Maria Pena v. City of Rio Grande City, Texa , 879 F.3d 613 ( 2018 )

Case: 16-41522 Document: 00514306262 Page: 1 Date Filed: 01/12/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41522 FILED
January 12, 2018
Lyle W. Cayce
Clerk
MARIA V. PEÑA, Individually and as Next Friend of M.J.P. and a Minor;
DANIEL PEÑA,
Plaintiffs–Appellants,
versus
CITY OF RIO GRANDE CITY, TEXAS;
ROSA SALINAS, in Her Individual and Official Capacity;
LIEUTENANT JOSE SOLIS, in His Individual and Official Capacity,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Maria Peña sustained injuries as a result of a tasing by police officers for
the City of Rio Grande City. Peña sued the city and two of the officers in state
court, alleging excessive force under 42 U.S.C. § 1983 and negligence under the
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Texas Tort Claims Act (“TTCA”). 1 Upon removal, the district court denied
Peña’s motion for leave to amend, dismissed her claims against the officers,
and entered judgment on the pleadings for the city. Because the district court
erred in disregarding Peña’s proposed amended complaint, and because that
complaint stated plausible claims against the officers, we vacate and remand
for the court to consider whether Peña’s pleadings survive the officers’ defense
of qualified immunity (“QI”). We affirm in part, vacate in part, and remand.
I.
Peña sued the city, Lieutenant Jose Solis, and Officer Rosa Salinas after
Peña was seized by Salinas with a taser. The circumstances surrounding the
incident are disputed, but it appears that the police intervened after observing
an altercation between Peña and her father near their family car. Officer
Humberto Vela, the first to intercede, attempted to extract Peña from the back
seat. Peña fled, and Salinas pursued on foot. At Solis’s order, Salinas fired
her taser at Peña, and the barbs attached to Peña’s back and scalp. She fell to
the ground with injuries to her face and teeth.
Peña initially sued the city, alleging negligence under the TTCA, then
added § 1983 excessive-force claims against the city, Salinas, and Solis. The
city moved for judgment on the pleadings, and the officers moved to dismiss for
failure to state a claim and raised the defense of QI. Upon removal to federal
court, Peña twice sought leave to amend her state-court complaint, presumably
to satisfy the federal pleading standard. Both motions referenced her proposed
amended complaint, but an exhibit of the complaint was attached only to her
initial motion. The district court looked only to Peña’s second motion to amend
1 Pena’s parents were also plaintiffs in the initial suit, but their claims are not
addressed in the briefing. To the extent they are pursuing an appeal, their claims are
abandoned.
2
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and found that allowing the remaining amendments proposed in that motion
would be futile. The court dismissed the claims against the officers without
reaching the QI defense, and it entered judgment on the pleadings for the city.
II.
Peña asserts the district court erred in evaluating her complaint under
the federal “plausibility” standard instead of Texas’s more lenient “fair notice”
standard. She maintains that Federal Rule of Civil Procedure 8 does not apply
to filings before removal. 2 This court has yet to address that question squarely,
but our closest precedent and considerations of practicality weigh heavily
against Peña’s position.
A removed action does not need to be repleaded “unless the court orders
it.” FED. R. CIV. P. 81(c)(2). In a removed case, plaintiffs can rely on the state
pleadings, whatever the state pleading standard, absent a challenge to their
validity. See White v. State Farm Mut. Auto. Ins. Co., 479 F. App’x 556, 561
(5th Cir. 2012) (per curiam). Where, as here, the defendants challenge the
pleadings, we conclude, as we will explain, that the federal pleading standard
applies.
In International Energy Ventures Management, L.L.C. v. United Energy
Group, Ltd., 818 F.3d 193, 199 (5th Cir. 2016), this court’s diversity jurisdiction
depended on whether a non-diverse defendant was properly joined before
removal. To answer that question, we first had to determine whether the
plaintiffs had stated a claim against the non-diverse defendant in their state-
court pleadings. Id. We concluded that the pleadings must be reviewed under
the federal pleading standard because the question of improper joinder “[a]t
2 See FED. R. CIV. P. 81(c)(1) (“These rules apply to a civil action after it is removed
from a state court.”).
3
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bottom . . . is solely about determining the federal court’s jurisdiction.” Id.
at 202. 3 Peña asks that we distinguish International Energy on the ground
that its reasoning was anchored in the underlying jurisdictional question. But
there is no valid reason to cabin our decision in that way. Applying contextu-
ally dependent pleading standards to removed cases would bring more con-
fusion than clarity, especially in areas of federal law with specialized pleading
standards, intertwined with the QI defense. Cf. Anderson v. Valdez, 845 F.3d
580, 589–90 (5th Cir. 2016). Upon removal, the federal pleading standards
control.
Peña complains this will unfairly prejudice plaintiffs, but our liberal
amendment rules prove to the contrary. After the 21-day period in which
pleadings may be amended “as a matter of course,” “[t]he court should freely
give leave [to amend] when justice so requires.” FED. R. CIV. P. 15(a)(1)–(2).
Removal from a notice-pleading jurisdiction is a natural time at which justice
would call for the court to permit such an amendment. See Faulkner v. ADT
Sec. Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013).
The district court should not have denied Peña leave to amend to conform
to the federal standard. This circuit does not require a complicated motion to
amend, but only that “the party requesting amendment” “set forth with partic-
ularity the grounds for the amendment and the relief sought.” 4 The failure to
attach a copy of the proposed complaint is not, on its own, fatal to a motion to
amend. Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (5th Cir. 1984); Davis v. United
3 We also reasoned that this holding was compelled by Smallwood v. Ill. Cent. R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (en banc), which held that “a Rule 12(b)(6)-type analysis”
was one method for “predicting whether a plaintiff has a reasonable basis of recovery under
state law” for the purposes of joinder. Id.
4United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 331 (5th Cir. 2003) (quoting
United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386–87 (5th
Cir. 2003)).
4
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States, 961 F.2d 53, 57 (5th Cir. 1991). Though Peña failed to attach the
amended complaint to her second motion, she pointed out, in both motions,
that the case had been removed. Additionally, the proposed complaint was her
first pleading in federal court upon removal. That is sufficient particularity to
permit amendment, and the district court thus abused its discretion 5 in penal-
izing Peña for her clerical error.
Nonetheless, the failure of the district court to review the proposed com-
plaint does not, on its own, compel remand. “[W]here the district court’s denial
of leave to amend was based solely on futility, this court applies a de novo
standard of review ‘identical, in practice, to the standard used for reviewing a
dismissal under Rule 12(b)(6).’” 6 Under that standard, we must evaluate the
sufficiency of the proposed complaint and decide which, if any, of Peña’s claims
survive the pleadings.
III.
Peña can assert her claims only to the extent they pass the plausible-
pleading test of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 7 “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. The city’s motion for judgment on the pleadings is subject to this
same standard. Doe v. MySpace, Inc., 528 F.3d 413, 428 (5th Cir. 2008).
5 See Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (explaining that a denial
of leave to amend is reviewed for abuse of discretion).
6Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting City of
Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010)).
7 See generally 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 8.04[1][b]
(3d ed. 2017).
5
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A. Section 1983 Claims Against Salinas and Solis
We have outlined the proper procedural framework for addressing § 1983
claims at the pleading stage. Regardless of whether QI is asserted, a district
court must first “determine whether the plaintiff has ‘file[d] a short and plain
statement of his complaint, a statement that rests on more than conclusions
alone.’” Anderson, 845 F.3d at 589–90 (quoting Schultea v. Wood, 47 F.3d 1427,
1433 (5th Cir. 1995) (en banc)). Only after the regular pleading requirement
is satisfied can the court “insist that a plaintiff file a reply tailored to [the
defendant’s] answer [or motion to dismiss] pleading the defense of qualified
immunity.” Id. at 590 (quoting Schultea, 47 F.3d at 1433–34). In Anderson,
we first evaluated whether the complaint had sufficiently pleaded the elements
of a First Amendment retaliation claim; only then did we proceed to the QI
analysis. Id. at 590, 599. Here, the district court granted the officers’ motions
to dismiss without reaching QI. Under the above framework, we begin by
reviewing that determination in light of Peña’s proposed amended complaint.
Peña asserts that Solis and Salinas used excessive force to seize her in
violation of the Fourth Amendment. Her proposed amended complaint alleges
that Vela approached to arrest her and that she did not physically assault
either Vela or her father. While attempting the arrest, Vela threatened and
attempted to dry-stun Peña, but she ran away. Peña claims that she was
unarmed, not a threat to third parties, and not suspected of a crime while she
fled.
As Peña was fleeing, Solis gave three orders to the officers to fire their
tasers. Salinas then fired hers while running, and the barbs lodged in Peña’s
scalp and back. Peña fell to the ground, “causing burns and breaking two of
her front teeth.” Once she was on the ground, Peña claims the electrical cur-
rent continued to flow; Solis saw her “shaking” and ordered Salinas to turn off
6
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her taser. Peña alleges that “Salians deliver[ed] more than [one] electrical
exposure charge” after she had been subdued.
To state a claim for excessive force, Peña’s proposed complaint must
allege “(1) an injury, which (2) resulted directly and only from the use of force
that was clearly excessive to the need; and the excessiveness of which was
(3) objectively unreasonable.” Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d
481, 487 (5th Cir. 2001) (citation omitted). The second and third elements
collapse into a single objective-reasonableness inquiry, see Scott v. Harris, 550
U.S. 372, 381 (2007), guided by the following Graham factors: “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 attempt-
ing to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Peña easily satisfies the injury prong. The central question is whether
she pleaded facts that plausibly suggest the officers’ conduct was objectively
unreasonable. We analyze the officers separately because they are alleged to
have participated in distinct ways: Whereas Solis gave the order to tase,
Salinas fired the neutralizing shot. Cf. Kitchen v. Dallas Cty., 759 F.3d 468,
480 (5th Cir. 2014) (requiring separate QI analyses where the officers did not
act in unison).
1. Salinas
Peña presents two factual grounds for an excessive-force claim against
Salinas: (1) that Salinas used the taser to stop Peña from fleeing and (2) that
she continued to apply an electrical charge to Peña after she had struck the
ground. The second allegation plausibly suggests objective unreasonableness.
In Cooper v. Brown, 844 F.3d 517, 523−24 (5th Cir. 2016), we distinguished
the initial use of a dog bite to restrain a suspect from the continued application
of that same bite once the suspect was no longer resisting. We found it clearly
7
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established “that once an arrestee stops resisting, the degree of force an officer
can employ is reduced.” Id. at 524 (discussing Bush v. Strain, 513 F.3d 492,
502 (2008); Newman v. Guedry, 703 F.3d 757, 762 (5th Cir. 2012)). More
recently, in Darden v. City of Fort Worth, 866 F.3d 698, 706 (5th Cir. 2017), we
held it objectively unreasonable to tase a suspect once he had “put his hands
in the air” and was “no longer resisting arrest.” 8 Hence, the continued tasing
of Peña once she had already hit the ground, and was no longer resisting, states
a well-recognized excessive-force claim.
The initial tasing, however, presents a closer question, given that Peña
was fleeing. In Newman, which held it objectively unreasonable for officers to
tase a non-resisting suspect, we specifically noted that “[n]o one contends that
Newman attempted to flee.” Newman, 703 F.3d at 763. The absence of any
evidence that the suspect had fled was significant likewise in Deville v. Mar-
cantel, 567 F.3d 156, 167–68 (5th Cir. 2009), in which the police pulled a
woman from her car during a traffic stop.
Our decision in Zimmerman v. Cutler, 657 F. App’x 340, 342 (5th Cir.
2016 (per curiam), arguably presents the closest factual analogue. Zimmer-
man was struck with a taser after fleeing from the police, who had arrived to
break up a verbal altercation. Id. We did not reach the question of excessive
force, deciding only “that at the time of Zimmerman’s arrest it was not clearly
established . . . that a single shot or use of a Taser to halt a fleeing mis-
demeanor suspect would amount to excessive force.” Id. at 347.
Crucially, Peña’s proposed complaint alleges that she was not suspected
8 See also Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam)
(holding it objectively unreasonable to tase a suspect who was arrested, subdued, and “no
longer resisting arrest”); Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015) (deferring to
the jury’s determination that officers acted in an objectively unreasonable manner in contin-
uing to apply force “after a suspect has been restrained and after the suspect stops resisting”).
8
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of any crime when she fled, thus distinguishing her from the abovementioned
plaintiffs. That characterization is belied by the police reports, but on a motion
to dismiss, Peña’s well-pleaded factual allegations enjoy a presumption of
truth. 9 Given her plausible allegation that she was a non-suspect at the time
of her initial tasing, Peña’s pleadings in this regard also state a claim against
Salinas for excessive force.
2. Solis
Two theories of § 1983 liability potentially apply to Solis’s order to tase
Peña: supervisor and bystander liability. The former obtains “if (1) [the super-
visor] affirmatively participates in the acts that cause the constitutional depri-
vation, or (2) [the supervisor] implements unconstitutional policies that caus-
ally result in the constitutional injury.” Gates v. Tex. Dep’t of Prot. & Reg.
Servs., 537 F.3d 404, 435 (5th Cir. 2008). “In order to establish supervisor
liability for constitutional violations committed by subordinate employees,
plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with delib-
erate indifference to violations of others’ constitutional rights committed by
their subordinates.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (internal
quotation marks and citation omitted, alterations and emphasis in original).
Peña alleges that “Lt. Jose Solis . . . gave the order to tase Maria Julissa
Peña . . . three (3) times.” We infer from the inclusion of his title, “Lieutenant,”
9 See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). Defendants sug-
gest that the court must presume the allegations in the police report to be true because Peña
incorporated the report into her complaint. See Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well as
other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated into the complaint by reference[.]”); Wilson v. Birnberg,
667 F.3d 591, 595 (5th Cir. 2012) (same). But Peña’s proposed complaint expressly rejects
those elements of the police report that conflict with her account. Hence, for purposes of
Rule 12(b)(6), we presume only that the officers made the assertions contained in the report,
not that those assertions are in fact truthful.
9
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and the use of “order,” that Solis was in a position to direct Salinas to use the
taser against Peña. A superior officer issuing a direct order to a subordinate
to use excessive force demonstrates both the necessary action and causality for
a supervisor-liability claim. Peña’s proposed amended complaint thus stated
a claim against Solis under this theory.
There is bystander liability for an “officer who is present at the scene and
does not take reasonable measures to protect a suspect from another officer’s
use of excessive force . . . .” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).
This theory most naturally applies to the allegation that the electrical charge
continued to be applied after Peña was on the ground and no longer resisting.
The facts, as pleaded, relieve Solis from liability on this theory. As pleaded, it
was Solis who noticed that Peña was “‘shaking’ from the electrical current and
then ordered Officer Salinas to ‘shut off the taser.’” Solis took “reasonable mea-
sures” to stop the application of the charge once he noticed Peña was still
“shaking” on the ground. The proposed complaint does not state a claim
against Solis on this theory.
3. Qualified Immunity
Having determined that Peña sufficiently pleaded Fourth Amendment
violations by both officers, we would ordinarily turn to QI and decide whether
said violations were clearly established at the time of the incident. Anderson,
845 F.3d at 599. But the district court found the complaint deficient on its face
and never reached QI. Because, as a “general rule,” we do “not consider an
issue not passed upon below,” 10 we remand for the district court to decide in
the first instance whether QI defeats Peña’s proposed amended complaint. 11
10 Humphries v. Elliott Co., 760 F.3d 414, 418 (5th Cir. 2014) (quoting Singleton v.
Wulff, 428 U.S. 106, 120 (1976)).
11 See Zapata v. Melson, 750 F.3d 481, 485–86, 486 n.3 (5th Cir. 2014) (applying this
10
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B. Section 1983 Claims Against the City
On appeal, Peña presses two theories of municipal liability: that the city
(1) had a policy of tasing juvenile non-suspects and moving targets without
regard for resulting secondary injuries and (2) failed adequately to train its
officers not to use a taser in the aforementioned circumstances. Though Peña
need not offer proof of her allegations at this stage, she still must plead facts
that plausibly support each element of § 1983 municipal liability under either
theory. See Iqbal, 556 U.S. at 678.
1. Policy Liability
We begin with the three elements of municipal liability under § 1983:
“[A] plaintiff must show that (1) an official policy (2) promulgated by the muni-
cipal policymaker (3) was the moving force behind the violation of a constitu-
tional right.” Hicks-Fields v. Harris Cty., 860 F.3d 803, 808 (5th Cir. 2017)
(citations omitted), cert. denied, 2017 U.S. LEXIS 7214 (U.S. Dec. 4, 2017).
Peña’s complaint fails the first two prongs.
The first policy prong “includes the decisions of a government's law-
makers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick v. Thompson,
563 U.S. 51, 61 (2011) (citations omitted); Peterson v. City of Fort Worth,
588 F.3d 838, 850–51 (5th Cir. 2009). To proceed beyond the pleading stage, a
complaint’s “description of a policy or custom and its relationship to the under-
lying constitutional violation . . . cannot be conclusory; it must contain specific
facts.” Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.
1997). 12 Peña’s complaint identifies just two “specific facts,” and neither
rule in the context of QI); Randle v. Lockwood, 666 F. App’x 333, 336–37 (5th Cir. 2016) (per
curiam) (same).
12 See also Iqbal, 556 U.S. at 678 (suggesting that a complaint must contain sufficient
11
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plausibly suggests that the city has a policy of tasing non-suspect minors.
Peña first cites the police department’s written taser policy—reaffirmed
six weeks before the incident—that allows for the tasing of moving targets.
But that policy is neither unconstitutional on its face nor causally connected to
Peña’s excessive-force claim. As noted above, Peña’s allegations against the
officers survive Rule 12(b)(6) not because she was running but because she was
a non-threatening non-suspect. A felon in flight presents another matter
entirely. Because the written policy that Peña identifies is causally irrelevant,
it cannot demonstrate the persistent practice she alleges. 13
Aside from the abovementioned policy, the only “specific fact” in the com-
plaint is the single incident in which Peña was involved. But plausibly to plead
a practice “so persistent and widespread as to practically have the force of law,”
Connick, 563 U.S. at 61, a plaintiff must do more than describe the incident
that gave rise to his injury. In Spiller, 130 F.3d at 167, we rejected, as “vague
and conclusory,” a claim by a black motorist, arrested without probable cause,
that his arrest resulted from the police department’s general policy of “disre-
gard[ing] . . . the rights of African American citizens” and of “engag[ing] [Afri-
can Americans] without regard to probable cause to arrest.” Though Peña
characterizes the relevant policy with greater particularity, her allegations are
equally conclusional and utterly devoid of “factual enhancements.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 14
“factual enhancement[s]” to cross the plausibility threshold) (citing Twombly, 550 U.S.
at 557).
13 See Spiller, 130 F.3d at 167 (rejecting, in part, a municipal-liability claim arising
out of excessive force by police, because the alleged departmental policies were not “causally
connected” to the officer’s conduct).
14 See also Culbertson v. Lykos, 790 F.3d 608, 628 (5th Cir. 2015) (affirming dismissal
for failure to state a Monell claim where alleged misconduct pertained only to plaintiffs);
Spiller, 130 F.3d at 167; Von Eschen v. League City Tex., 233 F.3d 575 (table), 2000 WL
12
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The complaint also fails § 1983’s “policymaker” prong. In Groden v. City
of Dallas, 826 F.3d 280, 286 (5th Cir. 2016), we clarified that, because the iden-
tity of the policymaker is a legal question, courts should not “grant motions to
dismiss for failing to plead [a] specific identity.” Rather, “the complaint need
only allege facts that show an official policy, promulgated or ratified by the
policymaker, under which the municipality is said to be liable.” Id. at 284. The
plaintiff in Groden carried his burden of connecting the policy to the city coun-
cil by alleging that the city “publically announced” the policy and that its
“spokesman” gave “media interviews describing the new policy.” Id. at 286.
A city cannot be liable for an unwritten custom unless “[a]ctual or
constructive knowledge of such custom” is attributable to a city policymaker.
Hicks-Fields, 860 F.3d at 808. Peña’s complaint invites no more than specula-
tion that any particular policymaker, be it the chief of police or the city com-
mission, knew about the alleged custom. 15 Without more, her allegation fails
the second prong of § 1983 as well.
1468838, at *1 (5th Cir. Sept. 8, 2000) (per curiam) (unpublished) (holding that a plaintiff
failed plausibly to plead a persistent practice of misclassifying defendants’ sex-offender
status when he pointed to “only one or, at most, two other similarly situated defendants”);
Prince v. Curry, 423 F. App’x 447, 451 (5th Cir. 2011). At least twice, this court has rejected
widespread-practice claims for failure to demonstrate a pattern of similar incidents. See
Peterson, 588 F.3d at 851 (holding 27 similar incidents insufficient to establish a pattern of
unconstitutional conduct by city police); Pineda v. City of Hous., 291 F.3d 325, 329–31 (5th
Cir. 2002) (same for eleven such incidents). Though Peterson and Pineda were decided on
summary judgment, they fairly suggest that a plausible claim requires more than a recitation
of the incident in which the plaintiff was personally involved.
15 In its reply brief, the city claims the city commission is the relevant policymaker.
But see Police Department, CITY OF RIO GRANDE CITY,
http://www.cityofrgc.com/departments/police_dept/index.php (last visited Dec. 12, 2017)
(describing Police Department as “prescribing rules and regulations”); Peterson, 588 F.3d
at 848 (“Here the parties agree that [the Police] Chief . . . has final policymaking authority
over the . . . Police Department.”). As noted above, the specific identify of the policymaker is
neither here nor there, given Peña’s utter failure to allege facts connecting this floating cus-
tom to any particular policymaker.
13
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2. Failure-to-Train Liability
Peña’s failure-to-train theory requires a plaintiff to prove that “1) the
[city] failed to train or supervise the officers involved; 2) there is a causal
connection between the alleged failure to supervise or train and the alleged
violation of the plaintiff’s rights; and 3) the failure to train or supervise consti-
tuted deliberate indifference to the plaintiff’s constitutional rights.” Thompson
v. Uphsur Cty., 245 F.3d 447, 459 (5th Cir. 2001). Peña’s proposed complaint
identifies multiple alleged inadequacies in the department’s taser-training
program. She claims the city used uncertified taser trainers, that neither Solis
nor Salinas was certified in taser use, and that officers were not trained
regarding “secondary injuries for taser use,” the “appropriate methods for
handling minors,” or “the legal use of force . . . and non-lethal weapons.” Of
these many allegations, only the last bears a direct causal relationship to the
specific constitutional violation at issue—the deployment of nonlethal weapons
against minor non-suspects. 16 Unfortunately for Peña, that allegation fails on
the third, deliberate-indifference prong.
Because the “standard for [municipal] fault” is a “stringent” one, “[a]
pattern of similar constitutional violations by untrained employees is ordin-
arily” required to show deliberate indifference. Connick, 563 U.S. at 62 (quotes
and citations omitted). As noted above, Peña fails sufficiently to plead such a
16 To clarify, a number of these alleged deficiencies could be causally related to the
violation of Peña’s Fourth Amendment rights. For example, a certified taser trainer might
emphasize the importance of not tasing non-suspects, or, perhaps, the process of becoming
certified could require that Solis and Salinas learn that tasing of non-suspect minors is
always ill-advised. Peña has not pleaded to these possibilities. But even if she had, all of the
alleged deficiencies reduce to just one causally-relevant proposition: that Solis and Salinas
were never trained on the use of nonlethal (tasing) force against non-suspect minors. In other
words, Peña’s multiple allegations merely describe the many means by which the city could
have exposed the officers to the single operative message: that officers ought not deploy their
tasers against nonthreatening non-suspects.
14
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pattern.
Peña suggests, in the alternative, that the single incident in which she
was tased plausibly suggests deliberate indifference by the city. Though it is
true that “a plaintiff may establish deliberate indifference” through “a single
incident,” Burge v. St. Tammany Par., 336 F.3d 363, 372 (5th Cir. 2003) (cita-
tions omitted), Peña’s allegations lie well beyond the reach of this narrow
exception.
The Supreme Court first articulated the single-incident principle in City
of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989), by way of a hypothetical:
[C]ity policymakers know to a moral certainty that their police officers
will be required to arrest fleeing felons. The city has armed its officers
with firearms, in part to allow them to accomplish this task. Thus, the
need to train officers in the constitutional limitations on the use of
deadly force . . . can be said to be “so obvious,” that failure to do so could
properly be characterized as “deliberate indifference” to constitutional
rights.
Id. at 390 n.10. The Court has revisited the exception twice, each time declin-
ing to broaden its scope. See Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409
(1997); Connick v. Thompson, 563 U.S. 51, 63–71 (2011). In Connick, the Court
was asked to extend the exception to a prosecutor’s Brady violation. In reject-
ing that invitation, the Court drew an instructive distinction between the
Brady violation and the hypothetical in Canton:
The obvious need for specific legal training that was present in the Can-
ton scenario is absent here. Armed police must sometimes make split-
second decisions with life-or-death consequences. There is no reason to
assume that police academy applicants are familiar with the constitu-
tional constraints on the use of deadly force. And, in the absence of
training, there is no way for novice officers to obtain the legal knowl-
edge they require. Under those circumstances there is an obvious need
for some form of training.
Connick, 563 U.S. at 63. The Court reasoned that those same considerations
did not apply to “[a]ttorneys [who] are trained in the law and equipped with
15
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No. 16-41522
the tools to interpret and apply legal principles, understand constitutional
limits, and exercise legal judgment.” Id.
Our caselaw suggests, however, that the exception is generally reserved
for those cases in which the government actor was provided no training what-
soever. In Brown v. Bryan County, 219 F.3d 450, 453−54, 462 (5th Cir. 2000),
we held the single-incident exception satisfied where a reserve deputy, with
“no training” from the police department applied excessive force during a car
chase. Our later decisions have distinguished Brown, emphasizing that “there
is a difference between a complete failure to train[] . . . and a failure to train in
one limited area.” 17 Peña’s proposed complaint acknowledges that Solis and
Salinas received taser training from other officers, so her allegations cannot
satisfy the exacting test for the narrow single-incident exception.
C. Texas Tort Claims Act
For her claim against the city under the TTCA, Peña alleges that Salinas
negligently aimed the taser at her while she was running. The district court
dismissed that claim because Peña was “unable to establish that sovereign
immunity ha[d] been waived.” We agree.
The TTCA waives the sovereign immunity enjoyed by Texas municipal-
ities only “to the extent of liability created by [the statute].” TEX. CIV. PRAC. &
REM. CODE § 101.025(a). The TTCA limits its waiver of liability on personal
injury claims to negligence involving “the operation or use of a motor-driven
vehicle or motor-driven equipment” to the extent the employee would be
17 McClendon v. City of Columbia, 258 F.3d 432, 442–43 (5th Cir. 2001), vacated for
reh’g en banc, 285 F.3d 1078 (5th Cir.), decision on rehearing en banc, 305 F.3d 114 (5th Cir.
2002); accord Peterson, 558 F.3d at 849; Estate of Davis ex rel. McCully v. City of N. Richland
Hills, 406 F.3d 375, 383, 386 (5th Cir. 2005); Roberts v. City of Shreveport, 397 F.3d 287, 295–
96 (2005); Cozzo v. Tangipahoa Par. Council, 279 F.3d 273, 288 (5th Cir. 2002).
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personally liable. Id. § 101.021. 18 Intentional torts are explicitly excepted from
the waiver. Id. § 101.057.
Peña contends that sovereign immunity is waived to the extent Salinas
negligently aimed the taser, even though seizing Peña with the taser is
unquestionably an intentional tort. This court has already decided, in accord-
ance with the holdings of the Texas Supreme Court, that such a theory is not
cognizable under the TTCA: “Claims of excessive force in the context of a law-
ful arrest arise out of a battery rather than negligence, whether the excessive
force was intended or not.” Quinn v. Guerrero, 863 F.3d 353, 364 (5th Cir.
2017) (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 593 (Tex. 2014)),
petition for cert. filed (Nov. 6, 2017) (No. 17-686). “The determinative question
is whether the negligence claim arises from the same facts that form the basis
of the intentional-tort claim.” Id.
Peña posits that Salinas’s firing of the taser at Peña’s head is an indepen-
dent breach of a standard of care and thus negligence. But that is inextricably
intertwined with the intentional tort of striking Peña with the taser, 19 and
18 A governmental unit is liable for
(1) property damage, personal injury, and death proximately caused by the wrongful
act or omission or the negligence of an employee acting within his scope of employ-
ment if:
(A) the property damage, personal injury, or death arises from the operation or use
of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law;
and
(2) personal injury and death so caused by a condition or use of tangible personal or
real property if the governmental unit would, were it a private person, be liable to
the claimant according to Texas law.
TEX. CIV. PRAC. & REM. CODE § 101.021.
The Texas Supreme Court has previously rejected a similar thinly-sliced negligence
19
claim in the context of a police seizure. It held that allegations that an officer “negligently
ignored police procedure by continuing [a] pursuit” and “negligently ignored an order not to
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No. 16-41522
Quinn, id., forecloses Peña’s effort to bifurcate those two actions. Thus, the
TTCA does not waive sovereign immunity with respect to Peña’s claims.
In sum, the claims against the city entirely fail, but the claims against
the officers survive at least the first half of the proper analysis at the pleading
stage. The judgment of dismissal is thus AFFIRMED IN PART, VACATED IN
PART, and REMANDED, with instruction to consider whether Peña’s plead-
ings against Solis and Salinas survive QI. We place no limitation on the mat-
ters that the district may consider and decide, as needed, on remand, and we
make no suggestion as to the ultimate merits.
shoot at [a] car” were ultimately “intentional rather than negligent acts, and thus do not fall
within the waiver of sovereign immunity.” Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575,
580 (Tex. 2001).
18