Benfer v. City of Baytown
Citation120 F.4th 1272
Date Filed2024-11-01
Docket23-20543
Cited28 times
StatusPublished
Full Opinion (html_with_citations)
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 1, 2024
No. 23-20543 Lyle W. Cayce
____________ Clerk
Benjamin Benfer,
PlaintiffâAppellant,
versus
City of Baytown, Texas; Barry Calvert, Individually,
DefendantsâAppellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-2196
______________________________
Before Jones, Smith, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Officer Barry Calvert pulled over Benjamin Benfer and his wife for
allegedly running a red light and because their vehicle appeared to match the
description of a car that had been reported as stolen. As Calvert exited his
patrol car, Benfer and his wife also exited their vehicle. A confrontation
ensued, ending with Calvertâs siccing his K-9 on Benfer. Benfer and his wife
were arrested and prosecuted for resisting arrest and interference with public
duties, though all charges were dismissed.
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No. 23-20543
Benfer sued Calvert and the City of Baytown under 42 U.S.C. § 1983
and state law, asserting myriad claims relating to the encounter. The district
court granted Calvert and the Cityâs motion to dismiss, finding that Calvert
had not violated Benferâs constitutional rights, that Benferâs state tort claims
were not cognizable under Texas law, and that Benfer had pleaded insuffici-
ent facts to support his Monell claims. We affirm.
I.
On the night of February 14, 2021, Calvert was on patrol when he
received an alert to look for a stolen silver 2020 Toyota RAV4. 1 At 10:42 pm,
he spotted a vehicle that appeared to match the description of the stolen
vehicle, so he followed it into an apartment complexâs parking lot and
engaged his emergency lights. The car was Benferâs silver 2020 Mitsubishi
Crossover, not the stolen RAV4, but the angle of Calvertâs headlights and
the lack of natural light made it difficult for Calvert to see the exact make and
model of the car he was stopping.
After pulling Benfer over, Calvert immediately exited his patrol car.
Benfer also got out of his car and walked toward Calvert, ignoring commands
to stop. As Benfer neared Calvert, Calvert tried to restrain him, but Benfer
repeatedly broke free of Calvertâs grasp and ignored even more commands.
During their tussle, Calvert warned Benfer that he had a dog that would bite
Benfer if he continued to resist.
During their struggle, Mrs. Benfer began approaching Calvert. At that
time, and in a move to subdue Benfer, Calvert pushed him to the ground.
Mrs. Benfer reacted by rushing toward and pushing Calvert. Calvert pushed
her off, shouted at her to âback up,â and called for an assist from his K-9.
_____________________
1
The alert did not provide the license plate number.
2
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The K-9 bit and subdued Benfer while Calvert handcuffed Mrs.
Benfer. Then, after handcuffing Mrs. Benfer, Calvert returned to his car for
a second pair of handcuffs before walking over to Benfer. Held by Calvertâs
K-9, Benfer had fallen to the ground. But, when Calvert attempted to hand-
cuff Benfer, Benfer struggled, putting his hands behind his back. Calvertâs
bodycam footage does not make clear whether Benfer resisted, or whether
the K-9âs biting Benferâs arm impeded his movement. 2 While attempting to
handcuff Benfer, Calvert commanded his K-9 to release its bite, but the K-9
maintained its hold. Instead, after finally handcuffing Benfer, Calvert had to
pull the K-9 off of him.
Benfer was charged with resisting arrest, but the charge was later
dropped. 3 Benfer sued Calvert in federal court under state law and § 1983,
averring that Calvert (1) stopped him without reasonable suspicion; (2) ar-
rested him without probable cause; (3) instituted prosecution against him
without probable cause; (4) used excessive force; and (5) assaulted him. Ben-
fer also sued the City of Baytown under § 1983, averring that its policies
governing the use of K-9s were unconstitutional and that it had failed to train
its officers properly.
Calvert and the City moved to dismiss for failure to state a claim. The
district court granted that motion, finding that Calvert had not violated Ben-
_____________________
2
âIn reviewing a motion to dismiss, we consider âonly the facts alleged in the
pleadings, documents attached as exhibits or incorporated by reference in the pleadings,
and matters of which the judge may take judicial notice.ââ Allen v. Hays, 65 F.4th 736, 742
n.3 (5th Cir. 2023) (quoting 2 James Wm. Moore et al., Moore's Federal
Practice § 12.34[2], at 12-94 (3d ed. 2022)). Because the expert report, which is
incorporated into Benferâs complaint, refers to Calvertâs dash cam and bodycam footage,
we may consider the footage at this stage.
3
In Baytown, police officers, not the district attorney, initiate misdemeanor
criminal proceedings.
3
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ferâs constitutional rights, that Benferâs state tort claim was not cognizable
under Texas law, and that Benfer had pleaded insufficient facts to support
municipal liability for the City. Benfer timely appealed, challenging each
dismissal.
II.
âWe review a Rule 12(b)(6) dismissal de novo.â Hodge v. Engleman,
90 F.4th 840, 843 (5th Cir. 2024). âTo survive a motion to dismiss, a com-
plaint must contain sufficient factual matter, accepted as true, to state a claim
that is plausible on its face.â 4 Facial plausibility is satisfied âwhen the plain-
tiff pleads factual content that allows the court to draw the reasonable infer-
ence that the defendant is liable for the misconduct alleged.â Terwilliger,
4 F.4th at 279. âThese standards are the same when a motion to dismiss is
based on qualified immunity.â Id. at 279â80 (citation omitted). So, a com-
plaint survives dismissal if it âpleads facts that, if true, would permit the
inference that defendants are liable under § 1983 and would overcome their
qualified immunity defense.â Id. at 280 (cleaned up). Thus, â[i]t is the plain-
tiffâs burden to demonstrate that qualified immunity is inappropriate.â Id.
To determine whether a government official is entitled to qualified
immunity, we ask â(1) whether the undisputed facts and disputed facts,
accepting the plaintiffsâ version of the disputed facts as true, constitute a
violation of a constitutional right, and (2) whether the defendantâs conduct
was objectively reasonable in light of clearly established law.â 5 So, Benfer
âmust show (1) âa violation of an actual constitutional right,â and (2) that
_____________________
4
Terwilliger v. Reyna, 4 F.4th 270, 279 (5th Cir. 2021) (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009)).
5
Harmon v. Dall. Cnty., 927 F.3d 884, 892(5th Cir. 2019) (per curiam) (quoting Carroll v. Ellington,800 F.3d 154, 169
(5th Cir. 2015)).
4
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âthe right was clearly established at the time of violation.ââ 6 Because Benfer
does not plausibly allege any violations of his constitutional rights, we do not
address whether they were clearly established.
III.
A.
Benfer posits that Calvert violated his clearly established rights under
the Fourth and Fourteenth Amendments by pulling him over without rea-
sonable suspicion. The district court found that the pleaded facts provided
Calvert with reasonable suspicion to stop Benfer, and, accordingly, that Ben-
fer had failed to allege plausibly that Calvert stopped him unconstitutionally.
We agree.
âThe stopping of a vehicle and detention of its occupants constitutes
a âseizureâ under the Fourth Amendment.â United States v. Brigham,
382 F.3d 500, 506(5th Cir. 2004) (en banc). Such stops comport with the Constitution if they are supported by reasonable suspicion. See United States v. Walker,49 F.4th 903
, 906â07 (5th Cir. 2022). âAn alert or be on the look- out report may provide the reasonable suspicion necessary to justify an investigatory stop.â Davila v. United States,713 F.3d 248, 258
(5th Cir. 2013) (cleaned up). Any stop must be âjustified at its inceptionâ and, if so justified, âthe officerâs subsequent actions [must be] reasonably related in scope to the circumstances that justified the stop.â Brigham,382 F.3d at 506
(citing Terry v. Ohio,392 U.S. 1, 88
(1968)).
Calvertâs stop was justified at its inception. Calvert had received an
alert to look for a stolen silver 2020 Toyota RAV4, and Benfer was driving a
_____________________
6
Escobar v. Montee, 895 F.3d 387, 393(5th Cir. 2018) (quoting Cooper v. Brown,844 F.3d 517, 522
(5th Cir. 2016)).
5
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similar-looking Mitsubishi Crossover. 7 Calvert saw Benferâs car through the
rain, at night, and the decreased visibility made it difficult for Calvert to know
that he had stopped the wrong kind of car.
Because Benferâs vehicle bore sufficient similarity to the silver RAV4
Calvert was instructed to look for and the conditions in which the stop
occurred prevented Calvert from realizing his mistake, the stop was reason-
ably warranted and justified at its inception.
The stop was also reasonable in duration because Calvertâs âsubse-
quent actions were reasonably related in scope to the circumstances that
justified the stop.â Brigham, 382 F.3d at 506. Calvert had barely exited his patrol car when Benfer left his vehicle, walked towards Calvert, and resisted arrest. Mrs. Benfer also left their vehicle and approached Calvert. The remainder of the stop was focused on subduing Benfer and his wifeâCalvert never had a chance to verify that Benferâs vehicle was not the stolen RAV4. Therefore, the stop âlast[ed] no longer than [was] necessary to effectuate [its] purpose . . . .âId. at 507
.
Benfer failed to allege plausibly that Calvertâs stop violated his consti-
tutional rights, so the district court properly dismissed that claim.
B.
Benfer contends that Calvert violated his clearly established rights
under the Fourth and Fourteenth Amendments by arresting him without
probable cause. The district court found that Calvert had probable cause to
_____________________
7
Calvert avers that he also had reasonable suspicion to stop Benfer because Benfer
ran a red light. The relevant dash cam footage, however, does not show any traffic viola-
tion. Thus, at the motion-to-dismiss stage, it is plausible that the stop may not have been
justified if Benfer committed no traffic violation. But Calvertâs reasonable belief that Ben-
fer was driving the stolen RAV4 provided reasonable suspicion to justify the stop.
6
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arrest Benfer for resisting arrest. We agree.
âAn arrest is unlawful unless it is supported by probable cause.â
Flores v. City of Palacios, 381 F.3d 391, 402(5th Cir. 2004) (citation omitted). âProbable cause exists when the totality of facts and circumstances within a police officerâs knowledge at the moment of arrest are sufficient for a reason- able person to conclude that the suspect had committed or was committing an offense.â United States v. Levine,80 F.3d 129, 132
(5th Cir. 1996) (citation
omitted).
Benfer was arrested for resisting arrest. âA personâ resists arrest âif
he intentionally prevents or obstructs a person he knows is a peace officer . . .
from effecting an arrest . . . by using force against the peace officer . . . .â
Tex. Pen. Code § 38.03(a). âIt is no defense . . . that the arrest or search
was unlawful.â Id. at § 38.03(b). That means, â[i]n Texas, the act of resist-
ing can supply probable cause for the arrest itself . . . .â Ramirez v. Martinez,
716 F.3d 369, 376(5th Cir. 2013). And â[t]he great weight of Texas authority indicates that pulling out of an officerâs grasp is sufficient to constitute resist- ing arrest.âId.
(collecting cases).
The video unambiguously shows Benfer repeatedly pulling out of Cal-
vertâs grasp. Those acts of resisting supplied probable cause for the arrest.
Benfer has not plausibly pleaded that Calvert violated his constitu-
tional rights when arresting him for resisting arrest, so the district court prop-
erly dismissed that claim.
C.
Benfer avers that Calvert violated his clearly established rights under
the Fourth and Fourteenth Amendments by prosecuting him for resisting
arrest. The district court dismissed the § 1983 claim for malicious prosecu-
tion, finding that there was probable cause to charge Benfer with resisting
7
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arrest. We agree.
â[T]he gravamen of the Fourth Amendment claim for malicious pro-
secution . . . is the wrongful initiation of charges without probable cause.â 8
Meaning, if Calvert had probable cause to charge Benfer, then Benferâs claim
must fail.
As discussed above, Calvertâs bodycam shows Benfer repeatedly
breaking free of Calvertâs grasp and refusing to comply with Calvertâs com-
mands. That video indisputably showed Benfer âpreventing a peace officer
from effecting an arrest by using force.â Tex. Pen. Code § 38.03(a)
(cleaned up). Thus, there was probable cause to institute criminal proceed-
ings against Benfer for resisting arrest.
Therefore, Benfer has not pleaded that Calvert violated his constitu-
tional rights by instituting criminal process against him for resisting arrest.
The district court correctly dismissed that claim.
D.
Benfer avers that Calvertâs use of his K-9 constituted excessive force
in violation of the Fourth and Fourteenth Amendments. Specifically, Benfer
claims that Calvert violated his clearly established rights by (1) releasing the
dog and (2) allowing the dog to bite him until he was handcuffed. The district
court found that Calvertâs release and use of his K-9 did not violate Benferâs
clearly established rights. We agree.
âTo establish a Fourth Amendment violation in this context,â Benfer
âmust establish (1) an injury (2) which resulted directly and only from a use
of force that was clearly excessive, and (3) the excessiveness of which was
_____________________
8
Hughes v. Garcia, 100 F.4th 611, 619(5th Cir. 2024) (quoting Thompson v. Clark,596 U.S. 36, 43
(2022)).
8
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clearly unreasonable.â Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir.
2020) (cleaned up). Calvertâs K-9 undisputedly bit Benfer, so only the sec-
ond and third prongs are at issue here: Benfer must plausibly allege that Cal-
vertâs release and use of his dog was a âclearly excessiveâ use of force that
was âclearly unreasonable.â
Claims of excessive force in âseizingâ a suspect are governed by an
objective standard of reasonableness focusing on the facts of a particular case.
See Graham v. Connor, 490 U.S. 386, 396(1989). When reviewing âthe total- ity of the circumstances,â âwe pay particular attention to the Graham factors, i.e. âthe severity of the crime at issue, whether the suspect poses an immedi- ate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.ââ 9 And we must always judge the force used âfrom the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.â Escobar,895 F.3d at 394
.
1. Calvertâs decision to release his K-9 was a constitutional use of force.
An officer did not use excessive force when he released a K-9 on a
suspect who âignored [the officerâs] instructions, and retreated further
under [a] home, preventing [the officer] from determining whether he was
armed.â Shumpert v. City of Tupelo, 905 F.3d 310, 323 (5th Cir. 2018). In
contrast, releasing a dog violates the Fourth Amendment where there are no
âattempts to subdue [the suspect] without the use of a dog bite, [or to] pro-
vid[e] [the suspect] any warning,â and where the suspect âwas not suspected
of any crime; did not pose an immediate safety threat to officers or others;
and was in need of emergency medical intervention due to self-harm and was
_____________________
9
Escobar, 895 F.3d at 394(quoting Darden v. City of Fort Worth,880 F.3d 722
, 728-
29 (5th Cir. 2018)).
9
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not attempting to flee the officers.â Sligh v. City of Conroe, 87 F.4th 290, 299
(5th Cir. 2023) (per curiam) (cleaned up). 10
Benfer repeatedly resisted arrest and walked away from Calvert. Ben-
fer ignored Calvertâs warning that he had a dog who would bite Benfer if he
continued to resist. Importantly, Calvert deployed the dog only after Mrs.
Benfer made physical contact with him while he was trying to restrain Benfer.
Calvert was outnumbered. He faced one individual who had resisted
his many attempts to use lesser force and another who made aggressive con-
tact with himânear his gun beltâwhile he attempted to restrain the first.
From the perspective of a reasonable officer on the scene, Calvertâs use of a
K-9 to subdue Benfer while he dealt with Mrs. Benfer was a measured and
ascending use of reasonable force. See Shumpert, 905 F.3d 323.
Therefore, Calvertâs decision to release his K-9 was not clearly exces-
sive under the circumstances, and Benfer has not plausibly alleged that that
decision violated his right to be free from excessive force.
2. Calvertâs use of the K-9 to subdue Benfer until he was handcuffed was
a constitutional use of force.
Our court first addressed the reasonableness of using a police dog to
subdue a suspect in Cooper v. Brown, 844 F.3d 517(5th Cir. 2016). There, an officer pulled Cooper over on suspicion of driving under the influence.Id. at 521
. After failing a breath test, Cooper fled on foot into a residential neigh- borhood.Id.
The initial officer then alerted other officers in the area to Cooperâs flight, including Brown and his K-9, Sunny.Id.
Despite having no
reason to believe that Cooper had a weapon, Brown deployed Sunny to search
_____________________
10
Sligh post-dated the events here and is relevant only to the existence of a consti-
tutional violation, not whether that violation was clearly established.
10
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for him. Id.Shortly thereafter, Sunny found Cooper and bit him on the leg âfor one to two minutes.âId.
Brown did not order Sunny to release until after handcuffing Cooper.Id.
Applying the Graham factors, we held that â[u]nder the facts in th[e] record, permitting a dog to continue biting a com- pliant and non-threatening arrestee is objectively unreasonable.âId. at 524
.
Years later, in Escobar, our court again addressed the reasonableness
of using a police dog to subdue a suspect. But this time, in contrast with
Cooper, we held that it was âobjectively reasonable to permit [a K-9] to con-
tinue biting Escobar until he was fully handcuffed and subdued,â despite that
he laid flat on the ground, his hands were visible, and he was compliant with
the officerâs commands. Escobar, 895 F.3d at 394. Why? Because the officer âhad reason to believe he still posed a threat.âId. at 395
. âThe chase was at night; Escobar had hidden from the police for twenty minutes[;]â Escobarâs mother had warned the police that he âwould not go without a fight; and [a] knife remained within Escobarâs reach . . . .âId. at 394
. Thus, the officer had âreason to doubt [Escobarâs] complianceâ and that his âsurrender was not genuine.âId. at 395
. Applying the Graham factors, we held that âit was objectively reasonable to permit [the K-9] to continue biting Escobar until he was fully handcuffed and subdued.âId. at 396
.
Because, under the totality of the circumstances, Benfer posed an
objective threat to Calvert, the Graham factors favor a finding that Calvertâs
use of his K-9 was objectively reasonable:
The first factorâthe severity of the offenseâfavors Calvert.
â[I]nterfering with the duties of a public servant[,]â such as resisting arrest,
is a serious offense. Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). Here,
Calvertâs bodycam shows Benfer repeatedly breaking free of Calvertâs grasp
and refusing to comply with Calvertâs commandsâsimply put, Benfer was
resisting arrest.
11
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The second factorâwhether Benfer posed a threatâis a closer call,
but it ultimately favors Calvert. Benfer had disobeyed several of Calvertâs
commands and resisted arrest. Calvert was outnumbered. Mrs. Benfer, only
moments earlier, had made aggressive contact with Calvertânear his gun
beltâwhile he was struggling with Benfer, and although handcuffed, she
remained in the general vicinity. The arrest took place on a rainy night. Cf.
Escobar, 895 F.3d at 394. And there was no indication that Benfer would
comply with Calvertâs instructions if Calvert released the K-9. Though Ben-
fer did not appear to be armed, in the face of such facts, a reasonable police
officer would have had reason to doubt Benferâs compliance and conclude
that he posed a threat.
Benfer disagrees that he posed a threat and that our analysis of his case
should begin and end with Cooper. In his telling, he was âcompliant and non-
threateningâ by the time Calvert went to handcuff him. And because his
behavior matched Cooperâs, âpermitting a police dog to continue biting
[him] is objectively unreasonable.â See Cooper, 844 F.3d at 524. But we see several distinctions between Benferâs and Cooperâs behaviors: Calvert had repeatedly âattempt[ed] to negotiateâ with Benfer before calling his K-9 to assist. Contraid. at 523
. Calvert was outnumbered, and Mrs. Benfer had
made aggressive contact with Calvert while he struggled to arrest Benfer.
And Benfer and his wife escalated the situation by repeatedly disobeying Cal-
vertâs commands and resisting arrest. Under those circumstances, a reasona-
ble officer could conclude that Benferâs surrender was not genuine and that
Benfer posed a threat.
And, finally, we have already determined that Benfer resisted arrest,
so the third Graham factorâwhether Benfer was resisting or attempting to
fleeâfavors Calvert.
12
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Even if Benfer had demonstrated that he posed no objective or sub-
jective threat to Calvert or that he would not resist arrest or flee if the K-9
was released, Calvert attempted to release the K-9âs grip on Benfer before
finishing handcuffing him. Thus, unlike in Cooper, where âBrown permitted
the attack to continue for one to two minutes,â Id. at 524 n.6 (emphasis
added), Calvert did not permit the K-9 to continue biting Benfer. Calvert
attempted to cease the use of force, albeit unsuccessfully.
Based on all the circumstances, Calvertâs use of his K-9 to subdue
Benfer until he was handcuffed was an objectively reasonable use of force that
was not clearly excessive under the circumstances, and Benfer has not plaus-
ibly alleged that Calvertâs decision violated his right to be free from excessive
force. So, the district court was correct to dismiss his claim.
E.
In addition to his claims under § 1983, Benfer sued Calvert for assault
under Texas tort law. The district court dismissed that claim, finding that
Calvert was statutorily immune under Texas law. The district court was
correct.
The Texas Tort Claims Act (TTCA) âprovides a limited waiver of
immunity for certain tort claims against the government.â Tex. Adjutant
Gen.âs Off. v. Ngakoue, 408 S.W.3d 350, 354(Tex. 2013). Under the TTCA, ârecovery against an individual employee is barredâ but it âmay be sought against the governmental unit only in three instances: . . . (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit.â Mission Consol. Indep. Sch. Dist. v. Garcia,253 S.W.3d 653, 657
(Tex.
2008). The TTCA allows municipalities to be held liable âfor damages
arising from . . . police and fire protection and control.â Tex. Civ. Prac.
& Rem. Code § 101.0215(a)(1).
13
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That all means a plaintiff seeking to sue a police officer for conduct
undertaken within the scope of that officerâs employment must sue the muni-
cipality, not the officer individually. Alexander v. Walker, 435 S.W.3d 789,
792 (Tex. 2014) (per curiam).
âThe TTCA defines the term âscope of employmentâ as âthe per-
formance for a governmental unit of the duties of an employeeâs office or
employment. . . .ââ Id. (quoting Tex. Civ. Prac. & Rem. Code
§ 101.001(5)). And a police officerâs âconduct in the course of arrestingâ a
suspect is âwithin the general scope of the officersâ employment.â Id.
Benferâs assault claim stems from actions Calvert took when arresting
Benfer. Thus, Benfer has sued Calvert for conduct well within the scope of
his employment. And that claim could have been brought against the City of
Baytown because the TTCA explicitly allows cities to be held liable for dam-
ages âarising from . . . policeâ activities. Tex. Civ. Prac. & Rem. Code
§ 101.0215(a)(1). Therefore, Benfer had to bring his tort claim against the
City of Baytown, not Calvert individually.
Benfer resists that conclusion by noting, correctly, that the TTCA
does not apply to a claim âarising out of assault . . . or any other intentional
tort . . . .â Tex. Civ. Prac. & Rem. Code § 101.057(2). Benfer has a
point: The text of § 101.057(2) appears to prevent a governmental entity
from being held liable for the intentional torts of its employees. If the gov-
ernmental entity cannot be held liable, then the TTCA allows an employee
to be sued individually, even if they were acting within the scope of their
employment. See Garcia, 253 S.W.3d at 657.
The Texas Supreme Court, however, rejected that argument in Wal-
ker. There, as here, âWalker brought suit . . . alleging assault . . . stemm[ing]
from the officersâ conduct incident to Walkerâs arrest . . . .â 435 S.W.3d
at 790. Still, the court held that â[t]he allegations in Walkerâs petition . . .
14
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[were] based on conduct within the general scope of the officerâs employ-
mentâ and âcould have been brought under the TTCA against the govern-
ment.â Id. at 792 (citations omitted).
We are bound to apply Texas law as construed by the Texas Supreme
Court, so we affirm the dismissal of Benferâs assault claim against Calvert as
indistinguishable from Walker. Because Benfer did not amend his complaint
and bring his claim against the City, the district court was correct to dismiss
the claim. 11
F.
Benfer also sued the City under § 1983, averring that it (1) had
inadequate written policies concerning the use of police dogs; (2) had a pat-
tern and/or custom of using police dogs to inflict injuries on non-threatening
suspects; (3) failed to train its officerâs adequately in the use of police dogs;
and (4) ratified Calvertâs conduct. The district court dismissed those claims,
finding that Benfer had failed to identify a particular policy, failed to show
sufficiently numerous instances of K-9 encounters to establish a custom, and
failed to support its other claims with anything more than âconclusory allega-
tions.â We agree.
1. Benfer failed to plead sufficient facts to support his claim that the City
of Baytown had an unconstitutional policy or custom concerning police
dogs.
A municipality may be liable under § 1983 if the execution of one of its
_____________________
11
When the TTCA requires the plaintiff to sue the governmental entity, âthe suit
against the employee shall be dismissed unless the plaintiff files amended pleadings dis-
missing the employee and naming the governmental unit as defendant on or before the 30th
day after the date the motion is filed.â Tex. Civ. Prac. & Rem. Code § 101.106(f).
15
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customs or policies causes the deprivation of a constitutional right. 12 âTo
establish municipal liability, a plaintiff must show â(1) an official policy (or
custom), of which (2) a policy maker can be charged with actual or construc-
tive knowledge, and (3) a constitutional violation whose âmoving forceâ is
that policy (or custom).ââ Newbury v. City of Windcrest, 991 F.3d 672, 680(5th Cir. 2021) (quoting Pineda v. City of Hous.,291 F.3d 325, 328
(5th Cir.
2002)).
At the motion-to-dismiss stage, a plaintiff need not âallege the specific
identity of the policymaker,â but must âallege facts that show an official pol-
icy, promulgated or ratified by the policymaker, under which the municipal-
ity is said to be liable.â Groden v. City of Dall., 826 F.3d 280, 283â84 (5th Cir.
2016) (emphasis omitted). Benfer has failed to do so. His amended com-
plaint does not identify anything that could be considered an official policy of
the City of Baytown. Benferâs Monell claim premised on an unconstitutional
policy must fail when he cannot even articulate what official policy Baytown
has adopted governing police dogs.
A municipality, however, may still be liable under § 1983 in the
absence of an official policy if there is an employee practice that is so wide-
spread and common that it constitutes a custom representing the policies of
the municipality. See Piotrowski v. City of Hous., 237 F.3d 567, 581 (5th Cir.
2001).
A plaintiff proves the existence of a custom by showing âa pattern of
abuses that transcends the error made in a single case.â Id. at 582. âA suc-
cessful showing of such a pattern requires similarity and specificity; prior
indications cannot simply be for any and all bad or unwise acts, but rather
must point to the specific violation in question.â Hicks-Fields v. Harris Cnty.,
_____________________
12
Monell v. Depât of Soc. Servs., 436 U.S. 658, 694 (1978).
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No. 23-20543
860 F.3d 803, 810(5th Cir. 2017) (cleaned up). âIn addition to similarity and specificity, a pattern must be comprised of âsufficiently numerous prior inci- dentsâ rather than merely âisolated instances.ââ 13 âShowing a pervasive pat- tern is a heavy burden.â Sanchez v. Young Cnty.,956 F.3d 785, 793
(5th Cir.
2020) (citation omitted).
Benferâs amended complaint identifies five instances of Baytown
police allegedly using dogs to apprehend suspects impermissibly. But Benfer
fails to provide the needed factual context for four of those incidentsâhis
threadbare complaint notes only the existence of K-9 encounters that re-
sulted in bites. He does not detail the facts surrounding those encounters or
make any attempt to show the needed âsimilarity and specificityâ between
events. See Hicks-Fields, 860 F.3d at 810.
Those five instances also occurred over the span of four years (2019â
2022). Five incidents of excessive force over four years in a city as large as
Baytown 14 is not enough to meet the heavy burden of showing that Baytown
had a custom of allowing officers to use police dogs unconstitutionally. Cf.
Davidson v. City of Stafford, 848 F.3d 384, 396â97 (5th Cir. 2017) (noting that
three incidents over three-and-a-half years were insufficient to establish a
pattern of constitutional violations).
Therefore, the district court did not err in finding that Benfer had
failed plausibly to allege that the City of Baytown had inadequate written pol-
icies concerning the use of police dogs or had a pattern/custom of using
police dogs to inflict injuries on non-threatening suspects.
_____________________
13
Fuentes v. Nueces Cnty., 689 F. Appâx 775, 778(5th Cir. 2017) (per curiam) (quot- ing McConney v. City of Hous.,863 F.2d 1180, 1184
(5th Cir. 1989)).
14
Baytown had a population of 83,701 according to the 2020 census.
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No. 23-20543
2. Benfer failed to plead sufficient facts to support his claim that the City
of Baytown failed to train its officers on the proper use of police dogs.
âA municipalityâs failure to train its police officers can without ques-
tion give rise to § 1983 liability.â Edwards v. City of Balch Springs, 70 F.4th
302, 312(5th Cir. 2023) (cleaned up). To succeed, the plaintiff must show â(1) the city failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and (3) the failure to train or super- vise constituted deliberate indifference to the plaintiffâs constitutional rights.âId.
(internal quotation marks and citation omitted).
Benferâs complaint falters on that first requirement. âIn order for lia-
bility to attach based on an inadequate training claim, a plaintiff must allege
with specificity how a particular training program is defective.â Zarnow v.
City of Wichita Falls, 614 F.3d 161, 170(5th Cir. 2010) (internal quotation marks and citation omitted). Benfer alleged only that the City of Baytown failed to retrain Calvert after his involvement in a previous K-9 incident. He made no attempt to identify a specific training program, point out particular deficiencies in that program, or explain why any lack of a formalized training program was constitutionally problematic. Benfer has merely âstyl[ed] [his] complaint[] about the specific injury suffered as a failure to train claim.â Rob- erts v. City of Shreveport,397 F.3d 287, 293
(5th Cir. 2005).
Thus, the district court did not err in finding that Benfer had failed to
allege plausibly that the City of Baytown was liable under a âfailure-to-trainâ
theory.
3. Benfer has failed to plead sufficient facts to support his claim that the
City of Baytown ratified Calvertâs conduct.
Ratification âprovides another way of holding a city liable under
§ 1983.â Allen v. Hays, 65 F.4th 736, 749 (5th Cir. 2023). â[R]atification can
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No. 23-20543
suffice for Monell liability only if the authorized policymakers approve a sub-
ordinateâs decision and the basis for it.â Id. at 749 n.10 (internal quotation
marks and citation omitted).
Benferâs complaint averred that â[t]he City of Baytown condoned and
ratified the actions of Calvert by failing to discipline or retrain him.â But
ratification requires the approval of a policy maker, not their mere acquies-
cence, and Benfer has failed to allege any facts even suggesting that any
authorized policymaker approved of Calvertâs actions. Nor does he provide
any support for his apparently novel tactic of merging his failure-to-train
claim with his ratification claim. The district court did not err in dismissing
Benferâs ratification claim against the City of Baytown.
* * * *
For the foregoing reasons, the judgment of dismissal is AFFIRMED.
19