Scott v. City Of Austin et al

Filing 60

ORDER GRANTING IN PART AND DENYING IN PART 40 Motion for Judgment on the Pleadings. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JUSTIN SCOTT,
Plaintiff,
v.
GREG WHITE and
THE CITY OF AUSTIN,
Defendants.

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1:16-CV-1287-RP

ORDER
Before the Court is the Rule 12(c) Motion for Judgment on the Pleadings filed by
Defendants City of Austin (“the City”) and Gregory White (“White”) (together, “Defendants”),
(Dkt. 40), along with the parties’ responsive briefing. Having considered the parties’ arguments, the
evidence, and the applicable law, the Court will grant the motion in part and deny the motion in
part.
I. BACKGROUND
Plaintiff Justin Scott (“Scott”) alleges that White, a police officer employed by the Austin
Police Department (“APD”), stopped Scott without reasonable suspicion, attacked him without
provocation, used excessive force to subdue him, and then arrested him without probable cause.
(Second Am. Compl., Dkt. 15, at 3–5). Scott asserts causes of action against White pursuant to 42
U.S.C. § 1983 (“Section 1983”) for violations of his rights under the Fourth and Fourteenth
Amendments to the United States Constitution. (Id. at 8–13). Scott also asserts Section 1983 claims
against the City on the basis of an alleged policy and practice of permitting the use of excessive force
and an alleged failure to adequately train or supervise its officers. (Id. at 5–8; 13–17). White asserts
that he is entitled to qualified immunity. (Second Am. Answer, Dkt. 17, at 8–9).
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Defendants filed the instant motion for judgment on the pleadings on October 19, 2017.
(Mot. J. Plead., Dkt. 40). Scott failed to timely respond, (see R. & R., Dkt. 43), but the Court declined
to grant Defendants’ motion as unopposed and permitted Scott additional time to respond. (Order,
Dkt. 50). Scott then timely filed a response, (Dkt. 54), and Defendants replied, (Dkt. 58).
II. LEGAL STANDARD
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) “is
subject to the same standards as a motion to dismiss under Rule 12(b)(6).” In re Great Lakes Dredge &
Dock Co. LLC, 624 F.3d 201, 209–10 (5th Cir. 2010). Dismissal under Rule 12(b)(6) is appropriate
only if the complaint fails to 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). To satisfy this standard, the complaint
must provide more than conclusions, but it “need not contain detailed factual allegations.” Colony
Ins. Co. v. Peachtree Const., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). It must, however, allege enough
facts to move the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Determining whether the plausibility standard has been met is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Rule 12(b)(6) motions are “viewed with disfavor and . . . rarely granted.” Turner v.
Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citation and quotation marks omitted).
In deciding a motion to dismiss, a court may consider video evidence attached as an exhibit
to the complaint; when doing so, “the court is not required to favor plaintiff’s allegations over the
video evidence.” Hartman v. Walker, 685 F. App’x 366, 368 (5th Cir. 2017). That said, the standard
for adopting video evidence over a plaintiff’s allegations “is a demanding one: a court should not
discount the nonmoving party’s story unless the video evidence provides so much clarity that a
reasonable jury could not believe his account.” Darden v. City of Fort Worth, Texas, 880 F.3d 722, 730

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(5th Cir. 2018); see also Scott v. Harris, 550 U.S. 372, 380–81 (2007) (holding that the court should
have viewed facts in light of video evidence rather than the plaintiff’s allegations where the video so
“utterly discredited” the plaintiff’s allegations that “no reasonable jury could have believed him”). A
court may also consider matters of which it may take judicial notice. Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). A court may judicially notice a fact that is “not subject to
reasonable dispute” because it is either (1) generally known within the trial court’s territorial
jurisdiction or (2) capable of accurate and ready determination by resort to sources whose accuracy
“cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also Whitaker v. Collier, 862 F.3d 490, 496
n.10 (5th Cir. 2017).
III. DISCUSSION
A. Scott’s Claims against White
On the morning of February 20, 2015, White was responding to a report of a suspicious
person identified as a black female when he drove past Scott, a white male, on the sidewalk of
Wheless Lane in Austin, Texas. (Second Am. Compl., Dkt. 15, at 3–4). White pulled over, exited his
car, and approached Scott. (Id. at 4). White asked Scott for identification, and Scott responded that
he was homeless and that he had just arrived in Austin. (Dashcam Video, Dkt. 15 Ex. A, at 0:50–55).
He asked Scott whether he was with a black female and repeated his request for identification; Scott
responded that he was alone and that he did not have identification. (Id. at 0:50–1:15). White asked
Scott if he had been arrested before, and Scott said that he had. (Id. at 1:15–20). White asked Scott
what he had been arrested for; Scott did not answer. (Id. at 1:20–25). White then asked Scott for his
name several times, but Scott stood silently without responding. (Id. at 1:25–50).
At that point, White asked Scott if he had any weapons, which Scott denied. (Id. at 1:50–56).
White then reached out, grabbed Scott’s left wrist, and instructed him to drop whatever was

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enclosed in his right fist as Scott stood facing him. (Id. at 1:56). Scott did not drop the item in his
right hand;1 White, still holding Scott’s left wrist, repeated his command to put the item down
several times. (Id. at 1:57–2:01). The following exchange then occurred:
Scott: “Will you please stop?”
White: “Put it down.”
Scott: “Why are you touching me right now?”
White: “Listen to me.”
Scott: “Stop. Why are you touching me?”
White: “You need to stop.”
Scott: “Stop. You’re hurting my hand.”
White: “Put your hands behind your back.”
Scott: “Ow. You’re hurting my hand.”
White: “Put your hands behind your back.”
Scott: “Why?”
White: “Put your hands behind your back.”
Scott: “Why?!”
(Id. at 2:01–15). White then struck Scott in the head with his elbow and took him to the ground. (Id.
at 2:15–20). For about twenty seconds, Scott twisted and turned underneath White as the officer
punched, elbowed, and kneed him in the head repeatedly. (Id. at 2:20–45). White commanded Scott
several times to put his hands behind his back; Scott covered his head with his hands. (Id.). White
then drew his electronic control weapon (“ECW”) and applied it to Scott. (Id. at 2:45–48).

White later described that item as a circular silver object that resembled a “miniature hub cap.” (Dashcam Video, Dkt.
15 Ex. A, at 16:14–45).

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What happened next is disputed. White alleges that Scott “disarmed Sgt. White, refused
commands to let go of the taser, and tased and broke Sgt. White’s hand.” (Mot. J. Plead., Dkt. 40, at
3). Although White characterizes these as “undisputed facts,” (id. at 2), they are neither conceded by
Scott’s complaint nor so clear from the video evidence attached to Scott’s complaint that the Court
must favor them over Scott’s allegations. The video does appear to show the two men struggling for
control of White’s left hand, with which he appeared to draw his ECW. (Id. at 2:48–55). White can
be heard yelling, “Let go of my Taser.” (Id. at 3:08).
However, the video does not clearly show Scott’s possession of the ECW, nor does it clearly
show Scott applying the ECW to White. (Id. at 2:48–3:18). White continuously had dominant
position on Scott, pressing Scott against the sidewalk with his body weight as Scott writhed around
underneath him. (Id.). From the moment White first used his ECW on Scott until Scott was finally
subdued, White was able to punch or knee Scott on or near the head nine more times. (Id.). It may
be true that Scott deployed White’s ECW against him, but the video does not so utterly discredit
Scott’s pleadings, which do not concede that he stole or used White’s ECW, that the Court can find
that fact at this stage in the litigation.
Moreover, the video does not clearly establish that Scott “broke Sgt. White’s hand.” (Mot. J.
Plead., Dkt. 40, at 3). White’s dashcam video captured his interactions with the other officers who
arrived on the scene after the incident. White told a technician inspecting the officer’s injuries that “I
think I broke my hand on him.” (Dashcam Video, Dkt. 15 Ex. A, at 13:44–47). Later, White told
two other officers, “I think I broke my hand.” (Id. at 17:13). “What’d you do?” asked one of the
other officers. (Id. at 17:15). “I was punching the shit out of him,” White responded. (Id. at 17:17).
Because the video does not utterly discredit Scott’s pleadings, which do not concede that Scott
broke White’s hand, the Court cannot find that fact at this stage in the litigation.

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Scott alleges that he was taken to Brackenridge Hospital to treat his injuries after the
incident. (Second Am. Compl., Dkt. 15, at 5). Scott alleges that he “suffered and suffers from
physical injuries, extreme psychological injuries, mental anguish, humiliation, trauma, and the
indignity” of being beaten by a law enforcement officer. (Id.). Scott alleges that White caused him
“significant physical pain” and that his damages “are most probably in excess of a million dollars.”
(Id. at 18).
Out of these facts, Scott asserts several Section 1983 claims against White. First, Scott asserts
a claim for the violation of his Fourth Amendment right to be free from unreasonable search (the
“illegal search claim”). (Id. at 8–9). Second, Scott asserts a claim for the violation of his Fourteenth
Amendment right to due process (the “due process claim”). (Id. at 9–10). Third, Scott asserts a claim
for the violation of his Fourth Amendment right to be free from the use of excessive force (the
“excessive force claim”). (Id. at 10–11). Finally, Scott asserts a claim for the violation of his Fourth
Amendment right to be free from unreasonable seizure (the “false arrest claim”). (Id. at 11–13).
White argues that each claim should be dismissed pursuant to Rule 12(c). (Mot. J. Plead., Dkt. 40, at
6–7). White also generally asserts qualified immunity with respect to Scott’s Section 1983 claims.
(Second Am. Answer, Dkt. 24, at 3).
1. The Illegal Search, False Arrest, and Due Process Claims
White argues that Scott’s illegal search, false arrest, and due process claims should be
dismissed pursuant to the independent intermediary doctrine because a magistrate and a grand jury
found probable cause to support Scott’s arrest. (Mot. J. Plead., Dkt. 40, at 7–9). White asks the
Court to take judicial notice of arrest warrants issued by a Travis County magistrate for assaulting a
peace officer and taking or attempting to take a weapon from a peace officer. (Arrest Warrants, Dkt.
40 Ex. 1, at 19–22). Citing Taylor v. Charter Medical Corp., 162 F.3d 827, 831 (5th Cir. 1998), Scott

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argues that the Court cannot take judicial notice “of another court’s legal determination.” (Resp.
Mot. J. Plead., Dkt. 54, at 7). But taking notice of the fact that a magistrate issued arrest warrants
based on probable cause is not the same thing as taking notice that probable cause existed to
support Scott’s arrest based on the magistrate’s determination, which is what Taylor proscribes.
Indeed, district courts in this circuit have taken judicial notice of arrest warrants for the purpose of
deciding motions to dismiss under Rule 12(b)(6). See Shepherd v. Fanning, No. CV 17-2694, 2017 WL
2671706, at *2 n.1 (E.D. La. June 21, 2017); LeBlanc v. City of Haltom City, No. 4:10-CV-812-A, 2011
WL 2149908, at *4 n.3 (N.D. Tex. May 31, 2011).
The Fourth and Fourteenth Amendments guard against arrest without probable cause. Hand
v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988). However, if facts supporting an arrest are placed before
an independent intermediary such as a magistrate or grand jury, the intermediary’s decision breaks
the chain of causation for false arrest, insulating the initiating party from liability. Deville v. Marcantel,
567 F.3d 156, 170 (5th Cir. 2009). The independent intermediary rule applies even if the
independent intermediary’s action occurred after the arrest, and even if the arrestee was never
convicted of any crime. Buehler v. City of Austin/Austin Police Dep’t., 824 F.3d 548, 555 (5th Cir. 2016).
However, the arresting officer may nonetheless be liable for false arrest “if the plaintiff
shows that the deliberations of that intermediary were in some way tainted by the actions” of the
officer. McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017) (citation and quotation marks omitted). But
because the intermediary’s deliberations protect even officers with malicious intent, a plaintiff must
show that the officer’s malicious motive “led the official to withhold relevant information or
otherwise misdirect the independent intermediary by omission or commission.” Buehler, 824 F.3d at
555 (citation and quotation marks omitted). To implicate the taint exception, omissions of
exculpatory information must be knowing. Id. (citation and quotation marks omitted).

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Here, the magistrate’s issuance of two arrest warrants for Scott based upon probable cause,
(Arrest Warrants, Dkt. 40 Ex. 1, at 19–22), shields White from liability for false arrest. Scott argues
that the taint exception applies because a different officer—Officer Edwards—made knowing
misrepresentations to the magistrate in his affidavit seeking the arrest warrant. (Resp. Mot. J. Plead.,
Dkt. 54, at 8–9). However, Scott’s complaint is devoid of allegations that White knowingly tainted
the magistrate’s deliberation through willful misrepresentations or omissions. (See, e.g., Second Am.
Compl., Dkt. 15, at 11–12). Because an independent intermediary issued an arrest warrant in this
case, Scott’s burden to plead facts to state a plausible claim for false arrest includes the burden to
plead facts to support a finding that White’s conduct supports applying the taint exception. McLin,
866 F.3d at 690–91. Because he has failed to do so, the Court must dismiss his false arrest claim.
However, despite arguing that the independent intermediary doctrine requires dismissal of
Scott’s illegal search and due process claims, White cites no authority to demonstrate that the
doctrine applies to either claim. Moreover, White fails to explain how a magistrate’s finding of
probable cause to arrest Scott for resisting arrest and taking an officer’s weapon could vitiate a stop
and search that occurred prior to any resistance for which the warrants were issued. Accordingly, the
Court will deny White’s request that the Court dismiss either claim on that basis.
White does argue that Scott’s due process claim is vague, (Mot. J. Plead., Dkt. 40, at 8),
which the Court will construe as a motion for a more definite statement under Federal Rule of Civil
Procedure 12(e) and grant. Scott does not specify which of White’s actions constituted an arbitrary
government action depriving him of his rights to due process of law under the Fourteenth
Amendment.

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2. The Excessive Force Claim
White argues that (1) Scott fails to adequately plead an excessive force claim against him, and
that (2) he is entitled to qualified immunity. (Id. at 9–12). The Fourth Amendment creates a “right to
be free from excessive force during a seizure.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.
2012). To prove an excessive force claim, Scott must show that “in addition to being seized, he
suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to
the need and that (3) the force used was objectively unreasonable.” Peterson v. City of Fort Worth, Tex.,
588 F.3d 838, 846 (5th Cir. 2009) (citation and quotation marks omitted). A plaintiff must allege
more than a de minimis injury to support an excessive force claim. Tarver v. City of Edna, 410 F.3d 745,
752 (5th Cir. 2005). In determining whether an injury caused by excessive force is more than de
minimis, courts look to the context in which that force was deployed. Williams v. Bramer, 180 F.3d
699, 703 (5th Cir. 1999), decision clarified on reh’g, 186 F.3d 633 (5th Cir. 1999). “Any force found to be
objectively unreasonable necessarily exceeds the de minimis threshold, and, conversely, objectively
reasonable force will result in de minimis injuries only.” Alexander v. City of Round Rock, 854 F.3d 298,
309 (5th Cir. 2017) (citation and quotation marks omitted). Stated differently, “as long as a plaintiff
has suffered ‘some injury,’ even relatively insignificant injuries and purely psychological injuries will
prove cognizable when resulting from an officer’s unreasonably excessive force.” Id. (quoting Brown
v. Lynch, 524 Fed. App’x. 69, 79 (5th Cir. 2013)).
White argues that Scott’s excessive force claim fails as a matter of law because Scott failed to
plead more than a de minimis injury. (Mot J. Plead., Dkt. 40, at 10–11). According to White, Scott’s
“bald allegation that he ‘suffered multiple injuries’” and a general request for “actual damages” do
not suffice to plead more than de minimis injury. (Id. at 10). White argues that Scott must plead his
injuries with “sufficient specificity to meet his burden to show more de minimis injury.” (Id.).

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White’s position misunderstands the analysis of a plaintiff’s pleadings with respect to the
injury prong of an excessive force claim. The sufficiency of a plaintiff’s injury turns not on the
severity of the injury, but on the reasonableness of the officer’s use of force. If the use of force is
unreasonable, then “even relatively insignificant injuries and purely psychological injuries will prove
cognizable.” Alexander, 854 F.3d at 309. The question is not, therefore, whether Scott has plausibly
alleged some injury; he has. (See Second Am. Compl., Dkt. 15, at 11 (alleging that White’s use of
force “caused such severe injuries that Mr. Scott required emergency medical treatment”); id. at 4
(“Plaintiff suffered and suffers from physical injuries, extreme psychological injuries, mental anguish,
humiliation, and trauma”); id. at 18 (alleging that Scott suffers from “significant physical pain” and
that his damages exceed one million dollars)). The question is whether Scott has plausibly alleged
that White’s use of force was unreasonable.
“Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive’ or
‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’” Deville, 567 F.3d at
167 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “Factors to consider include ‘the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’” Id.
(quoting Graham, 490 U.S. at 396).
The reasonableness of an officer’s conduct is judged objectively without reference to the
officer’s intent or motivation. Graham, 490 U.S. at 397. Courts must look at the facts and
circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396. Courts must also account for the difficult and often split-second
decisions that police officers must make in carrying out their duties. Id. at 396–97.

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Describing White’s use of force, Scott alleges that White “cold-cocked Plaintiff’s head with
his elbow,” “violently punch[ed], elbow[ed], Taser[ed], and knee[d]” Scott, and “threw Mr. Scott to
the pavement and violently st[r]uck him repeatedly in the head, neck, and body.” (Second Am.
Compl., Dkt. 15, at 4). The video attached to Scott’s second amended complaint shows White
deploying his ECW against Scott and striking Scott at least a dozen times with his fist, elbow, or
knee—often in the face or head—while Scott is pinned beneath him on a paved sidewalk. (Dashcam
Video, Dkt. 15 Ex. A, at 2:15–3:30).
White defends his use of force differently based on the stage of the encounter. With respect
to his initial use of force, in which he elbowed Scott in the head and took him to the ground, White
argues that he was justified in doing so by Scott’s noncompliance. (See Reply Mot. J. Plead., Dkt. 58,
at 7 (“Plaintiff refused to drop the object in his right hand after repeated verbal commands raising
officer safety concerns[.] Sgt. White used control techniques to protect himself against the
unidentified object and gain compliance, but Plaintiff escalated until Sgt. White was forced to defend
himself.”)). Applying the Graham factors, the Court finds that Scott has plausibly alleged that White’s
initial use of force was unreasonable. Scott alleges that he had not given White reasonable suspicion
to believe he had committed a crime. (Second Am. Compl., Dkt. 15, at 4). The video shows Scott
standing still on an otherwise empty street when White first struck him and tackled him. (Dashcam
Video, Dkt. 15 Ex. A, at 2:10–20). While failure to comply with an officer’s instructions might justify
the use of physical force, Deville, 567 F.3d at 167, Scott’s pleadings—considered in light of the video
evidence—are sufficient to plausibly allege that White’s initial use of force was unreasonable. See
Trammell v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017).
With respect to White’s uses of force once Scott was on the ground, White argues that he
“ended up in a fight for his life once Plaintiff disarmed him of his taser” because Scott could have

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incapacitated White, taken his gun, and shot him. (Reply Mot. J. Plead., Dkt. 58, at 8). Here, the
video shows that Scott refused to comply with White’s commands and resisted arrest by writhing
around underneath White instead of lying still so he could be handcuffed.2 Resisting arrest does not
necessarily justify any use of force. See Trammell, 868 F.3d at 341–42 (holding that a reasonable jury
could conclude that an officer’s use of force was excessive where the plaintiff resisted by pulling his
arm away from the officer); Ramirez v. Martinez, 716 F.3d 369, 376–79 (5th Cir. 2013) (same); Goodson
v. City of Corpus Christi, 202 F.3d 730, 734, 740 (5th Cir. 2000) (same). Scott alleges that White
grabbed his arm “without provocation” and that he made no “threatening statements or
movements” before White first struck him. (Second Am. Compl., Dkt. 15, at 4). After White took
Scott to the ground, the video shows that Scott ignored White’s commands while twisting and
turning underneath White and covering his head with his hands as White punched, elbowed, and
kneed his head. (Dashcam Video, Dkt. 15 Ex. A, at 2:15–45). After White deployed his ECW against
Scott, the video shows Scott grabbing White’s left hand and continuing to twist and turn underneath
White as White delivered another series of strikes. (Id. at 2:45–3:20). Scott’s pleadings do not
concede that he was committing a crime, posing a danger to White or others, or resisting or evade
arrest. (Second Am. Compl., Dkt 15, at 4–5). Although the video shows Scott physically resisting
White’s commands, it is not such conclusive evidence in White’s favor that no reasonable jury could
find that his use of force after he took Scott to the ground was unreasonable under the Graham
factors. Scott’s pleadings—considered in light of the video evidence—are therefore sufficient to
plausibly allege that White’s continued uses of force after taking Scott to the ground was
unreasonable.
With respect to White’s claim that Scott disarmed him of his ECW, the video evidence appears to show the two men
struggling for the object in White’s left hand but does not provide “so much clarity” in support of White’s version of
events that the court should discount Scott’s pleadings, which do not allege that he disarmed White. Darden, 880 F.3d at
730.

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3. Qualified Immunity
“The doctrine of qualified immunity protects government officials from civil damages
liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659
F.3d 359, 370 (5th Cir. 2011). There are two steps to determining whether a defendant is protected
by qualified immunity. Saucier v. Katz, 533 U.S. 194 (2001). First, the court asks whether the official
“violated a statutory or constitutional right.” Morgan, 659 F.3d at 371 (quoting Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2083 (2011)). Second, the court asks whether “the right was ‘clearly established’ at the
time of the challenged conduct.” Id. (quoting al-Kidd, 131 S. Ct. at 2083). Courts have the discretion
to decide the order in which to answer these two prongs. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
A clearly established right is one that is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308 (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). While there need not be “a case directly on point . . .
existing precedent must have placed the statutory or constitutional question beyond
debate.” Mullenix, 136 S. Ct. at 308 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)).
In the context of a pretrial motion, the Court must determine whether an officer is entitled
to qualified immunity in light of the applicable standard of review. See Tolan v. Cotton, 134 S. Ct.
1861, 1868 (2014) (holding that at summary judgment, a court cannot resolve fact disputes
pertaining to either prong of qualified immunity in favor of the moving party as “an application of
the more general rule” governing the “judge’s function” at summary judgment); McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (stating that courts should evaluate qualified immunity
based on the defendant’s conduct “as alleged in the complaint” at the motion to dismiss stage). The
fundamental question, then, is whether—based on Scott’s allegations to the extent they are not

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utterly discredited by the video evidence attached to his complaint—it is plausible that White would
have had “fair notice” that his actions were unreasonable. Hope v. Pelzer, 536 U.S. 730, 740 (2002).
When a defendant invokes qualified immunity, the burden shifts to the plaintiff to
demonstrate the inapplicability of the defense. McClendon, 305 F.3d at 323. In order to shift the
burden to the plaintiff, “[t]he defendant official must initially plead his good faith and establish that
he was acting within the scope of his discretionary authority.” Salas v. Carpenter, 980 F.2d 299, 306
(5th Cir. 1992). Fifth Circuit precedent suggests that a defendant can invoke qualified immunity by
pleading good faith and scope-of-authority in substance. See Saenz v. Flores, 668 F. App’x 611, 612
(5th Cir. 2016) (finding that the defendant had invoked qualified immunity by stating that he was
acting in the scope of his employment, that he was in a “position of interdependence,” and that he
was entitled to qualified immunity). Here, White asserts “qualified/official immunity for employee
actions taken in the court and scope of employment.” (Second Am. Answer, Dkt. 24, at 3). This
blanket assertion is sufficient to shift the burden to Scott to identify plausible allegations that
White’s conduct violated a constitutional right and to demonstrate that the right was clearly
established at the time of the conduct. Lincoln v. Turner, 874 F.3d 833, 847–48 (5th Cir. 2017).
Scott argues that his rights to be free from excessive force, warrantless and unreasonable
arrest, and unreasonable restraint under the Fourteenth Amendment’s Due Process Clause were all
clearly established at the time of the incident. (Resp. Mot. J. Plead., Dkt. 54, at 15–17). However,
Scott offers no argument that White’s stop and search violated clearly established law. (See id.).
Because Scott failed to meet his burden to cite clearly established law demonstrating that White is
not entitled to qualified immunity with respect to Scott’s illegal search claim, the Court must find
that White is entitled to qualified immunity on that claim. Because the Court dismisses Scott’s false
arrest claim on other grounds and orders Scott to file a more definite statement of his due process

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claim, see supra at Section III.A.1, at it will not analyze whether White is entitled to qualified
immunity on those claims.
As for Scott’s excessive force claim, Scott argues that he had a “clearly established right to be
free from excessive force.” (Resp. Mot. J. Plead., Dkt. 54, at 15 (citing Graham, 490 U.S. at 393–94)).
Scott argues that White violated that right by “punching him in the head, pushing him, kneeing him,
pummeling him[,] and tasing him,” (Resp. Mot. J. Plead., Dkt. 54, at 16–17), even though Scott was
“unarmed,” “nonviolent,” and had not given White reason to believe he had committed a crime, (id.
at 15–16).
The Court has already found that Scott has plausibly alleged that White’s use of force—both
before and after taking Scott to the ground—violated Scott’s constitutional right to be free from
excessive force. (See supra at Section III.A.2). The question then is whether Scott has met his burden
to show that his right to be free from excessive force in these circumstances was clearly established
before February 20, 2015. The Court finds that he has.
Regarding White’s use of force before taking Scott to the ground, it is clearly established law
in the Fifth Circuit that it is objectively unreasonable for an officer to strike a person who is “not
fleeing, not violent, not aggressive, and only resisted by pulling his arm away from an officer’s
grasp.” Trammell, 868 F.3d at 343 (stating that such law was clearly established before January 2013);
see also Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (holding that as of February 2013, “clearly
established law demonstrated that an officer violates the Fourth Amendment if he abruptly resorts
to overwhelming physical force rather than continuing verbal negotiations with an individual who
poses no immediate threat or flight risk, who engages in, at most, passive resistance, and whom the
officer stopped for a minor traffic violation.”). White’s initial use of force—as alleged in Scott’s

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second amended complaint and considered in light of the video—violates this clearly established
law.
As for White’s uses of force after taking Scott to the ground, it is true that the video shows
Scott resisting his commands by twisting and turning underneath White, and at times grabbing
White’s hands, rather than submitting to being handcuffed. (Dashcam Video, Dkt. 15 Ex. A, at
2:15–3:20). Absent justification, Scott’s resistance is such that no clearly established law would have
given White fair notice that his uses of force after taking Scott to the ground were unlawful. See
Griggs v. Brewer, 841 F.3d 308, 315 (5th Cir. 2016) (holding that “no settled authority” put an officer
on notice that it was unconstitutional to put his weight on top of a person on the ground and use
“non-deadly punches” to gain control of the person’s arms).
However, clearly established Texas law justifies the use of force to resist arrest if, before the
person resists, the peace officer uses “greater force than necessary” to make the arrest and the
person believes their use of force is “immediately necessary to protect himself” against the officer’s
use of force. TEX. PENAL CODE 9.31(c). Justified resistance under state law does not constitute
resistance for the purposes of analyzing the constitutionality of an officer’s use of force. To
conclude otherwise would lead to the absurd result that a person’s lawful response to an officer’s
unconstitutional use of force would render the officer’s subsequent uses of force constitutional.
Here, Scott alleges that he resisted only after White used greater force than necessary to
arrest him, (See Second Am. Compl., Dkt. 15, at 4 (alleging that White struck Scott “without
provocation” and that Scott had made no “threatening statements or movements” before White’s
first strike)), and a reasonable jury could conclude from the video that Scott used no more force
than was immediately necessary to protect himself from White’s continued uses of force. Taking the
facts as alleged to the extent they are not utterly discredited by the video evidence attached to Scott’s

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complaint, a reasonable officer in White’s position would have known that Scott’s resistance to
White’s uses of force after striking Scott in the head and tackling him were justified under Texas law.
Armed with the knowledge that Scott’s physical resistance was justified, the clearly established law
described in Trammell and Hanks is sufficient to give a reasonable officer in White’s position fair
notice that it is excessive to continue to punch, knee, and deploy an ECW against a person who was
otherwise not fleeing, violent, or aggressive prior to the initial use of force.
B. Scott’s claims against the City
Scott’s claims against the City can be summarized as follows. First, Scott claims that the City
has a custom or practice of failing to discipline or fire officers who violate the City’s use of force
policies (“the custom claim”). (Second Am. Compl., Dkt. 15, at 14). Second, Scott claims that the
City fails to adequately train its officers to use appropriate force (the “training claim”). (Id. at 15).
Third, Scott claims that the City fails to adequately supervise its officers’ use of force (the
“supervision claim”). (Id.). The City argues that each of these claims should be dismissed. (Mot. J.
Plead., Dkt. 40, at 13–16).
1. The Custom Claim
To hold a municipality liable under Section 1983 for the misconduct of an employee, “a
plaintiff must show, in addition to a constitutional violation, that an official policy promulgated by
the municipality’s policymaker was the moving force behind, or actual cause of, the constitutional
injury.” James v. Harris Cty., 577 F.3d 612, 617 (5th Cir. 2009). “The official policy itself must be
unconstitutional or, if not, must have been adopted with deliberate indifference to the known or
obvious fact that such constitutional violations would result.” Id. (citation and quotation marks
omitted). Although a policy can exist in the form of written policy statements or regulations, it “may
also arise in the form of a widespread practice that is so common and well-settled as to constitute a

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custom that fairly represents municipal policy.” Id. (citation and quotation marks omitted). A policy
is official only “when it results from the decision or acquiescence of the municipal officer or body
with final policymaking authority over the subject matter of the offending policy.” Id. (citation and
quotation marks omitted).
Scott argues that the City “has a custom or practice that allows Officer White and other
officers to remain an officer.” (Second Am. Compl., Dkt. 15, at 14). Scott alleges that White has had
“prior use of force issues” that violate the City’s policies against excessive uses of force, but that
White was not disciplined for this or other incidents that allegedly violate the City’s use-of-force
(“UOF”) policy. (Id. at 6–7). Scott alleges that four other officers have violated the City’s UOF
policy since 2011 but were not disciplined. (Id. at 8). According to Scott, this is evidence of a custom
in which APD officers are “placed in recurring situations in which” they violate people’s Fourth and
Fourteenth Amendment rights. (Id. at 16). Scott alleges that this custom flows from APD’s chief and
that the custom is the product of deliberate indifference to the risk of rights deprivations. (Id.).
The City argues that Scott’s allegations are too conclusory, (Mot. J. Plead., Dkt. 40, at 13),
but the Court disagrees. Scott does not merely allege that the City has a policy or custom of
permitting officers to use excessive force with impunity; rather, he identifies five discrete instances
of alleged excessive uses of force and alleges that officers were not disciplined pursuant to a
departmental custom. (Second Am. Compl., Dkt. 15, at 4–8); compare Spiller v. City of Texas City, Police
Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (holding that the allegation that the defendant “operate[d] in
a manner of total disregard for the rights of African American citizens” was conclusory). The more
salient defect, as the City points out, is that Scott alleges too few instances of conduct to plausibly
allege such widespread practice that it could be said to represent municipal policy. See Prince v. Curry,

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423 F. App’x 447, 451 (5th Cir. 2011) (holding that the alleged existence of at most two other similar
actions was insufficient to plausibly allege a policy or custom).
Of course, even a single decision by a decisionmaker with final authority—as Scott alleges
the APD chief to be, (Second Am. Compl., Dkt. 15, at 13–14)—can trigger municipal liability. Bd. of
Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997). However, that single decision must
be a direct cause of the alleged constitutional violation. James, 577 F.3d at 617. Here, Scott does not
allege that the APD chief’s decision not to discipline White for this or other prior uses of force was
a direct cause of the allegedly excessive force used here. Indeed, it is unclear how a decision not to
discipline White could directly cause the complained-of conduct at issue here—the failure to
discipline White for prior uses of force would be at most an indirect cause of this use of force, and
the failure to discipline White after this use of force could not have caused this use of force because
it had already occurred. The Court will therefore dismiss this claim.
2. The Training and Supervision Claims
The failure to train can amount to a policy if there is “deliberate indifference to an obvious
need for training where citizens are likely to lose their constitutional rights on account of novices in
law enforcement.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 849 (5th Cir. 2009). To hold a
municipality liable for failure to train an officer, “it must have been obvious that the highly
predictable consequence of not training its officers was that they would apply force in such a way
that the Fourth Amendment rights of citizens were at risk.” Id. (citation and quotation marks
omitted). The same deliberate indifference standard applies to failure-to-supervise claims. Id. at 850.
To satisfy the deliberate indifference standard, “a plaintiff usually must demonstrate a pattern of
violations and that the inadequacy of the training”—or supervision—“is obvious and obviously
likely to result in a constitutional violation.” Estate of Davis ex rel. McCully v. City of N. Richland Hills,

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406 F.3d 375, 381 (5th Cir. 2005). The pattern of violations must be “fairly similar to what ultimately
transpired” in the instant case. Id. at 383. Here, Scott alleges four incidents of allegedly excessive
force that occurred over the four years prior to the incident at issue in this case: (1) an incident in
which White shot a man in the face while he was holding a BB gun; (2) two officers punching and
tasing a man; (3) an officer using a chokehold on a man; and (4) an officer repeatedly punching a
man in the face without provocation. (Second Am. Compl., Dkt. 15, at 7–8). Only three of these
prior incidents bear an even superficial resemblance to the events alleged in this case. Three
incidents in four years is insufficient to plausibly allege a training or supervision failure that would
make it obvious that any one officer would be a highly predictable risk to use excessive force. The
Court will therefore grant the City’s motion to dismiss Scott’s failure-to-train and failure-tosupervise claims.
IV. LEAVE TO AMEND
Scott has already amended his complaint twice, each time in response to a motion to dismiss.
(See First Am. Compl., Dkt. 11; Second Am. Compl., Dkt. 15). Defendants raised the independentintermediary issue for the first time in the instant motion. (See First Mot. Dismiss, Dkt. 9; Second
Mot. Dismiss, Dkt. 12). However, Defendants have twice argued that Scott’s municipal liability
claims should be dismissed pursuant to Rule 12(b)(6), (id.), and Scott twice amended his complaint
to modify his complaint with respect to his municipal liability claims. Although Rule 15 “evinces a
bias in favor of granting leave to amend,” Lyn–Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th
Cir. 2002), the Court may dismiss an action with prejudice without giving an opportunity to amend
if it finds that the plaintiff has already alleged his or her best case. See Jones v. Greninger, 188 F.3d 322,
327 (5th Cir. 1999) (citing with approval the proposition that “a district court does not err in
dismissing a . . . complaint with prejudice if the court determines the plaintiff has alleged his best

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case”). Because Scott has not amended his complaint with respect to his false arrest claim, the Court
will dismiss that claim without prejudice. However, the Court finds that Scott has already alleged his
best case with respect to his municipal liability claims in light of his repeated and ultimately
unsuccessful efforts to amend those claims. The Court will dismiss those claims with prejudice.
V. CONCLUSION
For the reasons stated above, IT IS ORDERED that Defendants’ Rule 12(c) Motion for
Judgment on the Pleadings, (Dkt. 40), is GRANTED IN PART and DENIED IN PART.
Specifically, Defendants’ motion is GRANTED insofar as (1) Scott’s false arrest claim
against White is DISMISSED WITHOUT PREJUDICE and (2) Scott’s illegal search claim
against White and Scott’s claims against the City are DISMISSED WITH PREJUDICE.
However, Defendants’ motion is DENIED with respect to Scott’s excessive force claim
against White.
Finally, Scott is ORDERED to file a more definite statement of his due process claim
against White within 14 days of receiving notice of this order.
SIGNED on April 30, 2018.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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