Allen v. Hays ( 2023 )

Case: 21-20337 Document: 00516712566 Page: 1 Date Filed: 04/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2023
No. 21-20337
Lyle W. Cayce
Clerk
John Allen, Jr.; Lawton Allen, Jr.;
Estate of John Allen, Sr.; Mr. Sherman Allen;
Martha Vaughn,
Plaintiffs—Appellants,
versus
Justin Hays; City of Houston; Tyler Salina; M. Arroyo;
Diego Morelli,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-171
ON PETITION FOR REHEARING
Before Smith, Barksdale, and Haynes, Circuit Judges.
Per Curiam:
IT IS ORDERED that the petition for rehearing is DENIED. The
opinion issued on March 21, 2023, is WITHDRAWN, and the following
opinion is substituted:
Case: 21-20337 Document: 00516712566 Page: 2 Date Filed: 04/14/2023
No. 21-20337
Before Smith, Barksdale, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
During a routine traffic stop, Houston Police Officer Justin Hayes
fatally shot John Allen, Jr. Plaintiffs brought over a dozen claims against
Hayes, two other involved police officers, and the city. The individual defen-
dants claim the benefit of qualified immunity. After years of litigation, the
district court, in ruling on a motion to dismiss in response to plaintiffs’
complaint, dismissed the claims in toto. Plaintiffs appeal the dismissal and
request reassignment to a different district judge.
We agree with plaintiffs that dismissal of the § 1983 claims against
Hayes for excessive force, denial of medical care, and unlawful arrest was
error. We reverse and remand those claims. The dismissal of plaintiffs’
remaining claims is affirmed. We deny, as moot, plaintiffs’ request for re-
assignment to a new judge.
I.
On November 4, 2015, John Allen, Sr., was driving through Houston
with friend Shannell Arterberry in the passenger seat of a pickup. 1 Allen was
a 58-year-old veteran known to the Houston Police Department (“HPD”) for
his documented history of PTSD. He had twice struggled to comply with
orders from Houston police, but officers had resolved both non-violent inci-
dents with de-escalation tactics and follow-up mental health checks.
Late that night, Officers Justin Hayes and Tyler Salina stopped Allen
for a routine traffic stop. 2 After Allen pulled the truck over, the officers
1
Unless otherwise noted, all facts are taken from the plaintiffs’ third amended
complaint.
2
Hayes’s name has occasionally been spelled as “Hays.” At oral argument, counsel
confirmed that the proper spelling is “Hayes.” We thus adopt that spelling.
2
Case: 21-20337 Document: 00516712566 Page: 3 Date Filed: 04/14/2023
No. 21-20337
approached the passenger’s and driver’s sides of Allen’s vehicle with pointed
guns. Salina went to the driver’s side and asked Allen to roll the window
down, but the window did not function. Salina heard Allen state that he was
going to reach for his wallet. On the passenger side, Hayes instructed Allen
to stop moving, to stop reaching, and to remove his foot from the gas pedal.
Hayes had a taser in his pocket but did not use it. Instead, within seconds and
without further warning, Hayes leaned across Arterberry and fired six shots,
hitting Allen five times at point-blank range.
After being shot, Allen fell onto the gas pedal, and his truck slammed
into a nearby tree. Hayes radioed for backup and commanded Arterberry out
of the truck and onto the street, where he handcuffed her and put her into the
back of the police car. Several minutes later, Officers Diego Morelli, Jeffrey
Sneed, Jason Zimmerman, Jose Lopez, Alton Baker, Matthew Hurbin, and
Shirley Ellis arrived. The officers broke the driver’s side window with an
officer’s rifle butt and dragged the injured Allen onto the street.
Once Allen was on the ground, Hayes handcuffed him. At no point
did any officer attempt to use any life-saving procedures on Allen. Emer-
gency Medical Services was not called until six minutes after the shooting,
only after Hayes had radioed for backup and the dispatching officer had
checked the license plate. Handcuffed on the ground, Allen died at the scene.
Seven officers searched the scene and found no weapons in the car or
in Allen’s pockets. 3 Twenty-two days later, however, Mandy Arroyo, an
3 In reviewing a motion to dismiss, we consider “only the facts alleged in the plead-
ings, documents attached as exhibits or incorporated by reference in the pleadings, and
matters of which the judge may take judicial notice.” 2 JAMES WM. MOORE ET AL.,
MOORE’S FEDERAL PRACTICE § 12.34[2], at 12-94 (3d ed. 2022). Throughout their
brief, appellees make several references to various videos, such as videos of the officers’
body-cam footage and a video that allegedly confirms a pistol found in “the passenger com-
partment" of Allen’s trunk. Assuming arguendo that the body-cam footage was incor-
3
Case: 21-20337 Document: 00516712566 Page: 4 Date Filed: 04/14/2023
No. 21-20337
Internal Affairs Division investigator for HPD, reported that his investigation
of the truck turned up a gun in plain sight on the back seat. The city awarded
Hayes an award for the incident involving Allen and promoted him to
sergeant.
II.
The instant appeal is this case’s second trip to this court. Plaintiffs’
case was removed to federal district court in January 2018, and the district
court dismissed all their claims in August of that year. Plaintiffs appealed,
contending that the district court had improperly weighed the evidence in
rendering its decision on defendants’ motion to dismiss, and the panel
agreed; we reversed and remanded the judgments dismissing the claims
against Hayes and the city. Allen v. Hays, 812 F. App’x 185 (5th Cir. 2020).
Upon return to the district court, plaintiffs filed their third amended
complaint (the “live complaint”). That complaint alleged approximately
twenty-three claims against Hayes, the City of Houston, and Officers Morelli
and Arroyo. Again, defendants moved to dismiss per Federal Rule of Civil
Procedure 12(b)(6), and the district court dismissed all claims. This appeal
timely followed.
porated into plaintiffs’ live complaint such that we can consider it at the motion-to-dismiss
stage, which is far from clear, nothing in it clearly contradicts plaintiffs’ version of
events. Cf. Scott v. Harris, 550 U.S. 372, 378–79 (2007) (considering a videotape that “quite
clearly contradict[ed]” the non-movant’s version of events in reviewing a denial of
summary judgment). To the extent that any other photos and videos are in the record
before us, none can be considered at the motion-to-dismiss stage because they were neither
referenced in plaintiffs’ live complaint nor central to it, nor can we take judicial notice of
them.
4
Case: 21-20337 Document: 00516712566 Page: 5 Date Filed: 04/14/2023
No. 21-20337
III.
We review de novo the grant of a Rule 12(b)(6) motion to dismiss.
Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011). To survive a motion to
dismiss, the complaint must contain “sufficient factual matter, accepted as
true, to ʻstate a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
At this stage, “[w]e accept all well-pled facts as true, construing all
reasonable inferences in the complaint in the light most favorable to the plain-
tiff.” White v. U.S. Corrections, L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021)
(citing Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020)). “Conclusory
allegations, unwarranted factual inferences, or legal conclusions” are not
accepted as true. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)
(citing Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361
(5th Cir. 2004)).
When a plaintiff pleads a § 1983 claim that implicates qualified im-
munity, the complaint “must plead specific facts that both allow the court to
draw the reasonable inference that the defendant is liable for the harm he has
alleged and that defeat a qualified immunity defense with equal specificity.”
Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020) (quoting Backe v.
LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)). The standard is not heightened:
“[A] plaintiff must plead qualified-immunity facts with the minimal specifi-
city that would satisfy Twombly and Iqbal.” Id. Therefore, “[i]n determining
immunity, we accept the allegations of [plaintiff ]’s complaint as true.” Lamp-
ton, 639 F.3d at 225 (quoting Kalina v. Fletcher, 522 U.S. 118, 122 (1997)).
Qualified immunity shields government officials from liability if their
conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
5
Case: 21-20337 Document: 00516712566 Page: 6 Date Filed: 04/14/2023
No. 21-20337
457 U.S. 800, 818 (1982). The Supreme Court has laid out a two-part test to
determine whether a defendant is entitled to qualified immunity: The plain-
tiff must show first, “whether the facts that a plaintiff has alleged . . . make
out a violation of a . . . right” and second, “whether the right at issue was
ʻclearly established’ at the time of defendant’s alleged misconduct.” Pearson
v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 553 U.S. 194,
201 (2001)).
IV.
Plaintiffs bring § 1983 claims against Hayes for unlawful arrest and
detention, excessive force, denial of medical care, and racial discrimination.
We reverse and remand the dismissal of the claims of excessive force, unlaw-
ful arrest and detention, and denial of medical care. We affirm the dismissal
of the race-discrimination claim.
Excessive Force
Plaintiffs claim that Hayes’s shooting of Allen was an excessive use of
force that violated Allen’s constitutional right to be free from unreasonable
search and seizure.
To satisfy the first step of the above-discussed two-part test for qual-
ified immunity, Allen must show that he “suffer[ed] an injury that result[ed]
directly and only from a clearly excessive and objectively unreasonable use of
force.” Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021) (citing Joseph ex rel.
Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). This is an
objective standard. The use of force is not excessive and unreasonable if “the
officer[’s] actions are objectively reasonable in light of the facts and circum-
stances confronting [him], without regard to their underlying intent or moti-
vation.” Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.
6
Case: 21-20337 Document: 00516712566 Page: 7 Date Filed: 04/14/2023
No. 21-20337
2012) (alterations in original)). Many factors are relevant: “[W]ith ʻcareful
attention to the facts and circumstances of each particular case,’ courts
consider ʻthe 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. (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts will consider “not only
the need for force, but also the relationship between the need and the amount
of force used.” Id. (quoting Joseph, 981 F.3d at 332). And the reasonableness
is “judged from the perspective of a reasonable officer on the scene,” instead
of the “20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396).
It follows that it is manifestly unreasonable for an officer to seize a
suspect the officer knows is unarmed and not aggressive by shooting him
dead. Poole v. City of Shreveport, 13 F.4th 420, 424 (5th Cir. 2021); see also
Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). But if the officer believes
the suspect has a gun, the calculation changes—even if there was never, in
fact, a gun. This circuit has often found “an officer’s use of deadly force to
be reasonable when a suspect moves out of the officer’s line of sight such that
the officer could reasonably believe the suspect was reaching for a weapon.”
Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009). 4 Nevertheless, an officer
cannot escape liability any time he claims he saw a gun. The question is
whether the officer’s belief that he saw a gun was sufficiently reasonable to
justify the use of deadly force in light of all the surrounding circumstances.
For example, many of our cases involve other factors that led the
officer to suspect that the victim would resort to violence. 5 Further, “[e]ven
4
See also Ontiveros v. City of Rosenberg, 564 F.3d 379, 385 (5th Cir. 2009); Reese v.
Anderson, 926 F.2d 494, 501 (5th Cir. 1991).
5
See, e.g., Batyukova v. Doege, 994 F.3d 717, 722–23 (5th Cir. 2021) (suspect refused
to comply with demands, gave officers the middle finger, and yelled “f**k you,” “f**k
7
Case: 21-20337 Document: 00516712566 Page: 8 Date Filed: 04/14/2023
No. 21-20337
when a suspect is armed, a warning must be given, when feasible, before the
use of deadly force.” Poole, 13 F.4th at 425. And the use of force should be
proportional to the threat. See Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir.
2016). Thus, if the officer could reasonably use less than deadly force, he
must.
The majority of these factors cut against Hayes. Plaintiffs have alleged
that Allen was not carrying a gun (nor was there a gun in the car), that a rea-
sonable officer would have known there was no gun, and that Allen never
reached outside the officer’s line of sight. Hayes had a taser he could have
used instead of a gun, but he did not. Hayes never warned Allen that he would
shoot. Taking these allegations as true, plaintiffs have pleaded sufficient facts
plausibly to allege that Hayes’s decision to shoot Allen was an excessive use
of force.
To survive the motion to dismiss, however, as the second step of
overcoming a qualified-immunity defense, plaintiffs must also plead enough
to allege that the constitutional violation was clearly established at the time
of the shooting. Waller, 922 F.3d at 599. “Qualified immunity shields from
civil liability ʻall but the plainly incompetent or those who knowingly violate
the law.’” Manis, 585 F.3d at 845 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). To survive the motion to dismiss, “plaintiff[s] must plead ʻfacts
which, if proved, would defeat [the] claim of immunity.’” Waller, 922 F.3d at
599(quoting Westfall v. Luna, 903 F.3d 534, 542 (5th Cir. 2018) (second alter-
America,” and, allegedly, “you’re going to f**king die tonight”); Manis, 585 F.3d at 842(suspect ignored officers’ orders and “began shouting obscenities and flailing his arms
aggressively at them”); Ontiveros, 564 F.3d at 381 (police officers were warned that suspects
were “high risk because [they] had been involved in a violent altercation earlier in the day,
may have been drinking, possessed and threatened to use a pistol and a rifle, and were
believed capable of using the weapons”).
8
Case: 21-20337 Document: 00516712566 Page: 9 Date Filed: 04/14/2023
No. 21-20337
ation in original)).
It was well established, at the time of the shooting, that such use of
deadly force against a person who the officer knows is not dangerous is a con-
stitutional violation. 6 Plaintiffs have plausibly alleged that Hayes knew Allen
was unarmed and not aggressive. Their claim of excessive force thus survives
the motion to dismiss.
False Arrest
Plaintiffs bring two claims of unlawful arrest and detention against
Hayes. They first claim that Hayes unlawfully detained Allen when he pulled
Allen over without reasonable suspicion. Their second claim is that Hayes
unlawfully arrested Allen when he handcuffed him without probable cause.
The first allegation is that the initial traffic stop was an unlawful sei-
zure. The Fifth Circuit analyzes the legality of traffic stops under the Terry
standard, “a two-tiered reasonable suspicion inquiry: 1) whether the officer’s
action was justified at its inception, and 2) whether the search or seizure was
reasonably related in scope to the circumstances that justified the stop in the
first place.” United States v. Valadez, 267 F.3d 395, 397–98 (5th Cir. 2001)
(citing, inter alia, Terry v. Ohio, 392 U.S. 1, 19–20 (1968)). Then, “the inves-
tigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of time.”
Id. (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Under this standard,
if Hayes thought Allen was committing a traffic violation, then the first prong
of Terry would be satisfied.
6
See, e.g., Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 488 (5th Cir. 2001)
(“[D]eadly force violates the Fourth Amendment unless ʻthe officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to
others.’” (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
9
Case: 21-20337 Document: 00516712566 Page: 10 Date Filed: 04/14/2023
No. 21-20337
Plaintiffs’ complaint is inconsistent regarding whether Hayes sus-
pected a traffic violation. Plaintiffs’ opening brief suggests that the police
officers pulled Allen over for a broken tail light and running a stop sign. Later,
in their reply brief, they claim that Allen had not committed any traffic
violations. Even so, an argument cannot be raised for the first time in a reply
brief, so it is waived. 7 Without a specific allegation that the traffic stop was
without grounds, the claim of illegal detention is conclusory. The claim’s
dismissal is thus affirmed.
Plaintiffs’ allegation of unlawful arrest fares better. An arrest is unlaw-
ful if the officer did not have probable cause. Club Retro, L.L.C. v. Hilton, 568
F.3d 181, 206–07 (5th Cir. 2009). A seizure is an arrest if “a reasonable per-
son in the suspect’s position would have understood the situation to consti-
tute a restraint on freedom of movement of the degree which the law associ-
ates with formal arrest.” Turner v. Lieutenant Driver, 848 F.3d 678, 692–93
(5th Cir. 2017) (quoting Carroll v. Ellington, 800 F.3d 154, 170 (5th Cir. 2015)).
But “[u]sing some force on a suspect, pointing a weapon at a suspect, order-
ing a suspect to lie on the ground, and handcuffing a suspect . . . do not auto-
matically convert an investigatory detention into an arrest requiring probable
cause.” Id. (quoting United States v. Sanders, 994 F.2d 200, 206 (5th Cir.
1993)). To determine whether an investigatory detention has risen to the
level of an arrest, “[t]he court must determine case by case whether the police
were unreasonable in failing to use less intrusive procedures to conduct their
investigation safely.” Sanders, 994 F.2d at 206–07.
Plaintiffs allege it was an illegal seizure for Hayes to handcuff Allen
after he had been shot six times, crashed into a tree, pulled out of his truck,
7
Exceptions to this rule are not applicable here.
10
Case: 21-20337 Document: 00516712566 Page: 11 Date Filed: 04/14/2023
No. 21-20337
and put onto the ground. 8 The district court held that Allen “was handcuffed
after disobeying Hayes’s repeated instructions and driving away into a tree—
which is unquestionably probable cause.” But accepting the facts as pleaded
by plaintiffs, Allen never disobeyed Hayes’s instructions, and driving into the
tree was caused by “an involuntary reflex” that occurred “[f ]ollowing the
impact from the gunshots.” The district court thus construed the facts in
favor of the defendants, which is error. Regardless, we analyze de novo.
If Hayes reasonably thought he saw a gun, then it would have been
reasonable to handcuff Allen and not necessarily an arrest. See Sanders,
994 F.2d at 206–07. Conversely, if Hayes did not have reason to believe there
was a gun, failing to use less intrusive procedures than handcuffs to detain
Allen likely constituted an arrest without probable cause, especially given
Allen’s injuries. See id. Plaintiffs have alleged that nothing supports the con-
tention that Hayes was reasonable in believing he saw a gun: There was never
a gun in Allen’s pocket, Salina had instructed Allen to pull out his wallet, and
nothing else in the surrounding circumstances led Hayes to believe Allen had
a gun. In the motion to dismiss stage, this is sufficient to allege that Hayes’s
handcuffing of the injured Allen was an arrest (see Sanders) without probable
cause (see Turner).
But to survive the motion to dismiss, plaintiffs must also show that
Hayes’s actions clearly violated the Constitution. Sanders and Carroll were
decided before Hayes’s actions. The question is therefore whether they laid
out the law with such particularity that Hayes would have known his actions
8
The complaint fluctuates between stating that it was Hayes or Morelli who hand-
cuffed Allen. But when reviewing a motion to dismiss, we view facts “in the light most
favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.
2008) (quotation omitted). For the purposes of this motion, we therefore assume Hayes
had at least some involvement in the handcuffing.
11
Case: 21-20337 Document: 00516712566 Page: 12 Date Filed: 04/14/2023
No. 21-20337
were unconstitutional. See Manis, 585 F.3d at 845–46. Again, we construe all
pleadings in favor of the plaintiffs. Taking as true that Hayes had no reason
to believe Allen was armed and that Hayes knew Allen was seriously injured
and likely could not move, a police officer would know, under these prece-
dents, that to handcuff Allen was an arrest without probable cause under
clearly established law. Accordingly, we vacate and remand the dismissal of
that claim.
Denial of Medical Care
Plaintiffs allege that Allen “was bleeding, moaning, groaning from
pain, and in obvious and critical need of emergency medical care and treat-
ment,” but Hayes “did not provide life-saving measures or timely summon
medical care or permit medical personnel to treat Mr. Allen.” They contend
that this denial of medical care was a constitutional violation.
The Fourteenth Amendment “right of a pretrial detainee to medical
care . . . . is violated if an officer acts with deliberate indifference to a substan-
tial risk of serious medical harm and resulting injuries.” Mace v. City of Pales-
tine, 333 F.3d 621, 625 (5th Cir. 2003) (citing Wagner v. Bay City, 227 F.3d 316,
324 (5th Cir. 2000)). Though Mace held that “[t]he officer must have the
subjective intent to cause harm,” id. at 626, subsequent Fifth Circuit deci-
sions have refined Mace based on earlier cases and have rejected the
subjective-intent requirement, generally requiring plaintiff to show only that
defendants “were [1] aware of facts from which an inference of a substantial
risk of serious harm to an individual could be drawn” and “[2] that they
actually drew the inference.” Garza v. City of Donna, 922 F.3d 626, 634 (5th
Cir. 2019) (citing Sanchez v. Young Cnty., 866 F.3d 274, 280 (5th Cir. 2017));
see also Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020). Even under that
standard, however, deliberate indifference remains “an extremely high stan-
dard to meet.” Dyer, 964 F.3d at 380 (quoting Domino v. Tex. Dep’t of Crim.
12
Case: 21-20337 Document: 00516712566 Page: 13 Date Filed: 04/14/2023
No. 21-20337
Just., 239 F.3d 752, 755 (5th Cir. 2001)). 9
Plaintiffs therefore need to allege sufficient facts to show that
(1) Hayes was aware of facts from which the inference could be drawn that a
substantial risk of serious harm existed and (2) he drew that inference. They
have. Plaintiffs alleged that after Allen was shot five times at point-blank
range and crashed into a tree, Hayes waited six minutes after the shooting to
call for medical care, dragged Allen out of the truck, handcuffed him on the
ground, and never attempted to provide CPR, oxygen, chest compressions,
or any other life-saving measures.
The most on-point factual comparator is Cope v. Cogdill, 3 F.4th 198(5th Cir. 2021), cert denied, 142 S.Ct. 2573 (2022). A jailer “watch[ed] an
inmate attempt suicide and fail[ed] to call for emergency medical assistance.”
Id. at 209. Instead, the jailer called his supervisor, who arrived at the jail
approximately 10 minutes after receiving the jailer’s call and then called 911.
Id. at 203, 209. The court held that even though the jailer immediately called
his supervisor, he should have known to call emergency assistance. The court
stated, “[W]e now make clear that promptly failing to call for emergency
assistance when a detainee faces a known, serious medical emergency . . .
constitutes unconstitutional conduct.” Id. at 209.
There are differences between that case and ours. First, Hayes was
not a jailer but a police officer on duty. Second, unlike the jailer, Hayes even-
tually did call 911, albeit six minutes later. Those differences, however, are
not distinct enough to render Hayes’s actions so different from the Cope
defendant’s unconstitutional conduct. Hayes knew that he had shot Allen
9
The district court relied on the older formulation and dismissed Allen’s claim
“[b]ecause Allen has not pleaded Hayes[’s] . . . subjective intent during the incident.” That
is error.
13
Case: 21-20337 Document: 00516712566 Page: 14 Date Filed: 04/14/2023
No. 21-20337
five times. He called for backup but waited six minutes before calling for
medical aid. The risk would have been apparent.
Plaintiffs must also show that the constitutional violation was clearly
established at the time of Hayes’s actions. Cope was decided after Hayes
pulled Allen over and could not establish the law for Hayes. The Cope court,
in a summary judgment posture, held that “[e]xisting case law . . . was not so
clearly on point as to ʻplace[] the statutory or constitutional question beyond
debate.’” Id. (citing Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en
banc)). “Until today, we have not spoken directly on whether failing to call
for emergency assistance in response to a serious threat to an inmate’s life
constitutes deliberate indifference.” Id. Still, the Cope court noted that Dyer
had previously held “existing precedent showed that officers who, ʻdespite
being aware of the detainee’s dire condition[,] . . . did nothing to secure
medical help’ at all were on ʻfair warning’ that their behavior was deliberately
indifferent.” Id. (quoting Dyer, 964 F.3d at 384–85) (omission in original).
Hayes’s conduct was significantly more severe than that of the Cope
defendant—unlike in Cope, where the jailer did not necessarily know the
extent of the victim’s injuries, Hayes knew he had shot Allen.
Plaintiffs have therefore pleaded sufficient facts to make it at least
plausible that Hayes’s actions were a violation of clearly established law. As
alleged, Hayes stood by for six minutes without performing any medical care
or calling for medical backup, aware that he had shot Allen several times and
witnessed him crash into a tree, and after he had radioed for police backup for
himself. In this posture, that is sufficient to survive a motion to dismiss. The
claim is thus vacated and remanded.
Race Discrimination
Plaintiffs contend that Hayes pulled Allen over because he was black,
thus violating the Equal Protection Clause. To make out an equal protection
14
Case: 21-20337 Document: 00516712566 Page: 15 Date Filed: 04/14/2023
No. 21-20337
violation, a party cannot merely prove disparate impact—he must “prove
‘the existence of purposeful discrimination’ motivating the state action
which caused the complained-of injury.” Johnson v. Rodriguez, 110 F.3d 299,
306 (5th Cir. 1997) (citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292–
93 (1987)). Specifically, “[d]iscriminatory purpose in an equal protection
context implies that the decisionmaker selected a particular course of action
at least in part because of, and not simply in spite of, the adverse impact it
would have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580
(5th Cir. 1995) (quoting United States v. Galloway, 951 F.2d 64, 65 (5th Cir.
1992)).
Plaintiffs allege nothing regarding Hayes’s intent. Their entire allega-
tion is that data in the Houston area tends to show that black drivers are
stopped at a higher rate and that a higher rate of searches of black drivers is
unwarranted. We agree with the district court that at best, such data shows
disparate impact, not discriminatory purpose. The dismissal of that claim is
affirmed.
V.
Plaintiffs also bring a § 1983 claims against the city, for which qualified
immunity cannot be claimed. Several of the assertions stem from the officers’
conduct on the night Allen was shot, and one is based on fabrication of evi-
dence. We affirm the dismissal of all claims against the city.
The city is a municipality and cannot be held liable under § 1983
“unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
691, 694 (1978). A municipality is liable “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury.” Id.The Fifth Circuit interprets Monell as requiring a plaintiff to identify
15
Case: 21-20337 Document: 00516712566 Page: 16 Date Filed: 04/14/2023
No. 21-20337
“(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 ʻmoving force’ is that policy (or custom).” Pineda v. City of Hous.,
291 F.3d 325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Hous., 237 F.3d
567, 578 (5th Cir. 2001)).
The first requirement can be shown by “a policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by . . . an
official to whom the lawmakers have designated policy-making authority” or
through a “persistent, widespread practice.” Webster v. City of Hous.,
735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam). Under the second
requirement, a plaintiff must show “[a]ctual or constructive knowledge of [a]
custom” that is “attributable to the governing body of the municipality or to
an official to whom that body ha[s] delegated policy-making authority.” Id.;
see also Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010). Finally, a
plaintiff must allege “moving force” causation by showing first, “that the
municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the depri-
vation of federal rights.” Valle, 613 F.3d at 542 (quoting Bd. of the Cnty.
Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
The ratification theory provides another way of holding a city liable
under § 1983. Under that theory, a city can also be held liable if the policy-
maker approves a subordinate’s decision and the basis for it, as this “ratifica-
tion” renders the subordinate’s decision a final decision by the policymaker. 10
10
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality op.); but see Okon
v. Harris Cnty. Hosp. Dist., 426 F. App’x 312, 317–18 (5th Cir. 2011) (holding that a
policymaker cannot be held to have ratified an allegedly racist decision if it is not shown that
he had actual or constructive knowledge of and approved any alleged racial animus). Okon
is unpublished and cannot constitute binding law on its own, but we find its reasoning
persuasive. Praprotnik held that a theory of ratification can suffice for Monell liability only
16
Case: 21-20337 Document: 00516712566 Page: 17 Date Filed: 04/14/2023
No. 21-20337
Claims Against the City of Houston for Events on the Night of the Shooting
Plaintiffs’ briefing raises a catalogue of claims against the city. Many
are predicated on a failure-to-train contention, a notoriously difficult theory
on which to base a Monell claim, as it requires plaintiffs to prove that the muni-
cipality was aware of an impending rights violation but was deliberately
indifferent to it. City of Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only
where a failure to train reflects a ʻdeliberate’ or ʻconscious’ choice by a
municipality—a ʻpolicy’ as defined by our prior cases—can a city be liable for
such a failure under § 1983.”). Plaintiffs must show that “in light of the
duties assigned to specific officers or employees[,] the need for more or
different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers . . . can reasonably be
said to have been deliberately indifferent to the need.” Littell v. Hous. Indep.
Sch. Dist., 894 F.3d 616, 624 (5th Cir. 2018) (quoting Canton, 489 U.S. at 390)
(alteration and omission in original). Plaintiffs have not pleaded sufficient
facts to clear this high bar.
But plaintiffs also allege a Monell violation via the theory of ratifica-
tion. They claim that, because Hayes was provided a certificate of bravery
for his actions during the shooting, it is plausible that the city ratified Hayes’s
decision to shoot the unarmed Allen. Yet the certificate of bravery alone
cannot be the basis for a claim of racial discrimination against the munici-
pality, as plaintiffs have not alleged that the city itself had actual or construc-
tive knowledge of discrimination, nor that the certificate was an approval of
if “the authorized policymakers approve a subordinate’s decision and the basis for it.”
485 U.S. at 127 (emphasis added); see also World Wide St. Preachers Fellowship v. Town of
Columbia, 591 F.3d 747 (5th Cir. 2009). We thus adopt Okon’s observation that a policy-
maker cannot be liable for racial discrimination unless he ratified a subordinate’s decision
specifically because of racial animus.
17
Case: 21-20337 Document: 00516712566 Page: 18 Date Filed: 04/14/2023
No. 21-20337
racial animus specifically. See Okon, 426 F. App’x at 317–18. 11
Though we lack caselaw on how a municipality might “ratify” the use
of excessive force, the same analysis holds true. To succeed on a claim of
excessive force via the ratification theory, plaintiffs would need to show that
the city granted the certificate of bravery because the force was excessive. In
other words, the constitutional violation itself must have been ratified. Even
accepting all of plaintiffs’ contentions as true—as we must under Twombly—
there are no allegations that the city was aware of the factors that potentially
made Hayes’s use of force unreasonably excessive. Without such allegations,
plaintiffs cannot make out a showing of liability via ratification. Plaintiffs’
ratification claims are thus dismissed.
Spoliation of Evidence
Plaintiffs allege that the city “altered and edited videos of the Novem-
ber 4, 2015 shooting for purposes of avoiding liability and accountability,”
the chain of custody is “questionable,” the city withheld evidence, and offi-
cers planted the gun that was later found in the car.
To make out this claim, plaintiffs would have to satisfy the Monell
requirements or establish ratification to overcome the city’s municipal im-
munity. They have done neither. The dismissal of this claim is thus affirmed.
VI.
Plaintiffs’ remaining claims can be quickly disposed of.
Claims Against Morelli and Arroyo
All claims against Morelli and Arroyo were properly dismissed as
11
Our holding that the certificate is insufficient proof of the city’s intent should not
be read as approval of its decision to grant a certificate of bravery for the actions that caused
Allen’s death.
18
Case: 21-20337 Document: 00516712566 Page: 19 Date Filed: 04/14/2023
No. 21-20337
time-barred. Plaintiffs had sought leave to add these defendants to their Sec-
ond Amended Complaint on August 25, 2020, contending that the statute of
limitations was tolled by fraudulent concealment. Before the district court
ruled on that motion, plaintiffs filed the live complaint, incorporating Morelli
and Arroyo into the pleadings without further reasoning.
Limitations for a suit brought under § 1983 “is determined by the
general statute of limitations governing personal injuries in the forum state.”
Balle v. Nueces Cnty., 952 F.3d 552, 556 (5th Cir. 2017) (quoting Piotrowski,
237 F.3d at 576). Limitations for personal injury claims in Texas is two years.
Id. at 557 (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)). As plain-
tiffs did not add Morelli and Arroyo until August 2020 when the shooting
occurred in November 2015, the claims are time-barred unless they relate
back under Federal Rule of Civil Procedure 15(c)(1). That rule provides two
distinct ways a claim that adds a new party can relate back. Id. Plaintiffs’
claims fail under both.
Rule 15(c)(1)(C) governs relation back where an amended complaint
adds a party to an existing suit. It allows relation back where, among other
requirements, the party “knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s
identity.” Id. This exception has been construed narrowly, generally
extending to errors “such as misnomer and misidentification.” Quinn v.
Guerrero, 863 F.3d 353, 363 (5th Cir. 2017). It does not apply in the present
situation, where plaintiffs merely declined to sue the parties despite being
aware of their existence. 12
Plaintiffs contend, however, that they satisfy Rule 15(c)(1)(A), which
12
As defendants point out, plaintiffs had a copy of the police report identifying all
officers involved in the incident.
19
Case: 21-20337 Document: 00516712566 Page: 20 Date Filed: 04/14/2023
No. 21-20337
allows an amended pleading to relate back when “the law that provides the
applicable statute of limitations allows relation back.” Here, the applicable
statute of limitations comes from Texas. But plaintiffs’ argument fails even
under 15(c)(1)(A) because Texas state law also does not allow relation back in
this context.
Plaintiffs attempt to use Univ. of Tex. Health Sci. Ctr. at San Antonio v.
Bailey, 332 S.W.3d 395 (Tex. 2011), to argue that it would. There, the plaintiff
was allowed to substitute the defendant’s government employer as the named
defendant even after limitations had run. Id. at 402. The plaintiffs misread
Bailey.
Bailey is based on Texas Civil Practice & Remedies Code § 101.106(f ),
which the court stated (at the time) allowed suits brought under the Texas
Tort Claims Act against employees in their official capacity to be considered
a suit against the government employer. That is not so for § 1983 suits, which
borrow only the general statute of limitations for personal injury suits.
Indeed, Bailey goes on to say that without the statutorily required conversion
of the claim into one against the government, such a suit would fail because
“ordinarily, an amended pleading adding a new party does not relate back to
the original pleading . . . . They did not misname or misidentify their
defendant; they sued exactly whom they intended to sue.” 332 S.W.3d
at 400–01 (cleaned up).
So too here. The Texas law providing the statute of limitations does
not allow relation back in this instance, so plaintiffs’ claims against the
additional defendants must also be dismissed as time-barred under Rule
15(c)(1)(a). We thus affirm the dismissal of the claims against Morelli and
Arroyo.
Claims Brought Under the TTCA & Due Process Claims
Plaintiffs have not properly raised their TTCA or Due Process claims
20
Case: 21-20337 Document: 00516712566 Page: 21 Date Filed: 04/14/2023
No. 21-20337
on appeal or in their reply to defendants’ response brief. See United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). We therefore decline to
address them here.
Americans with Disabilities Act Claims
The district court dismissed the claims against the city, Hayes, and
Morelli for discrimination on the basis of mental health because “[t]he [ADA]
does not apply to the police’s response to people with mental disabilities
before the scene is secured,” and “Allen [gave] no legal support to the con-
trary.” See Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).
On appeal, plaintiffs cite cases from other circuits that support a gen-
eral right of action under the ADA for “(i) discrimination based on disparate
treatment or impact, or (ii) denial of reasonable modifications or accommo-
dations.” 13 Even if plaintiffs were correct that other circuits would allow a
claim against police officers—a proposition that is far from clear—the law in
this circuit is unequivocal: The ADA “does not apply to an officer’s on-the-
street responses to . . . incidents, whether or not those calls involve subjects
with mental disabilities, prior to the officer’s securing the scene and ensuring
that there is no threat to human life.” Hainze, 207 F.3d at 801. We thus affirm
the dismissal of those claims.
VII.
Plaintiffs request reassignment to a different district judge. We take
judicial notice, however, that the current judge has taken senior status and
has reassigned all of his pending cases; he will no longer be assigned this case
on remand. Amended Division of Work Order for 2023, No. 2023-3 (S.D. Tex.
13
See, e.g., Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1086 (9th Cir. 2004);
Dunlap v. Ass’n of Bay Area Gov’ts, 996 F. Supp. 962, 965 (N.D. Cal. 1998); McGary v. City
of Portland, 386 F.3d 1259, 1265–66 (9th Cir. 2004).
21
Case: 21-20337 Document: 00516712566 Page: 22 Date Filed: 04/14/2023
No. 21-20337
Feb. 10, 2023). The request is therefore denied as moot.
Plaintiffs have further alleged that the district court denied proper dis-
covery. Because the case was in the motion-to-dismiss posture, not in the
summary judgment posture, these claims are of no moment.
* * * * *
The claims of excessive force, unlawful arrest, and denial of medical
care as brought against Hayes are REVERSED and REMANDED. The
dismissal of the remaining claims is AFFIRMED. Plaintiffs’ request for
reassignment is DENIED as moot. We intend no indication as to what
actions the newly assigned district judge should take, or what decisions that
judge should announce, on remand.
22