Cain v. Johnson et al

Filing 19

REPORT AND RECOMMENDATIONS re 6 Motion to Dismiss for Failure to State a Claim filed by Todd Johnson, 7 Motion to Dismiss filed by the City of Cedar Park. Signed by Judge Andrew W. Austin. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DEANNA CAIN

§
§
§
§
§

V.
TODD JOHNSON, et al.

A-16-CV-300-LY
A-16-CV-30-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendants Todd Johnson and the City of Cedar Park’s Motions to

Dismiss (Dkt. Nos. 6 and 7), Plaintiff Deanna Cain’s responses (Dkt. Nos. 9 and 10), and Johnson
and the City of Cedar Park’s replies (Dkt. Nos. 11 and 12). The District Court referred the abovemotion to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C.
§636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate
Judges.
I. FACTS AND ALLEGATIONS
Plaintiff Deanna Cain is suing Defendant Todd Johnson, a detective with the City of Cedar
Park Police Department, for false arrest and deliberate fabrication of evidence under 42 U.S.C. §
1983. Dkt. No. 1 at ¶¶22-26. Cain is also bringing claims against the City of Cedar Park for failing
to properly train and supervise its police officers concerning probable cause. Id. at ¶¶27-30. Cain’s
arrest arose out of the Cedar Park Police Department’s investigation into complaints of fraud and
poor work associated with “Premier Auto Sales.” Id. at ¶8. Det. Johnson says that during this

investigation he received anonymous tips about the sale of a Hummer sport utility vehicle to Cain.
Dkt. No. 6 at 13. Recognizing her name, Johnson proceeded to look for Cain in Premier’s files. Id.
Johnson testified in his affidavit that he found multiple documents completed by Cain that
related to the Hummer and contained differing indications of the vehicle’s mileage. Dkt. No. 1 at
¶9. He first found a loan agreement with Austin Telco Credit Union that included both a Bill of Sale
showing the Hummer’s mileage as 49,582 and an “Application for Texas Certificate of Title”
showing mileage as 49,582. Id. After further research, Johnson found a copy of the vehicle title with
the mileage stated on the reverse side as 123,019. Id. Johnson believed that Cain provided Austin
Telco with incorrect mileage so that she would be approved for a loan. Id. Moreover, Johnson
believed that Cain committed a felony by then providing false information on her title application.
Id. Johnson then signed an affidavit to that effect to secure the issuance of an arrest warrant, which
was subsequently issued by a judge. Id. at ¶11.
Cain was later arrested for fraud and sent to the Williamson County jail, where she was
released after a few hours. Id. at ¶12. All the charges against Cain were soon dismissed after her case
was reviewed by the prosecutor. Id. at ¶15. In the State’s motion to dismiss the charges, the
prosecutor wrote that the application for title was not filed in a fraudulent or inaccurate manner. Id.
Rather, the form contained the current mileage statement. Id. Cain therefore alleges that there was
no probable cause to arrest her because Johnson must have known that the affidavit he completed
contained a false indication of the mileage as stated on the application. Id. at ¶11.
Cain asserts the title application did not show 49,582 miles as Johnson testified, but that it
listed the mileage as 123,019, the correct mileage at the time of sale. Id. at ¶10. Thus, Cain contends
Johnson lied about the contents of the documents obtained from Premier, and that the judge relied
upon those lies to issue Cain’s arrest warrant. Id. at ¶11. Moreover, Cain asserts that no reasonable
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officer would have concluded from the facts available to Johnson that she had committed a crime.
Id. Therefore, Cain brings this action alleging that she was arrested due to the false statements
Johnson provided to the judge in order to obtain a warrant for her arrest. Id. at ¶¶22-26.
Additionally, Cain alleges that Johnson’s false arrest of her is consistent with a pattern,
practice, or custom of Cedar Park police officers fabricating evidence in arrest affidavits. Id. at ¶16.
Cain asserts that Cedar Park Police officers have been sued for lying on probable cause affidavits
and that Johnson himself has previously been sued for unlawfully detaining citizens. Id. at ¶¶17-18.
Cain alleges this history demonstrates the City of Cedar Park fails to properly train its officers about
the illegality of falsified arrest affidavits. Id. at ¶19. Moreover, Cain asserts this shows a failure of
Cedar Park to supervise its police officers, particularly because the city has not disciplined officers
caught falsifying arrest affidavits. Id. at ¶20. Cain says that both the failure to supervise and failure
to train constitute “policies” of the City. at ¶27. Further, Cain alleges (1) that these policies were
actually known, constructively known, or ratified by the City, (2) that it was a known and obvious
consequence of these policies that police officers would be placed in situations that would create
situations similar to the plaintiff’s, and (3) that these polices were a moving force of Cain’s damages.
Id. at ¶27-30. Under this theory, Cain brings an action against the City of Cedar Park for municipal
liability. Id.
II. STANDARD OF REVIEW
In separate motions each Defendant contends that Cain has failed to state a claim and
therefore seeks dismissal under Federal Rule of Civil Procedure 12. Johnson argues Cain’s
complaint lacks adequate factual detail regarding the prosecution that gave rise to this lawsuit.
Johnson further argues Cain has failed to plead sufficient facts to avoid his qualified immunity. The
City argues Cain has failed to plead sufficient facts to demonstrate municipal liability.
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Rule 12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief
can be granted.” To survive the motion, a nonmovant must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the
reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id. In evaluating a motion
to dismiss, the Court construes the complaint liberally and accepts the plaintiff's factual allegations
in the complaint as true. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Additionally, when a defendant raises an issue of qualified immunity, as Johnson has, the
plaintiff is held to a heightened pleading standard. Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002).
To rebut qualified immunity, a plaintiff must show: “(1) that he has alleged a violation of a clearly
established constitutional right, and (2) that the defendant's conduct was objectively unreasonable
in light of clearly established law at the time of the incident.” Waltman v. Payne, 535 F.3d 342, 346
(5th Cir.2008) (footnote omitted). In the context of a motion to dismiss, a plaintiff must state facts
in the complaint which, if proven, would overcome the qualified immunity defense. Babb v.
Dorman, 33 F.3d 472, 476 (5th Cir.1994).
III. ANALYSIS
A.

Claims Against Defendant Todd Johnson
1.

Fourth Amendment Claim for False Arrest

Fifth Circuit precedent recognizes a cause of action under 42 U.S.C. §1983 for false arrest.
Shields v. Twiss, 389 F.3d 142, 150 (5th Cir.2004). To establish her claim for false arrest, Cain must
4

plead facts showing that she was “arrested without probable cause in violation of the Fourth
Amendment.” Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007) (internal quotations omitted).
In his motion to dismiss, Johnson first argues that Cain is actually making a non-viable claim
for malicious prosecution rather than false arrest. This argument is without merit. Malicious
prosecution is a tort that occurs when criminal proceedings are improperly brought against an
innocent person without probable cause. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003)
(en banc). The Fifth Circuit has held that a plaintiff may not bring a civil rights suit based on a theory
of malicious prosecution because there is no constitutional right to be free from malicious
prosecution. Id. Plaintiffs are however permitted to bring a civil rights suit when they are arrested
without probable cause because it violates the Fourth Amendment. Shields, 389 F.3d at 150. In her
complaint, Cain specifically asserts that she was arrested and taken to jail without probable cause.
Dkt. No. 1 at ¶¶22-25. Therefore, Cain’s allegations are not based on a malicious prosecution theory,
but rather properly state a claim for false arrest.
Johnson also attempts to relabel Cain’s claims as an allegation of negligent investigation,
asserting that she is accusing Johnson of misinterpreting the documents that led to her arrest. Claims
for negligent investigation are not actionable under 42 U.S.C. §1983. See Daniels v. Williams, 474
U.S. 327, 328 (1986) (“We conclude that the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life, liberty, or property.”). But
Cain is not alleging that Johnson misinterpreted the documents. Rather she has pled that Johnson
“deliberately fabricated an arrest affidavit that caused Plaintiff to be charged with theft and arrested.”
Dkt. No. 1 at ¶23. Cain is plainly saying Johnson’s actions were intentional, not negligent.
Accordingly, Johnson’s argument here fails.

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Next, Johnson contends that Cain’s complaint fails to show that any errors in the arrest
affidavit pass the Franks test to determine whether an error vitiates probable cause. Under Franks,
a plaintiff must show an arrest affidavit contains materially false statements made knowingly and
intentionally, or with a reckless disregard for the truth. See Franks, 438 U.S. at 155-56.; Hale v.
Fish, 899 F.2d 390, 400 & n.3 (5th Cir. 1990). Further, such statements must have been necessary
for the finding of probable cause. Franks, 428 U.S. 156. Cain alleges in her complaint that Johnson
knew that the statements he made in the arrest affidavit were false and that Johnson’s false
statements were necessary for establishing probable cause because there would have been no reason
to charge her with fraud if the car’s mileage had been reported correctly. Id. at ¶¶9 and 11. Taking
these allegations as true, Cain has pled sufficiently to pass the Franks test.
Johnson also argues that he is insulated from liability for false arrest because any causal chain
was severed when the magistrate issued the warrant. Generally, once facts supporting an arrest are
placed before an independent intermediary like a magistrate, and that intermediary finds probable
cause to support the charge, then the intermediary’s decision breaks the chain of causation for
constitutional violations and insulates the initiating party. Shields, 389 F.3d at 150. However, the
causal chain can remain intact if “it can be shown that the deliberations of that intermediary were
in some way tainted by the actions of the defendant.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d
808, 813 (5th Cir. 2010) (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir.1988)). To keep the
causal chain intact, it is not sufficient that an officer acted with malice in procuring a warrant. Hand,
838 F.2d at 1427. Rather, it must be shown that the officer’s malicious motive led him to withhold
relevant information from the intermediary. Id. at 1428. While an affidavit need not be perfect, if
“the affidavit, supplemented by the omissions, would not be sufficient to support a finding of

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probable cause” then a constitutional violation is stated. United States v. Brown, 298 F.3d 392, 413
(5th Cir.2002). In her complaint, Cain alleges that Johnson did not provide the magistrate judge with
the car’s mileage as it was actually listed on the documents he obtained from Premier. Dkt. No. 1
at ¶¶10-11. The mileage listed on the documents is relevant information that if withheld from the
magistrate would likely taint his deliberation, as if the mileage would have been reported correctly
there would be no basis to suspect Cain of fraud and no probable cause to arrest her. Therefore,
accepting Cain’s allegations as true, the causal chain for her false arrest is intact and the magistrate’s
issuance of the warrant does not insulate Johnson.
2.

Fourteenth Amendment Claim for Deliberate Fabrication

Johnson contends that Cain’s claim of deliberate fabrication fails because the allegedly
fabricated documents were never used at trial as he proposes is necessary. Dkt. No. 10 at 6. Although
there were some prior indications to the contrary, the Fifth Circuit has recently ruled against this
proposition. See Cole v. Carson, 802 F.3d 752 (5th Cir. 2015). The court in Cole held that due
process means citizens are entitled “not to have police deliberately fabricate evidence and use it to
frame and bring false charges” against them. Id. at 771 (emphasis added). The deliberately
fabricated documents need not be used at trial for a due process violation to occur because being
falsely charged with a crime “brings inevitable damage to the person’s reputation,” requires “the
person to mount a defense,” and places that person “in the power of a court of law, where he may
be required to appear.” Id. at 772 (internal quotations omitted). Therefore, to make a claim for
deliberate fabrication, Cain need not allege that fabricated evidence was used against her at trial, but
only that it led to false charges being brought against her. In her complaint, Cain alleges that fraud
charges were falsely brought against her because Johnson deliberately fabricated evidence. Dkt. No.

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1 at ¶11. Further, Cain alleges that her reputation was damaged and that she had to retain a defense
attorney prior to the charges against her being dropped. Id. at ¶¶13-14. Therefore, Cain’s deliberate
fabrication claims survive Johnson’s motion to dismiss.
3.

Qualified Immunity

Johnson also invokes the protection of qualified immunity. Qualified immunity affords state
actors protection against liability for damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, “qualified immunity is designed to shield
from civil liability all but the plainly incompetent or those who violate the law.” Brady v. Fort Bend
Cnty., 58 F.3d 173, 174 (5th Cir.1995). Further, qualified immunity is immunity from suit, not
merely from liability. Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 n. 3 (5th
Cir.1992). Therefore, courts treat it as a threshold question that should be decided “at the earliest
possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). To rebut qualified
immunity, a plaintiff must pass a two-pronged test by showing: “(1) that he has alleged a violation
of a clearly established constitutional right, and (2) that the defendant's conduct was objectively
unreasonable in light of clearly established law at the time of the incident.” Waltman 535 F.3d at
346. In the context of a motion to dismiss, a plaintiff must state facts in the complaint which, if
proven, would overcome the qualified immunity defense. Babb, 33 F.3d at 476.
There is little question as to the first prong. It has been clearly established for some time that
the Fourth Amendment protects people from an arrest without probable cause. See, e.g., Freeman
v. Gore, 483 F.3d 404, 411 (5th Cir. 2007). Here, that is exactly what Cain is claiming: that she was
arrested without probable cause. Dkt. No. 1 at ¶11. As for the second prong, Cain must demonstrate

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that Johnson’s conduct in preparing the arrest affidavit was objectively unreasonable. Cain alleges
that Johnson deliberately provided false information in the affidavit for her arrest. Dkt. No. 1 at ¶23.
The Fifth Circuit has held that a “reasonable officer would know that lying to a judge in order to
procure an arrest warrant was unlawful.” Hampton v. Oktibbeha Cty. Sheriff Dep't, 480 F.3d 358,
364 (5th Cir. 2007). Thus, if Johnson deliberately provided false information in his affidavit, he was
not acting as a reasonable officer would. Therefore, taking Cain’s allegations as true, she has pled
sufficient facts to overcome Johnson’s qualified immunity.
Cain argues in the alternative that even if Johnson did not deliberately lie, no reasonable
officer could have believed that she committed fraud. Dkt. No. 10 at 6-7. While qualified immunity
protects those who make reasonable mistakes about whether probable cause was present, it does not
protect the plainly incompetent. Bryant, 502 U.S. at 227-229. In Bryant, the Supreme Court upheld
qualified immunity for a Secret Service agent who arrested a man after mistakenly misinterpreting
his rambling letter referring to a plot to assassinate the President. Id. The court there found the
agent’s mistake to be a reasonable one. Id. Johnson did not need to interpret a confusing letter, but
rather properly read and record numbers listed on various documents. Thus, a mistake here would
not be akin to the one made in Bryant, which required subjective interpretation. Instead, misreading
numbers would be plainly incompetent behavior. Therefore, assuming that the documents clearly
stated the correct mileage as alleged, a reasonable officer would not have believed Cain to be guilty
of fraud so Johnson should not be protected by qualified immunity.
B.

Claims Against Defendant City of Cedar Park
Cain alleges that the City of Cedar Park is liable for her false arrest because they failed to

properly train or supervise Johnson. Dkt. No. No. 1 at ¶¶27-30. Additionally, she alleges that the

9

City is liable because they ratified Johnson’s actions when they did not discipline him following her
false arrest. Id. at ¶28. The City has moved for dismissal, arguing that Cain has not met her pleading
burden and has only made conclusory allegations. Dkt. No. 7 at 4-5.1
Although a municipality may not be held liable for the actions of employees under a theory
of respondeat superior, a municipality may nonetheless be liable under §1983 if it has policies or
customs that cause constitutional violations. Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S. 658, 690-92 (1978). To succeed on a claim of municipal liability, a plaintiff must prove three
elements: (1) a policymaker, (2) a policy or custom, and (3) a violation of constitutional rights whose
“moving force” is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir.2001) (citing Monell, 436 U.S. at 694). A plaintiff may also recover under a municipal
ratification theory if a subordinate municipal employee commits a constitutional violation and a
policymaker later approves that subordinate’s actions. City of St. Louis v. Praprotnik, 485 U.S. 112,
127 (1988).
1.

Whether Cain’s Claims Are Based on a Theory of Respondeat Superior

The City contends that Cain’s complaint should be dismissed because while she purports to
be making a claim based on municipal liability, in actuality she is attempting to hold the City liable
for Johnson’s actions through respondeat superior. Dkt. No. 7 at 4. As noted, “a municipality cannot
be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be
held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in
original). Therefore, a plaintiff must prove that a policymaker made a policy that was a moving force

1

Cain concedes that she cannot recover punitive damages against the city and so her punitive
damage claim against the City of Cedar Park should be dismissed. Dkt. No. 9 at 7.
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of a constitutional violation. Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694). Here,
Cain asserts: (1) that the City failed to adequately train or supervise its officers regarding probable
cause, and (2) that the violation of her rights was a consequence of this failure. Dkt. No.1 at ¶¶27-30.
Cain is not claiming that the City is responsible merely because of Johnson’s actions. Rather, she
alleges that the City’s failure to train Johnson was a moving force of the violation of her
constitutional rights because she would not have been falsely arrested if he were properly trained.
Dkt. No. 1 at ¶30; Dkt. No. 9 at 7. Therefore, Cain is not trying to hold the City vicariously liable
through respondeat superior and her complaint should not be dismissed on that basis.
2.

Whether the City of Cedar Park’s Policies Cause it to be Liable

The City also argues that Cain’s complaint should be dismissed because she has failed to
plead sufficient facts to identify both the relevant policymaker and the policy, as is required for
municipal liability. Dkt. No. 7 at 4-5; See Piotrowski, 237 F.3d at 578. Each of these contentions
will be addressed in turn.
To succeed on a claim of municipal liability, a plaintiff must plead that there is a
policymaker who is responsible for the violation of her constitutional rights. Piotrowski, 237 F.3d
at 578. A policymaker is one who “takes the place of the governing body in a designated area of city
administration.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.), on reh'g, 739 F.2d 993
(5th Cir. 1984). In her complaint, Cain alleges that the City’s inadequate training and supervision
was “constructively known and/or ratified by the City of Cedar Park and its policymakers.” Dkt. No.
1 at ¶29 (emphasis added). While not specifically identifying a policymaker, Cain does allege that
the relevant policymaker, whoever that may be, was involved in the policy inadequacies that led to
her false arrest. Cain further argues that she should not be required to specifically identify a

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policymaker at this stage of the litigation because “the policymaker for a police department varies
between cities, depending on what powers and authority have been delegated to the police chief.”
Dkt. No. 9, p. 5 (citing Flanagan v. City of Dallas, 48 F.Supp.3d 941,950-51 (N.D. Tex. Sept. 23,
2014)). In Flanagan, the court denied the defendant’s motion to dismiss where there was a dispute
regarding whether the city council or police chief was the final policymaker, noting the confusion
surrounding the delegation of supervisory power between the two. Flanagan, 48 F.Supp at 950-51.
At this early stage in litigation, it is plausible that if Cain were given an opportunity to perform
discovery, she would be able to identify the policymaker responsible for setting police department
policy. Therefore, her complaint should not be dismissed for failing to sufficiently identify a
policymaker.
A plaintiff in a municipal liability suit must also identify a municipal policy that was a
moving force behind the deprivation of her constitutional rights. Piotrowski, 237 F.3d at 578. In her
complaint, Cain asserts the existence of two different city policies: (1) the City has a pervasive
pattern of unlawful arrests that rises to the level of a custom, and (2) the City fails to adequately train
or supervise its police officers concerning probable cause affidavits. Dkt. No. 1 at ¶¶ 16-20, 27-28.
First, a city is subject to liability if it officially adopts or promulgates a policy statement,
ordinance, or decision that results in a constitutional violation. Zarnow v. City of Wichita Falls, 614
F.3d 161, 166 (5th Cir.2010) (citing Praprotnik, 485 U.S. at 121). Alternatively, official policy can
be “a persistent, widespread practice of city officials or employees, which, although not authorized
by officially adopted or promulgated policy, is so common and well settled as to constitute a custom
that fairly represents municipal policy.” Brown v. Bryan Cnty., 219 F.3d 450, 457 (5th Cir.2000)
(citation omitted). Thus, a municipality may be liable when there are “patterns of illegality that [rise]

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to the level of customary policy.” Milam v. City of San Antonio, 113 F. App'x 622, 626 (5th Cir.
2004). To survive a motion to dismiss a claim relying on this “pattern of illegality” theory, a plaintiff
must allege the existence of a sufficient number of similar prior violations rather than isolated
instances. See Schaefer v. Whitted, 121 F. Supp. 3d 701, 718 (W.D. Tex. 2015) (citing Estate of
Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)).
Here, Cain does not allege that it is official city policy to arrest citizens without probable
cause. Rather, she contends that her arrest is “part of a pattern, practice, or custom of the City of
Cedar Park’s police officers of fabricating evidence for arrest affidavits.” Dkt. No. 1 at ¶16. To
support this contention, Cain alleges that Cedar Park police officers have “sworn out multiple arrest
warrants to charge innocent people with crimes” and that they have “been sued for lying on probable
cause affidavits to arrest innocent civilians.” Id. at ¶¶16, 18. Further, Cain alleges that Johnson
himself has once been sued for unlawfully detraining citizens in the past. Id. at ¶17.
These allegations are inadequate to survive a motion to dismiss. While Cain alleges that there
are repeated past instances of constitutional violations, she is unable to point to any with specificity
outside of the previous lawsuit against Johnson. Unfortunately, it is inevitable that police
departments will sometimes charge innocent people with crimes. But such mistakes are not illegal.
Rather, it is only illegal to arrest someone without probable cause. While Cain pleads generally that
Cedar Park police officers have been sued for lying on probable cause affidavits, such allegations
are insufficient. Being sued for lying on a probable cause affidavit does not prove that an officer
actually made an arrest without probable cause or did anything illegal. Anyone can bring a lawsuit.
The fact that Johnson has been previously sued for unlawfully detaining citizens suffers from the
same defect. Therefore, these allegations do not show a “pattern of illegality that [rises] to the level

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of customary policy” and Cain’s claims based on this theory should be dismissed. Milam, 113 F.
App'x at 626.
Second, a municipality may be liable for a failure to train or supervise if a plaintiff shows (1)
the municipality's training policy or procedure was inadequate, (2) the inadequate training policy was
a “moving force” or cause of the plaintiff's constitutional deprivation, and (3) the municipality was
deliberately indifferent to the need to adjust its training policy or adopt a new one. Valles v. City of
Houston, 613 F.3d 536, 544 (5th Cir. 2010). The plaintiff may establish the deliberate indifference
if “in light of the duties assigned to specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights,
that the policymakers of the city can reasonably be said to have been deliberately indifferent to the
need.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
Here, Cain alleges that the City of Cedar Park “fails to train its officers that it is unlawful to
base arrest affidavits on false information.” Dkt. No. 1 at ¶19. Further, she alleges the City knew
the “obvious consequence of these policies was that City of Cedar Park police officers would be
placed in recurring situations in which [false arrest] would result.” Id. at ¶29. Thus, Cain asserts that
this failure to train made it highly predicable that false arrest would result. Id. Moreover, Cain
contents that the failure to train was a moving force of her constitutional deprivation. Id. at ¶30. She
argues if Johnson were properly trained that it is unlawful to base arrest affidavits on false
information, she would have never been arrested. Dkt. No. 9 at 7.
When Cain’s allegations are taken as true, they meet the standard for municipal liability for
failure to train. First, if the City really did not train its officers that it is illegal to arrest people based
on false information, then their training was woefully inadequate. Second, if Johnson did not falsify

14

information on the arrest affidavit, Cain would have never been arrested. Thus, failing to train
Johnson not to rely on false information in arrest affidavits would be a moving force of the violation
of her constitutional rights. Third, if the officers were not trained about truthfulness in arrest
affidavits and probable cause then it is highly likely that these types of constitutional violations
would occur, thus indicating a deliberate indifference.
The City argues for a more stringent review of Cain’s allegations, stating “the moving-force
and deliberate indifference elements of municipal liability must not be diluted, for where a court fails
to adhere to rigorous requirements of culpability and causation, municipal liability collapses into
respondeat superior liability.” Dkt. No. 12 at 3 (quoting James v. Harris Cty., 577 F.3d 612, 618 (5th
Cir. 2009) (internal citations omitted)). This authority is distinguishable, however, because that court
there was considering a motion for judgment as a matter of law, which is reviewed under a different
standard than a motion to dismiss. See James, 577 F.3d at 617. Additionally, the City argues that
because all peace officers in Texas are mandated to meet training and licensing requirements that
have been held to comply with constitutional requirements, Johnson could not have been
inadequately trained. Dkt. No. 12 at 5. For this contention, the City relies upon Tolan v. Cotton, No.
4:09-CV-1324, 2015 WL 5310801 (S.D. Tex. Sept. 11, 2015). That case is distinguishable as well,
because the court there had summary judgement evidence showing both that the defendant had
completed the training mandated by the Texas Occupational Code and that the training was adequate.
Id. at *3. As this case has yet to reach discovery, there is no evidence regarding the training provided
by the City or undertaken by Johnson. Therefore, at this early stage of the litigation, and despite the
somewhat unlikely pleadings to support the claim, Cain has pled sufficient facts to overcome the
City’s motion to dismiss on her theory of failure to train.

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3.

Whether Cain Can Recover Under a Municipal Ratification Theory

Finally, the City argues that any ratification claim contained in Cain’s pleadings is
insufficient and should be dismissed. A plaintiff may recover for municipal liability “[i]f the
authorized policymakers approve a subordinate's decision and the basis for it, their ratification would
be chargeable to the municipality because their decision is final.” Praprotnik, 485 U.S. at 127. That
is, if a subordinate municipal employee commits a constitutional violation and a policymaker then
approves that violation, the policymaker has ratified the subordinates conduct thereby making it
official policy that can be chargeable to the municipality. Id. To succeed under a ratification theory,
a plaintiff must show that an investigation found constitutional violations and that the policymaker
then knowingly approved of them. Coon v. Ledbetter, 780 F.2d 1158, 1162 (5th Cir. 1986).
Alternatively, even if a plaintiff is unable to show knowledge on the policymaker’s part, a successful
claim can still be brought if the subordinate’s conduct is “manifestly indefensible.” Id. This is only
available in extreme circumstances and does not give a plaintiff a remedy every time a policymaker
defends his subordinates and those subordinates are later found to have broken the law. Id.
The hallmark fact pattern of manifestly indefensible subordinate conduct is found in
Grandstaff v. City of Borger, 767 F.2d 161, 165 (5th Cir. 1985). There the Fifth Circuit considered
a case where multiple police officers opened fire on an unarmed, nonthreatening citizen as he exited
his vehicle, killing him. Id. The sheriff’s department then performed an internal investigation,
finding that the officers had followed all departmental procedures. Id. The court found that “because
the officers received no reprimands or discharges from the city following such a flagrant use of
excessive force, there must have been a preexisting disposition and policy of reckless disregard for

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life” and thus the municipality was open to liability. Barkley v. Dillard Dept. Stores, Inc., 277
Fed.Appx. 406 (5th Cir. 2008) (citing Grandstaff, 767 F.2d at 171–72).
Here, Cain alleges that the City of Cedar Park Police Department “ratified Johnson’s false
arrest and he was never disciplined for making false statements to a court.” Dkt. No. 1 at ¶28.
Further, Cain alleges that the City “ratified Johnson’s behavior by continuing to employ him, despite
knowing he had made unlawful arrests before.” Dkt. No. 9 at 7. Cain does not allege that any
policymaker knowingly approved of constitutional violations. Although Cain refers Johnson having
previously been sued for false arrest, there is no indication that Johnson was found liable, or actually
violated the constitution then. Moreover, the conduct in this case falls well short of the sort of
“manifestly indefensible” conduct that can lead to liability for a ratification claim. The case here is
about a false arrest arising from a dispute over the contents of legal documents relating to an
automotive sale. This is a scenario much less outrageous than opening fire on an unarmed person.
See Grandstaff, 767 F.2d at 165. Therefore, Cain has not pled sufficient facts to survive the City’s
motion to dismiss her claims under a ratification theory.
IV. RECOMMENDATION
Based upon the foregoing, the undersigned Magistrate Judge RECOMMENDS that
Defendant Todd Johnson’s Rule 12(b)(6) Motion to Dismiss (Dkt. No. 6) be DENIED. The
Magistrate Judge RECOMMENDS that the District Court GRANT IN PART and DENY IN
PART the City of Cedar Park’s Rule 12(b)(6) Motion to Dismiss (Dkt. No. 7) in accordance with
the foregoing.

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OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. Battles v. U.S.
Parole Comm'n, 834 F.2d 419, 421 (5th Cir.1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within 14 days after the party is served with a copy of the Report shall bar
that party from de novo review by the district court of the proposed findings and recommendations
in the Report and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–153, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir.1996) (en banc).
SIGNED this 3rd day of August, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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