     Case: 18-51022      Document: 00515308231         Page: 1    Date Filed: 02/12/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                              FILED
                                                                        February 12, 2020
                                      No. 18-51022
                                                                          Lyle W. Cayce
                                                                               Clerk
NANETTE BLANCHARD-DAIGLE, Representative of the estate of Lyle
Blanchard,

               Plaintiff - Appellant

v.

SHANE GEERS; JIM HATFIELD; BELL COUNTY, TEXAS,

               Defendants - Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:18-CV-208


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
PER CURIAM:*
       Nanette Blanchard-Daigle asserted claims under 42 U.S.C. § 1983
against Bell County, Texas, Bell County Sheriff’s Deputy Shane Geers, and
Texas Ranger Jim Hatfield for violations of Lyle Blanchard’s rights under the
Fourth Amendment, as incorporated in the Fourteenth Amendment, when he
was killed during a traffic stop. The district court dismissed all claims against
all defendants and awarded attorney’s fees to Bell County and Deputy Geers.
For the reasons set forth herein, we AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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           I.   FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
      We draw the following facts from the appellant’s complaint and the
attachment thereto. Nanette Blanchard-Daigle (“Ms. Blanchard-Daigle”) is the
sister and representative of the estate of the deceased, Mr. Lyle Blanchard
(“Mr. Blanchard”), who was a 59-year-old Navy veteran and resident of Harker
Heights, Bell County, Texas. Deputy Geers is a Sheriff’s Deputy with 17 years
of experience in the Bell County Sheriff’s Department. Ranger Hatfield is a
Texas Ranger in the Texas Department of Public Safety.
      On the afternoon of August 30, 2016, Deputy Geers observed Mr.
Blanchard driving on East Knights Way in Bell County. Per his observation,
Deputy Geers suspected Mr. Blanchard of driving while intoxicated and began
following him, turning on his patrol siren and emergency lights. Then, Mr.
Blanchard signaled and made a right turn onto Rummel Road, a private gravel
road toward his home. Mr. Blanchard travelled about 1,000 feet down the road
before pulling over.
      Upon stopping, Deputy Geers did not turn off his siren nor did he
approach Mr. Blanchard’s vehicle. Mr. Blanchard did not hear Deputy Geers
give him any instructions or commands. Mr. Blanchard then opened his car
door and exited the vehicle facing Deputy Geers, who was standing
approximately 50 feet away, behind his patrol car door. When Mr. Blanchard
reached for something, Deputy Geers shot Mr. Blanchard eight times, four of
those bullets being fatal.
      After the shooting, Deputy Geers spoke with Ranger Hatfield. Hatfield
secured a warrant to search Mr. Blanchard’s home to investigate an
aggravated assault. Mr. Blanchard had been dead for eight hours by the time
the warrant was signed.


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B. Procedural History
      Ms. Blanchard-Daigle initially filed suit in the Western District of Texas,
Waco Division, on March 23, 2017. The matter was assigned to District Judge
Robert Pitman and then referred to Magistrate Judge Jeffrey C. Manske.
Appellees Bell County and Deputy Geers filed a joint motion to dismiss for
failure to state a claim. In response, Ms. Blanchard-Daigle filed two amended
complaints within eight days of each other. Appellee Ranger Hatfield then
separately moved to dismiss Ms. Blanchard-Daigle’s second amended
complaint. Magistrate Judge Manske issued a report and recommendation
recommending the court grant both pending motions to dismiss. About a week
later, in August 2017, Ms. Blanchard-Daigle voluntarily dismissed her suit.
      Ms. Blanchard-Daigle then re-filed her complaint in the same district
court on July 26, 2018, this time with a 23-page attachment—the expert report
of Roger Clark. The matter was assigned to Judge Pitman and then referred to
Magistrate Judge Manske, as in the first suit. Bell County and Deputy Geers
filed their motion to dismiss on August 16, 2018 and Ranger Hatfield filed his
own motion to dismiss on August 21, 2018. The matter was re-assigned to
Judge Alan D. Albright on September 20, 2018, who then granted Appellees’
motions to dismiss for failure to state a claim, with prejudice, on October 29,
2018. Ms. Blanchard-Daigle timely appealed.
                       II.    STANDARD OF REVIEW
      This Court reviews Rule 12(b)(6) motions to dismiss for failure to state a
claim de novo, “accepting all well-pleaded facts as true and viewing those facts
in the light most favorable to the plaintiff[].” Littell v. Hous. Indep. Sch. Dist.,
894 F.3d 616, 622 (5th Cir. 2018). “The test for deciding these motions is what
is written in the [complaint].” Gause v. U.S. Dep’t of Def., 676 F. App’x 316, 318
(5th Cir. 2017). To survive a motion to dismiss, a complaint need not contain
“detailed factual allegations;” rather, it need only allege facts sufficient to

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“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when the plaintiff pleads facts allowing the court
to draw reasonable inferences that point to the defendant’s liability for the
alleged misconduct. Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015).
Appellees in this case argue that plain error applies but, to be sure, “no party
has the power to control our standard of review.” United States v. Vonsteen,
950 F.2d 1086, 1091 (5th Cir. 1992) (en banc); see also United States v. Davis,
380 F.3d 821, 827 (5th Cir. 2004) (“[W]e, not the parties, determine our
standard of review.”). We proceed de novo.
                                  III.    DISCUSSION
       Before discussing the merits of the case, we must clarify the scope of our
review, especially in light of the restrictive 12(b)(6) standard. 1 Pursuant to
Federal Rule of Civil Procedure 10(c), we are considering the expert report of
Roger Clark as being part of the complaint. FED. R. CIV. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for
all purposes.”). In their briefings and at oral argument, all parties urged this
court that the appended attachment falls within the scope of Rule 10(c). We
agree. In doing so, we are restricted to considering the “nonconclusory, factual
portions” of the report. See Fin. Acquisition Partners LP v. Blackwell, 440 F.3d
278, 285–86 (5th Cir. 2006) (“Even if non-opinion portions of an expert’s
affidavit constitute an instrument pursuant to Rule 10, opinions cannot
substitute for facts . . . .”) (emphasis in original).
A. Municipal Liability
   Ms. Blanchard-Daigle argues that her complaint established Bell County’s
liability under 42 U.S.C. § 1983. We disagree.


       1 Like the district court, we decline to judicially notice the publicly available video
footage in reaching our conclusion.
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        To find a municipality liable under § 1983, a plaintiff must establish that
(1) a policymaker (2) promulgates a policy or custom (3) that is the “moving
force” of a violation of constitutional rights. Monell v. Dep’t of Soc. Servs. of
N.Y.C., 436 U.S. 658, 694 (1978). An official policy “usually exists in the form
of written policy statements, ordinances, or regulations, but may also arise in
the form of a widespread practice that is ‘so common and well-settled as to
constitute a custom that fairly represents municipal policy.’” James v. Harris
Cty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski v. City of Hous., 237
F.3d 567, 579 (5th Cir. 2001)). The policy must be either unconstitutional or
“adopted with deliberate indifference to the known or obvious fact that such
constitutional violations would result.” Id. (internal quotation marks omitted).
        To base deliberate indifference from a single incident, “it should have
been apparent to the policymaker that a constitutional violation was the highly
predictable consequence of a particular policy or failure to train.” Burge v. St.
Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003). To satisfy “moving force,”
Ms. Blanchard-Daigle “must show direct causation, i.e., that there was ‘a direct
causal link’ between the policy and the violation.” See James, 577 F.3d at 617
(quoting Piotrowski, 237 F.3d at 580). To be sure, “deliberate indifference” goes
beyond mere or gross negligence, for a governmental entity cannot be held
liable under § 1983 via respondeat superior. Id.; see also Monell, 436 U.S. at
691.
        As a general matter, even when accepting the allegations against the
County as true, the facts alleged in this complaint related to Bell County are
so conclusory that it is difficult to assess the County’s involvement, if any at
all. Ms. Blanchard-Daigle’s use of legal conclusions do not satisfy the Twombly
and Iqbal pleading standard. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 555.


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      Moreover, the face of the complaint does not satisfy the elements of
Monell liability. In her appellate briefing, Ms. Blanchard-Daigle argues that
her complaint satisfies the elements because (1) it names a policymaker—Bell
County; (2) it asserts that the County’s failure to train Deputy Geers on “how
to respond to non-violent offenders” and “in the constitutional rules of the use
of deadly force” amounts to an official policy or custom, as required by Monell;
and (3) the failure to train policy was adopted with deliberate indifference such
that it was the moving force behind Deputy Geers shooting and killing Mr.
Blanchard. Though such arguments strive to contextualize the complaint to fit
these requirements, the face of the complaint falls short.
      Ms. Blanchard-Daigle argues that, on the “policymaker” prong, the
complaint goes beyond what this court required in Groden v. City of Dallas,
826 F.3d 280 (5th Cir. 2016). There, we stated that “the specific identity of the
policymaker is a legal question that need not be pled; the complaint need only
allege facts that show an official policy, promulgated or ratified by the
policymaker, under which the municipality is said to be liable.” Groden, 826
F.3d at 284. Indeed, we said that naming the entity that acted under the policy
was fundamental. Id. at 284 n.4. Accordingly, Ms. Blanchard-Daigle has
satisfied this prong since Bell County was named as a policymaker. However,
Bell County argues that the complaint fails to establish the second and third
prongs of the Monell test. We agree.
      On the “official policy” prong, Ms. Blanchard-Daigle argues that the
county’s failure to train Deputy Geers and its subsequent failure to discipline
him after the shooting amounted to a ratification and deliberate indifference
to his need for more training. We disagree.
      Failure to train may represent a policy for which the city may be held
liable only if it directly causes injury. City of Canton v. Harris, 489 U.S. 378,
390 (1989). The fact that an officer could be “unsatisfactorily trained” is not

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enough to trigger the municipality’s liability. Id. at 390–91. The plaintiff must
show that (1) the training policy was deficient, (2) the County was deliberately
indifferent to this deficiency in adopting the policy, and (3) the deficient
training policy was the “moving force” of, i.e., directly caused, the
constitutional violation. Shumpert v. City of Tupelo, 905 F.3d 310, 317 (5th Cir.
2018).
      In this context, to sufficiently demonstrate that there was deliberate
indifference, the plaintiff has to show that the municipality had actual or
constructive notice of a pattern of similar constitutional violations caused by
the policy. See Connick v. Thompson, 563 U.S. 51, 61–62 (2011). The complaint
alleges that Deputy Geers was reprimanded in August 2014 for “poor
participation and unbecoming behavior during a Firearms Electronic
Simulator” and that “[t]his prior act shows Geers was unfamiliar with the
gravity of using deadly force.” Ms. Blanchard-Daigle argues that this one prior
incident shows that Deputy Geers had such an unfamiliarity with the
constitutional contours of excessive force that it amounts to the County’s
deliberate indifference to the fact that he needed different or additional
training. This argument fails.
      In Rodriguez v. Avita, we reiterated the Supreme Court’s holding in
Oklahoma City v. Tuttle, which is that “in general . . . a single shooting incident
by a police officer [is] insufficient as a matter of law to establish the official
policy requisite to municipal liability under § 1983.” Rodriguez v. Avita, 871
F.2d 552, 554–55 (5th Cir. 1989) (paraphrasing Okla. City v. Tuttle, 471 U.S.
808, 821 (1985)). But, the “single-incident” exception to the Monell liability test
can be sufficient to find a municipality liable when the plaintiff can show that
“the ‘highly predictable’ consequence of a failure to train would result in the
specific injury suffered, and that the failure to train represented the ‘moving
force’ behind the constitutional violation.” Roberts v. City of Shreveport, 397

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F.3d 287, 295 (5th Cir. 2005). This exception is applied only in extreme
circumstances in order to not run afoul of the rule that municipalities cannot
be held liable via respondeat superior. Id.; see also Pineda v. City of Hous., 291
F.3d 325, 334–35 (5th Cir. 2002) (“Charged to administer a regime without
respondeat superior, we necessarily have been wary of finding municipal
liability on the basis of [the single-incident] exception for a failure to train
claim.”).
      Ms. Blanchard-Daigle implicitly argues that the single-incident
exception should apply and relies on our decision in Brown v. Bryan Cty., 219
F.3d 450 (5th Cir. 2000), to support that argument. However, the single prior
incident involving Deputy Geers during training that Ms. Blanchard-Daigle
alludes to is not of the kind contemplated by the “single-incident” liability
theory. See Brown, 219 F.3d at 460; see also Roberts, 397 F.3d at 296 (finding
that the single-incident exception did not apply when the police chief “oversaw
a significant training regimen” for his subordinate officers and there was no
evidence that the officer was “involved in any [prior] cases involving the
improper use of deadly force”).
      In Brown, a Bryan County sheriff hired a reserve sheriff’s deputy
without vetting him through a pre-hiring screening process. Brown, 219 F.3d
at 454. The reserve deputy was hired having no prior law enforcement
experience and without any formal law enforcement training from the County.
Id. There was also credible evidence showing that he did not participate in the
state’s law enforcement training program. Id. at 455. He had an extensive
criminal record which included, inter alia, arrests for assault, battery and
resisting arrest. Id. at 454. At the time of his hire, he was in violation of the
terms of his probation and, as a result, there was an outstanding warrant for
his arrest. Id. at 454–55. In the incident in that case, the reserve deputy used
a violent “arm-bar” technique to take down the plaintiff during a traffic stop,

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which included grabbing her arm, pulling her from her vehicle, spinning her to
the ground, and driving his knee into her back upon applying the arm-bar
maneuver. Id. at 454. There was also credible evidence that he had an
excessive number of “takedown arrests” similar in method to how the plaintiff
was injured. Id. at 455.
      When the Supreme Court heard the case, it stated that the single-
incident exception was not applicable to the sheriff’s hiring decision. See Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 410–11 (1997). Specifically, the Court
said that, “predicting the consequence of a single hiring decision, even one
based on an inadequate assessment of a record, is far more difficult than
predicting what might flow from the failure to train a single law enforcement
officer as to a specific skill necessary to the discharge of his duties.” Id. at 410.
The Supreme Court vacated our judgment and remanded the case for findings
consistent with their decision. Id. at 416.
      On remand, we found that the single-incident exception was sufficient to
find Bryan County liable under a failure-to-train theory because the reserve
deputy received no law enforcement training once he was hired, had a violent
past, and had a history of using excessive force during his time as a police
officer. Brown, 219 F.3d at 462–65. We concluded that all of those facts taken
together directly caused the incident and that the incident was highly
predictable. Id.
      The present case is not similar to what occurred in Brown v. Bryan Cty.
The complaint stated that Deputy Geers received training from the state and
county law enforcement training programs. It also failed to identify any prior
excessive force incidents involving Deputy Geers in the field during the course
of his 17 years in law enforcement. The complaint only pointed to Deputy
Geers’ one instance of poor performance during training. To that end, we have
never said that an officer’s singular poor performance in training provides

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sufficient constructive notice to a municipality that it is highly predictable that
a constitutional violation would result from it.
      Moreover, we determine that Roger Clark’s report attached to the
complaint significantly undercuts Ms. Blanchard-Daigle’s argument asserting
Bell County’s liability. The expert report attached to the complaint identifies
two policies that form the basis of Deputy Geers’ training: the Bell County
Sheriff’s Office Defensive Firearms Program (“BCSD Program”) and the Texas
Commission on Law Enforcement Education Basic Curriculum (“TCOLE
Program”). The report provided specific examples of the deficiencies in the
TCOLE program. Specifically, the report states that, “[t]hese deficiencies in
training apparently include a lack of realistic scenario training at the TCOLE
certified Academy given to Deputy Geers. Specific deficiencies include training
designed to create ‘muscle memory’ responses to high risk incidents [and]
meaningful continuing periodic training during their career as line Deputies.”
But, as to the BCSD program, the report merely states that Deputy Geers’
actions were “indicative of the inadequate BCSD published policy and
procedure.” The report also noted that “no new BCSD policies have been
implemented, and no existing BCSD policies have been corrected or clarified
since this incident.” Beyond these conclusory statements, he fails to identify
the inadequacies in BCSD’s policies.
      Even when construing the complaint and the attachment in the light
most favorable to Ms. Blanchard-Daigle, we do not identify any additional facts
that marshal the allegations in the complaint into the realm of plausibility as
established in Twombly and Iqbal. See Twombly, 550 U.S. at 555 (“While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.”) (internal

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citations omitted); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can
provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.”). Accordingly, because the complaint fails to satisfy
the second prong of the Monell test, we need not analyze the third prong. In
sum, the complaint fails to establish Bell County’s liability under 42 U.S.C. §
1983. We affirm the district court’s dismissal of the claims against Bell County.
B. Qualified Immunity
      When properly applied, qualified immunity protects all officials “but the
plainly incompetent or those who knowingly violate the law” and holds “public
officials accountable when they exercise power irresponsibly.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009); Malley v. Briggs, 475 U.S. 335, 341 (1986).
When invoked, the plaintiff must show that (1) a constitutional violation (2)
was (a) objectively unreasonable (b) under clearly established law. McClendon
v. City of Columbia, 305 F.3d 314, 322–23 (5th Cir. 2002) (en banc)
(“Ultimately, a state actor is entitled to qualified immunity if his or her conduct
was objectively reasonable in light of the legal rules that were clearly
established at the time of his or her actions.”). It is the plaintiff’s responsibility
to show that the defendant is not entitled to qualified immunity. See Id. at 323.
At the 12(b)(6) stage, “it is the defendant’s conduct as alleged in the complaint
that is scrutinized for ‘objective legal reasonableness.’” id. (emphasis in
original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).
      To successfully plead an excessive force claim, the plaintiff must show
(1) an injury, (2) that resulted directly from the use of excessive force, and (3)
that the use of force was objectively unreasonable. Freeman v. Gore, 483 F.3d
404, 416 (5th Cir. 2007). When death results from the use of deadly force, the
only issue to decide is if the use of deadly force was objectively unreasonable.

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See Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011). Objective
unreasonableness is evaluated under three factors: (1) whether the suspect
posed an immediate threat to the safety of the officers or others; (2) whether
the suspect is actively resisting arrest or attempting to flee; and (3) the severity
of the crime at issue. Graham v. Connor, 490 U.S. 386, 396 (1989).
      Ms. Blanchard-Daigle argues that the district court erred procedurally
and substantively in finding that Deputy Geers was entitled to qualified
immunity. As to procedural error, Ms. Blanchard-Daigle argues that the
district court improperly viewed the facts most favorable to Deputy Geers and
drew reasonable inferences in his favor rather than following the well-settled
12(b)(6) standard. As to substantive error, she argues that the complaint
sufficiently alleges that the use of force was objectively unreasonable because
it presented facts that showed that Mr. Blanchard was unarmed; that Deputy
Geers knew that Mr. Blanchard was unarmed; that Mr. Blanchard was not
fleeing nor attempting to flee; that he was not resisting arrest; and that Deputy
Geers “escalated to the use of deadly force without using verbal de-escalation
tactics,” thus satisfying the factors of objective unreasonableness in Graham
v. Connor. We disagree.
      Deputy Geers is entitled to qualified immunity unless “every reasonable
official would have understood that what he [was] doing violate[d]” a
constitutional or statutory right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). The “dispositive
question is ‘whether the violative nature of [the officer’s] particular conduct is
clearly established.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))
(emphasis in original).
      Deputy Geers’ decision did not violate clearly established law. “Our
circuit has repeatedly held that an officer’s use of deadly force is reasonable
when an officer reasonably believes that a suspect was attempting to use or

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reach for a weapon.” Valderas v. City of Lubbock, 937 F.3d 384, 390 (5th Cir.
2019); see also Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009) (collecting
cases). We have found that officers reasonably used deadly force when a
suspect reached for his waistband, see Salazar-Limon v. City of Houston, 826
F.3d 272, 279–80 (5th Cir. 2016), when a suspect reached under a seat while
sitting in a parked car, see Manis, 585 F.3d at 844–45, and even when a suspect
reached into a nearby boot, see Ontiveros v. City of Rosenberg, 564 F.3d 379,
385 (5th Cir. 2009). In light of these precedents, we cannot say that every
reasonable officer would have known that it was unconstitutional to use deadly
force against a suspect who reached for something—particularly when Mr.
Blanchard had driven 1,000 feet down a private road before pulling over and
then exiting his vehicle unprompted. Qualified immunity thus defeats Ms.
Blanchard-Daigle’s claim against Deputy Geers.
C. Ranger Hatfield’s Search Warrant
      Ms. Blanchard-Daigle argues that Ranger Hatfield secured the warrant
to search Mr. Blanchard’s home for aggravated assault “as a pretext for
investigation into [Mr.] Blanchard’s history” and to “besmirch [Mr. Blanchard]
in the community and the media.” We need not address this claim because our
well-settled precedent holds that the deceased have no rights to be protected
or invalidated under the Constitution. Whitehurst v. Wright, 592 F.2d 834, 840
(5th Cir. 1979) (“After death, one is no longer a person within our
Constitutional and statutory framework, and has no rights of which he may be
deprived.”). Therefore, we affirm the district court’s grant of dismissal as to the
claims against Ranger Hatfield.
D. Attorney’s Fees
      Attorney’s fees awards are reviewed for abuse of discretion on appeal.
Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999). “A district court
abuses its discretion if its award is ‘based on an erroneous view of the law or a

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clearly erroneous assessment of the evidence.’” DeLeon v. Abbott, 687 F. App’x
340, 342 (5th Cir. 2017) (quoting Walker, 168 F.3d at 239).
      42 U.S.C. § 1988(b) allows for the award of “reasonable attorney’s fees”
to “the prevailing party” in § 1983 cases. Fox v. Vice, 563 U.S. 826, 832–33
(2011). A prevailing defendant may be awarded attorney’s fees only when a
court finds that “the plaintiff’s action was frivolous, unreasonable, or without
foundation even though not brought in subjective bad faith.” Hughes v. Rowe,
449 U.S. 5, 15 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421 (1978)); see also Walker, 168 F.3d at 240. “To determine if a claim is
frivolous or groundless, courts may examine factors such as: (1) whether the
plaintiff established a prima facie case; (2) whether the defendant offered to
settle; and (3) whether the court dismissed the case or held a full trial.” Doe v.
Silsbee Indep. Sch. Dist., 440 F. App’x 421, 425 (5th Cir. 2011) (quoting Myers
v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000)). Frivolity
determinations are done on a case-by-case basis. Id. Additionally, the fact that
a claim may be “legally insufficient to require a trial [does] not, for that reason
alone, [make the claim] ‘groundless’ or ‘without foundation.’” Id. However, this
court has generally affirmed attorney’s fees awards when the plaintiff’s claims
lack “a basis in fact or rel[y] on an undisputably meritless legal theory.” Id.
      Ordinarily, to be awarded § 1988(b) attorney’s fees, a party would have
to prevail on the underlying merits of a claim, not simply on “procedural or
evidentiary rulings” such as a motion to dismiss for failure to state a claim. See
Hanrahan v. Hampton, 446 U.S. 754, 759 (1980) . In Schwarz v. Folloder, we
said that “a dismissal with prejudice gives the defendant the full relief to which
he is legally entitled and is tantamount to a judgment on the merits.” Schwarz
v. Folloder, 767 F.2d 125, 130 (5th Cir. 1985). We are satisfied that the
appellees are prevailing parties because the appellant’s claims were dismissed
with prejudice.

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      Having established that the appellees here are prevailing parties, we
must then determine if the attorney’s fees award was an abuse of discretion. It
is axiomatic that we may affirm the district court for any reason supported by
the record, even those not relied on by the district court. See LLEH, Inc. v.
Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002). The district court reviewed the
complaint and appended expert report, dismissed the pleadings with prejudice,
and awarded attorney’s fees to the appellees.
      The district court found that this case was frivolous because Ms.
Blanchard-Daigle had not established a prima facie case, the appellees had not
offered to settle, and the case was dismissed with prejudice. However, we have
stated before that “[e]ven when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable ground for
bringing suit.” Silsbee Indep. Sch. Dist., 440 F. App’x at 425. Nonetheless,
despite the grave circumstances giving rise to the case, Ms. Blanchard-Daigle
had four total attempts at pleading this case. The magistrate judge’s report
and recommendation in the first suit was enough to put Ms. Blanchard-Daigle
on notice of the complaint’s factual deficiencies. The fourth and final attempt
was the same factually deficient complaint except with an expert report affixed
to it. That attempt still proved unsuccessful because of its lack of factual
support in the complaint. Considering the totality of these circumstances, we
do not find an abuse of discretion and affirm the district court’s award of
attorney’s fees to Bell County and Deputy Geers.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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