Case: 21-20544 Document: 00516506091 Page: 1 Date Filed: 10/12/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 12, 2022
No. 21-20544 Lyle W. Cayce
Clerk
Jean Henderson; Christopher Devonte Henderson,
Plaintiffs—Appellants,
versus
Harris County, Texas; Arthur Simon Garduno,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2052
Before Smith, Duncan, and Oldham, Circuit Judges.
Per Curiam:
Christopher Henderson fled from three officers investigating drug
activity. An officer chased Henderson and commanded him to stop.
Eventually, Henderson stopped and turned suddenly toward the officer. The
officer feared Henderson was reaching for a weapon, so he tased him.
Henderson sued Harris County and the officer. The district court dismissed
the Monell claim against Harris County for failure to state a claim and granted
summary judgment to the officer based on qualified immunity. We affirm.
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I.
A.
On April 26, 2018, three police officers went to Houston’s Ingrando
Park to investigate drug activity. One of the officers was Arthur Garduno, a
deputy constable for Harris County Constable Precinct 6. The officers
approached the park separately in marked patrol cars and saw three men at a
picnic table. Garduno claims he smelled marijuana and saw one of the men
“breaking up marijuana” into a shoebox. Another one of the men was
Christopher Henderson. Garduno claims Henderson had a blunt tucked
behind his ear and that Henderson threw a plastic bag containing a leafy green
substance onto the ground.
When Henderson saw the officers, he ran. Garduno radioed about a
person evading arrest, activated his siren, and followed. As Henderson
entered an apartment complex, Garduno jumped out of the car and continued
the chase on foot. Eventually, Garduno caught up to Henderson in the
complex parking lot and ordered Henderson to stop running. 1 Garduno
warned, “I’m going to tase you.” What happened next is disputed. Garduno
says Henderson stopped, turned to face him, and reached toward his
waistband with both hands. Henderson claims he stopped running, “turned
his head slightly toward the deputy, and raised his hands in the air as if to
surrender.”
Garduno feared Henderson was reaching for a weapon, so Garduno
deployed his taser. But because only one of the taser’s prongs reached
Henderson—one lodged in his face, and the other went over his head—the
1
The parties dispute how many times Garduno told Henderson to stop. Henderson
says he heard Garduno yell “stop” only once. Garduno and several witnesses recall
multiple commands.
2
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circuit didn’t complete, and the taser didn’t shock Henderson. So one
second later, Garduno deployed his taser a second time. This time both
prongs lodged in Henderson’s back. He fell backward and hit his head.
The other officers arrived at the scene. Garduno claims Henderson
continued to struggle while on the ground and resisted being placed in
handcuffs. So Garduno “dry” tased him a final time.
The officers searched Henderson and found marijuana in his pocket
but no weapon. Henderson was charged with possession of marijuana of less
than 2 oz. in a drug-free zone, but that charge was later dismissed on the
prosecution’s motion.
B.
Christopher Henderson and his grandmother Jean Henderson sued
Deputy Garduno and Harris County under 42 U.S.C. § 1983 for violations of
Henderson’s Fourth Amendment rights, as incorporated. See Mapp v. Ohio,
367 U.S. 643, 655 (1961). 2 The district court dismissed the claim against the
County and granted summary judgment to Garduno. Henderson timely
appealed.
As to the Monnell claim, Henderson alleged the County failed “to
adopt any policies whatsoever to govern Deputy Garduno’s use of force,”
“failed to train Deputy Garduno in the proper use of a [t]aser,” and “failed
to supervise Deputy Garduno.” Henderson further alleged the “chief
policymaker was the Constable of Precinct 6, Silvia R. Trevino,” or “in the
2
Jean Henderson is plaintiff-appellant here. Chris and Jean were both named
plaintiffs when the suit was filed. But earlier in the litigation, Chris became unable to act
for himself, so Jean obtained a guardianship over Chris’s person and estate. Jean is now the
sole plaintiff on behalf of Chris both as next friend and as the guardian of his person and
estate.
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alternative, the chief policymaker was another person with managerial
authority.”
The County moved to dismiss under Rule 12(b)(6). The district court
granted the motion. It held Henderson (1) failed to allege an “official policy”
to state a plausible § 1983 claim against Harris County and (2) failed to allege
a pattern of constitutional violations sufficient to show deliberate
indifference or establish deliberate indifference through the single-incident
exception to failure-to-train liability.
Afterward, Henderson moved to alter or amend the judgment under
Rule 59(e), asking the court to either allow her to amend her complaint based
on additional evidence contained in her summary-judgment filings, or
reconsider its dismissal order based on the court’s alleged
mischaracterization of the facts and Henderson’s ability to plead a Monell
cause of action. The district court declined, holding: (1) Henderson was not
entitled to leave to amend because she did not seek such leave during the
fourteen months Harris County’s motion to dismiss was pending, nor did she
allege any facts unavailable to her during those fourteen months; (2)
Henderson was not entitled to reconsideration based on the court’s allegedly
“misleading” summary of the facts because “[e]ven assuming that the
[c]ourt’s brief recitation of the facts was inaccurate, which the [c]ourt
disputes, such characterization would not alter the outcome of the [m]otion
to [d]ismiss.”
As to the claim against Officer Garduno, Henderson alleged
Garduno’s conduct violated the Fourth Amendment and was objectively
unreasonable under clearly established law. Garduno moved for summary
judgment, asserting qualified immunity. The district court held that
Henderson alleged facts sufficient to establish a Fourth Amendment
violation but failed at the second step of the qualified-immunity analysis
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because Garduno’s “conduct was not objectively unreasonable in light of
clearly established law at the time the violation occurred.” Accordingly, the
district court granted summary judgment for Garduno, finding he was
entitled to qualified immunity.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo both
the district court’s grant of Garduno’s summary judgment motion based on
qualified immunity, Griggs v. Brewer,
841 F.3d 308, 311 (5th Cir. 2016), and
its grant of the County’s motion to dismiss for failure to state a Monell claim,
Groden v. City of Dallas,
826 F.3d 280, 283 (5th Cir. 2016). We review the
district court’s denial of Henderson’s Rule 59(e) motion to alter or amend
the judgment for abuse of discretion. Trevino v. City of Fort Worth,
944 F.3d
567, 570 (5th Cir. 2019).
II.
First, the Monell claim. Henderson argues the district court erred
because (A) Harris County failed to provide any use-of-force policies or train
its officers on taser use, 3 and (B) the district court employed an unfair
procedure by dismissing her claims sua sponte. Both arguments fail.
A.
To establish Monell liability, a plaintiff must show that an official
policy promulgated by a municipal policymaker was the moving force behind
the violation of a constitutional right. Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009). And to get past the pleading stage, a complaint’s
3
Henderson also asserted that Harris County “failed to supervise Deputy
Garduno.” But as Henderson conceded—and as the district court correctly noted—this
claim relies entirely “on Harris County’s [alleged] failure to formulate an adequate policy
concerning [t]aser usage.” Thus, we follow the district court’s lead in treating
Henderson’s supervisory liability claim as encompassed in her other claims.
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“description of a policy or custom and its relationship to the underlying
constitutional violation cannot be conclusory; it must contain specific facts.”
Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quotation
omitted). A “failure-to-train action is a type of Monell claim.” Hutcheson v.
Dallas Cnty.,
994 F.3d 477, 482 (5th Cir. 2021). To establish Monell liability
on a failure-to-train theory, a plaintiff must 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 constituted
deliberate indifference to the plaintiff’s constitutional rights.”
Ibid.
Henderson must plausibly allege each element, but she flunks all three.
First, Henderson has not plausibly alleged that the County failed to
train the officers involved on the constitutional use of tasers. Henderson
contends Harris County was placing officers on the street without any training
as to when they may constitutionally use a taser. Her only support for that
contention: The County—in response to public information requests by
Henderson’s attorney—“failed to produce any written policies or
procedures governing the conduct of deputy constables in performing law
enforcement.” The district court rightly rejected these allegations as
“conclusory,” holding that the complaint contained “no ‘specific facts’ as
to whether Trevino or Harris County had a ‘custom or practice’ of not
creating or implementing policies governing Precinct 6 deputies.” This alone
is enough to dispose of Henderson’s failure-to-train claim. And Henderson’s
broader claim that the County failed to implement any use-of-force policies
is deficient for the same reason.
Second, Henderson has not plausibly alleged a causal connection
between any failure to train officers and the alleged violation here. That is
because it was Deputy Garduno who allegedly violated the Constitution by
deploying his taser. Indeed, Henderson herself “conceded that Garduno
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received [t]aser training from TCOLE,” the Texas Commission on Law
Enforcement. She attempts to get around that concession by arguing there is
a difference between training officers in “the mechanics of using a taser
weapon” and in “the constitutional limitations of the use of force with a taser
weapon.” But she supplies no reason to think the TCOLE program trained
officers in the former and not the latter.
Third, Henderson has not plausibly alleged that any failure to train
constituted deliberate indifference. “To show deliberate indifference, a
plaintiff normally must allege ‘a pattern of similar constitutional violations by
untrained employees.’” Hutcheson, 994 F.3d at 482 (quoting Connick v.
Thompson,
563 U.S. 51, 62 (2011)). If a plaintiff cannot allege a pattern, “it is
still possible to establish deliberate indifference through the single-incident
exception.”
Id. But that exception is “extremely narrow.”
Id. (citation
omitted). Indeed, “[t]he single-incident exception ‘is generally reserved for
those cases in which the government actor was provided no training
whatsoever.’” Id. at 483 (emphasis added) (quoting Peña,
879 F.3d at 624).
And it requires proving “that the highly predictable consequence of a failure
to train would result in the specific injury suffered.”
Id. at 482 (quoting Valle
v. City of Houston,
613 F.3d 536, 541 (5th Cir. 2010)). “For a violation to be
‘highly predictable,’ the municipality ‘must have failed to train its employees
concerning a clear constitutional duty implicated in recurrent situations that
a particular employee is certain to face.’”
Id. at 483 (quoting Littell v. Houston
Indep. Sch. Dist.,
894 F.3d 616, 624–25 (5th Cir. 2018)).
Here, Henderson concedes that she does “not allege a pattern of
similar constitutional violations” and instead “contend[s] that [her] claim
falls within the single-incident exception.” Id. There are at least two
problems with that. First, as already noted, this is not a case where “the
government actor was provided no training whatsoever,”
id. (quotation
omitted), because everyone agrees Garduno was trained in proper taser use.
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Second, Henderson again relies only on the County’s “failure to produce
certain policies and procedures” in response to public information requests.
She suggests the only possible conclusion to be drawn from the County’s
failure to respond to those requests is that the County had no policies and
offered its officers no training on proper taser use. As the district court rightly
concluded, these “vague allegations are insufficient to establish ‘deliberate
indifference’ through the single-incident exception.”
B.
Henderson also contends the district court erred by dismissing the
Monell claim against Harris County sua sponte. But the district court did not
dismiss sua sponte; it acted on the County’s motion to dismiss. Henderson
claims she “was truly blindsided by the [d]istrict [c]ourt’s decision to dismiss
Harris County.” But she concedes in the very same sentence that Harris
County’s motion to dismiss was pending for fourteen months. She even
responded to that motion, making the same arguments she now advances on
appeal. The district court’s order granting dismissal closely tracked the
arguments in the County’s motion and rejected the arguments in
Henderson’s response. Thus, Henderson could not have been blindsided by
anything in the district court’s order, and the district court was well within
its discretion to deny Henderson’s Rule 59(e) motion.
III.
Next, Henderson’s claims against Officer Garduno. To prevail,
Henderson must overcome Garduno’s qualified immunity defense, which
“includes two inquiries. The first question is whether the officer violated a
constitutional right. The second question is whether the right at issue was
clearly established at the time of the alleged misconduct.” Morrow v.
Meachum, 917 F.3d 870, 874 (5th Cir. 2019) (quotation omitted). “We can
decide one question or both.”
Ibid. Here, we only answer the second.
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To show clearly established law, Henderson has two paths: (A) she
can identify an on-point case, or (B) she can satisfy the obvious-case
exception. See Salazar v. Molina, 37 F.4th 278, 285–86 (5th Cir. 2022).
Henderson does neither.
A.
Start with on-point cases. Qualified immunity generally relieves law
enforcement officers of the burden of defending personal-capacity suits. The
immunity, however, does not protect officers who violate clearly established
constitutional rights. Rights are “clearly established” when “existing
precedent ‘squarely governs’ the specific facts at issue,” Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna,
577 U.S.
7, 15 (2015) (per curiam)), not when a rule is merely “suggested by thenexisting precedent,” City of Tahlequah v. Bond,
142 S. Ct. 9, 11 (2021) (per
curiam). The Supreme Court recently underscored the importance of
specificity in the clearly-established-law inquiry when it reminded lower
courts “not to define clearly established law at too high a level of generality.”
Id. Rather, courts must determine that existing precedent has rendered the
right “beyond debate.” Rivas-Villegas v. Cortesluna,
142 S. Ct. 4, 8 (2021)
(per curiam) (quoting White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam)).
The hurdle is even higher when the plaintiff alleges a Fourth
Amendment violation. As we have said elsewhere, in excessive-force cases
requiring split-second judgments, it is “especially difficult” to overcome
qualified immunity. Morrow, 917 F.3d at 875. That is because in the Fourth
Amendment excessive-force context, “it is sometimes difficult for an officer
to determine how the relevant legal doctrine . . . will apply to the factual
situation the officer confronts.” Mullenix,
577 U.S. at 12 (quotation omitted);
see Graham v. Connor,
490 U.S. 386, 396–97 (1989) (laying out the excessive-force inquiry, which “requires careful attention to the facts and
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circumstances of each particular case”). Thus, Henderson must demonstrate
that the law is “so clearly established that—in the blink of an eye, in the
middle of a high-speed chase—every reasonable officer would know it
immediately.” Morrow, 917 F.3d at 875.
Henderson points to a slew of cases. But many of the cases she relies
on are irrelevant to the clearly-established-law inquiry—either because they
issued too late or because they do not bind us (and hence do not give officers
in our circuit fair notice of the law). And the cases she cites that could clearly
establish law do not do so with the requisite specificity.
First, several of Henderson’s cases came too late to supply clearly
established law. Garduno tased Henderson on April 26, 2018. Any cases after
that date “cannot show clearly established law at the time of the violation.”
Salazar, 37 F.4th at 286 (quotation omitted); see also Kisela,
138 S. Ct. at 1154
(“[A] reasonable officer is not required to foresee judicial decisions that do
not yet exist in instances where the requirements of the Fourth Amendment
are far from obvious.”). That rule dispatches the bulk of Henderson’s cases. 4
See Joseph ex rel. Est. of Joseph v. Bartlett,
981 F.3d 319, 335 (5th Cir. 2020);
Amador v. Vasquez,
961 F.3d 721, 730 (5th Cir. 2020); Timpa v. Dillard,
20
F.4th 1020, 1035 (5th Cir. 2021); Cole v. Carson,
935 F.3d 444, 449, 456–57
4
To this, Henderson argues that “[p]ost-incident cases which merely apply clearly
established law from pre-incident authority are instructive and provide valuable guidance
in determining whether the law was clearly established with sufficient clarity at the time of
the incident.” Specifically, Henderson says that she never contends any of the post-incident cases she cites established new law; rather, these cases are meant to demonstrate
“how the legal principles clearly established in [cases like] Newman, Trammel, Stain,
Hanks, Cooper, and Goodson . . . have been applied.” We reject Henderson’s attempt to
bootstrap after-the-fact precedent. The law must be “‘clearly established’ at the time of
defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). If
Henderson must rely on post-incident cases to prove clearly established law, then the law
was not clearly established at the time of the incident. A pig with lipstick is still a pig.
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(5th Cir. 2019) (en banc); Scott v. White, 810 F. App’x 297, 301–02 (5th Cir.
2020); Fairchild v. Coryell Cty.,
40 F.4th 359, 362–67 (5th Cir. 2022).
Second, various other cases Henderson cites are unpublished. But
unpublished opinions “do not establish any binding law for the circuit,” so
“they cannot be the source of clearly established law for the qualified
immunity analysis.” Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019)
(quotation omitted); see also Salazar,
37 F.4th at 286 (same); Bell v. City of
Southfield,
37 F.4th 362, 367–68 (Thapar, J.) (“[A] plaintiff cannot point to
unpublished decisions to . . . [demonstrate] a right has been clearly
established.”). This rule eliminates several more of Henderson’s authorities.
See Peña v. City of Rio Grande,
816 F. App’x 966, 974–77 (5th Cir. 2020) (per
curiam); Autin v. City of Bayton,
174 F. App’x 183, 186 (5th Cir. 2005) (per
curiam); Massey v. Wharton,
477 F. App’x 256 (5th Cir. 2012) (per curiam).
Finally, Henderson also invokes a handful of published Fifth Circuit
opinions. 5 Most of Henderson’s remaining cases “do not involve tasing or
fleeing,” Salazar, F.4th at 286, so she relies on them for general statements
of law. See Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (denying QI to
officer who “forcefully slam[med arrestee’s] face into a vehicle while she was
restrained and subdued”); Cooper v. Brown,
844 F.3d 517, 524–25 (5th Cir.
2016) (denying QI to officer who subjected arrestee “to a lengthy dog attack”
even though he “was not actively resisting arrest or attempting to flee”);
Lytle v. Bexar Cnty.,
560 F.3d 404, 412–13 (5th Cir. 2009) (denying QI to
officer who “fir[ed] at the back of a fleeing vehicle some distance away”);
Trammell v. Fruge,
868 F.3d 332, 343 (5th Cir. 2017) (denying QI where
5
“Even on the assumption that Fifth Circuit precedent can create clearly
established law . . . none of [Henderson]’s cases is a close enough fit.” Salazar, 37 F.4th
at 286 (citing Rivas-Villegas,
142 S. Ct. at 7 (assuming without deciding that “controlling
Circuit precedent clearly establishes law for purposes of § 1983”)).
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several officers tackled an individual who was not fleeing and who did not
pose danger to himself or others); Hanks v. Rogers, 853 F.3d 738, 745–46 (5th
Cir. 2017) (denying QI to officer who employed a “half spear takedown” on
suspect who was not actively resisting and “made no attempt to flee”);
Goodson v. City of Corpus Christi,
202 F.3d 730 (5th Cir. 2000) (denying QI
to officers who, without reasonable suspicion, tackled an individual who was
not fleeing, not violent, and who resisted only by pulling his arm away from
the officer). But such general statements are insufficient to produce “clearly
established” law. See Kisela,
138 S. Ct. at 1153 (“[P]olice officers are entitled
to qualified immunity unless existing precedent squarely governs the specific
facts at issue.” (emphasis added) (quotation omitted)).
That leaves only two published Fifth Circuit cases involving tasings:
Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), and Darden v. City of Fort
Worth,
880 F.3d 722 (5th Cir. 2018). These cases are cited by every tasing
plaintiff who sues under § 1983 in our circuit. But these cases are extreme
examples that do nothing to clearly establish the law for less-extreme tasings
like Henderson’s.
Start with Newman. In that case, Derrick Newman was a passenger in
a vehicle that was pulled over for failing to yield. An officer discovered an
outstanding warrant for a different passenger and began to arrest him.
Newman got out of the car and consented to a protective pat-down search. In
his telling, Newman complied with all commands, but after he made an offcolor joke, the officers beat him with a baton and tased him three times. This
court denied the officer qualified immunity. See Newman, 703 F.3d at 759
(concluding none of the Graham factors justified the tasing because “on
Newman’s account, he committed no crime, posed no threat to anyone’s
safety, and did not resist the officers or fail to comply with a command”).
“Because Newman involved a plaintiff who committed no crime and obeyed
all commands, that case cannot clearly establish that using a taser was
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unlawful in the circumstances [Garduno] confronted here.” Salazar, 37
F.4th at 288.
Henderson’s reliance on Darden fares no better. While executing a noknock warrant at a private residence, officers “allegedly threw [Darden] to
the ground, tased him twice, choked him, punched and kicked him in the
face, pushed him into a face-down position, pressed his face into the ground,
and pulled his hands behind his back to handcuff him,” ultimately causing
him to suffer a heart attack and die during the arrest. Darden, 880 F.3d at 725.
“The force used in Darden—causing the death of the arrestee—is obviously
much more extreme than the . . . tasing at issue here.” Salazar,
37 F.4th at
288.
In short, Newman and Darden are nothing like this case. Both involved
“far more force than was deployed here.” Id. at 287. And neither involved a
suspect fleeing from police. Even on Henderson’s own version of the facts,
this case is radically different: Henderson concededly ran from police, then
stopped suddenly and turned toward the pursuing officer. Thus, neither
Newman nor Darden involves materially similar facts and hence cannot
clearly establish the law.
B.
Finally, the obvious-case exception. Henderson cites Hope v. Pelzer
and Taylor v. Riojas for the proposition that there can be “notable factual
distinctions between the precedents relied on . . . so long as the prior decision
gave reasonable warning that the conduct then at issue violated constitutional
rights.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quotation omitted); see
Taylor v. Riojas,
141 S. Ct. 52, 53–54 (2020) (per curiam) (similar). Hope and
Taylor are Eighth Amendment cases that predated City of Tahlequah. So it is
unclear how much if any weight we should place on obvious Eighth
Amendment cases in the face of Supreme Court direction in Fourth
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Amendment cases “not to define clearly established law at too high a level of
generality.” City of Tahlequah, 142 S. Ct. at 11. And even if Hope and Taylor
could apply here, “obvious” cases are exceedingly “rare.” District of
Columbia v. Wesby,
138 S. Ct. 577, 590 (2018); see Bartlett,
981 F.3d at 337
(“The standard for obviousness is sky high.”).
Even accepting Henderson’s versions of the facts, this case is not
obvious. Garduno made the split-second decision to deploy his taser after
Henderson had led him on a long chase by car and by foot and was still
unrestrained. Henderson admits he suddenly stopped running, turned
toward Garduno, and moved his arms in a manner that suggested to Garduno
that Henderson was reaching for a weapon. This is a far cry from the handful
of instances where we have recognized an “obvious case.” If anything, the
obviousness of this case points in the other direction: As illustrated in Escobar
v. Montee, 895 F.3d 387 (5th Cir. 2018), and as we explained in Salazar, “a
suspect cannot refuse to surrender and instead lead police on a dangerous hot
pursuit—and then turn around, appear to surrender, and receive the same
Fourth Amendment protection from intermediate force he would have
received had he promptly surrendered in the first place.” Salazar, 37 F.4th
at 282–83.
AFFIRMED.
14
