him to the

ground. Mrs. Benfer reacted by rushing toward

and pushing Calvert. Calvert pushed her off,

shouted at her to “back up,” and called for an assist

from his K-9.

The K-9 bit and subdued Benfer while Calvert

handcuffed Mrs. Benfer. Then, after handcuffing

Mrs. Benfer, Calvert returned to his car for a

second pair of handcuffs before walking over to

Benfer. Held by Calvert’s K-9, Benfer had fallen to

the ground. But, when Calvert attempted to

handcuff Benfer, Benfer struggled, putting his

hands behind his back. Calvert’s bodycam footage

does not make clear whether Benfer resisted, or

whether the K-9’s biting Benfer’s arm impeded his

movement.2 While attempting to handcuff Benfer,

Calvert commanded his K-9 to release its bite, but

the K-9 maintained its hold. Instead, after finally

2 “In reviewing a motion to dismiss, we consider ‘only the

facts alleged in the pleadings, documents attached as

exhibits or incorporated by reference in the pleadings, and

matters of which the judge may take judicial notice.’” Allen

v. Hays, 65 F.4th 736, 742 n.3 (5th Cir. 2023) (quoting 2

James Wm. Moore et al., Moore's Federal Practice § 12.34[2],

at 12-94 (3d ed. 2022)). Because the expert report, which is

incorporated into Benfer’s complaint, refers to Calvert’s dash

cam and bodycam footage, we may consider the footage at

this stage.

handcuffing Benfer, Calvert had to pull the K-9 off

of him.

Benfer was charged with resisting arrest, but

the charge was later dropped.3 Benfer sued Calvert

in federal court under state law and § 1983,

averring that Calvert (1) stopped him without

reasonable suspicion; (2) arrested him without

probable cause; (3) instituted prosecution against

him without probable cause; (4) used excessive

force; and (5) assaulted him. Benfer also sued the

City of Baytown under § 1983, averring that its

policies governing the use of K-9s were

unconstitutional and that it had failed to train its

officers properly.

Calvert and the City moved to dismiss for

failure to state a claim. The district court granted

that motion, finding that Calvert had not violated

Benfer’s constitutional rights, that Benfer’s state

tort claim was not cognizable under Texas law, and

that Benfer had pleaded insufficient facts to

support municipal liability for the City. Benfer

timely appealed, challenging each dismissal.

II.

“We review a Rule 12(b)(6) dismissal de novo.”

Hodge v. Engleman, 90 F.4th 840, 843 (5th Cir.

2024). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as

true, to state a claim that is plausible on its face.”4

In Baytown, police officers, not the district attorney,

initiate misdemeanor criminal proceedings.

4 Terwilliger v. Reyna, 4 F.4th 270, 279 (5th Cir. 2021)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Facial plausibility is satisfied “when the plaintiff

pleads factual content that allows the court to

draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Terwilliger, 4

F.4th at 279. “These standards are the same when

a motion to dismiss is based on qualified

immunity.” Id. at 279–80 (citation omitted). So, a

complaint survives dismissal if it “pleads facts

that, if true, would permit the inference that

defendants are liable under § 1983 and would

overcome their qualified immunity defense.” Id. at

280 (cleaned up). Thus, “[i]t is the plaintiff’s

burden to demonstrate that qualified immunity is

inappropriate.” Id.

To determine whether a government official is

entitled to qualified immunity, we ask “(1)

whether the undisputed facts and disputed facts,

accepting the plaintiffs’ version of the disputed

facts as true, constitute a violation of a

constitutional right, and (2) whether the

defendant’s conduct was objectively reasonable in

light of clearly established law.”5 So, Benfer “must

show (1) ‘a violation of an actual constitutional

right,’ and (2) that ‘the right was clearly

established at the time of violation.’”6 Because

Benfer does not plausibly allege any violations of

his constitutional rights, we do not address

whether they were clearly established.

5 Harmon v. Dall. Cnty., 927 F.3d 884, 892 (5th Cir. 2019)

(per curiam) (quoting Carroll v. Ellington, 800 F.3d 154, 169

(5th Cir. 2015)).

6 Escobar v. Montee, 895 F.3d 387, 393 (5th Cir. 2018)

(quoting Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016)).

III.

Benfer posits that Calvert violated his clearly

established rights under the Fourth and

Fourteenth Amendments by pulling him over

without reasonable suspicion. The district court

found that the pleaded facts provided Calvert with

reasonable suspicion to stop Benfer, and,

accordingly, that Benfer had failed to allege

plausibly

that

Calvert

stopped

him

unconstitutionally. We agree.

“The stopping of a vehicle and detention of its

occupants constitutes a ‘seizure’ under the Fourth

Amendment.” United States v. Brigham, 382 F.3d

500, 506 (5th Cir. 2004) (en banc). Such stops

comport with the Constitution if they are

supported by reasonable suspicion. See United

States v. Walker, 49 F.4th 903, 906–07 (5th Cir.

2022). “An alert or be on the lookout report may

provide the reasonable suspicion necessary to

justify an investigatory stop.” Davila v. United

States, 713 F.3d 248, 258 (5th Cir. 2013) (cleaned

up). Any stop must be “justified at its inception”

and, if so justified, “the officer’s subsequent actions

[must be] reasonably related in scope to the

circumstances that justified the stop.” Brigham,

382 F.3d at 506 (citing Terry v. Ohio, 392 U.S. 1,

88 (1968)).

Calvert’s stop was justified at its inception.

Calvert had received an alert to look for a stolen

silver 2020 Toyota RAV4, and Benfer was driving

a similar-looking Mitsubishi Crossover.7 Calvert

saw Benfer’s car through the rain, at night, and

the decreased visibility made it difficult for Calvert

to know that he had stopped the wrong kind of car.

Because Benfer’s vehicle bore sufficient

similarity to the silver RAV4 Calvert was

instructed to look for and the conditions in which

the stop occurred prevented Calvert from realizing

his mistake, the stop was reasonably warranted

and justified at its inception.

The stop was also reasonable in duration

because Calvert’s “subsequent actions were

reasonably related in scope to the circumstances

that justified the stop.” Brigham, 382 F.3d at 506.

Calvert had barely exited his patrol car when

Benfer left his vehicle, walked towards Calvert,

and resisted arrest. Mrs. Benfer also left their

vehicle and approached Calvert. The remainder of

the stop was focused on subduing Benfer and his

wife—Calvert never had a chance to verify that

Benfer’s vehicle was not the stolen RAV4.

Therefore, the stop “last[ed] no longer than [was]

necessary to effectuate [its] purpose . . . .” Id. at

507.

7 Calvert avers that he also had reasonable suspicion to stop

Benfer because Benfer ran a red light. The relevant dash cam

footage, however, does not show any traffic violation. Thus,

at the motion-to-dismiss stage, it is plausible that the stop

may not have been justified if Benfer committed no traffic

violation. But Calvert’s reasonable belief that Benfer was

driving the stolen RAV4 provided reasonable suspicion to

justify the stop.

Benfer failed to allege plausibly that Calvert’s

stop violated his constitutional rights, so the

district court properly dismissed that claim.

Benfer contends that Calvert violated his

clearly established rights under the Fourth and

Fourteenth Amendments by arresting him

without probable cause. The district court found

that Calvert had probable cause to arrest Benfer

for resisting arrest. We agree.

“An arrest is unlawful unless it is supported by

probable cause.” Flores v. City of Palacios, 381

F.3d 391, 402 (5th Cir. 2004) (citation omitted).

“Probable cause exists when the totality of facts

and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient

for a reasonable person to conclude that the

suspect had committed or was committing an

offense.” United States v. Levine, 80 F.3d 129, 132

(5th Cir. 1996) (citation omitted).

Benfer was arrested for resisting arrest. “A

person” resists arrest “if he intentionally prevents

or obstructs a person he knows is a peace officer . .

. from effecting an arrest . . . by using force against

the peace officer . . . .” TEX. PEN. CODE § 38.03(a).

“It is no defense . . . that the arrest or search was

unlawful.” Id. at § 38.03(b). That means, “[i]n

Texas, the act of resisting can supply probable

cause for the arrest itself . . . .” Ramirez v.

Martinez, 716 F.3d 369, 376 (5th Cir. 2013). And

“[t]he great weight of Texas authority indicates

that pulling out of an officer’s grasp is sufficient to

constitute resisting arrest.” Id. (collecting cases).

The video unambiguously shows Benfer

repeatedly pulling out of Calvert’s grasp. Those

acts of resisting supplied probable cause for the

arrest.

Benfer has not plausibly pleaded that Calvert

violated his constitutional rights when arresting

him for resisting arrest, so the district court

properly dismissed that claim.

Benfer avers that Calvert violated his clearly

established rights under the Fourth and

Fourteenth Amendments by prosecuting him for

resisting arrest. The district court dismissed the §

1983 claim for malicious prosecution, finding that

there was probable cause to charge Benfer with

resisting arrest. We agree.

“[T]he gravamen of the Fourth Amendment

claim for malicious prosecution . . . is the wrongful

initiation of charges without probable cause.”8

Meaning, if Calvert had probable cause to charge

Benfer, then Benfer’s claim must fail.

As discussed above, Calvert’s bodycam shows

Benfer repeatedly breaking free of Calvert’s grasp

and refusing to comply with Calvert’s commands.

That

video

indisputably

showed

Benfer

“preventing a peace officer from effecting an arrest

Hughes v. Garcia, 100 F.4th 611, 619 (5th Cir. 2024)

(quoting Thompson v. Clark, 596 U.S. 36, 43 (2022)).

10a

by using force.” TEX. PEN. CODE § 38.03(a) (cleaned

up). Thus, there was probable cause to institute

criminal proceedings against Benfer for resisting

arrest.

Therefore, Benfer has not pleaded that Calvert

violated his constitutional rights by instituting

criminal process against him for resisting arrest.

The district court correctly dismissed that claim.

Benfer avers that Calvert’s use of his K-9

constituted excessive force in violation of the

Fourth and Fourteenth Amendments. Specifically,

Benfer claims that Calvert violated his clearly

established rights by (1) releasing the dog and (2)

allowing the dog to bite him until he was

handcuffed. The district court found that Calvert’s

release and use of his K-9 did not violate Benfer’s

clearly established rights. We agree.

“To establish a Fourth Amendment violation in

this context,” Benfer “must establish (1) an injury

(2) which resulted directly and only from a use of

force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable.”

Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th

Cir. 2020) (cleaned up). Calvert’s K-9 undisputedly

bit Benfer, so only the second and third prongs are

at issue here: Benfer must plausibly allege that

Calvert’s release and use of his dog was a “clearly

excessive” use of force that was “clearly

unreasonable.”

Claims of excessive force in “seizing” a suspect

governed by an objective standard of

are

11a

reasonableness focusing on the facts of a particular

case. See Graham v. Connor, 490 U.S. 386, 396

(1989). When reviewing ‘the totality of the

circumstances,’ “we pay particular attention to the

Graham factors, i.e. ‘the severity of the crime at

issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and

whether he is actively resisting arrest or

attempting to evade arrest by flight.’”9 And we

must always judge the force used “from the

perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.”

Escobar, 895 F.3d at 394.

1. Calvert’s decision to release his K-9 was a

constitutional use of force.

An officer did not use excessive force when he

released a K-9 on a suspect who “ignored [the

officer’s] instructions, and retreated further under

[a] home, preventing [the officer] from determining

whether he was armed.” Shumpert v. City of

Tupelo, 905 F.3d 310, 323 (5th Cir. 2018). In

contrast, releasing a dog violates the Fourth

Amendment where there are no “attempts to

subdue [the suspect] without the use of a dog bite,

[or to] provid[e] [the suspect] any warning,” and

where the suspect “was not suspected of any crime;

did not pose an immediate safety threat to officers

or others; and was in need of emergency medical

intervention due to self-harm and was not

attempting to flee the officers.” Sligh v. City of

9 Escobar, 895 F.3d at 394 (quoting Darden v. City of Fort

Worth, 880 F.3d 722, 728–29 (5th Cir. 2018)).

12a

Conroe, 87 F.4th 290, 299 (5th Cir. 2023) (per

curiam) (cleaned up).10

Benfer repeatedly resisted arrest and walked

away from Calvert. Benfer ignored Calvert’s

warning that he had a dog who would bite Benfer

if he continued to resist. Importantly, Calvert

deployed the dog only after Mrs. Benfer made

physical contact with him while he was trying to

restrain Benfer.

Calvert was outnumbered. He faced one

individual who had resisted his many attempts to

use lesser force and another who made aggressive

contact with him—near his gun belt—while he

attempted to restrain the first. From the

perspective of a reasonable officer on the scene,

Calvert’s use of a K-9 to subdue Benfer while he

dealt with Mrs. Benfer was a measured and

ascending use of reasonable force. See Shumpert,

905 F.3d 323.

Therefore, Calvert’s decision to release his K-9

was not clearly excessive under the circumstances,

and Benfer has not plausibly alleged that that

decision violated his right to be free from excessive

force.

10 Sligh post-dated the events here and is relevant only to the

existence of a constitutional violation, not whether that

violation was clearly established.

13a

2. Calvert’s use of the K-9 to subdue Benfer until

he was handcuffed was a constitutional use of

force.

Our court first addressed the reasonableness of

using a police dog to subdue a suspect in Cooper v.

Brown, 844 F.3d 517 (5th Cir. 2016). There, an

officer pulled Cooper over on suspicion of driving

under the influence. Id. at 521. After failing a

breath test, Cooper fled on foot into a residential

neighborhood. Id. The initial officer then alerted

other officers in the area to Cooper’s flight,

including Brown and his K-9, Sunny. Id. Despite

having no reason to believe that Cooper had a

weapon, Brown deployed Sunny to search for him.

Id. Shortly thereafter, Sunny found Cooper and bit

him on the leg “for one to two minutes.” Id. Brown

did not order Sunny to release until after

handcuffing Cooper. Id. Applying the Graham

factors, we held that “[u]nder the facts in th[e]

record, permitting a dog to continue biting a

compliant and non-threatening arrestee is

objectively unreasonable.” Id. at 524.

Years later, in Escobar, our court again

addressed the reasonableness of using a police dog

to subdue a suspect. But this time, in contrast with

Cooper, we held that it was “objectively reasonable

to permit [a K-9] to continue biting Escobar until

he was fully handcuffed and subdued,” despite

that he laid flat on the ground, his hands were

visible, and he was compliant with the officer’s

commands. Escobar, 895 F.3d at 394. Why?

Because the officer “had reason to believe he still

posed a threat.” Id. at 395. “The chase was at

14a

night; Escobar had hidden from the police for

twenty minutes[;]” Escobar’s mother had warned

the police that he “would not go without a fight;

and [a] knife remained within Escobar’s reach . . .

.” Id. at 394. Thus, the officer had “reason to doubt

[Escobar’s] compliance” and that his “surrender

was not genuine.” Id. at 395. Applying the Graham

factors, we held that “it was objectively reasonable

to permit [the K-9] to continue biting Escobar until

he was fully handcuffed and subdued.” Id. at 396.

Because,

under

the

totality

the

circumstances, Benfer posed an objective threat to

Calvert, the Graham factors favor a finding that

Calvert’s use of his K-9 was objectively reasonable:

The first factor—the severity of the offense—

favors Calvert. “[I]nterfering with the duties of a

public servant[,]” such as resisting arrest, is a

serious offense. Brothers v. Zoss, 837 F.3d 513, 519

(5th Cir. 2016). Here, Calvert’s bodycam shows

Benfer repeatedly breaking free of Calvert’s grasp

and refusing to comply with Calvert’s commands—

simply put, Benfer was resisting arrest.

The second factor—whether Benfer posed a

threat—is a closer call, but it ultimately favors

Calvert. Benfer had disobeyed several of Calvert’s

commands and resisted arrest. Calvert was

outnumbered. Mrs. Benfer, only moments earlier,

had made aggressive contact with Calvert—near

his gun belt—while he was struggling with Benfer,

and although handcuffed, she remained in the

general vicinity. The arrest took place on a rainy

night. Cf. Escobar, 895 F.3d at 394. And there was

no indication that Benfer would comply with

15a

Calvert’s instructions if Calvert released the K-9.

Though Benfer did not appear to be armed, in the

face of such facts, a reasonable police officer would

have had reason to doubt Benfer’s compliance and

conclude that he posed a threat.

Benfer disagrees that he posed a threat and

that our analysis of his case should begin and end

with Cooper. In his telling, he was “compliant and

non- threatening” by the time Calvert went to

handcuff him. And because his behavior matched

Cooper’s, “permitting a police dog to continue

biting [him] is objectively unreasonable.” See

Cooper, 844 F.3d at 524. But we see several

distinctions between Benfer’s and Cooper’s

behaviors: Calvert had repeatedly “attempt[ed] to

negotiate” with Benfer before calling his K-9 to

assist. Contra id. at 523. Calvert was

outnumbered, and Mrs. Benfer had made

aggressive contact with Calvert while he struggled

to arrest Benfer. And Benfer and his wife escalated

the situation by repeatedly disobeying Calvert’s

commands and resisting arrest. Under those

circumstances, a reasonable officer could conclude

that Benfer’s surrender was not genuine and that

Benfer posed a threat.

And, finally, we have already determined that

Benfer resisted arrest, so the third Graham

factor—whether Benfer was resisting or

attempting to flee—favors Calvert.

Even if Benfer had demonstrated that he posed

no objective or subjective threat to Calvert or that

he would not resist arrest or flee if the K-9 was

released, Calvert attempted to release the K-9’s

16a

grip on Benfer before finishing handcuffing him.

Thus, unlike in Cooper, where “Brown permitted

the attack to continue for one to two minutes,” Id.

at 524 n.6 (emphasis added), Calvert did not

permit the K-9 to continue biting Benfer. Calvert

attempted to cease the use of force, albeit

unsuccessfully.

Based on all the circumstances, Calvert’s use of

his K-9 to subdue Benfer until he was handcuffed

was an objectively reasonable use of force that was

not clearly excessive under the circumstances, and

Benfer has not plausibly alleged that Calvert’s

decision violated his right to be free from excessive

force. So, the district court was correct to dismiss

his claim.

In addition to his claims under § 1983, Benfer

sued Calvert for assault under Texas tort law. The

district court dismissed that claim, finding that

Calvert was statutorily immune under Texas law.

The district court was correct.

The Texas Tort Claims Act (TTCA) “provides a

limited waiver of immunity for certain tort claims

against the government.” Tex. Adjutant Gen.’s Off.

v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013).

Under the TTCA, “recovery against an individual

employee is barred” but it “may be sought against

the governmental unit only in three instances: . . .

(3) when suit is filed against an employee whose

conduct was within the scope of his or her

employment and the suit could have been brought

against the governmental unit.” Mission Consol.

17a

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657

(Tex. 2008). The TTCA allows municipalities to be

held liable “for damages arising from . . . police and

fire protection and control.” TEX. CIV. PRAC. & REM.

CODE § 101.0215(a)(1).

That all means a plaintiff seeking to sue a

police officer for conduct undertaken within the

scope of that officer’s employment must sue the

municipality, not the officer individually.

Alexander v. Walker, 435 S.W.3d 789, 792 (Tex.

2014) (per curiam).

“The TTCA defines the term ‘scope of

employment’ as ‘the performance for a

governmental unit of the duties of an employee’s

office or employment. . . .’” Id. (quoting TEX. CIV.

PRAC. & REM. CODE § 101.001(5)). And a police

officer’s “conduct in the course of arresting” a

suspect is “within the general scope of the officers’

employment.” Id.

Benfer’s assault claim stems from actions

Calvert took when arresting Benfer. Thus, Benfer

has sued Calvert for conduct well within the scope

of his employment. And that claim could have been

brought against the City of Baytown because the

TTCA explicitly allows cities to be held liable for

damages “arising from . . . police” activities. TEX.

CIV. PRAC. & REM. CODE § 101.0215(a)(1).

Therefore, Benfer had to bring his tort claim

against the City of Baytown, not Calvert

individually.

Benfer resists that conclusion by noting,

correctly, that the TTCA does not apply to a claim

18a

“arising out of assault . . . or any other intentional

tort . . . .” TEX. CIV. PRAC. & REM. CODE §

101.057(2). Benfer has a point: The text of §

101.057(2) appears to prevent a governmental

entity from being held liable for the intentional

torts of its employees. If the governmental entity

cannot be held liable, then the TTCA allows an

employee to be sued individually, even if they were

acting within the scope of their employment. See

Garcia, 253 S.W.3d at 657.

The Texas Supreme Court, however, rejected

that argument in Walker. There, as here, “Walker

brought suit . . . alleging assault . . . stemm[ing]

from the officers’ conduct incident to Walker’s

arrest . . . .” 435 S.W.3d at 790. Still, the court held

that “[t]he allegations in Walker’s petition . . .

[were] based on conduct within the general scope

of the officer’s employment” and “could have been

brought under the TTCA against the government.”

Id. at 792 (citations omitted).

We are bound to apply Texas law as construed

by the Texas Supreme Court, so we affirm the

dismissal of Benfer’s assault claim against Calvert

as indistinguishable from Walker. Because Benfer

did not amend his complaint and bring his claim

against the City, the district court was correct to

dismiss the claim.11

When the TTCA requires the plaintiff to sue the

governmental entity, “the suit against the employee shall be

dismissed unless the plaintiff files amended pleadings

dismissing the employee and naming the governmental unit

as defendant on or before the 30th day after the date the

motion is filed.” TEX. CIV. PRAC. & REM. CODE § 101.106(f).

19a

Benfer also sued the City under § 1983,

averring that it (1) had inadequate written policies

concerning the use of police dogs; (2) had a pattern

and/or custom of using police dogs to inflict

injuries on non-threatening suspects; (3) failed to

train its officer’s adequately in the use of police

dogs; and (4) ratified Calvert’s conduct. The

district court dismissed those claims, finding that

Benfer had failed to identify a particular policy,

failed to show sufficiently numerous instances of

K-9 encounters to establish a custom, and failed to

support its other claims with anything more than

“conclusory allegations.” We agree.

1. Benfer failed to plead sufficient facts to

support his claim that the City of Baytown had

an unconstitutional policy or custom concerning

police dogs.

A municipality may be liable under § 1983 if

the execution of one of its customs or policies

causes the deprivation of a constitutional right.12

“To establish municipal liability, a plaintiff must

show ‘(1) an official policy (or custom), of which (2)

a policy maker can be charged with actual or

constructive knowledge, and (3) a constitutional

violation whose ‘moving force’ is that policy (or

custom).’” Newbury v. City of Windcrest, 991 F.3d

672, 680 (5th Cir. 2021) (quoting Pineda v. City of

Hous., 291 F.3d 325, 328 (5th Cir. 2002)).

12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

20a

At the motion-to-dismiss stage, a plaintiff need

not “allege the specific identity of the

policymaker,” but must “allege facts that show an

official policy, promulgated or ratified by the

policymaker, under which the municipality is said

to be liable.” Groden v. City of Dall., 826 F.3d 280,

283–84 (5th Cir. 2016) (emphasis omitted). Benfer

has failed to do so. His amended complaint does

not identify anything that could be considered an

official policy of the City of Baytown. Benfer’s

Monell claim premised on an unconstitutional

policy must fail when he cannot even articulate

what official policy Baytown has adopted

governing police dogs.

A municipality, however, may still be liable

under § 1983 in the absence of an official policy if

there is an employee practice that is so widespread and common that it constitutes a custom

representing the policies of the municipality. See

Piotrowski v. City of Hous., 237 F.3d 567, 581 (5th

Cir. 2001).

A plaintiff proves the existence of a custom by

showing “a pattern of abuses that transcends the

error made in a single case.” Id. at 582. “A

successful showing of such a pattern requires

similarity and specificity; prior indications cannot

simply be for any and all bad or unwise acts, but

rather must point to the specific violation in

question.” Hicks-Fields v. Harris Cnty., 860 F.3d

803, 810 (5th Cir. 2017) (cleaned up). “In addition

to similarity and specificity, a pattern must be

comprised of ‘sufficiently numerous prior

incidents’

rather

than

merely

‘isolated

21a

instances.’”13 “Showing a pervasive pattern is a

heavy burden.” Sanchez v. Young Cnty., 956 F.3d

785, 793 (5th Cir. 2020) (citation omitted).

Benfer’s amended complaint identifies five

instances of Baytown police allegedly using dogs to

apprehend suspects impermissibly. But Benfer

fails to provide the needed factual context for four

of those incidents—his threadbare complaint notes

only the existence of K-9 encounters that resulted

in bites. He does not detail the facts surrounding

those encounters or make any attempt to show the

needed “similarity and specificity” between events.

See Hicks-Fields, 860 F.3d at 810.

Those five instances also occurred over the

span of four years (2019– 2022). Five incidents of

excessive force over four years in a city as large as

Baytown14 is not enough to meet the heavy burden

of showing that Baytown had a custom of allowing

officers to use police dogs unconstitutionally. Cf.

Davidson v. City of Stafford, 848 F.3d 384, 396–97

(5th Cir. 2017) (noting that three incidents over

three-and-a-half years were insufficient to

establish a pattern of constitutional violations).

Therefore, the district court did not err in

finding that Benfer had failed plausibly to allege

that the City of Baytown had inadequate written

policies concerning the use of police dogs or had a

13 Fuentes v. Nueces Cnty., 689 F. App’x 775, 778 (5th Cir.

2017) (per curiam) (quoting McConney v. City of Hous., 863

F.2d 1180, 1184 (5th Cir. 1989)).

14 Baytown had a population of 83,701 according to the 2020

census.

22a

pattern/custom of using police dogs to inflict

injuries on non-threatening suspects.

2. Benfer failed to plead sufficient facts to

support his claim that the City of Baytown

failed to train its officers on the proper use of

police dogs.

“A municipality’s failure to train its police

officers can without question give rise to § 1983

liability.” Edwards v. City of Balch Springs, 70

F.4th 302, 312 (5th Cir. 2023) (cleaned up). To

succeed, the plaintiff must show “(1) the city failed

to train or supervise the officers involved; (2) there

is a causal connection between the alleged failure

to supervise or train and the alleged violation of

the plaintiff's rights; and (3) the failure to train or

supervise constituted deliberate indifference to the

plaintiff’s constitutional rights.” Id. (internal

quotation marks and citation omitted).

Benfer’s complaint falters on that first

requirement. “In order for liability to attach based

on an inadequate training claim, a plaintiff must

allege with specificity how a particular training

program is defective.” Zarnow v. City of Wichita

Falls, 614 F.3d 161, 170 (5th Cir. 2010) (internal

quotation marks and citation omitted). Benfer

alleged only that the City of Baytown failed to

retrain Calvert after his involvement in a previous

K-9 incident. He made no attempt to identify a

specific training program, point out particular

deficiencies in that program, or explain why any

lack of a formalized training program was

constitutionally problematic. Benfer has merely

“styl[ed] [his] complaint[] about the specific injury

23a

suffered as a failure to train claim.” Roberts v. City

of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).

Thus, the district court did not err in finding

that Benfer had failed to allege plausibly that the

City of Baytown was liable under a “failure-totrain” theory.

3. Benfer has failed to plead sufficient facts to

support his claim that the City of Baytown

ratified Calvert’s conduct.

Ratification “provides another way of holding a

city liable under § 1983.” Allen v. Hays, 65 F.4th

736, 749 (5th Cir. 2023). “[R]atification can suffice

for Monell liability only if the authorized

policymakers approve a subordinate’s decision and

the basis for it.” Id. at 749 n.10 (internal quotation

marks and citation omitted).

Benfer’s complaint averred that “[t]he City of

Baytown condoned and ratified the actions of

Calvert by failing to discipline or retrain him.” But

ratification requires the approval of a policy

maker, not their mere acquiescence, and Benfer

has failed to allege any facts even suggesting that

any authorized policymaker approved of Calvert’s

actions. Nor does he provide any support for his

apparently novel tactic of merging his failure-totrain claim with his ratification claim. The district

court did not err in dismissing Benfer’s ratification

claim against the City of Baytown.

For the foregoing reasons, the judgment of the

dismissal is AFFIRMED.

24a

United States Court of Appeals

for the Fifth Circuit

No. 23-20543

FILED

November 1, 2024

BENJAMIN BENFER,

Plaintiff—Appellant,

versus

CITY OF BAYTOWN, TEXAS; BARRY CALVERT,

Individually,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-2196

Before JONES, SMITH, and HO, Circuit Judges.

JUDGMENT

This cause was considered on the record on

appeal and was argued by counsel.

IT IS ORDERED and ADJUDGED that the

judgment of the District Court is AFFIRMED.

IT IS FURTHER ORDERED that Appellant

pay to Appellees the costs on appeal to be taxed by

the Clerk of this Court.

25a

The judgment or mandate of this court shall

issue 7 days after the time to file a petition for

rehearing expires, or 7 days after entry of an order

denying a timely petition for panel rehearing,

petition for rehearing en banc, or motion for stay

of mandate, whichever is later. See Fed. R. App. P.

41(b). The court may shorten or extend the time by

order. See 5th Cir. R. 41 I.O.P.

26a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ENTERED

October 04, 2023

BENJAMIN BENFER,

Plaintiff,

CITY OF BAYTOWN,

TEXAS, et al.,

Defendants.

§ CIVIL ACTION

§ NO. 4:22-CV-2196

ORDER

Pending before the Court is Defendants City of

Baytown, Texas (“the City”) and Officer Barry

Calvert’s

(“Officer

Calvert”)

(collectively

“Defendants”) Motion to Dismiss (Doc. No. 14).

Plaintiff Benjamin Benfer (“Plaintiff”) responded

in opposition (Doc. No. 25) and Defendants replied

(Doc. No. 26). Having considered the briefs and

arguments of counsel, the Court hereby GRANTS

Defendants’ Motion to Dismiss.

I. Factual Background

This is a federal civil rights case stemming

from a traffic stop during which Plaintiff was

bitten by a K-9. (Doc. No. 9 at 3-4).

27a

The sequence of events is heavily disputed by

the parties. Fortunately, most of the pertinent

events have been captured on video. The Court will

begin by summarizing the facts and allegations as

pleaded in Plaintiff’s Amended Complaint.

Plaintiff’s complaint attached a report from

alleged police dog expert Vanness H. Bogardus

(“Bogardus Report”) (Doc. No. 9-1).1 The Court will

then summarize how events unfolded based on the

Court’s independent review of Officer Calvert’s

dashboard camera and body camera footage.2

A. Facts as Pleaded in Plaintiff’s Amended

Complaint & Bogardus Report

On the evening of Valentine’s Day 2021, Officer

Calvert, accompanied by his K-9, was allegedly

called to address a domestic disturbance unrelated

to this case. (Doc. No. 9-1 at 7). Before the

The Court notes that pursuant to Federal Rule of Civil

Procedure l0(c), it is permitted to consider the Bogardus

Report (Doc. No. 9-1) as being part of Plaintiff’s Amended

Complaint. Fed. R. Civ. P. l0(c) (“A copy of a written

instrument that is an exhibit to a pleading is part of the

pleading for all purposes.”). In doing so, the Court is

restricted to considering the “nonconclusory, factual

portions” of the report. Blanchard-Daigle v. Geers, 802

Fed.Appx. 113, 115-16 (5th Cir. 2020) (citing Fin. Acquisition

Partners LP v. Blackwell, 440 F.3d 278, 285-86 (5th Cir.

2006) that “[e]ven if the non-opinion portions of an expert’s

affidavit constitute an instrument pursuant to Rule 10,

opinions cannot substitute for facts...”).

2 The parties raise evidentiary objections pertaining to

Officer Calvert’s report of the incident and his body camera

footage that will be further addressed in subsequent parts of

this Order.

28a

disturbance call, police dispatchers put out a “Be

On The Lookout” (“BOLO”) report for a 2020 silver

Toyota RAV4. There was no license plate

information provided. (Id.). While enroute to

address the domestic disturbance, Officer Calvert

allegedly observed Plaintiff, who was driving a

2020 silver Mitsubishi SUV, run a red light. (Id.).

Plaintiff was accompanied by his wife. In addition

to believing that he saw Plaintiff run a red light,

Officer Calvert noted that he believed Plaintiff’s

vehicle could possibly be the stolen vehicle

mentioned in the BOLO report. (Id.).

According to Plaintiff’s Amended Complaint,

Officer Calvert then stopped Plaintiff for running

a red light. (Doc. No. 9 at 4). Plaintiff pleads that

he did not run a red light. (Id.). Plaintiff further

pleads that a criminal court judge later granted “a

motion to suppress due to there being no proof of

any traffic violation on Calvert’s dashcam.” (Id.).

Plaintiff pleads that, after he was stopped, Officer

Calvert unleashed his K-9, Hero, to bite Plaintiff.

Plaintiff pleads that he suffered several bites that

required stitches, one of which he claims was in

close proximity to his brachial artery. (Id.).

Following the incident, Plaintiff pleads that

Officer Calvert “falsely charged” his wife with

interference with public duties and “[a]fter much

money and time were expended [sic] all charges

were dropped against [Plaintiff and his wife]

without any obligation required.”3 (Id.).

3 Plaintiff’s wife is not a party in this lawsuit.

29a

B. Facts as Viewed from Officer Calvert’s Body

Camera & Dashboard Camera Footage4

In considering a motion to dismiss, matters

attached to or incorporated into a complaint by

reference and that are central to a party’s claims

may also be considered. Funk v. Stryker Corp., 630

F.3d 777, 783 (5th Cir. 2011); New Orleans City v.

Ambac Assur. Corp., 815 F.3d 196, 200 (5th Cir.

2016). Here, Plaintiff refers to Officer Calvert’s

body camera and dashboard camera in his

Amended Complaint, and the contents of the

footage are central to his claims. Therefore, it is

appropriate to consider the footage in reviewing

Plaintiff’s claims. B.S. b/n/f Justin S. v.

Waxahhachie Ind. Sch. Dist., 2023 WL 2609320, at

n. 64 (5th Cir. Mar. 23, 2023); see Phillips next

friend of JH v. Prator, 2021 WL 3376524, at *1 n.l

(5th Cir. Aug. 3, 2021) (considering video footage

that depicted an encounter between a student and

the deputy because plaintiff referenced the video

in her complaint and it was central to her claim).

Based on the video footage, Officer Calvert

followed Plaintiff, used his emergency lights, and

4 The Court notes that Officer Calvert’s dashboard camera

footage of the actual incident in question is very brief.

Although the video is 20 minutes long in total, the only

pertinent parts are in the first minute, where Officer Calvert

follows Plaintiff and his wife into the parking lot and then

gets out of the vehicle. From there, the dashcam video

remains pointed away from where the actual dispute took

place and Officer Calvert’s body camera footage better

informs the facts. (See Doc. No. 14-1).

30a

turned on his siren. Plaintiff pulled into the

parking lot of an apartment complex and stopped.

(Officer Calvert Body Camera Footage, Doc. No.

14-2 at 0:00-0:22).

Almost immediately after Officer Calvert

exited his patrol car, Plaintiff and his wife also

exited their vehicle despite being told to stay in

their car. (Id. at 0:22-0:24). Plaintiff then began

walking away from Officer Calvert. (Id. at 0:240:30). Officer Calvert repeatedly commanded for

him to stop. At one point, Officer Calvert

attempted to physically stop Plaintiff by grabbing

his arm. (Id. at 0:28-0:34). In response, Plaintiff

continued to be non-compliant and pulled away.

Plaintiff said “no” to Officer Calvert repeatedly,

demanded that he not touch him, and told Officer

Calvert that they were “in a private community”

while actively walking away. (Id.).

Officer Calvert then warned Plaintiff that he

had “a dog” that “would bite [Plaintiff]” if Plaintiff

continued to refuse to comply. (Id. at 0:36-37).

Officer Calvert grabbed Plaintiff’s wrist in an

attempt to restrain him, but Plaintiff pulled out of

his grasp. (Id. at 0:37-0:39). A scuffle then ensued,

and Officer Calvert appeared to push Plaintiff into

nearby bushes. (Id. at 0:47). As that scuffle ensued,

Officer Calvert contends, and Plaintiff does not

deny, that Plaintiff’s wife entered the fray and

grabbed at his duty belt near his weapon. (Id.).

Whether her actions were intended to get ahold of

Officer Calvert’s weapon is not clear, but the video

confirms her attempt to interfere with Officer

31a

Calvert’s efforts. At that point, Officer Calvert

then yelled “assist,” which presumably deployed

his K-9 while Officer Calvert dealt with Plaintiff’s

wife. (Id. at 0:51). Officer Calvert told Plaintiff’s

wife to put her hands behind her back and

attempted to handcuff her while simultaneously

commanding Plaintiff to get on the ground (Id. at

1:01-1:16). Officer Calvert’s K- 9 then began biting

Plaintiff. (Id. at 1:10-1:17). After successfully

handcuffing Plaintiff’s wife, Officer Calvert

ordered her to sit on the ground (Id. at 1:38-1:41).

Officer Calvert then walked to his patrol

vehicle, grabbed a second pair of handcuffs, and

returned to where Plaintiff and his K-9 were on the

ground. (Id. at 1:41-1:51). The K-9 appears to

continue to bite Plaintiff as Officer Calvert

commanded Plaintiff to put his hands behind his

back and handcuffed his left wrist. (Id. at 1:572:05). Officer Calvert struggled to handcuff him

because Plaintiff still failed to fully put his hands

behind his back as requested. (Id. at 2:05-2:12). It

is unclear from the video at this point if Plaintiff’s

difficulty putting his hands behind his back was

purposeful or because the K-9 was biting him.

Nevertheless, Officer Calvert repeatedly told

Plaintiff to “put his hands behind his back” and to

“stop fighting me” as he attempted to handcuff

him. (Id. at 2:15-2:20). Finally, Officer Calvert

successfully handcuffed Plaintiff. (Id. at 2:31).

Officer Calvert then restrained the K-9 and

stepped away from Plaintiff and his wife, who

were, at that point, both handcuffed on the ground.

(Id. at 2:34-2:38).

32a

C. Plaintiff’s Causes of Action & This Dispute

Plaintiff brings several causes of action against

Defendants. According to his Amended Complaint,

Plaintiff’s causes of action are as follows:

1. A cause of action under 42 U.S.C. § 1983 for

unlawful detention and arrest without

probable cause against Officer Calvert

because he allegedly violated the Fourth

and Fourteenth Amendments of the United

States Constitution by stopping Plaintiff

without probable cause or reasonable

suspicion (Id. at 7);

2. A cause of action under 42 U.S.C. § 1983 for

excessive force against Officer Calvert

because he allegedly violated the Fourth

and Fourteenth Amendments of the United

States Constitution when Plaintiff was

attacked and bitten by the K-9 controlled by

Officer Calvert (Id. at 7-8);

3. A cause of action under 42 U.S.C. § 1983

against Officer Calvert for malicious

prosecution because he allegedly “made

material misrepresentations in the police

report in order to justify the arrest and

prosecution when he knew there was no

probable cause to either arrest or prosecute

Plaintiff.” (Id. at 9);

33a

4. A cause of action against Officer Calvert for

common law assault under Texas law (Id. at

8); and,

5. A cause of action for municipal liability

against the City of Baytown under 42 U.S.C.

§ 1983 for failing to have adequate written

policies, failing to train and supervise

Officer Calvert on how to handle a K-9, and

because the City has allegedly adopted a

pattern, practice, and custom of using K-9s

to inflict injuries upon non-threatening

suspects (Id. at 8).

Defendants moved to dismiss Plaintiff’s claims

in their entirety. In their Motion to Dismiss,

Defendants argue Plaintiff has (1) failed to allege

facts to state a plausible claim under the

Fourteenth and Fourth Amendments;5 (2) failed to

5 Defendants maintain that because Plaintiff’s Fourteenth

Amendment claims are “based on the propriety of his arrests,

or force used therein,” they are not cognizable under the

Fourteenth Amendment and should be dismissed. (Doc. No.

14 at 13). This Court agrees with Defendants. In Gone v.

Smith, the plaintiff brought both Fourth and Fourteenth

Amendment claims against the City of Pasadena. 2017 WL

978703 (S.D. Tex. Mar. 14, 2017). The court held that the

plaintiff’s Fourteenth Amendment claim should be dismissed

since the plaintiff failed to plead any specific

unconstitutional conduct in violation of the Fourteenth

Amendment. Id. at *3. After dismissing the plaintiff’s

Fourteenth Amendment claims, the court consolidated and

considered the plaintiff’s claims of excessive force under the

Fourth Amendment. Id. This Court finds that case

instructive. Plaintiff here has not pleaded unconstitutional

conduct specific to the Fourteenth Amendment. In Plaintiff’s

34a

allege sufficient facts to support his unlawful

detention, arrest without probable cause,

excessive force, malicious prosecution, and state

law assault claims and to overcome Officer

Calvert’s qualified immunity; and (3) failed to

show that the City of Baytown violated Plaintiff’s

rights. Plaintiff responded in opposition (Doc. No.

25) and Defendants replied (Doc. No. 26).

II. Legal Standard

A defendant may file a motion to dismiss a

complaint for “failure to state a claim upon which

relief may be granted.” Fed. R. Civ. P. 12(b)(6). To

defeat a motion to dismiss under Rule 12(b)(6), a

plaintiff must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp.

Amended Complaint, he only cites the Fourteenth

Amendment without specific allegations. Plaintiff’s claims of

unlawful detention, arrest without probable cause, excessive

force, and malicious prosecution are all covered by the

Fourth Amendment. Thus, the Court will consolidate and

consider all of Plaintiff’s § 1983 claims as alleged violations

of the Fourth Amendment. See also Albright v. Oliver, 510

U.S. 266, 273 (1994) (“Where a particular Amendment

‘provides an explicit textual source of constitutional

protection’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of

“substantive due process” must be the guide for analyzing

these claims’”); Cuadra v. Houston Indep. Sch. Dist., 626 F.

3d 808, 814 (5th Cir. 2010) (dismissing plaintiff’s Fourteenth

Amendment claims because alleged pretrial deprivations of

constitutional rights should be addressed under the Fourth

Amendment). The Court hereby dismisses claims made

pursuant to the Fourteenth Amendment but will consider

them under the rubric of the Fourth Amendment.

35a

v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the

reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at

556). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted

unlawfully.” Id. (quoting Twombly, 550 U.S. at

556). “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.’” Id. (quoting

Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the court

must accept all well-pleaded facts in the complaint

as true and view them in the light most favorable

to the plaintiff. Sonnier v. State Farm Mut. Auto.

Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The

Court is not bound to accept factual assumptions

or legal conclusions as true, and only a complaint

that states a plausible claim for relief survives a

motion to dismiss. Iqbal, 556 U.S. at 678-79. When

there are well-pleaded factual allegations, the

court assumes their veracity and then determines

whether they plausibly give rise to an entitlement

to relief. Id.

To determine whether to grant a Rule 12(b)(6)

motion, a court may look only to allegations in a

complaint to determine their sufficiency. Santerre

v. Agip Petroleum Co., Inc., 45 F.Supp.2d 558, 568

36a

(S.D. Tex. 1999); Atwater Partners of Texas LLC v.

AT & T, Inc., 2011 WL 1004880 (E.D. Tex. 2011).

A court may, however, consider matters outside

the four comers of a complaint if they are

incorporated by reference, items subject to judicial

notice, matters of public record, orders, items

appearing in the record of a case, and exhibits

attached to a complaint whose authenticity is

unquestioned. See Chawla v. Shell Oil Co., 75

F.Supp.2d 626, 633 (S.D. Tex. 1999); Brock v.

Baskin-Robbins USA Co., 113 F.Supp.2d 1078,

1092 (E.D. Tex. 2000) (at motion to dismiss for

failure to state a claim, a court may consider an

indisputably authentic document that is attached

as an exhibit, if plaintiff’s claims are based on the

document).

Moreover, when defendants attach video

evidence to a motion to dismiss for failure to state

a claim that is referred to in the complaint and

central to it, a court may consider that evidence.

Inclusive Cmty. Project, Inc. v. Lincoln Prop. Co.,

920 F.3d 890, 900 (5th Cir. 2019); Hartman v.

Walker [sic], 685 Fed. App’x 366, 368 (5th Cir.

2017) (“[O]n a motion to dismiss, the court is

entitled to consider any exhibits attached to the

complaint, including video evidence ... [and] the

court is not required to favor plaintiff’s allegations

over the video evidence.”). A district court “should

not discount the non-moving party’s story unless

video evidence provides so much clarity that a

reasonable jury could not believe his account.”

Darden v. City of Fort Worth, Tex., 880 F.3d 722,

730 (5th Cir. 2018); see also Ramirez v. Martinez,

37a

716 F.3d 369, 374 (5th Cir. 2013) (citing Scott v.

Harris, 550 U.S. 372 (2007)). That is the case here.

III. Analysis

A. Evidentiary Objections

As a threshold matter, this Court must first

address whether it may consider Officer Calvert’s

dashboard camera footage, body camera footage,

and Incident Report. Officer Calvert’s video

footage and Incident Report are attached to

Defendants’ Motion to Dismiss. (Doc. Nos. 14- 1,

14-2, 14-3). Plaintiff did not attach anything to his

Amended Complaint (Doc. No. 9) except for the

Bogardus Report (Doc. No. 9-1). That report,

however, also references the videotape. Moreover,

Plaintiff referred to the footage in his Amended

Complaint, and the contents are central to his

claims.

Defendants attached the video footage to their

Motion to Dismiss (Docs. Nos. 14-1, 14-2). In

response, Plaintiff did not object to this Court’s

consideration of the videos footage. (Doc. No. 25 at

5).

Since the parties agreed, and as noted above,

the law supports that agreement, the Court will

consider Officer Calvert’s dashboard camera and

body camera footage and will accept the scenario

presented in the footage as true for purposes of this

motion to dismiss. The Court will consider the

recordings in analyzing the pleadings and

38a

Defendants’ Motion to Dismiss, but will discount

the Amended Complaint in favor of the video

evidence only when that evidence “blatantly

contradict[s] the plaintiffs’ well-pleaded factual

allegations.” Ramirez, 716 F.3d at 375; Griffin v.

City of Sugar Land, Tex., 2019 WL 175098, at *6

(S.D. Tex. Jan. 11, 2019), aff’d, 787 Fed. App’x 244

(5th Cir. 2019) (adopting the video evidence over

the complaint allegations when the video showed

the plaintiff violating a city ordinance, clearly

contradicting his complaint allegation that the

arresting officers lacked probable cause to arrest

him).

Next, the Court must address whether it may

consider Officer Calvert’s Incident Report.

Defendants attached the 20-page Incident Report

to their Motion to Dismiss (Doc. No. 14-3). They

argue that Plaintiff’s exhibit, the Bogardus Report,

references the Incident Report and is based upon

underlying information contained in the Incident

Report; therefore, the Incident Report should be

considered. (Doc. No. 14 at 10). Plaintiff objects

and argues that Defendants only vaguely

reference the Bogardus Report and do not provide

a pincite to where it supposedly relies on the

Incident Report. (Doc. No. 25 at 6). Given that

Defendants only generally referred to the

Bogardus Report as relying upon the Incident

Report and failed to identify specific portions of the

Bogardus Report that implicate Officer Calvert’s

20-page Incident Report, the Court denies

Defendants’ request to consider it.

39a

B. Qualified Immunity

The Court will now address Plaintiff’s various

causes of action against Officer Calvert under §

1983 alleging (1) unlawful detention, (2) arrest

without probable cause, (3) excessive force, and (4)

malicious prosecution. Defendants urge the Court

to grant their motion because Plaintiff’s claims are

insufficient to overcome Officer Calvert’s qualified

immunity.6 Alternatively, Defendants contend

dismissal is proper because Plaintiff has failed to

plead facts that would support these a claim for

relief.

Qualified immunity protects government

officials “from liability for civil damages insofar as

their conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The purpose of

qualified immunity is to protect officials from

harassment, distraction, and liability when they

perform their duties reasonably, but to hold public

In their Motion to Dismiss, Defendants assert Officer

Calvert’s qualified immunity without specifying which of

Plaintiff’s claims they are responding to. (Doc. No. 14, at 10).

Defendants’ qualified immunity arguments revolve only

around the alleged constitutional violations. Additionally,

Defendants only raise the issue of qualified immunity after

discussing Plaintiffs state law assault claim and why that

claim should be dismissed under the Texas Tort Claims Act.

(Id. at 9). Given the nature of this briefing, the Court will

address only qualified immunity as it relates to Plaintiff’s

alleged constitutional violations. The Court will consider

Plaintiff’s state law assault claim separately.

40a

officials accountable when they exercise their

powers irresponsibly. Id. When an official should

have known that his conduct would violate the

plaintiff’s constitutional rights, he or she is not

entitled to qualified immunity. White v. Pauly, 137

S. Ct. 548, 552 (2017).

When evaluating a defendant’s qualified

immunity defense at the motion to dismiss stage,

a district court must first find “that the plaintiff’s

pleadings assert facts which, if true, would

overcome the defense of qualified immunity.” See

Est. of Bonilla v. Orange Cnty., 982 F.3d 298, 306

(5th Cir. 2020) (quoting Hyatt v. Thomas, 843 F.3d

172, 177 (5th Cir. 2016)) (“Once a defendant

asserts the qualified immunity defense, ‘[t]he

plaintiff bears the burden of negating qualified

immunity.’”). A plaintiff seeking to overcome

qualified immunity at the pleading stage must

allege: “(l) that the official violated a statutory or

constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 732

(2011). The Supreme Court does not require

district courts to address both prongs for every

case. See Pearson v. Callahan, 555 U.S. 223, 236

(2009). Rather, courts may find qualified

immunity based solely on plaintiff’s failure to clear

the clearly established hurdle. See also “[w]e have

discretion to leapfrog the merits and go straight to

whether the alleged violation offended clearly

established law.” This is because addressing the

first prong of whether a constitutional violation

took place, “sometimes results in a substantial

41a

expenditure of scarce judicial resources on difficult

questions that have no effect on the outcome of the

case.” Id. In accordance with that decision, this

Court will examine Plaintiff’s pleadings as they

pertain to the clearly established requirement as

an initial matter.

When addressing the clearly established

requirement in a recent case, the Fifth Circuit

noted that overcoming qualified immunity

generally “requires the plaintiff to identify a case

usually, a body of relevant case law-in which an

officer acting under similar circumstances was

held to have violated the Constitution.” Joseph v.

Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (cleaned

up). The unlawfulness of the challenged conduct

must be “beyond debate.” Id. (citing Ashcroft, 563

U.S. at 741). In fact, the Circuit stated, “we cannot

deny qualified immunity without identifying a

case in which an officer acting under similar

circumstances was held to have violated the

Fourth Amendment, and without explaining why

the case clearly proscribed the conduct of that

individual officer.” (Id. at 345).

Here, Plaintiff has failed to meet this burden

and, consequently, Officer Calvert is entitled to

qualified immunity defense based on the clearly

established prong. Plaintiff’s response is devoid of

supporting precedent. Stated differently, it does

not contain analogous case law with similar facts

demonstrating that the alleged misconduct here

42a

has been found to be unlawful.7 Since Plaintiff has

failed to refute Officer Calvert’s qualified

immunity using precedent, this Court finds that

Plaintiff has not overcome the second prong of

qualified immunity-that the right he asserts was

“clearly established” at the time of the alleged

misconduct.

The Court could end its inquiry here and grant

Officer Calvert qualified immunity based solely on

Plaintiff’s failure to overcome the second prong.

7 The Court feels the need to clarify its holding on this point.

The “clearly-established” prong of qualified immunity has

undergone substantial interpretive changes during the past

years, particularly in the Fifth Circuit. Older case law

requires that the plaintiff’s alleged right be clearly

established. Anderson v. Creighton, 483 U.S. 635 (1987). In

the present case, that right, among others, would be the right

to not be unjustifiably assaulted by a police dog. More recent

case law, however, shifts the emphasis to require that the

alleged conduct be a clearly established violation. For

example, in Joseph, the Fifth Circuit explained that to

overcome the clearly established prong, “plaintiffs must also

demonstrate that the law was “clearly established”—that, as

of [the date of the incident], any reasonable officer would

have known that [the officer’s] behavior was unlawful.”

Joseph, 981 F.3d at 336. This Court will not comment on

whether this shift is an actual change in requirements or

merely a different manner of interpreting the long-existing

requirements. It only observes that, under recent case law,

the plaintiff’s ability to present precedent is the linchpin of

the analysis. All of this to say, this Court’s ruling is not that

the right alleged (to be free from assault by a police dog) is

not a clearly established right. Regardless of whether it is

the right or the violation that must be clearly established,

this Court would still find Officer Calvert entitled to

qualified immunity.

43a

For the sake of being thorough, however, the Court

will address the first prong—whether Officer

Calvert violated Plaintiff’s Fourth Amendment

rights. The Court finds that Plaintiff has not

adequately pled facts supporting this prong either.

Plaintiff failed to sufficiently plead facts

supporting his § 1983 claims for (1) unlawful

detention, (2) arrest without probable cause, (3)

excessive force, (4) malicious prosecution.8 The

Court will now address in more detail why

Plaintiff’s facts, as pled, do not support a

constitutional violation for any of these four

claims.

1. Unlawful Detention

Defendants first challenge Plaintiff’s ability to

state a claim for unlawful detention. Defendants

maintain that Officer Calvert had reasonable

suspicion to stop Plaintiff because he thought

Plaintiff ran a red light, believed that Plaintiff

might be driving a stolen vehicle, and ultimately

observed (and experienced) Plaintiff resisting

arrest. (Doc. No. 14 at 13-14).

The Fourth Amendment protects individuals

from unreasonable searches and seizures. Traffic

stops are considered seizures within the meaning

of the Fourth Amendment. See U.S. v. BanuelosRomero, 597 F.3d 763, 766 (5th Cir.2010). The

legality of seizures/traffic stops for Fourth

8 Since Plaintiff failed to plead facts supporting these four

constitutional violations, the Court would alternatively

dismiss these claims under a traditional 12(b)(6) analysis.

44a

Amendment purposes is analyzed under the

standard articulated by the Supreme Court in

Terry v. Ohio, 392 U.S. 1 (1968). To analyze the

legality of a vehicle stop under Terry, the Court

must follow the two-step process. United States v.

Brigham, 382 F.3d 500, 506 (5th Cir. 2004). The

first step considers whether the officer was

justified in stopping the vehicle at its inception. Id.

The second step examines whether the officer’s

subsequent actions were reasonably related in

scope to the circumstances that justified the stop.

Id.

This first step, determining whether the

vehicle stop was justified at its inception, is

satisfied “if police have a reasonable suspicion,

grounded in specific and articulable facts, that a

person they encounter was involved in or is wanted

in connection with a completed felony.” United

States v. Hensley, 469 U.S. 221, 229 (1985). The

investigatory stop must be “supported by

reasonable suspicion ‘that the person apprehended

is committing or has committed a federal offense.’”

United States v. Thomas, 997 F.3d 603, 609 (5th

Cir. 2021) (quoting Arizona v. Johnson, 555 U.S.

323, 326 (2009)). “[A]n alert or BOLO report may

provide the reasonable suspicion necessary to

justify an investigatory stop.” Davila v. United

States, 713 F.3d 248, 258 (5th Cir. 2013) (citing

United States v. Rodriguez, 564 F.3d 735, 742 (5th

Cir. 2009)). Thus, Courts must examine “whether

the officer’s action was justified at its inception”—

specifically, whether reasonable suspicion was

then present. See Terry, 392 U.S. at 20.

45a

Applying these standards here, the Court finds

Officer Calvert’s conduct was justified at the

inception because he believed Plaintiff ran a red

light and may have been driving a stolen vehicle.

It is undisputed that Officer Calvert initially

“stopped” Plaintiff because he thought that

Plaintiff ran a red light.9 (Doc. Nos. 9 at 4; 14 at

13). Plaintiff concedes that there was a BOLO

report for a stolen silver 2020 Toyota RAV4

without license plate information. (Doc. No. 9-1 at

7-8). While Plaintiff was driving a silver 2020

Mitsubishi crossover and not a silver 2020 Toyota

RAV4, Plaintiff’s vehicle was similar to the stolen

vehicle.10 Moreover, given the fact that the stop

9 Plaintiff notes that although Officer Calvert swore in an

affidavit and police report that Plaintiff ran the light before

arriving at his residence, Officer Calvert’s dashboard camera

footage refuted this assumption after the fact and a “criminal

court judge” granted “a motion to suppress due to there being

no proof of any traffic violation on Calvert’s dashcam.” (Doc.

No. 9 at 4). That a criminal court made this finding is

irrelevant. First of all, the fact that the dashcam did not

show Plaintiff ran the red light does not preclude the

possibility that it happened. “Not showing” something does

not equate to demonstrating that “it didn’t happen.” More

importantly, for purposes of determining whether Officer

Calvert had reasonable suspicion to conduct the stop, it only

matters that Officer Calvert believed, at the time the stop

was occurring and when he decided to conduct the stop, that

Plaintiff ran a red light. This belief constitutes reasonable

suspicion.

10 Although Plaintiff’s vehicle was not exactly the same as

the one described in the BOLO report, the Court nonetheless

finds that the initial stop was nevertheless lawful since this

BOLO qualifies as a “reasonable but mistaken judgment[]”

46a

occurred at night, the differences between the

vehicles (both Japanese cross-overs) may not have

been readily apparent. Given that Officer Calvert

had reasonable suspicion based upon the BOLO

report that Plaintiff was committing an offense by

potentially driving a stolen vehicle, the Court finds

that he had reasonable suspicion to justify an

investigatory stop. See United States v. Campbell,

178 F.3d 345 (5th Cir. 1999) (holding that officers

had reasonable suspicion to conduct a Terry stop

where the individual “matched the physical

description of the bank robber from the day before

and was approaching a car that matched a detailed

description of the getaway vehicle”).

For a Terry stop to be lawful, not only must an

officer be justified in stopping the vehicle at its

inception, but also the officer’s subsequent actions

must have been reasonably related in scope to the

reason for the stop. See Terry, 392 U.S. at 20. The

Court finds that Plaintiff has failed to adequately

plead facts that support a violation of this second

prong as well. As the camera footage shows, Officer

Calvert only escalated his behavior in response to

Plaintiff’s and his wife’s continued noncompliance.

Faced with two resisting individuals who

immediately exited their car, contrary to

instructions, and did not follow orders, Officer

Calvert’s subsequent actions were reasonably

related in scope to the reason for the stop.

that is not “plainly incompetent.” See Stanton v. Sims, 571

U.S. 3, 6 (2013).

47a

Therefore, Plaintiff has not pleaded facts that

demonstrate Officer Calvert violated his statutory

or constitutional rights and cannot clear either

prong of the qualified immunity analysis. Even

without a finding of qualified immunity, the Court

finds Plaintiff has not pleaded sufficient facts to

establish an unconstitutional detention and would

alternatively dismiss under Rule 12(b)(6).

2. Arrest without Probable Cause

Plaintiff also pleads that he was arrested

without probable cause in violation of the Fourth

Amendment.11 Defendants maintain that their

motion should be granted because Officer Calvert

had probable cause to arrest Plaintiff for his

alleged red light violation, because he believed

Plaintiff was driving a stolen vehicle, and because

Plaintiff resisted arrest. (Doc. No. 14 at 14).

Defendants also argue that Officer Calvert’s body

camera footage shows that Plaintiff “used force to

resist being placed in handcuffs,” which further

supplies the basis for probable cause. (Officer

11 Plaintiff appears to attempt to characterize his claim that

he was arrested without probable cause as a “false arrest”

claim in his Response in opposition. (Doc. No. 25 at 10).

There is no mention, however, of a false arrest cause of action

in Plaintiff’s Amended Complaint. (See Doc. No. 9). Plaintiff

only pleads that he was arrested without probable cause in

violation of the Fourth Amendment. (Doc. No. 9 at 7). Given

that a motion to dismiss is evaluated based on the operative

complaint, Plaintiff is not permitted to add claims to his

Amended Complaint by way of his Response in opposition.

Thus, the Court will not consider Plaintiff’s attempted

additional false arrest claim.

48a

Calvert Body Camera Footage, Doc. No. 14-1 at

0:24-35).

Probable cause for arrest exists when the

totality of the facts and circumstances within the

police officer’s knowledge at the moment of arrest

are sufficient for a reasonable person to conclude

that the suspect had committed or was committing

an offense. U.S. v. McCowan, 469 F.3d 386, 390

(5th Cir. 2006) (citing United States v. Ramirez,

145 F.3d 345, 352 (5th Cir. 1998) and United

States v. Shugart, 117 F.3d 838, 846 (5th Cir.

1997). “A person commits an offense if he

intentionally prevents or obstructs a person he

knows is a peace officer or a person acting in a

peace officer’s presence at his direction from

effecting an arrest [or] search ... by using force

against the peace officer or another.” Tex. Pen.

Code. § 39.03(a). “It is no defense to prosecution

under this section that the arrest or search was

unlawful.” Id. at§ 38.03(b).

Moreover, in Texas, “the act of resisting can

supply probable cause for the arrest itself.”

Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir.

2013). “The great weight of Texas authority

indicates that pulling out of an officer’s grasp is

sufficient to constitute resisting arrest.” Id. (citing

cases); see also id. (“[U]nder Texas law Deputy

Martinez could have reasonably concluded that

Ramirez committed the offense when Ramirez

pulled his arm away from Deputy Martinez’s

grasp”); Vactor v. State, 181 S.W.3d 461, 467

(Tex.App.—Texarkana, 2005, pet. denied) (“[O]nce

49a

Vactor forcefully resisted Webb’s attempt to place

him in handcuffs for the purpose of safely

performing a Terry search, Vactor committed the

new criminal offense of resisting a search.”).

Based upon Plaintiff’s Amended Complaint, it

is somewhat unclear what crime he was ultimately

charged with, but he pleads that Officer Calvert

improperly stopped him for running a red light,

which was later “prove[n] false” by a criminal court

judge. (Doc. No. 9 at 4). He also pleads that Officer

Calvert “provided patently false statements in an

affidavit to charge Benfer with resisting arrest,”

and that “all charges were dropped” against him.

(Id.). Plaintiff does not plead any additional facts

to support a lack of probable cause.

The Court notes once again that Plaintiff’s

contention that a criminal court found, after the

fact, that the evidence did not prove he ran a red

light or resisted arrest, is not determinative of the

inquiry of whether Officer Calvert had probable

cause to stop or arrest him.12 The relevant time

period for the Court to consider is the officer’s

knowledge at the moment of arrest, not any events

that take place later. As noted, Officer Calvert,

12 “Foundational to our qualified immunity doctrine is the

concept that we must view an officer’s actions from that

officer’s point of view without the benefit of hindsight. From

the comfort of a courtroom or chambers, it is often possible

for judges to muse on how an officer could have handled a

situation better. But that does not mean the officer is not

entitled to qualified immunity.” Solis v. Serrett, 31 F.4th 975,

978 (5th Cir. 2022).

50a

believing at the moment of arrest, that Plaintiff

had run a red light and was potentially driving a

stolen vehicle, had reasonable suspicion for the

stop. After the stop, Plaintiffs’ own conduct

provided probable cause. Plaintiff refused to follow

Officer Calvert’s instructions to stay in the car and

immediately existed the vehicle. He started

walking away and refused to stop, as ordered. He

pulled his arm away multiple times when Officer

Calvert tried to restrain him. Case law is clear that

pulling out of an officer’s grasp, as Plaintiff did

here, constitutes resisting. See Ramirez, 716 F.3d

at 376. Thus, at the moment of confrontation,

Plaintiff’s active resistance supplied probable

cause for Officer Calvert to effectuate the arrest.

This Court therefore finds that Officer Calvert

did not violate a statutory or constitutional right

of Plaintiff’s, and neither prong of the qualified

immunity analysis is met on this claim.

Accordingly, Plaintiff has not pleaded sufficient

facts to make out a viable claim under the Fourth

Amendment for arrest without probable cause.

3. Excessive Force

Plaintiff also makes a claim based upon the

alleged use of excessive force. Specifically, Plaintiff

pleads that after he was improperly stopped,

Officer Calvert “unleashed Hero to bite and the

rend [sic] the flesh of Benfer” and that he

subsequently suffered severe injuries requiring

stitches including one close to the brachial artery

which can lead to death in minutes if severed.”

51a

(Doc. No. 9 at 4). Plaintiff does not plead, perhaps

purposefully, any additional facts pertaining to

how the arrest and involvement of the K-9 with

Officer Calvert took place.

In their Motion to Dismiss, Defendants argue

that Plaintiff has failed to plead facts that would

support an excessive force claim and that Officer

Calvert is immune from these claims. (Doc. No. 14

at 16). Defendants contend that Plaintiff has failed

to plead any injury associated with being grabbed

by Officer Calvert when he attempted to handcuff

Plaintiff and when he was pushed into the

bushes.13 (Id.). Moreover, Defendants maintain

that Plaintiff fails to plead facts that support a

claim for excessive force regarding the bites he

sustained from Officer Calvert’s K-9. (Id.).

To succeed in proving an excessive force claim,

the Plaintiffs must “establish (1) an injury (2)

which resulted directly and only from a use of force

that was clearly excessive, and (3) the

13 To the extent Plaintiff contends that he has an excessive

force claim centering on being handcuffed or pushed into the

bushes, the Court notes that he does not allege any facts to

support this cause of action in his Amended Complaint.

Moreover, there is no mention, discussion, or defense of an

excessive force claim centered on these particular alleged

injuries in his Response in opposition to Defendants’ Motions

to Dismiss. (See Doc. No. 25). Since the Amended Complaint

is wholly devoid of facts concerning an excessive force claim

centering on being handcuffed or pushed into the bushes and

Plaintiff failed to address or defend this claim in his

Response, this Court finds that he has abandoned those

claims and they are hereby dismissed.

52a

excessiveness of which was clearly unreasonable.”

Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th

Cir. 2020); Hale v. City of Biloxi, Miss., 731 Fed.

App’x 259, 262 (5th Cir. 2018). “[W]hether the

force used is ‘excessive’ or ‘unreasonable’ depends

on ‘the facts and circumstances of each particular

case.”‘ Graham v. Connor, 490 U.S. 386, 396

(1989). “Factors to consider include ‘the severity of

the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.’” Id. The

“reasonableness” inquiry is an objective one, and

focuses on whether the officer’s actions are

“objectively reasonable” in light of the facts and

circumstances confronting them. Id. at 395, 397.

The Court will analyze whether Plaintiff asserted

sufficient allegations in his Amended Complaint to

satisfy each element as to the dog bites Plaintiff

experienced.

Injury: A plaintiff must show he or she was

injured to succeed on an excessive force claim.

Physical injuries are not necessarily required. See

Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998).

Rather, psychological pain, injuries, and

disabilities as the result of the use of excessive

force will suffice for the injury element. Id. In his

Amended Complaint, Plaintiff pleads that he

“suffered severe bite injuries some requiring

stitches [sic] including one close to the brachial

artery which can lead to death in minutes if

severed.” (Doc. No. 9 at 4). The Bogardus Report

further notes that Plaintiff suffered bite injuries to

53a

his left and right biceps, the right of his back, and

to his neck. (Doc. No. 9-1 at 6). Therefore, Plaintiff

has adequately pled facts supporting the injury

requirement.

Causation: The second element of an excessive

force case requires a plaintiff to show his or her

injuries were “directly and only” a result of the

excessive force. It is here that Plaintiff’s

allegations fail. As discussed, Plaintiff refused to

comply with orders to remain in his vehicle and

walked away from Officer Calvert despite

receiving warnings about the K-9. (Doc. No. 14-1

at 0:23-31). Plus, during the encounter with

Plaintiff, Plaintiff’s wife joined the tussle and

appears to have reached for Officer Calvert’s duty

belt presumably near his service pistol. (Id. at

0:47). It was only then that Officer Calvert called

for his K-9 to “assist,” and the dog bit Plaintiff.

Considering these uncontroverted facts, the

Court finds that Plaintiff’s injuries are not directly

and only the result of an instance of alleged

excessive force. From the beginning of the

encounter, Plaintiff disobeyed Officer Calvert’s

commands to stay in his vehicle and to stop

walking. Plaintiff continued to resist Officer

Calvert’s commands to stop even after Officer

Calvert informed him that he had a dog that would

bite him. Therefore, any injury caused by the dog

bites was not directly and only the result of Officer

Calvert’s behavior.

54a

Accordingly, the Court finds that Plaintiff’s

injuries, and their severity, were in large part due

to his refusal to comply with Officer Calvert’s

directions. Had Plaintiff remained in his vehicle or

stopped when Officer Calvert asked him to, the

deployment of the K-9 and resulting injuries would

never have occurred. Plaintiff had multiple

opportunities, from the moment he exited his

vehicle and began walking away, and even after

Officer Calvert warned him that he had a dog that

would bite him, where he could have cooperated.

Thus, Plaintiff’s allegations fail to satisfy the

causation requirement.

Reasonableness: The third prong considers

whether the force used was clearly unreasonable.

Whether a force is reasonable is “judged from the

perspective of a reasonable officer on the scene,

rather than with 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. “Not every push or

shove, even if it may later seem unnecessary in the

peace of the judge’s chambers,” violates the Fourth

Amendment. Id. Courts assess “reasonableness”

using and objective standard and must account for

the fact that police are “forced to make split-second

judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular

situation.” Id. at 397.

Even if the injuries were found to be caused by

Officer Calvert, Defendants maintain, and this

Court finds, that the force used by Officer Calvert

was reasonable because Plaintiff resisted arrest

55a

and defied Officer Calvert from the moment he

exited his vehicle to when he was finally

handcuffed. (Doc. No. 14 at 16). Moreover,

Defendants argue that Plaintiff’s wife reaching in

the area of Officer Calvert’s duty belt near his

service pistol added to the “immediate threat” that

Officer Calvert was experiencing as he struggled

to get Plaintiff to stop walking. Defendants

contend that Officer Calvert was ultimately

“[f]aced with the split-second decision of being

disarmed and attacked by Plaintiff [and his wife]—

with no other officer to assist.” (Doc. No. 14 at 17).

According to Defendants, any objectively

reasonable officer faced with the same facts and

circumstances would have deployed their K-9 to

assist and subdue Plaintiff until Officer Calvert

could detain both Plaintiff and his wife. (Id.).

Moreover, the entire incident involving the K-9

lasted approximately one minute and 48 seconds.14

Officer Calvert only deployed the K-9 to subdue

Plaintiff until he was able to retrieve his second

pair of handcuffs from his vehicle. He restrained

the K-9 once Plaintiff was successfully handcuffed.

14 The Court notes that the Bogardus Report states that the

interaction between Officer Calvert’s K-9 and Plaintiff lasted

two minutes and fourteen seconds. (Doc. No. 9-1 at 6). Officer

Calvert’s body camera footage, however, shows Officer

Calvert presumably deploying his K-9 at 0:49 when he yells

“assist!” and then retrieving the K-9 after Plaintiff was

successfully handcuffed at 2:35. (Doc. No. 14-1). This means

the encounter involving the K-9 was approximately a minute

and 48 seconds, not two minutes and 14 seconds as the

Bogardus Report states. That differential could be due to

timing issues as opposed to substantive differences.

56a

The incident did not last longer than necessary to

detain Plaintiff and his wife.

Considering the totality of the circumstances,

the Court finds, despite Plaintiff’s conclusory

contentions to the contrary, that Officer Calvert’s

use of force was not excessive and he did not

violate Plaintiff’s statutory or constitutional

rights. From the outset of Officer Calvert’s

interaction with Plaintiff and his wife, they

refused to comply with basic instructions. An

objectively reasonable officer, when dealing with

two individuals refusing to comply with simple

commands, one of whom also attempted to

potentially disarm him by grabbing at his duty

belt, would have deployed his K-9 to assist.

Therefore, Plaintiff has failed to plead facts

showing Officer Calvert’s use of force was clearly

unreasonable.

Fifth Circuit precedent on excessive force

further supports this conclusion. In a previous §

1983 case against the City of Baytown, the Fifth

Circuit reversed this Court’s finding that a

question of excessive force existed where far more

egregious facts were at play. In Solis v. City of

Baytown, Texas, 2021 WL 1566445, at *1 (S.D.

Tex. Apr. 21, 2021), the plaintiff was riding in her

car with her boyfriend when they were pulled over

by City of Baytown police officers. After both being

asked to exit the vehicle, the plaintiff’s boyfriend

asked whether the officer was conducting a field

sobriety test on him, which the police officer

confirmed. Id. When the plaintiff’s boyfriend

57a

replied that he was not intoxicated, the officer

asked him to turn around and place his hands

behind his back and arrested him without

incident. Id. During this exchange, the plaintiff

filmed the encounter with her cellphone. She

eventually stopped filming but kept her phone in

her hand. Id.

The arresting officer then walked over to where

the plaintiff was standing, and the plaintiff asked

for the arresting officer’s badge number. Id. Rather

than providing it, the officer asked to see her

phone and reached out in an apparent attempt to

take her phone from her hand. Id. The plaintiff

jerked her phone away from the officer’s hand, took

a step back, and refused, asking again for his

badge number. Id. The officer then stated, “Well I

don’t want you to drop it when I arrest you, so

could you please--.” Id. The plaintiff responded

while the officer was still speaking, “Drop it?

Excuse me?” and took another step back. Id. Before

the officer could finish his last sentence and while

the plaintiff was saying “Excuse me?” the officer

quickly approached plaintiff and grabbed her left

arm, twisted it behind her back, and forced her

onto the ground, where one of the officers placed

his knee on her back while he handcuffed her. Id.

The plaintiff was charged with public intoxication,

but the charge was dismissed a few days later. Id.

Based on the body camera footage, this Court

found that the plaintiff was not physically

threatening the officers in any way and since

neither officer gave any indication that turning

58a

over her cell phone was connected to her imminent

arrest. Id. at 8. This Court also found that the

plaintiff jerking her arm away and stepping away

from the officer could reasonably be interpreted as

an effort to retain her cellphone, not an attempt to

resist arrest. Id. The incident lasted only seconds.

Finally, this Court found that the “quickness with

which the officers resorted to tackling [plaintiff] to

the ground militates against a finding of

reasonableness.” Id. at 9 (citing Trammel, 868

F.3d at 342).

The Fifth Circuit reversed this Court’s findings

and found immunity as a matter of law. It found

that the plaintiff’s resistance to arrest cut in favor

of the officers, and that it was reasonable for the

officers to perceive her as actively resisting arrest.

It wrote:

Case law distinguishes between active and

passive resistance. “[W]here an individual’s

conduct amounts to mere ‘passive

resistance,’ use of force is not justified.”

Trammell, 868 F.3d at 341. Here, Solis was

generally hostile to the officers from the

beginning of the traffic stop. She

emphasized that she and Robinson were

near their home, argued with the officers,

repeatedly implied that Robinson was

pulled over only because of his race, pulled

away when Serrett asked for her phone, and

stepped back and exclaimed “Drop it?

Excuse me!” when Serrett told her she was

being arrested. This court has also

59a

acknowledged that “a suspect who backs

away from the arresting officers is actively

resisting arrest-albeit mildly.” Buehler, 27

F.4th at 984 (cleaned up). Solis also seemed

to struggle against the officers as they

grabbed her arms, which viewed from the

officers’ perspective could be “another

form of resistance.” Id. Accordingly, it may

have been reasonable for the officers to

perceive Solis as actively resisting arrest,

and this factor weighs in the officers’ favor.

Solis v. Serrett, 31 F.4th 975, 982-83 (5th Cir.

2022).

As an initial matter, the Fifth Circuit reversed

this Court’s findings even though the plaintiff’s

actions in Solis were clearly less akin to resisting

arrest than Plaintiff’s were in this case, except the

Plaintiff’s conduct here was much more egregious.

There are also several parallels between the Fifth

Circuit’s findings in Solis and the case at hand.

The court noted that “a suspect who backs away

from the arresting officers is actively resisting

arrest—albeit mildly.” Id. (quoting Buehler v.

Dear, 27 F.4th 969, 984 (5th Cir. 2022)). Here,

Plaintiff was clearly actively resistant to Officer

Calvert from the very beginning of the encounter.

He refused to comply with basic commands to stop

even after Officer Calvert tried to physically stop

Plaintiff and warned him that he would be bitten

by a K-9. Setting aside Plaintiff’s wife’s

involvement—which escalated the incident—

Plaintiff initially refused to get on the ground

60a

when he was commanded to by Officer Calvert and

resisted putting his hands behind his back even

after the K-9 was deployed. Thus, the Court finds

that it was reasonable for Officer Calvert to

perceive that Plaintiff was actively resisting

arrest.

Furthermore, the Fifth Circuit has directly

spoken to whether the use of a K-9 constitutes

excessive force in Schumpert v. City of Tupelo, 905

F.3d 310 (5th Cir. 2018) and Escobar v. Montee,

895 F.3d 387 (5th Cir. 2018). In Schumpert, the

plaintiff fled from the police after he was pulled

over for failing to use a turn signal and driving

without a working tag light. Schumpert, 905 F.3d

at 315. Once the officer located the plaintiff, who

was hidden under a house in a crawl space, the

officer gave plaintiff a verbal warning to come out

or his K-9 would bite him. Id. The plaintiff

disregarded the warning and burrowed further

under the house, which prompted the officer to

release his K-9. Id. The plaintiff fought the dog and

then the officer before being shot. Id. The Fifth

Circuit held that the officer’s use of the K-9 was

reasonable, noting that it has “repeatedly held

that the ‘measured and ascending’ use of force is

not excessive when a suspect is resisting arrestprovided the officer ceases the use of force once the

suspect is subdued.” Id. at 323.

In Escobar, the plaintiff fled from the police

with a knife after assaulting his wife. 895 F.3d 387

(5th Cir. 2018). The police eventually found the

plaintiff in a yard and released a K-9 to “capture

61a

and hold him.” Id. The plaintiff was bitten by the

dog until fully handcuffed by the police, even

though the plaintiff swore that he dropped the

knife. Id. The Fifth Circuit held that the officer

had not used excessive force by permitting the

police dog to continue biting the plaintiff until

plaintiff was “fully subdued and in handcuffs,”

which lasted approximately one minute. Id. at 391.

The Court finds both cases instructive.

Plaintiff, like the plaintiff in Schumpert, was

warned that if he did not comply, a K-9 would be

deployed and that the dog could bite him. When

the plaintiff refused to comply by burrowing

further into the house, the officer released the K9. Here, Plaintiff continued to refuse to comply

with Officer Calvert’s commands to stop even after

Officer Calvert escalated his warnings to stop and

informed Plaintiff that he had a dog that could bite

him. Therefore, this Court follows Schumpert and

finds that Officer Calvert used “measured and

ascending” force when Plaintiff resisted arrest.

Moreover, Officer Calvert ceased the use of force

once Plaintiff was successfully handcuffed. Thus,

Officer Calvert’s use of force was reasonable.

Escobar is similarly instructive. Although the

Court here assumes Plaintiff was not armed as

was the plaintiff in Escobar, Plaintiff’s wife

certainly escalated the conflict by reaching near

Officer Calvert’s duty belt, which in turn further

necessitated the deployment of the K-9. Further,

the plaintiff in Escobar and Plaintiff were both

bitten by the K-9 until each was handcuffed by the

62a

police. The Fifth Circuit found that the K-9

continuing to bite the plaintiff was reasonable,

given the duration of the encounter. Plaintiff’s

encounter with the K-9 also lasted approximately

one minute, albeit a bit longer. Accordingly, this

Court finds that Officer Calvert allowing the K-9

to continue to bite Plaintiff until he was fully

handcuffed was not a use of excessive force.

Given that existing case law counsels against a

finding of excessive force in this case, the Court

finds Plaintiff’s arguments fall short of a finding of

excessive force. Therefore, Plaintiff has failed to

sufficiently plead that Officer Calvert violated a

constitutional right as is required to overcome the

first prong of qualified immunity. Having already

found the second prong similarly unsatisfied,15

Officer Calvert is entitled to immunity on

Plaintiffs claim of excessive force, and it is hereby

dismissed.

4. Malicious Prosecution

Plaintiff alleges that Officer Calvert “made

material misrepresentations” in his police report

to “justify the arrest and prosecution when he

15 Plaintiff seems to have argued that, even without a body

of relevant case law, the Graham excessive-force factors can

deem the right clearly established “in an obvious case.” (Doc.

No. 25 at 9) (citing Newman v. Guedry, 703 F.3d 757, 764

(5th Cir. 2012)). After examining the Graham factors and

Fifth Circuit precedent, this Court does not find this case to

be such an “obvious case” as to be clearly established absent

case law.

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knew there was no probable cause to either arrest

or prosecute Plaintiff.” (Doc. No. 9 at 9). In their

Motion to Dismiss, Defendants argue that Plaintiff

has failed to plead plausible facts that state a

claim for malicious prosecution.16 (Doc. No. 14 at

15). According to Defendants, Officer Calvert’s

body camera footage shows that Plaintiff resisted

arrest and the pleadings in his Amended

Complaint “shows probable cause to believe

Plaintiff committed an offense for which he could

Defendants also separately argue that Plaintiff fails to

state a Franks claim in his Amended Complaint. A Franks

claim refers to Franks v. Delaware, 438 U.S. 154 (1978) in

which an officer knowingly, intentionally, or with reckless

disregard for the truth makes a false statement in a warrant

affidavit. Plaintiff does not explicitly mention the Franks

case or categorize this allegation as being a Franks claim. In

fact, Plaintiffs allegation of Officer Calvert’s “material

misrepresentations” is categorized under his malicious

prosecution cause of action. Nevertheless, in their Motion to

Dismiss, Defendants maintain that to the extent that

Plaintiff is attempting to bring a Franks claim, Officer

Calvert conducted a warrantless arrest of Plaintiff, which

refutes any cognizable Franks claim. (Doc. No. 14 at 17).

Since Plaintiff’s arrest did not involve a false statement in a

warrant affidavit and was a warrantless arrest, Defendants

contend that Plaintiff fails to state a claim under Franks.

(Id.). To the extent Plaintiff has pleaded a Franks claim, he

does not allege any facts to support this cause of action in his

Amended Complaint. Moreover, there is no mention,

discussion, or defense of this claim in his Response in

opposition to Defendants’ Motions to Dismiss. (See Doc. No.

25). Since the Amended Complaint is wholly devoid of facts

concerning a Franks claim and Plaintiff failed to address or

defend this claim in his Response, this Court finds that, to

the extent Plaintiff pleaded a Franks claim to begin with, he

has abandoned it and it is hereby dismissed.

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be arrested.” (Id.). Since Plaintiff has pleaded no

factual allegations to indicate that Plaintiff was

arrested without probable cause or that Officer

Calvert’s motives were malicious, Defendants

maintain that Plaintiff has failed to state a claim

upon which relief may be granted. (Id.). This Court

agrees.

To prevail on a malicious prosecution claim

under§ 1983, the plaintiff must show that (1) a

criminal action was commenced against him, (2)

the prosecution was caused or aided by the

defendant, (3) the action terminated in the

plaintiff’s favor, (4) the plaintiff was innocent, (5)

the defendant acted without probable cause, (6)

the defendant acted with malice, and (7) the

criminal proceeding damaged the plaintiff. See

Goodson v. City of Corpus Christi, 202 F.3d 730,

740-41 (5th Cir. 2000); Existence of probable cause

is an absolute bar to maintaining an action for

malicious prosecution under the Fourth

Amendment.

In Plaintiff’s Amended Complaint, he pleaded

that he was charged with resisting arrest by

Officer Calvert, which satisfies the first and

second elements. (Doc. No. 9 at 4). Plaintiff also

pleads that “all charges were dropped” against him

“after much money and time w[as] expended,”

which satisfies the third and fourth elements. (Id.).

Plaintiff further pleads that Officer Calvert

“provided patently false statements in an affidavit

to charge Benfer with resisting arrest” and that he

“made material misrepresentations in the police

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report in order to justify the arrest and prosecution

when he knew there was no probable cause to

arrest or prosecute Plaintiff.” (Id. at 4, 9). Viewing

Plaintiff’s Amended Complaint in the light most

favorable to him, the Court finds that, taken as

true, these allegations satisfy the sixth element.

Finally, in addition to “much money and time”

expended, Plaintiff pleaded physical injury as a

result of his encounter with Officer Calvert. Thus,

the Court finds that Plaintiff has satisfied the

seventh element.

The Court does not find, however, that Plaintiff

has satisfied the fifth element, that Officer Calvert

acted without probable cause. As noted above, the

Court concluded that Officer Calvert had probable

cause to arrest Plaintiff and that undermines

Plaintiff’s right to proceed here. Officer Calvert

had probable cause based on Plaintiff’s conduct

resisting arrest and Officer Calvert’s thenexisting

belief that Plaintiff ran a red light and was driving

a stolen vehicle.

Accordingly, given that Plaintiff has failed to

plead facts sufficient to satisfy each element of a

claim for malicious prosecution that would also

give rise to a constitutional violation, he cannot

overcome either prong of qualified immunity on

this this cause of action.

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C. State Law Assault Claim Against

Officer Calvert

In addition to his various § 1983 claims,

Plaintiff brings a state law tort claim for assault

against Officer Calvert, though it is unclear

whether Plaintiff is suing Officer Calvert in his

official or individual capacity. Defendants argue

both that Plaintiff has failed to plead facts

sufficient to support this claim and that Officer

Calvert is statutorily immune against Plaintiff’s

assault claim under Texas law. (Doc. No. 14 at 17).

Specifically, they argue that the Texas Tort Claims

Act (“TTCA”) requires Plaintiff to have brought the

claim against the City of Baytown because Officer

Calvert is individually immune under the statute.

(Id.). The Court agrees and finds this claim barred

by the TTCA.

A public employee may be individually liable

for his tortious conduct outside the general scope

of employment. Univ. of Texas Health Sci. Ctr. at

Houston v. Rios, 542 S.W.3d 530, 531 (Tex. 2017).

The TTCA defines “scope of employment” as “the

performance for a governmental unit of the duties

of an employee’s office or employment and includes

being in and about the performance of a task

lawfully assigned to an employee by competent

authority.” Tex. Civ. Prac. & Rem. Code §

101.001(5). An official acts within the scope of her

authority if she is discharging the duties generally

assigned to her. Lancaster v. Chambers, 883

S.W.2d 650, 658 (Tex. 1997) (holding that that onduty police officers, pursuing a suspect in their

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squad car, did not act outside the scope of their

authority even though they drove without regard

for the safety of others).

If the alleged tortious conduct was within the

general scope of employment, Section 101.106 of

the TTCA governs. This section “require[es] a

plaintiff to make an irrevocable election at the

time suit is filed between suing the governmental

unit under the Tort Claims Act or proceeding

against the employee alone.” Mission Consol. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)

(emphasis added). If the plaintiff chooses to sue

the employee alone, the TTCA states, in relevant

part:

“If a suit is filed against an employee of a

governmental unit based on conduct within

the general scope of that employee’s

employment and if it could have been

brought under this chapter against the

governmental unit, the suit is considered to

be against the employee in the employee’s

official capacity only. On the employee’s

motion, the suit against the employee shall

be dismissed unless the plaintiff files

amended

pleadings

dismissing

the

employee and naming the governmental

unit as defendant on or before the 30th day

after the date the motion is filed.”

Tex. Civ. Prac. & Rem. Code§ 101.106(f).

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Here, Officer Calvert was acting within his

general scope of employment as police officer for

the City of Baytown. The alleged misconduct

occurred while Officer Calvert was performing

tasks lawfully assigned to him. Like the officers in

Lancaster, he was on duty and actively pursuing

Plaintiff for suspected traffic violations. When

Plaintiff chose to bring assault claims against

Officer Calvert based on conduct within the scope

of his employment, the irrevocable election of

Section 101.106 was triggered. As a consequence,

the Court will proceed with the understanding

that Plaintiff sued Officer Calvert in his official

capacity.

Section 101.106(f) therefore dictates that the

suit against the employee “shall be dismissed”

unless the plaintiff amends his pleadings to name

the governmental unit within 30 days after the

motion was filed. Officer Calvert and the City of

Baytown filed this motion to dismiss on September

28, 2022 (See Doc. No. 14). Plaintiff has failed to

amend (or at least move to amend) his pleadings

as required under the statute on or before the 30th

date that this motion was filed. In fact, Plaintiff

has already amended his complaint once and did

not attempt to cure this problem.

As Plaintiff’s claim is against Officer Calvert in

his official capacity, it must be dismissed because

the City of Baytown has not waived its sovereign

immunity for intentional torts for assault and

battery. See, e.g., Huff v. Refugio County Sheriff’s

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Dept., 2013 WL 5574901, at *3 (S.D. Tex. Oct. 9,

2013).

Accordingly, Plaintiff’s assault claim against

Officer Calvert is dismissed.

D. Section 1983 Claims Against the City of

Baytown

Plaintiff also sues the City of Baytown under §

1983. Plaintiff alleges that the City of Baytown

“did not have adequate written policies, nor did

they train or supervise Calvert in the proper

handling of a police dog.” (Doc. No. 9 at 8). Plaintiff

further pleads that the City of Baytown “condoned

and ratified the actions of Calvert by failing to

discipline or retrain him” and that it has a

“pattern, practice and custom of using a biting

police dog to inflict injuries upon suspects even if

they do not pose a threat” and to “punish them for

not complying or for fleeing after they have

complied.” (Id.).

To support his contentions, Plaintiff includes

five examples in his Amended Complaint of

instances where a City of Baytown K-9 injured

people during a stop or arrest. (See Doc. No. 14).

The five instances are summarized below in bullet

points to better facilitate the analysis:

•

In 2019, Raphael White was fleeing from

the City of Baytown police on foot when

Officer Calvert deployed his K-9 to bite

White. (Id. at 3). According to Plaintiff’s

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Amended Complaint, White sued, and

Officer Calvert’s motion for summary

judgment was denied because a Southern

District of Texas judge found that there was

a fact issue pertaining to excessive force (Id.

at 2-3);

•

In October 2021, Alejos Lopez “was not

brandishing a weapon” but he was

“repeatedly bitten by a Baytown police dog

controlled by a Baytown police officer” (Id.

at 4);

•

On January 4, 2020, Trevor Scott was being

pursued by the City of Baytown police in a

motor vehicle chase when he was

“repeatedly bitten by a Baytown police dog

controlled by a Baytown police officer” (Id.

at 5);

•

In May 2020, Mark Burns was “repeatedly

bitten by a Baytown police dog controlled by

a Baytown police officer” (Id.); and,

•

On March 29, 2022, Joseph Lane “was not

brandishing a weapon at the time” and was

“repeatedly bitten by a Baytown police dog

controlled by a Baytown police officer.” (Id.).

In their Motion to Dismiss, Defendants argue

that Plaintiff has failed to identify a specific

unconstitutional policy, custom, or practice for

which a policymaker could be held liable, or that a

policymaker was aware of an unconstitutional

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policy and deliberately chose to maintain it. (Doc.

No. 14 at 23, 24). Defendants also argue that

Plaintiff has failed to plead any facts to suggest

that a policymaker’s conduct was a moving force

that caused Plaintiff to experience a constitutional

deprivation or that it ratified unconstitutional

conduct. (Id. at 24).

The Court notes that the City of Baytown, as a

municipality, may not be held liable under § 1983

on a theory of vicarious liability. Monell v. Dept. of

Soc. Servs., 436 U.S. 658, 691 (1978); see also

Kitchen v. Dall. Cty., 759 F.3d 468, 476 (5th Cir.

2014). Municipalities may only be liable where

“the action that is alleged to be unconstitutional

implements or executes a policy statement,

ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.”

Monell, 436 U.S. at 690.

For municipal liability to attach, claims filed

under § 1983 require a plaintiff to show three

elements: (1) a policymaker; (2) an official policy;

and (3) a violation of constitutional rights whose

moving force is the policy or custom. See Cox v. City

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

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

(5th Cir. 2001)). A plaintiff must still “provide fair

notice to the defendant, and this requires more

than generically restating the elements of

municipal liability.” Id. Such allegations may

include “past incidents of misconduct to others,

multiple harms that occurred to the plaintiff,

misconduct that occurred in the open, the

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involvement of multiple officials in the

misconduct, or the specific topic of the challenged

policy or training inadequacy.” Id; see Custer v.

Houston Police Dept., 2017 WL 5484114 (S.D. Tex.

Nov. 15, 2017).

At the motion to dismiss stage, plaintiffs need

not identify a particular policymaker by name to

establish municipal liability but must plead facts

that show that the defendant or defendants acted

pursuant to a specific official policy, which was

promulgated or ratified by the legally authorized

policymaker. Groden v. City of Dallas, Tex., 826

F.3d 280, 282 (5th Cir. 2016).

For an official policy, the pleadings for a § 1983

claim are adequate against a city when they set

forth “specific factual allegations that allow a court

to reasonably infer that a policy or practice exists

and that the alleged policy or practice was the

moving force” for the constitutional violation

asserted. Balle v. Nueces Cty. Tex., 690 F.App’x

847, 852 (5th Cir. 2017) (quoting Spiller v. City of

Tex. City Police Dep’t, 130 F.3d 162, 167 (5th Cir.

1997)). Finally, a Plaintiff must “sufficiently plead

any causal connection between the alleged

unconstitutional policy or custom and the harm

alleged to have occurred.” Joiner v. Murphy, 2016

WL 8792315 at *4 (S.D. Tex. Aug. 12, 2016)

(quoting Doe 1—Doe 10 v. City of Wichita Falls,

Tex., No. 7-06CV-106-R, 2007 WL 959028 at *2

(N.D. Tex. Mar. 30, 2007)).

73a

Plaintiff has not identified any specific

policymaker in the City of Baytown. Instead all of

his claims against the City are alleged without any

degree of specificity. Moreover, Plaintiff fails to

identify any official City of Baytown policy in his

Amended Complaint. (See Doc. No. 14). Thus, to

the extent that he pleads that municipal liability

should attach on the basis of an official policy, the

Court grants Defendants’ Motion to Dismiss.

In the absence of an official policy, plaintiffs

may also survive a Rule 12(b)(6) motion if they

plead facts to infer that there existed “[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.” HickFields v. Harris County, Tex., 860 F.3d 803, 808-09

(5th Cir. 2017).

The Fifth Circuit has previously found that

establishing a pattern requires similarity,

specificity, and sufficiently numerous prior

incidents. Davidson v. City of Stafford, 848 F.3d

384, 396 (5th Cir. 2017). The Court finds that

Plaintiff has failed to adequately plead these three

requirements and thus has failed to plead facts

establishing a pattern for municipal liability to

attach to the City of Baytown.

First, Plaintiff has not pleaded sufficiently

numerous prior incidents. When examining the

numerosity requirement, courts place the alleged

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constitutional violations in the context of the size

of the police department and the corresponding

time period. see Davidson, 848 F.3d at 96-97 (5th

Cir. 2017) (three arrests over three and a half

years did not establish a pattern of constitutional

violations for the Stafford P.D.); Peterson v. City of

Fort Worth, 588 F.3d 838, 851-52 (5th Cir. 2009)

(holding 27 complaints of excessive force over a

period of three years in a department with more

than 1,500 officers did not constitute a pattern);

Pineda v. City of Houston, 291 F.3d 325, 329 (5th

Cir. 2002) (holding eleven incidents cannot

support a pattern of illegality in Houston); Moreno

v. City of Dallas, 2015 WL 3890467, at *9 (N.D.

Tex. June 18, 2015) (granting motion to dismiss

because “facts suggesting an average of less than

two incidents of excessive force per year over the

course of five years are not sufficient to indicate a

pattern of abuses”).

Here, although Plaintiff pleads five instances of

where individuals have allegedly been bitten by K9 spanning four years, this Court does not find that

these instances give rise to “[a] persistent,

widespread practice ... so common and well settled

as to constitute a custom that fairly represents

municipal policy.” Hick-Fields, 860 F.3d at 808-09.

As an initial matter, Plaintiff provides no evidence

concerning any of the previous incidents, or that

the other incidents, aside from White’s, resulted in

litigation alleging a constitutional violation.

Seemingly, the only similarity is that a K-9 was

deployed. Moreover, even taking Plaintiff’s case

into account, he can point to six total incidents

75a

relating to a K-9 and the City of Baytown from

2018 to date. Based on existing case law, this is

insufficient to satisfy the numerosity requirement.

Significantly, Plaintiff has failed to plead the

other two requirements for pattern liability—

specificity and similarity. Demonstrating a

pattern requires similarity and specificity—prior

indications cannot simply be for “any and all “bad”

or unwise acts, but rather must point to the

specific violation in question.” Peterson, 588 F.3d

at 851 (quoting Estate of Davis ex rel. McCully v.

City of N Richland Hills, 406 F.3d 375,383 (5th

Cir. 2005)).

Here, Plaintiff has failed to plead facts of the

alleged violations with the required similarity.

The Fifth Circuit requires prior instances to be

sufficiently similar to the event that transpired in

the current case. Hicks-Fields, 860 F.3d at 810.

The facts that Plaintiff includes pertaining to each

incident are scant at best. He pleads that five

individuals were allegedly bitten by a City of

Baytown K-9 (even when some of them were not

brandishing a weapon). These are only broad and

vague similarities, at best, to Plaintiff’s case.

Plaintiff’s allegations as they pertain to these

other incidents are wholly lacking in the requisite

specificity as well. Importantly, there is no

description as to the conduct of the alleged victims.

The Court is left wondering, for instance, if the

other alleged victims in those other cases were also

failing to follow an officer’s instructions or if their

76a

companions also reached into the area where the

officer kept his weapon. In other words, Plaintiff’s

descriptions of the prior incidents only tell the

Court that the individuals were bitten, that no

officer was injured, and that some of the

individuals were not brandishing a weapon. These

descriptions result in more questions than they

answer. The Court cannot assume that these prior

incidents amounted to misconduct, much less

constitutional violations, based upon these bare

facts. Thus, Plaintiff’s pattern theory of liability

fails as he cannot show the prior incidents of

alleged misconduct were sufficiently numerous,

specific, or similar to his own.

Alternatively, Plaintiff seeks to impose

municipal liability against the City based on a

ratification theory, arguing that the City’s failure

to discipline Officer Calvert after this incident

ratified his actions. (Doc. No. 25 at 21). The

Supreme Court has provided that “if authorized

policymakers approve a subordinate’s decision and

the basis for it, their ratification would be

chargeable to the municipality because their

decision is final.” City of St. Louis v. Praprotnik,

485 U.S. 112, 127 L.Ed.2d 107 (1988).

Nevertheless, the Fifth Circuit has repeatedly

noted that the ratification theory has been limited

to “extreme factual situations.” Peterson v. City of

Fort Worth, 588 F.3d 838, 848 (5th Cir.2009);

World Wide St. Preachers Fellowship v. Town of

Columbia, 591 F.3d 747, 755 (5th Cir. 2009). The

subordinate’s actions must be “sufficiently

extreme—for instance, an obvious violation of

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clearly established law” for ratification to establish

an official policy or custom for purposes of

municipal liability. Id. Here, Plaintiff has neither

pleaded facts nor cited to legal authority

supporting his assertion that Officer Calvert’s

conduct rises to the level of an “obvious violation of

clearly established law.”

Finally, this Court finds that Plaintiff has

failed to “sufficiently plead any causal connection

between the alleged unconstitutional policy or

custom and the harm alleged to have occurred.”

Joiner, 2016 WL 8792315 at *4 (quoting Doe 1—

Doe 10, 2007 WL 959028 at *2 (N.D. Tex. Mar. 30,

2007)). As noted previously, Plaintiff only pleads

that the City of Baytown: (1) “did not have

adequate written policies, nor did they train or

supervise Calvert in the proper handling of a police

dog,” (2) “condoned and ratified the actions of

Calvert by failing to discipline or retrain him,” and

that (3) has a “pattern, practice and custom of

using a biting police dog to inflict injuries upon

suspects even if they do not pose a threat” and to

“punish them for not complying or for fleeing after

they have complied.” (Id.). These are conclusory

statements that fail to allege a specific

unconstitutional policy or custom that was the

moving force in causing Plaintiff’s injuries.

Accordingly, Plaintiff has failed to plead

sufficient facts identifying a policymaker or an

official policy that would give rise to municipal

liability. Plaintiff has also failed to identify an

unofficial custom or policy with sufficient

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similarity and specificity that could give rise to a

pattern of excessive force and has fallen short of

identifying deliberate conduct that the City of

Baytown engaged in that made them the moving

force behind Plaintiff’s injuries. Thus, Plaintiff’s

claims against the City of Baytown are hereby also

dismissed.

IV. Conclusion

For the foregoing reasons, the Court hereby

GRANTS Defendants’ Motion to Dismiss

Signed at Houston, Texas, this 4th day of

October, 2023

/s/Andrew S. Hanen

Andrew S. Hanen

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.