Case: 22-11210 Document: 00517033741 Page: 1 Date Filed: 01/16/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 16, 2024
No. 22-11210 Lyle W. Cayce
____________ Clerk
Shandra Hodge,
Individually and as the surviving mother of Schaston Hodge
and as the administrator of the Estate of Schaston Hodge,
PlaintiffAppellant,
versus
Joshua Engleman; Robert Litvin,
DefendantsAppellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-1916
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Officers Engleman and Litvin shot and killed Schaston Hodge after he
refused to pull over his vehicle, led the officers on a brief chase back to his
home, and exited his car with a gun in his hands. After reviewing the officers
bodycam footage, the district court granted their motion to dismiss on the
ground of qualified immunity (QI) even though Hodge did not include
that footage in the pleadings. Treating the dismissal as an implicit conversion
to summary judgment, we affirm.
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No. 22-11210
I.
Driving home, Schaston Hodge stopped at a stop sign and turned left
without signaling. Litvin and Engleman attempted to pull Hodge over.
Despite the officers lights and sirens, Hodge continued driving for several
minutes until he reached his house. As Hodge parked in his driveway,
Engleman jumped out of the police car and sprinted toward Hodges car with
his gun drawn, ordering Hodge to show his hands and step out of the car.
Hodge exited the car with a gun in his hands and pointed it at Engleman.
Engleman fired, shooting Hodge, and dropped to the ground.1 Approaching
behind Engleman and seeing him fall to the ground, Litvin also discharged
his weapon. All told, Engleman fired eleven times and Litvin eight, hitting
Hodge sixteen times.
Hodges mother, individually and as the administrator of his estate,
sued Engleman and Litvin under 42 U.S.C. § 1983 for excessive force and the
Texas Department of Public Safety (TDPS) and the City of Dallas for
failure to train and supervise.2 TDPS moved to dismiss, asserting Eleventh
Amendment immunity. The City also moved to dismiss, averring the complaint lacked any factual basis for a claim of municipal liability. Finally,
Engleman and Litvin moved to dismiss, claiming QI. The district court
granted TDPSs and the Citys motions but delayed ruling on Engleman and
Litvins motion.3
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1
Engleman seems to have dropped to the ground in an attempt to avoid being shot,
not because he was shot. It is unclear from the footage whether Hodge ever actually fired
his gun, and no party has made any claims either way. Because we resolve all genuine
disputes in favor of the nonmoving party at this stage, see infra, we assume that Hodge did
not fire.
2
Throughout this opinion, we refer to Schaston Hodge as the plaintiff.
3
The court gave Hodge leave to refile the complaint after granting TDPSs and the
citys motions, mooting Engleman and Litvins first motion. After Hodge refiled, Engle-
2
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No. 22-11210
In each of their three motions to dismiss, Engleman and Litvin
attached body-camera footage. The district court relied on that video to dismiss because of QI. The court explicitly found that the blatantly contradict[ory] video meant Hodges complaint failed to meet the low bar necessary to survive a Federal Rule of Civil Procedure 12(b)(6) motion.
636 F. Supp. 3d 727, 733 (N.D. Tex. 2022) (quoting Harmon v. City of Arlington,
16 F.4th 1159, 1163 (5th Cir. 2021)).
II.
We review a Rule 12(b)(6) dismissal de novo. Allen v. Hays, 65 F.4th
736, 743 (5th Cir. 2023). Rule 12(b)(6) motions are viewed with disfavor
and rarely granted. Collins v. Morgan Stanley Dean Witter,
224 F.3d 496,
498 (5th Cir. 2000) (cleaned up). 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. Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Although we accept all well-pled facts as true, construing all reasonable
inferences in the complaint in the light most favorable to the plaintiff, conclusory allegations, unwarranted factual inferences, or legal conclusions are not accepted as true. Allen, 65 F.4th at 743 (cleaned up).
If, on a motion under Rule 12(b)(6), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d)
(cleaned up). Even if a district court does not explicitly inform the parties
that it was converting the motion to dismiss into a summary judgment
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man and Litvin filed a second motion to dismiss that the court denied without prejudice on
evidentiary grounds. Defendants then filed a third, which the court granted and is at issue
here.
3
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motion, appellate courts may take the district courts consideration of matters outside the pleadings to trigger an implicit conversion. Trinity Marine
Prods., Inc. v. United States, 812 F.3d 481, 487 (5th Cir. 2016) (quotation
marks and citation omitted). On review, this error is reversible only if [the
plaintiff] had no notice or opportunity to refute [the] allegations in the motion
to dismiss. Bolen v. Dengel,
340 F.3d 300, 31213 (5th Cir. 2003) (citation
omitted). Parties must have at least ten days notice before the courts ruling
that the court could convert the Rule 12(b)(6) motion into a summary
judgment. Holguin v. U.S. Dept of Army,
98 F.3d 1337,
1996 WL 556767, at
*2 (5th Cir. 1996) (per curiam) (table) (unpublished) (citing Washington v.
Allstate Ins. Co.,
901 F.2d 1281, 1284 (5th Cir. 1990)).4
We review a . . . summary judgment de novo, viewing all facts and
drawing all inferences in a light most favorable to the non-moving party.
Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citation omitted). Summary judgment is appropriate if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists when the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Abdallah v. Mesa Air Grp., Inc.,
83 F.4th 1006, 1012 (5th Cir. 2023) (quotation marks and citation omitted).
To overcome QI, a plaintiff must make two allegations, which we may
address in either order: first, that an officer acted under color of state law and
violated a constitutional right. That is a threshold inquiry. If no constitutional right would have been violated were the allegations established, there
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4
See also Clark v. Tarrant Cnty., 798 F.2d 736, 74546 (5th Cir. 1986) ([A]bout a
year and a half of notice that the court might treat Tarrant Countys Rule 12(b)(6)
motion as a motion for summary judgment since the court accepted evidence outside the
pleadings is more than sufficient.).
4
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is no necessity for further inquiries concerning [QI]. Saucier v. Katz,
533 U.S. 194, 201 (2001), limited by Pearson v. Callahan,
555 U.S. 223 (2009).
Second, that the right was clearly established. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted. Id. at 202 (citation omitted).
III.
We first address whether the district court properly granted the
motion to dismiss.
In its introduction, the court explained that it had reviewed the
Motion, Plaintiffs Response to Defendants Third Motion to Dismiss, and
the appended video evidence. 636 F. Supp. 3d at 731 (cleaned up). When
reviewing a 12(b)(6) motion to dismiss, though, a court usually may rely on
only the complaint and its proper attachments. Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). And the court must
accept all well-pleaded facts as true. Allen, 65 F.4th at 743. Although the
court may rely on documents that the pleadings incorporate by reference,
Hodge did not attach the video evidence to the pleadings, nor did the pleadings refer to the videos sufficiently to incorporate them. See Dorsey,
540 F.3d
at 338; Harmon, 16 F.4th at 116264. Therefore, by reviewing the appended
video evidence, the district court moved beyond the pleadings and to the
summary judgment stagethus implicitly converting the motion to dismiss
into a motion for summary judgment per Rule 12(d). See Trinity Marine,
812 F.3d at 487. By doing so, though, the court did not commit reversible
error.
A court need not advise either party of its intention to convert the
motion. Holguin, 1996 WL 556767, at *2 (citation omitted). The only
requirement is that the non-moving party have at least ten days in which to
5
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submit its own evidence. Id. That ten-day period begins running when
the non-movant is first put on notice that, based on its acceptance of evidence
outside the pleadings, the court could convert the Rule 12(b)(6) motion into
a summary judgment.
Id.
Defendants filed Englemans bodycam footage on January 7, 2022.
Hodge filed a motion to strike that footage on January 24, claiming, in part,
that the lack of Litvins bodycam footage made Englemans suspect. Defendants responded with Litvins bodycam footage on January 26. And, on February 9, the court entered a scheduling order permitting limited . . .
discovery of facts necessary for this Court to rule on the assertion of [QI] by
defendants. That same day, Hodge filed a reply brief in support of the
motion to strike the videos, and everything else in this litigation happened
afterwardsincluding (1) Hodges first amended complaint on April 4;
(2) defendants second motion to dismiss on April 18; (3) Hodges response
on May 9; (4) defendants third motion to dismiss on October 6; (5) Hodges
response on October 10; and (6) the order granting dismissal on October 21.
When the court entered that scheduling order, it implicitly placed
Hodge on notice that the court had accepted evidence outside the pleadings.5
Thus, the ten-day period required by Holguin began running on February 9,
2022. Hodge had well more than ten days, though. He had eight months
worth of time, notice, and opportunity to consider the video, to take steps to
cast doubt on it, and to submit contrary evidence. That is more than
sufficient.6
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5
See also In re Deepwater Horizon, 761 F. Appx 311, 31314 (5th Cir. 2019) (per
curiam) (unpublished) (The courts request to submit the releases and BPs compliance
with that request, therefore, put the plaintiffs on notice that the court was considering
matters outside the pleadings and could treat the motion as one for summary judgment.).
6
Even if Hodge could plausibly claim there was insufficient notice, error in notice
6
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IV.
We turn to whether summary judgment was proper.
In Scott v. Harris, the Court clarified the process for reviewing evidence on a summary judgment motion. 550 U.S. 372 (2007). Recognizing
that it was bound to resolve all genuine disputes in favor of the non-moving
party, the Court explained that [w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the
facts . . . .
Id. at 380. And, it held, where a video in the record brooks no
dispute, the court may view the facts in the light depicted by the
videotape.
Id. at 381.
Our court has applied that standard many times. In Craig v. Martin,
we reversed a denial of QI, reasoning that where there is video evidence that
blatantly contradict[s] the plaintiffs allegations, the court should not adopt
the plaintiffs version of the facts; instead, the court should view those facts
in the light depicted by the videotape. 49 F.4th 404, 409 (5th Cir. 2022)
(quoting Scott, 550 U.S. at 38081). In Harmon, we similarly relied on a video
when we affirmed a dismissal of a § 1983 claim. 16 F.4th at 116265. And we
followed a parallel approach to Harmon and Craig in Livingston v. Texas,
No. 22-40719,
2023 WL 4931923 (5th Cir. Aug. 2, 2023) (per curiam)
(unpublished). There, we affirmed the summary judgment dismissal of a
false arrest and excessive force claim by relying on police dashcam footage
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is harmless if the nonmoving party admits that he has no additional evidence anyway or if
. . . the appellate court evaluates all of the nonmoving partys additional evidence and finds
no genuine issue of material fact. Bolen, 340 F.3d at 313 (omission in the original) (quoting
Powell v. United States,
849 F.2d 1576, 1582 (5th Cir. 1988)); see also Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 255 (1986); Fed. R. Civ. P. 56(a). As discussed infra, any
error would be harmless because Hodge has presented no evidence refuting or casting
doubt on the videos, and we see no indication of such evidence on our independent review.
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that captured the entire incident. Id. at *2. The video contradicted the plaintiffs claim of a genuine dispute that his constitutional rights had been violated, entitling the defendants to QI. Id.
In sum, a court may rely on video evidence to resolve any claimed genuine disputes of material fact and rule on summary judgment. Englemans
and Litvins bodycam footage is sufficiently clear and whole that there are no
genuine disputes of material fact. The videos cover the entire event, from
Englemans and Litvins pursuing Hodge after he made an illegal turn to
their administering first aid after shooting him. Further, they show Hodge
raising a gun and pointing it at Engleman, as well as the gun lying on the
ground next to his hand after the officers had shot him. Thus, the videos
blatantly contradict the allegations of the complaint that Hodge attempted to comply with Litvins [sic] command to show his hands[,] that
Hodge turned towards the officer to comply[,] and that Hodge posed no
threat of harm to Litvin and Engleman.7
V.
Finally, having determined that no material facts are in dispute, we
turn to whether the undisputed facts support defendants claim of QI.
To overcome a defense of QI, the plaintiff must show that the defendant violated a constitutional right and that the constitutional right was
clearly established. See Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,
740 (5th Cir. 2019) (citing Ziglar v. Abbasi,
137 S. Ct. 1843, 1866 (2017)). We
may begin with either prong of that analysis. Callahan,
555 U.S. at 236.
Because Engleman and Litvin acted reasonably, they did not violate
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7
As the motion to dismiss points out, the complaint switched up the officers, and
the amended complaint does not fix that issue. Engleman was the one who first interacted
with Hodge.
8
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Hodges Fourth Amendment rights. Thus, we address only that first prong.
Hodge claims that the use of deadly force was excessive and therefore
a violation of his Fourth Amendment rights. [T]here can be no question
that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Tennessee v. Garner,
471 U.S. 1, 7 (1985). To establish an excessive force claim under the Fourth
Amendment, Hodge must allege (1) injury, (2) which resulted directly and
only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable. Newman v. Guedry,
703 F.3d 757, 761
(5th Cir. 2012) (quoting Tarver v. City of Edna,
410 F.3d 745, 751 (5th Cir.
2005)). There is no real dispute that the officers injured Hodge. So, the
question is whether their use of force was clearly excessive and clearly
unreasonable.
Id.
We evaluate reasonableness with a calculus that allows for the
fact that police officers are often forced to make split-second judgmentsin
circumstances that are tense, uncertain, and rapidly evolving . . . . Harmon,
16 F.4th at 1163 (quoting Graham v. Connor,
490 U.S. 386, 39697 (1989)).
The variables include the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.
Id.
(quoting Graham,
490 U.S. at 396). The solution this court has reached
repeatedly is that an officer who reasonably believes that the suspect poses
a threat of serious harm to the officer may use deadly force.
Id. (quoting
Manis v. Lawson,
585 F.3d 839, 843 (5th Cir. 2009)).8
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8
We evaluate these variables in the moment of the threat that resulted in the
officers use of deadly force. So, the focus of the inquiry is on the act that led the officer to
discharge his weapon. Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020) (cleaned up);
see also Shepherd v. City of Shreveport,
920 F.3d 278, 283 (5th Cir. 2019) (quoting Harris v.
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Introducing the video footage to the equation, we solve for the answer
that Engleman and Litvin used a reasonable amount of force. Despite his
very minor traffic infraction, Hodge did not pull over when the officers first
flashed their lights or when they sounded their siren; he continued driving to
his house. Then, Hodge did not pull into a short driveway and slowly exit his
car; he drove deep into a driveway and jumped out of his car.
When Engleman approached him and shouted for Hodge to show
Engleman his hands, Hodge pointed a gun at Engleman. When Engleman
saw the gun and Litvin saw Engleman drop to the ground and fire, they each
reasonably believed Hodge pose[d] a threat of serious harm to them and
made split-second judgments in that moment to use deadly force against
Hodge. Id. Whether we apply the standard of a reasonable officer on the
scene or that of a math Ph.D.s thesis advisor, Engleman and Litvin acted
reasonably.
Id. (quoting Graham,
490 U.S. at 396); see also Saucier, 533 U.S.
at 20405.
Because Englemans and Litvins use of deadly force was reasonable,
Hodges claim of a Fourth Amendment violation fails. Without a Fourth
Amendment violation, Hodge cannot overcome QI. Therefore, the summary
judgment is AFFIRMED.
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Serpas, 745 F.3d 767, 772 (5th Cir. 2014)).
10
