Alexander et al v. City of Dallas Texas et al

Filing 45

Memorandum Opinion and Order granting 30 , 33 Motions to Dismiss. The Court DISMISSES WITH PREJUDICE (1) the claims of Plaintiffs Sarah Shirley, Joseph Adams, and Krista Adams and (2) the claims against Defendants John and Jane Roe Dallas Police Officers 1-10 and John and Jane Smith Sheriffs Deputies 1-10. The Court GRANTS Plaintiffs leave to amend their Complaint. Amended Complaint due by 4/8/2024. (Ordered by Judge Karen Gren Scholer on 3/25/2024) (kcr)

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS

D O M I N I Q U E A L E X A N D E R , C A RV E L L
BOWENS, CYRUS CEZAR, DAMON
CRENSHAW, DAJAI FIELDS,
CYNTHIA FLORES, TRACY FOSTER,
JASMIN GALVAN, DEBBIE KIM,
ALEXIS MCKINNEY, LAPREA PIERCE,
AMY SMITH, LAKEISHA SMITH,
NATHAN TINDALL, ELISEO VALDEZ,
C O U RT N E Y WA D L O W, C N AYA
WARREN, SARAH SHIRLEY, JOSEPH
ADAMS, KRISTA ADAMS, and JANE
AND JOHN DOE BRIDGE PLAINTIFFS
l-IO

V .

CITY OF DALLAS, TEXAS, JOHN AND
JANE ROE DALLAS POLICE

OFFICERS 1-10, DALLAS COUNTY,
TEXAS, and JOHN AND JANE SMITH
SHERIFF’S DEPUTIES 1-10
MEMORANDUM

DIVISION

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OPINION

C I V I L A C T I O N N O . 3 : 2 2 - C V- I I 9 3 - S

AND

ORDER

This Memorandum Opinion and Order addresses Defendant Dallas County’s Rule 12(b)(6)
Motion to Dismiss Plaintiffs’ Claims Alleged Against It in Plaintiffs’ Amended Complaint
(“County Motion”) [ECF No. 30] and Defendant City of Dallas’s Motion to Dismiss Plaintiffs’
Second Amended Complaint (“City Motion”) [ECF No. 33]. The Court has reviewed the Motions,
Plaintiffs’ Response to the County Motion (“County Response”) [ECF No. 40], Plaintiffs’
Response to the City Motion (“City Response”) [ECF No. 43], Defendant Dallas County’s Reply
in Support of the County Motion [ECF No. 41], Defendant City of Dallas’s Reply in Support of
the City Motion [ECF No. 44], and the applicable law. For the following reasons, the Court
GRANTS the Motions.

I.

BACKGROUND

This lawsuit arises out of protests in Dallas, Texas, in the aftermath of George Floyd’s

death. Pis.’ Second Am. Compl. (“Second Amended Complainf’)' [ECF No. 28]1 ,

47.

Plaintiffs are individuals who participated in the protests and allege they were “rmlawfully detained
on [the] Margaret Hunt [Hill] Bridge in violation of their constitutional rights” and “harmed when
[members of law enforcement] red tear gas canisters at them, shot them with rubber bullet [kinetic
impact projectiles (“KIPs”)], and seized and restrained them for hours ... Id. 12.
The protests in Dallas began on May 29,2020. Id. ^54. Three days later, on June 1, 2020,
Plaintiffs “gathered for apeaceful protest in front of Lew Sterrett Justice Center to exercise their
First Amendment rights.” Id. f63. Plaintiffs then began marching with other protesters. Id. ]| 64.
When the protesters reached the intersection with the road leading to the Margaret Hunt Hill
Bridge, the Dallas Police Department allegedly “positioned themselves and had stopped traf c so
that protesters would enter the westbound ramp onto the [b]ridge.” Id. ^65. Plaintiffs proceeded
onto the bridge. Id. According to Plaintiffs, no one warned them not to go onto the bridge or told
them they would be arrested or detained if they did so. Id. Plaintiffs refer to this tactic as “kettling,'
which they describe as “an increasingly violent technique ...wherein police of cers block off
streets and push or ‘corral’ agroup of protesters into asmall area, like abridge ..., to restrict their
movement.” M^50.
1

Plaintiffs titled their live pleading “Original Complaint.” However, Plaintiffs have already amended their
Complaint twice. See ECF Nos. 3,28. Therefore, the Court refers to Plaintiffs’ live pleading as their Second
Amended Complaint.

^It is unclear who the intended defendants are in this case. The caption of the Second Amended Complaint
only names the City, John and Jane Roe Dallas Police Of cers, the County, and John and Jane Smith
Sheriffs Deputies. See Second Am. Compl. 1. However, the Second Amended Complaint also references
additional individuals and entities, such as the current and former Dallas police chiefs and the Texas
Department of Public Safety. See, e.g., id. at 1-2, 24-30. In this Memorandum Opinion and Order, the
Court will focus only on the moving Defendants. If Plaintiffs amend their Complaint, the Court instructs
them to clearly and consistently identify the individuals and/or entities named as defendants.

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As they entered the bridge, Plaintiffs claim they were “met by aline of law enforcement
of cers dressed in riot gear.” Id. ^66. Plaintiffs attempted to exit the bridge, but law enforcement
of cers blocked their exit. Id. 66-67. The protesters stopped, put their hands in the air, and
chanted, “Hands up! Don’t shoot!” Id. T| 68. Then, all of the streetlights on the bridge went out. Id.
f69. The of cers told the protesters to go home; however, the protesters allegedly were trapped
by law enforcement and could not leave the bridge. Id. After several minutes, and allegedly without
provocation, law enforcement of cers began ring “pepper balls, ash-bangs, smoke bombs, tear

gas, and KIPs”^ into the crowd. Id. ^70. Plaintiffs became disoriented. Id. ^71. The of cers told
them to get on the ground, stated that they were imder arrest, and zip tied them. Id. The of cers
detained Plaintiffs on the bridge for over two hours. Id. T| 72. Law enforcement of cers initially
charged protesters with obstructing ahighway or violating acurfew ordinance but ultimately
dropped all charges. Id. T| 98. Plaintiffs claim that the members of law enforcement working the
protests were not terminated or disciplined and did not receive additional training or supervision.
Id. m104-05.
Plaintiffs allege that law enforcement of cers in Dallas have used

less lethal’

ammunition against peaceful protesters” once before, during protests in 2018. Id. |84. During
those protests, of cers allegedly shot protesters with pepper balls. Id. Then-Police Chief Ulysha
Renee Hall stated that she was “concerned to learn” that pepper balls had been used and “called
for areview of the ... incident.” Id. ^85. The of cers involved allegedly were not disciplined and
did not receive additional training or supervision. Id. 86.

^According to Plaintiffs, KIPs are “ammunition used commonly in crowd-control settings,” including
pepper balls and rubber, sponge, or foam bullets. Second Am. Compl. 79. Here, Plaintiffs particularly
challenge the use of pepper balls and “40mm eXact iMpact extended range ‘sponge’ bullets.” Id. f56.
Though KIPs are referred to as “nonlethal” or “less lethal,” Plaintiffs allege that the “fatality, morbidity,
and signi cant risks of injuries from KIPs have been well documented.” Id. Tf 49.

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Based on the foregoing allegations, Plaintiffs led suit, asserting eight causes of action.
Against the County, Plaintiffs bring aclaim for conspiracy under 42 U.S.C. §1985 (Count Eight)
and, possibly, aclaim for unlawful seizure pursuant to 42 U.S.C. §1983 (Count Four). Id. 14457, 196-200. Against the City, Plaintiffs bring Section 1983 claims for violations of the First
Amendment (Count One), excessive force (Count Three), unlawful seizure (Count Four), failure
to supervise or discipline (Count Five), failure to train (Count Six), and permanent injunctive relief
(Count Seven). Id. 106-23,140-95. Plaintiffs also bring aSection 1985 conspiracy claim against
the City (Count Eight). Id. ft 196-200.
II.

LEGAL

S TA N D A R D

To defeat amotion to dismiss led pursuant to Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must plead “enough facts to state aclaim to relief that is plausible on its face.” Bell Atl.
Corp. V. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738,
742 (5th Cir. 2008). To meet this “facial plausibility” standard, aplaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court
must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff.
Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007) (citation omitted).
However, the court does not accept as true “conclusory allegations, unwarranted factual inferences.
or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation

omitted). Aplaintiff must provide “more than labels and conclusions, and aformulaic recitation
of the elements of acause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
Tactual allegations must be enough to raise aright to relief above the speculative level... on the

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assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citations
omitted).
In ruling on aRule 12(h)(6) motion, the court limits its review to the face of the pleadings.
See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint
and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). At the motion to dismiss stage, the Court does not evaluate the plaintiffs likelihood of
success. It only determines whether the complaint states aclaim upon which relief can be granted
when viewed in the light most favorable to the plaintiff. Mann v. Adams Realty Co., 556 F.2d 288,
293 (5th Cir. 1977).
III.

A N A LY S I S

The County and the City led separate Motions to dismiss all claims asserted against them.
The Court grants both Motions.
A. Dallas County Motion

Plaintiffs seemingly intended to assert two claims—one for unlawful seizure and one for
conspiracy—against the County; however, they only name the County in the conspiracy cause of
action. The Court dismisses the unlawful seizure claim for failure to name the County and
dismisses the conspiracy claim for failure to state aclaim.
i. Unlawful Seizure
The County moves to dismiss Count Four, Plaintiffs’ Fourth Amendment unlawful seizure
claim, both on the grounds that the claim is not asserted against the County and because Plaintiffs
fail to state aplausible claim. County Mot. 8-17. Plaintiffs bring Count Four against “Law
Enforcement Defendants,” aterm that is not de ned in the Second Amended Complaint. Second
Am. Compl. 32. Plaintiffs do de ne the term “Law Enforcement Of cers,” which refers to “all
Defendant Police Of cers, Sheriff Deputies, State Troopers[,] and Federal agents” but not to the

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County.

Plaintiffs concede as much, stating that they “amended their complaint to include

‘Law Enforcement Defendants’ but failed to provide ade nition, which ...intended to include
Dallas County.” County Resp. 10. Regardless of Plaintiffs’ intent, the County is never mentioned
in Count Four. Because Plaintiffs do not de ne the term “Law Enforcement Defendants” and do

not include any allegations against the County in Count Four, the County’s Motion is granted with

respect to the unlawful seizure claim.'^
ii. Conspiracy

The County also moves to dismiss Count Eight, Plaintiffs’ Section 1985(3) conspiracy
claim. The County moves to dismiss on two grounds: (1) that Section 1985(3) does not apply to
state actors and (2) that Plaintiffs fail to state aclaim for aconspiracy under Section 1985(3).
County Mot. 17-23. As Plaintiffs correctly note, the County does not cite any binding precedent
for the proposition that Section 1985(3) claims carmot be brought against state actors, and the
Court has not located any. Cormty Resp. 13-14. But because Plaintiffs have failed to state aclaim
even assuming such claims are cognizable, the Court declines to reach this issue.
42 U.S.C. §1985(3) prohibits “conspiracies that involve depriving someone of equal
protection of the laws or equal privileges and immunities under the laws.” Cantu v. Moody, 933
F.3d 414, 419 (5th Cir. 2019) (citation and internal quotation marks omitted). In the Fifth Circuit,
the only conspiracies actionable under [SJection 1985(3) are those motivated by racial animus.
Id. (citation omitted). As the County notes. Plaintiffs do not plead that the alleged conspiracy was

motivated by any class-based animus,^ let alone racial animus, and Plaintiffs did not respond to

Even if Plaintiffs had included the County in Count Four, the Court would dismiss this claim for the
reasons stated below. See infra §IlI(B)(ii)(a).

^It is unclear whether Section 1985(3) encompasses other forms of class-based animus in the Fifth Circuit.
See Gonzales v. Gillis, No. 21-60634, 2023 WL 3197061, at *4 n.6 (5th Cir. May 2, 2023) (citations
omitted). Even if it does, Plaintiffs’ conspiracy claim must be dismissed on the same basis.

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the County’s Motion on this point. County Mot. 19. Therefore, Plaintiffs’ conspiracy claim against
the County must be dismissed.
B. City of Dallas Motion

The City moves to dismiss certain parties and all claims against it. First, the City argues
that the expiration of the statute of limitations necessitates the dismissal of some parties. City
Mot. 4&n.3. Second, the City moves to dismiss the Section 1983 claims brought against it on the
ground that Plaintiffs fail to state aclaim. Id. at 4-5. Third, the City contends that Plaintiffs’ claim
for apreliminary injunction should be dismissed because an injunction is merely aremedy. Id.
at 5. Finally, the City moves to dismiss Plaintiffs’ Section 1985(3) conspiracy cause of action for
failure to state aclaim. Id. The Court agrees with the City on all fronts.
i. Statute of Limitations

As an initial matter, the City moves to dismiss the claims of Plaintiffs Sarah Shirley, Joseph
Adams, and Krista Adams and suggests that the Court should sua sponte dismiss all claims against
unidenti ed defendants. Id. at 4n.3, 7. Plaintiffs concede that Shirley’s and the Adamses’ claims
are barred by the statute of limitations. City Resp. 6. Therefore, the Court dismisses their claims
with prejudice. However, Plaintiffs do not address the City’s argument with respect to Defendants
'John and Jane Roe Dallas Police Of cers 1-10” and “John and Jane Smith Sheriffs Deputies 110.” Second Am. Compl. 1. Even if the Court nds that Plaintiffs did not abandon their claims
against these Defendants by failing to respond to the City’s Motion on this point, see Black v. N.

Panola Sch. Dist., 461 F.3d 584, 588 n.l (5th Cir. 2006), the claims are barred by the applicable
statute of limitations.

Plaintiffs assert claims against the unidenti ed Defendants under 42 U.S.C. §§ 1983 and
1985. See Second Am. Compl. 106-39, 144-57,187-200. “Because there is no federal statute of

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limitations for actions brought pursuant to 42 U.S.C. §§ 1983 and 1985, federal courts borrow the
forum state’s general personal injury limitations period.” Beckwith v. City of Houston, 790 F.
App’x 568, 575 (5th Cir. 2019) (citation omitted). Texas’s statute of limitations for personal injury
claims is two years. Id. at 572 (citation omitted). Federal law, however, governs when aclaim
accrues. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (citation omitted).
ASection 1983 claim accrues when the plaintiff knows or has suf cient information to know that
he has been injured by the defendant’s actions, id. (citation omitted), and aSection 1985 claim
accrues when the plaintiff knows or should know of the overt acts involved in the conspiracy.
Beckwith, 790 F. App’x at 575-76. In this case, both types of claims accrued on June 1, 2020. See,
e.g., Monacelli v. City of Dallas, No. 3:21-CV-2649-L, 2023 WL 9052013, at *3 (N.D. Tex. Dec.
29, 2023) (“[T]he statute of limitations commenced to run on June 1, 2020—^the date of the
protest[.]”). Plaintiffs brought suit within two years of June 1, 2020, but still have not identi ed
the police of cers and sheriffs deputies.
[A]n amended complaint to substitute an individual for aJohn Doe defendant does not
relate back to the date of the original complaint....” Bond v. Nueces County, No. 20-40050,2022
WL 4595000, at *2 n.2 (5th Cir. Sept. 30,2022) (citation omitted); see also Bade v. Nueces County,
952 F.3d 552, 557-58 (5th Cir. 2017) (concluding that an amended complaint does not relate back
to the date of the original complaint where the plaintiff substitutes anamed individual for aJohn
Doe). The doctrine of equitable tolling is available to preserve Plaintiffs’ claims if “strict
application of the statute of limitations would be inequitable.” Bade, 952 F.3d at 558 (citation
omitted). But Plaintiffs have not responded to the City’s Motion on this point, sought discovery.
or otherwise “diligently pursued [their] rights as required for equitable tolling of the limitations
period.” Bond, 2022 WL 4595000, at *2 n.2. Indeed, by ling this case on June 1, 2022, the date

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the statute of limitations ran, Plaintiffs all but ensured they would not be able to name the
unidenti ed individuals in time. See Balle, 952 F.3d at 558. As such, the Court

nds no basis for

equitable tolling and dismisses Plaintiffs’ claims against John and Jane Roe Dallas Police
Of cers 1-10 and John and Jane Smith Sheriffs Deputies 1-10.
a. Municipal Liability

The City moves to dismiss Plaintiffs’ Section 1983 claims for First Amendment violations

(Count One), excessive force (Count Three), and unlawful seizure (Count Four)^ on the ground
that Plaintiffs have not established abasis for municipal liability. City Mot. 8-17. “Section 1983
provides afederal cause of action for the deprivation, under color of law, of acitizen’s ‘rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.” Livadas v.
Bradshaw, 512 U.S. 107, 132 (1994) (citation omitted). To state aclaim under Section 1983, a

plaintiff must allege facts showing (1) adeprivation of aright secured by the Constitution and the
laws of the United States; and (2) that the deprivation occurred imder color of state law. See Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549
(5th Cir. 2005) (citation omitted). “Claims under §1983 may be brought against persons in their
individual or of cial capacity, or against agovernmental entity.” Goodman v. Harris County, 571
F.3d 388, 395 (5th Cir. 2009) (citation omitted).
Amunicipal entity like the City cannot be held vicariously liable under Section 1983 for
the individual acts of its employees. See Bd. of Cnty. Comm ’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403 (1997); Doe ex rel. Doe v. Dali. Indep. Sch. Dist, 153 F.3d 211, 215 (5th Cir. 1998)
(citation omitted). “It is only when the ‘execution of the government’s policy or custom ... in icts

^As discussed, Plaintiffs do not de ne the term “Law Enforcement Defendants,” and as aresult, it is unclear
who Plaintiffs intend to assert Count Four against. But because the City, unlike the County, is mentioned
in the body of Count Four, the Court will proceed as though Plaintiffs pleaded an unlawful seizure claim
against the City.

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the injury’ that the municipality may be held liable under §1983.” City of Canton v. Harris, 489
U.S. 378, 385 (1989) (alteration in original) (citation omitted). Therefore, to impose Section 1983
liability on the City, Plaintiffs must suf ciently allege “a policymaker; an of cial policy [or
custom]; and aviolation of constitutional rights whose ‘moving force’ is the policy or custom.
Piotrowski, 237 F.3d at 578 (quoting Monell v. Dep’t ofSoc. Servs., 436 U.S. 658, 694 (1978)).
a. Of cial Policy or Custom
The City rst challenges Plaintiffs’ pleadings with respect to an of cial policy or custom.
According to the City, Plaintiffs do not plead facts establishing apolicy or custom of “the unlawful
seizure of peaceful protesters, retaliation against peaceful protesters, or the use of excessive force
against peaceful protesters.” City Mot. 10. Plaintiffs respond that they “need not enumerate each
and every instance of such violation[s]” and that, regardless, they have established the requisite
custom or policy via the single incident exception. City Resp. 8-9.
An of cial policy is most clearly established through apolicy statement formally
announced by an of cial policymaker. Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th
Cir. 2010) (citation omitted). When an of cial policy is not explicit, however, apersistent and
widespread practice by city of cials or employees that is so common and well settled as to
constitute a“custom” will suf ce. See id. at 168-69.

Plaintiffs do not identify aformal policy statement; therefore, the Court considers only
whether Plaintiffs have adequately alleged apersistent and widespread practice that amounts to a
custom. See, e.g.. Second Am. Compl. f141 (identifying only a“Jc facto unwritten policy”).
Where aplaintiff relies on apattern of prior incidents to establish apolicy, the plaintiff must plead
facts that demonstrate the prior incidents “occurred for so long or so frequently that the course of
conduct warrants the attribution to the governing body of knowledge that the objectionable conduct

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is the expected, accepted practice of city employees.” Peterson v. City of Fort Worth, 588 F.3d
838, 850 (5th Cir. 2009) (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)).
The “pattern of abuses” must “transcend[] the error made in asingle case.” Id. at 850-51 (quoting
Piotrowski, 237 F.3d at 582). “A pattern requires similarity and speci city; ‘[pjrior indications
cannot simply be for any and all “bad” or unwise acts, but rather must point to the speci c violation
in question.’” Id. at 851 (alteration in original) (quoting Est. of Davis ex rel. McCully v. City ofN.
Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)). “In addition to similarity and speci city, a
pattern must be comprised of ‘suf ciently numerous prior incidents’ rather than merely ‘isolated
instances.’” Fuentes v. Nueces County, 689 F. App’x 775, 778 (5th Cir. 2017) (quoting McConney
V. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)).
As to Plaintiffs’ excessive force claim. Plaintiffs identify only one prior incident: the Dallas
Police Department’s use of “pepper balls on anon-threatening crowd during the September 2018
protests.” Second Am. Compl. f84; see also id. H141; City Resp. 8(“Plaintiffs’ Amended
[CJomplaint does identify that Defendant red pepper balls during peaceful protests in 2018.'
(citation omitted)). With respect to this incident, another district court recently held under similar
facts:

One incident of KIP deployment at the Botham Jean protest in 2018, followed by a
separate instance the night of May 31, 2020, when an of cer allegedly shot a
protestor with aPepperBall weapon, is not a“persistent, widespread practice” that
is “so common and well settled as to constitute acustom that fairly represents
municipal policy.”
Monacelli v. City of Dallas, No. 3:21-CV-2649-L, 2022 WL 4668054, at *7 (N.D. Tex.
Sept. 30, 2022) (quoting Piotrowski, 237 F.3d at 579). And this Court reached the same conclusion
in another protest-related case, holding that “one incident in 2018, followed by three instances
occurring within the span of approximately three days in 2020, without more, does not amount to
aplausible allegation of a‘persistent, widespread practice’ that is suf ciently ‘common and well

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settled.’” Order at 9, Cleveland v. City of Dallas, No. 3:22-CV-01154-S (N.D. Tex. Dec. 28,2022),
EOF No. 7(citing Peterson, 588 F.3d at 850-52).
Moving to the unlawful seizure and First Amendment claims. Plaintiffs allege that “[i]t is
the pattern and practice of the City of Dallas ... to arrest but not charge protesters” and “to employ
kettling techniques against peaceful protesters.” Second Am. Compl. 153-54. However,
Plaintiffs do not point to any prior instances of such conduct, and their conclusory statements do
not suf ce. In their brie ng. Plaintiffs argue that further speci city is uimecessary because “[i]t is
widely publicized that [the] City arrested several high pro le Black Lives Matter protestors.” City
Resp. 8. In support. Plaintiffs point to two court cases in which the City prevailed and the
respective claims were dismissed with prejudice. See id. at 8n.3\', Alexander v. Brown, No. 3:18CV-02101-X, 2020 WL 7056331, at *3 (N.D. Tex. Dec. 2, 2020) (granting summary judgment to
the City on Section 1983 municipal liability claims); Woolum v. City of Dallas, No. 3:18-CV2453-B-BN, 2020 WL 687614, at *5 (N.D. Tex. Jan. 22, 2020) (dismissing municipal liability
claims against the City), report and recommendation adopted by 2020 WL 636903 (N.D. Tex.
Feb. 11, 2020). These two instances do not constitute alegally suf cient pattern. Moreover,
Plaintiffs’ conclusory arguments, which rely only on cases in which courts did not nd any
constitutional violations, do not point the Court to apattern of prior violations with the requisite
similarity and speci city.
Finally, Plaintiffs allege that the City “has along history of violating First Amendment
rights of protesters” and that the City has a“persistent, widespread pattern or practice of falsely
arresting and charging peaceful protestors with false charges.” Second Am. Compl. 116-17. But
again. Plaintiffs point only to the 2018 incident and to the 2020 protests to support their allegations.

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Id. 1118. For the reasons stated above, these allegations do not establish alegally suf cient
pattern.

Where, as here, aplaintiff cannot identify apattern or custom, asingle decision or action
by a nal policymaker may, in rare circumstances, constitute apolicy. Zarnow, 614 F.3d at 169
(citation omitted); Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016) (citation omitted).
For liability to attach, the nal policymaker must “perform[] the speci c act that forms the basis
of the §1983 claim.” Webb v. Town of Saint Joseph, 925 F.3d 209, 215 (5th Cir. 2019) (citation
omitted). The Fifth Circuit, “in conformity with the Supreme Court’s jurisprudence, has been
highly reluctant to permit this exception to swallow the rule that forbids mere respondeat superior

liability.” Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005) (footnote and citation
omitted).
Plaintiffs invoke the single incident exception in their brie ng but do not provide any
analysis of it. See City Resp. 8-9. They do not identify asingle decision or action by a nal

policymaker or argue that any such decision or action was the moving force behind their injuries.
Because Plaintiffs have not pointed to any allegations “coming within the ambit of this narrow

exception,” the Court concludes that Plaintiffs cannot rely on it to establish abasis for municipal
liability. Monacelli, 2022 WL 4668054, at *11 n.7.
For the foregoing reasons. Counts One, Three, and Four are dismissed for failure to plead

an of cial policy or custom through either apattern of violations or the single incident exception.’

’Plaintiffs repeatedly allege that the City “rati ed” of cers’ actions. See, e.g.. Second Am. Compl. 84,
90-91, 162. Rati cation requires that apolicymaker “knowingly approve asubordinate’s actions and the

improper basis for those actions.” Covington v. City of Madisonville, 812 F. App’x 219, 228 (5th Cir. 2020)
(citation omitted). The Fifth Circuit has limited rati cation to “extreme factual situations.” Peterson, 588
F.3d at 848 (citation omitted). Neither party addresses rati cation in its brie ng, and the Court declines to
do so without the bene t of the parties’ arguments. To the extent Plaintiffs intend to rely on such atheory,
they must make that intent clear in any amended complaint that they le.

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b. Violation of Constitutional Rights
With respect to Count One, Plaintiffs’ First Amendment claim, the City also challenges the
third element—a violation of constitutional rights. City Mot. 15-17. Plaintiffs allege that the City
engaged in First Amendment retaliation by using excessive force against and arresting Plaintiffs
when Plaintiffs were exercising their First Amendment rights. Second Am. Compl. 112, 120;
City Resp. 11-12. According to the City, Plaintiffs were not engaged in constitutionally protected
activity because they were breaking the law during the protest. City Mot. 16.
To establish aFirst Amendment retaliation claim. Plaintiffs must plead facts that
demonstrate that: (1) they were engaged in constitutionally protected activity, (2) the of cers’
action caused them to suffer an injury that would chill aperson of ordinary

rmness from

continuing to engage in that activity, and (3) the of cers’ adverse actions were substantially
motivated against their exercise of constitutionally protected conduct. Alexander v. City of Round
Rock, 854 F.3d 298, 308 (5th Cir. 2017) (citation omitted).
The City argues that Plaintiffs cannot meet the rst element because they were violating a
Texas law prohibiting obstructing ahighway or street. City Mot. 16 (citing Tex. Penal Code
§42.03). Plaintiffs respond that police of cers “blocked the streets so that there was no traf c to
impede” and caused any illegal activity by “block[ingj the streets ...such that the only route
Plaintiffs could take was to enter the bridge.” City Resp. 11 (citation omitted). “The First
Amendment does not entitle acitizen to obstruct traf c .... AState may therefore enforce its

traf c obstruction laws without violating the First Amendment, even when the suspect is blocking
traf c as an act of political protest.” Singleton v. Darby, 609 F. App’x 190, 193 (5th Cir. 2015)
(citation omitted); see also Utley v. City of Houston, No. 21-20623, 2022 WL 2188529, at *1 (5th

Cir. June 17, 2022) (“[The plaintiff] was not engaged in constitutionally protected activity when

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he was arrested—he was obstructing aroadway in violation of Tex. Penal Code §42.03—so his
First Amendment retaliation claim fails.” (citation omitted)). Though Plaintiffs claim that there
was no traf c to obstruct, they do not argue against the fact that they were obstructing aroadway.
See, e.g.. Second Am. Compl. 65-69 (describing Plaintiffs’ march onto the Margaret Hunt Hill
Bridge and position “in the middle of the Bridge”).
To the extent Plaintiffs’ First Amendment claim is based on their arrests, they must “ rst

establish the absence of probable cause, and then demonstrate that the retaliation was asubstantial
or motivating factor behind the arrest.” Kokesh v. Curlee, 14 F.4th 382, 396 (5th Cir. 2021) (citing
Nieves v. Bartlett, 139 S. Ct. 1715,1725 (2019)). Here, the fact that Plaintiffs were breaking Texas
law, as discussed above, provides probable cause. But there is an exception to this rule. “[T]he no¬
probable-cause requirement should not apply when aplaintiff presents objective evidence that [the
plaintiff] was arrested when otherwise similarly situated individuals not engaged in the same sort
of protected speech had not been.” Nieves, 139 S. Ct. at 1727. Plaintiffs do not argue that this
exception applies, and the Court nds no support in the Second Amended Complaint for the notion
that similarly situated individuals not exercising their First Amendment rights were not arrested.
For these additional reasons, the Court grants the City’s Motion with respect to Count One,
Plaintiffs’ First Amendment claim.

Hi. Failure to Train, Supervise, or Discipline
Next, the City moves to dismiss Plaintiffs’ claims for failure to supervise or discipline and
failure to train. City Mot. 17-19. Although Plaintiffs assert their claims in two separate counts
(Counts Five and Six), “the elements required to prove aclaim under either theory are the same.

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and the Court considers them together. Edwards v. Oliver, No. 3:17-CV-01208-M-BT, 2021 WL
6884649, at *10 (N.D. Tex. Nov. 24,2021) (citation omitted), report and recommendation adopted

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by 2022 WL 447085 (N.D. Tex. Feb. 14, 2022). Plaintiffs allege that the City failed to properly
train police of cers on First and Fourth Amendment rights, the use of “less lethal” forms of
ammunition, and the elements of criminal charges. See, e.g.. Second Am. Compl. 115,141,159,
177. Plaintiffs also allege that the City failed to supervise and discipline of cers with respect to
these matters. See, e.g., id. 158-64. The City contends that Plaintiffs did not plead deliberate
indifference, which is required for such claims. City Mot. 17-19.
Claims for failure to train, supervise, or discipline are species of municipal liability claims.
Hutcheson v. Dallas County, 994 F.3d All, 482 (5th Cir. 2021). The “failure to train[, supervise,
or discipline] can amount to apolicy if there is deliberate indifference to an obvious need for
training[, supervision, or discipline] where citizens are likely to lose their constitutional rights.
Id. (citation omitted). For their failure to train, supervise, or discipline claims to survive amotion
to dismiss. Plaintiffs must plausibly allege that (1) the City failed to train, supervise, or discipline
the of cers involved; (2) there is acausal connection between the alleged failure to train, supervise,
or discipline and the alleged violation of Plaintiffs’ rights; and (3) the failure to train, supervise,
or discipline constituted deliberate indifference to Plaintiffs’ constitutional rights. Pena v. City of
Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018) (citation omitted).
The City challenges the third element, deliberate indifference, which requires more than
■negligence or even gross negligence’

■it is a“stringent standard, requiring proof that amunicipal

actor disregarded aknown or obvious consequence of his action.” Valle, 613 F.3d at 547 (citation
omitted). To plausibly allege deliberate indifference, aplaintiff must demonstrate that “in light of
the duties assigned to speci c of cers 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.” City of

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Canton, 489 U.S. at 390. Acourt infers deliberate indifference “either from apattern of
constitutional violations or, absent proof of apattern, from showing asingle incident with proof
of the possibility of recurring situations that present an obvious potential for violation of
constitutional rights.” Garza v. City of Donna, 922 F.3d 626, 637-38 (5th Cir. 2019) (citation and
internal quotation marks omitted).
Plaintiffs do not make any additional arguments in support of the existence of apattern
with respect to their failure to train, supervise, or discipline claims; instead, they reiterate the same
arguments the Court has already rejected. See City Resp. 12 (“Plaintiffs suf ciently establish
deliberate indifference as discussed in Section 1above. Copied below for reference.”). For the
reasons stated above, Plaintiffs have not alleged apattern of constitutional violations related to the
alleged training, supervision, or disciplinary failures. The alleged 2018 incident is insuf cient.
standing alone, to constitute apattern, and Plaintiffs’ other pattern-related allegations are
conclusory. Accordingly, Plaintiffs fail to establish apattern of similar violations that constitutes
deliberate indifference.

Plaintiffs also cannot establish deliberate indifference through the single incident
exception. Again, Plaintiffs invoke the exception but do not provide any speci c argument in
support of its application. See City Resp. 12-13. The exception “is generally reserved for those
cases in which the government actor was provided no training [or supervision] whatsoever.” Pena,
879 F.3d at 624; see also Est. of Davis, 406 F.3d at 386 (“We did nd asingle incident to suf ce
in Brown v. Bryan County, concluding that there was an utter failure to train and supervise.” (citing
219 F.3d 450, 462 (5th Cir. 2000))). “[Tjhere is adifference between acomplete failure to train
and afailure to train in one limited area.” Pena, 879 F.3d at 624 (cleaned up). Though Plaintiffs
allege in conclusory fashion that the City provided no training, their speci c allegations contradict

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that claim. See, e.g., Second Am. Compl. 85 (referring to General Orders governing of cers’
use of pepper balls), 87 (same), 92 (alleging that the City should have provided "'additional training
on how to use the sponge bullets” (emphasis added)), 96 (describing the City’s policies on use of
deadly force). The City therefore “provided at least some relevant directives or training to its
of cers.” Hutcheson, 994 F.3d at 483.

Similarly, though Plaintiffs allege that then-Police Chief Hall “took no action against the
of cers” who used pepper balls in 2018, Second Am. Compl. 86, Plaintiffs also allege that Hall
'asked [the] investigative unit to conduct afull review” and that areview was in fact conducted
and resulted in a nding that “the use of the pepper ball gun was consistent with the department’s
general orders,” id. || 85, 89 (internal quotation marks omitted).
Plaintiffs have not plausibly alleged deliberate indifferenee either by pointing to apattern
or asingle incident; therefore, their claims for failure to train, supervise, or discipline must be
dismissed.

iv. Permanent Injunction

The City asks the Court to dismiss Count Seven, titled “Permanent Injunctive Relief,” id.
at 40, because injunctive relief is aremedy, not acause of action. City Mot. 19. The City is correct
that “[a] permanent injunction is not an independent eause of action but an equitable remedy that
depends on an underlying cause of action.” Donnelly v. JPMorgan Chase Bank, N.A., No. H-151671, 2015 WL 6690257, at *4 (S.D. Tex. Oct. 16, 2015) (citing Massey v. EMC Mortg. Corp.,
546 F. App’x 477, 483 (5th Cir. 2013)). If Plaintiffs successfully replead the underlying causes of
action, their claim for injunctive relief may be proper. But at this time, because the Court dismisses
all of Plaintiffs’ underlying claims. Plaintiffs’ claim for permanent injunctive relief also fails.

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V. Conspiracy
Like the County, the City moves to dismiss Count Eight, Plaintiffs’ Section 1985(3)
conspiracy claim, for failure to state aclaim. City Mot. 19-22. Among other things, the City notes
that Plaintiffs “failed to plead racial animus” and “do not even plead their racial or ethnic heritage.
Id. at 22. Plaintiffs did not respond to the City’s Motion on this point. For the reasons stated above.
see supra §III(A)(ii), the Court concludes that Plaintiffs’ conspiracy claim against the City must
be dismissed.
I V.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Dallas County’s Rule 12(b)(6)
Motion to Dismiss Plaintiffs’ Claims Alleged Against It in Plaintiffs’ Amended Complaint [ECF
No. 30] and Defendant City of Dallas’s Motion to Dismiss Plaintiffs’ Second Amended Complaint
[ECF No. 33]. The Court DISMISSES WITH PREJUDICE (1) the claims of Plaintiffs Sarah
Shirley, Joseph Adams, and Krista Adams and (2) the claims against Defendants John and Jane
Roe Dallas Police Of cers 1-10 and John and Jane Smith Sheriffs Deputies 1-10. With respect to
the remaining parties and claims, because Plaintiffs have requested leave to amend their
Complaint, see County Resp. 19; City Resp. 18, and given the Federal Rules of Civil Procedure’s
liberal policy of allowing amendments to pleadings, the Court GRANTS Plaintiffs leave to amend
their Complaint. Plaintiffs must le an amended complaint by April 8, 2024. If an amended
complaint is not led within such time. Plaintiffs’ claims will be dismissed with prejudice.
SO

ORDERED.

SIGNED March 25, 2024.

iZaren gren scholer
UNITED

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S TAT E S

DISTRICT

JUDGE