Maria V. PEÑA, Individually and as Next Friend of M.J.P. and a Minor; Daniel Peña, Plaintiffs-Appellants, v. 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.
No. 16-41522
United States Court of Appeals, Fifth Circuit.
January 12, 2018
879 F.3d 613
J. Arnold Aguilar, Aguilar & Zabarte, L.L.C., Brownsville, TX, for Defendants-Appellees.
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
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
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
A removed action does not need to be repleaded “unless the court orders it.”
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 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 contextually dependent pleading standards to removed cases would bring more confusion 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.”
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 particularity the grounds for the amendment and the
Nonetheless, the failure of the district court to review the proposed complaint 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
III.
Peña can assert her claims only to the extent they pass the plausible-pleading test of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 418 (5th Cir. 2008).
A. Section 1983 Claims Against Salinas and Solis
We have outlined the proper procedural framework for addressing
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 current continued to flow; Solis saw her “shaking” and ordered Salinas to turn off her taser. Peña alleges that “Salinas 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
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 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 (5th Cir. 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 nonresisting 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. Marcantel, 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 Fed.Appx. 340, 342 (5th Cir. 2016) (per curiam), arguably presents the closest factual analogue. Zimmerman 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 misdemeanor suspect would amount to excessive force.” Id. at 347.
Crucially, Peña’s proposed complaint alleges that she was not suspected 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 nonsuspect 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
Peña alleges that “Lt. Jose Solis ... gave the order to tase Maria Julissa
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 measures” 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
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
1. Policy Liability
We begin with the three elements of municipal liability under
The first policy prong “includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and wide-
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
Aside from the abovementioned policy, the only “specific fact” in the complaint 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 “disregard[ing] ... the rights of African American citizens” and of “engag[ing] [African Americans] without regard to probable cause to arrest.” Though Peña characterizes the relevant policy with greater particularity, her allegations are equally conclusory and utterly devoid of “factual enhancements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).14
The complaint also fails
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 speculation that any particular policymaker, be it the chief of police or the city commission, knew about the alleged custom.15 Without more, her allegation fails the second prong of
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 constituted deliberate indifference to the plaintiff’s constitutional rights.” Thompson v. Upshur 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 ordinarily” 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 pattern.
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 declining to broaden its scope. See Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997); Connick, 563 U.S. at 63-71. In Connick, the Court was asked to extend the exception to a prosecutor’s Brady violation. In rejecting 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 Canton 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 constitutional constraints on the use of deadly force. And, in the absence of training, there is no way for novice officers to obtain the legal knowledge 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 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 whatsoever. 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
The TTCA waives the sovereign immunity enjoyed by Texas municipalities only “to the extent of liability created by [the statute].”
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 accordance 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 lawful 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 independent 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 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 pleadings against Solis and Salinas survive QI. We place no limitation on the matters that the district may consider and decide, as needed, on remand, and we make no suggestion as to the ultimate merits.