     Case: 19-40121   Document: 00515272825     Page: 1   Date Filed: 01/15/2020




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

                                                                    FILED
                                 No. 19-40121                January 15, 2020
                                                               Lyle W. Cayce
KENNETH RATLIFF,                                                    Clerk


             Plaintiff - Appellant

v.

ARANSAS COUNTY, TEXAS; COLBY SCUDDER, Individually; RAYMOND
SHEFFIELD, Individually,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, SMITH, and COSTA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Kenneth Ratliff was shot five times when he refused to drop his weapon
during an armed confrontation with two sheriff’s deputies in Aransas County,
Texas. He survived and was later acquitted of criminal assault. He proceeded
to sue both deputies, as well as the county, under 42 U.S.C. § 1983, alleging
that the deputies used unreasonable and excessive force in violation of the
Fourth Amendment. The district court dismissed Ratliff’s “official custom” and
“failure to train” claims against Aransas County, finding that Ratliff’s
pleadings failed plausibly to establish municipal liability under Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978). Later, the court awarded summary
    Case: 19-40121       Document: 00515272825   Page: 2   Date Filed: 01/15/2020



                                  No. 19-40121
judgment to the deputies, holding that Ratliff had failed to rebut their qualified
immunity defense. Ratliff appeals; we affirm.
                                        I.
      At approximately 3:00 a.m., on March 24, 2015, Aransas County sheriff’s
deputies were dispatched to a residence in Rockport, Texas, where Kenneth
Ratliff was living with Tanya Vannatter, his fiancée. The deputies, Colby
Scudder and Raymond Sheffield, had been requested by Vannatter, who
reported in a 911 call that Ratliff had beaten her earlier in the evening.
      When the deputies arrived, Vannatter explained that Ratliff had been
drinking “all day and all night,” and that, when she caught him sending text
messages to another woman, he went “ballistic.” More specifically, Vannatter
said that Ratliff had thrown her to the ground, punched her “everywhere,” and
choked her with such force that she thought she would die. She was reluctant
to press charges. But she did request that the deputies ask Ratliff to leave
home voluntarily.
      As Vannatter and the deputies walked toward Ratliff’s front porch,
Ratliff began shouting, “Get the f*** off my property.” Ratliff was holding a
loaded, semi-automatic pistol, but he had not chambered a round. The parties
dispute whether the pistol was ever pointed at the deputies, but it is
undisputed that the deputies issued five orders to disarm moments before the
shooting. Ratliff responded, “shoot me . . . shoot me” and “hey, you’re on my
property.” Deputy Scudder fired nine shots, and Ratliff sustained five gunshot
wounds. The whole encounter lasted about twenty-five seconds. The deputies
called an ambulance immediately, and paramedics arrived in time to tend to
Ratliff, who survived.
                                       II.
      Texas authorities charged Ratliff with aggravated assault on a police
officer, but he was later acquitted by a jury. Ratliff then sued Deputy Scudder,
                                        2
     Case: 19-40121       Document: 00515272825          Page: 3     Date Filed: 01/15/2020



                                       No. 19-40121
Deputy Sheffield, and Aransas County under 42 U.S.C. § 1983, alleging that
Deputy Scudder violated clearly established law by using deadly force, that
Deputy Sheffield violated clearly established law by failing to prevent deadly
force, and that Aransas County should be held responsible because the
deputies’ actions reflect the county’s “customary practice[,] . . . policy or
procedure.” 1    The district court quickly dismissed Ratliff’s claim against the
county, however, holding that Ratliff had failed to plead sufficiently specific
facts in support of his “official custom” and “failure to train” theories of Monell
liability.
       Then, on a motion for summary judgment, the district court also disposed
of Ratliff’s excessive force claims against the deputies. The district court found
that Deputy’s Scudder’s use of deadly force was not objectively unreasonable
under the circumstances and that Ratliff could not therefore meet his burden
to rebut the defense of qualified immunity. That finding was also fatal to
Ratliff’s claim against Deputy Sheffield. Ratliff’s entire suit was dismissed
with prejudice. This appeal followed.
                                             III.
       Ratliff raises three issues on appeal. He argues that the district court
erred: (1) by granting defendants’ motion to dismiss the Monell claim against
Aransas County, (2) by excluding testimony given by Ratliff in his earlier
criminal trial from the summary judgment record in this civil action, and (3)
by awarding summary judgment to the deputies on qualified immunity
grounds. We will address each issue in turn.




       1 Ratliff’s complaint also contained a “malicious prosecution” claim that the district
court dismissed for failure to “tie [the allegedly malicious prosecution] to rights locatable in
constitutional text.” Cf. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc).
Ratliff does not challenge the dismissal of that claim on appeal.
                                               3
    Case: 19-40121     Document: 00515272825       Page: 4   Date Filed: 01/15/2020



                                   No. 19-40121
                                         A.
      We first consider Ratliff’s challenge to the dismissal of his Monell claim.
Ratliff argues that his pleadings satisfy both the familiar pleading standard
established by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and a lower-
than-normal pleading standard that, according to Ratliff, applies in the Monell
context under Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993). He can prevail on neither count.
      Initially, we note that the ordinary Twombly pleading standard applies.
It is, of course, true that Leatherman, a pre-Twombly case, held that courts
must not apply a “heightened” pleading standard to Monell claims. See id. at
168. Although Ratliff argues otherwise, however, Leatherman did not require
courts to accept “generic or boilerplate” pleadings in this case or in any other
context. Indeed, our precedents make clear that the Twombly standard applies
to municipal liability claims. See Peña v. City of Rio Grande City, 879 F.3d
613, 621–22 (5th Cir. 2018); Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 866 n.10 (5th Cir. 2012) (en banc). “To survive a motion
to dismiss,” Ratliff’s Monell pleadings “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).
      Reviewing de novo, we find no error in the district court’s conclusion that
Ratliff has failed to produce sufficient pleadings. To state a Monell claim
against Aransas County, Ratliff was required to plead facts that plausibly
establish: “a policymaker; an official policy; and a violation of constitutional
rights whose ‘moving force’ is the policy or custom.” Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001). The district court held that Ratliff’s
complaint fails to establish an official custom or policy of excessive force
because “[t]he only facts [that Ratliff] allege[d] with any specificity . . . relate
to his shooting.” This assessment is correct.
                                         4
    Case: 19-40121     Document: 00515272825      Page: 5   Date Filed: 01/15/2020



                                  No. 19-40121
      “[P]lausibly to plead a practice ‘so persistent and widespread as to
practically have the force of law,’ [Ratliff] must do more than describe the
incident that gave rise to his injury.” Peña, 879 F.3d at 622. Ratliff’s complaint
states that “the assault, beating, and severe injury to citizens, with little or no
justification, is a persistent, widespread practice of County employees—
namely officers/deputies—that, although not authorized by officially adopted
policy, is so common and well settled as to constitute a custom that fairly
represents official county policy.” But this allegation does not contain any
specific facts. Instead, the complaint’s only specific facts appear in the section
laying out the events that gave rise to this action. Thus, Ratliff’s complaint
clearly does not satisfy Twombly or Iqbal with respect to the allegation that
excessive force is an Aransas County “custom.”
      In addition to this theory of widespread and customary police brutality,
Ratliff also alleged that “Defendant County is liable for [the] inadequate
training of police officers.” To prevail on a failure-to-train theory, Ratliff must
plead facts plausibly establishing “(1) that the municipality’s training
procedures were inadequate, (2) that the municipality was deliberately
indifferent in adopting its training policy, and (3) that the inadequate training
policy directly caused the violations in question.” Zarnow v. City of Wichita
Falls, 614 F.3d 161, 170 (5th Cir. 2010).
      Ratliff has failed to carry this burden.      Although the district court
focused on the first two failure-to-train elements, “we may affirm a district
court’s [Federal Rule of Civil Procedure] 12(b)(6) dismissal on any grounds
raised below and supported by the record.” Cuvillier v. Taylor, 503 F.3d 397,
401 (5th Cir. 2007). Before the district court, the defendants argued that
Ratliff’s failure-to-train pleadings were insufficient with respect to the element
of causation. It is clear that this argument is meritorious. Ratliff’s complaint
states in conclusory fashion that a “deficiency in training actually caused
                                        5
    Case: 19-40121     Document: 00515272825       Page: 6   Date Filed: 01/15/2020



                                  No. 19-40121
Defendants Scudder and Sheffield to violate Plaintiff’s constitutional rights.”
But, absent specific allegations supporting a plausible causation inference, this
legal conclusion does not state a claim for relief and warrants dismissal under
Rule 12(b)(6).
      In short, we hold that the district court did not err in dismissing Ratliff’s
claim against Aransas County and, consequently, affirm its judgment
dismissing the county from this case.
                                        B.
      We next examine Ratliff’s argument that the district court erred by
excluding testimony that Ratliff gave in his earlier criminal trial. He offered
the testimony because of a failing memory and to rebut the deputies’ qualified
immunity defense in this § 1983 case. This previous testimony was attached,
as part of a forty-page exhibit, to Ratliff’s response to the defendants’ summary
judgment motion.      The exhibit also included the testimony of other trial
witnesses, including Vannatter and Deputy Scudder. The defendants objected
only to Ratliff’s testimony, arguing that such testimony was inadmissible
hearsay to which no exception applied.          The district court sustained the
objection in a footnote but did not provide analysis or reasoning.
      On appeal, Ratliff does not explain why any of the excluded testimony
would have been relevant to the issues raised at summary judgment. The
testimony could have evidenced only two plausibly-relevant facts: (1) that
Ratliff did not know who was approaching his residence when he yelled, “Get
the f*** off my property,” and (2) that Ratliff did not “raise [his] gun and point
it” at anyone, instead holding it “in [his] right hand . . . down [at his] side” for
the duration of his encounter with the deputies.
      “[A]n appeal of a summary judgment presenting evidentiary issues
raises two levels of inquiry.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916
(5th Cir. 1992) (quotation omitted).         First, we review the district court’s
                                         6
    Case: 19-40121     Document: 00515272825      Page: 7    Date Filed: 01/15/2020



                                  No. 19-40121
evidentiary rulings for abuse of discretion. Id. Then, once the summary
judgment record is “define[d],” we review de novo whether summary judgment
was appropriately granted. Id. Indeed, here, we cannot determine whether
the district court’s summary judgment order was erroneous until we have
“defined” the summary judgment record, i.e., until we have ruled on Ratliff’s
challenge to the exclusion of his earlier criminal testimony. We thus address
Ratliff’s evidentiary arguments first, before turning to the merits of the district
court’s summary judgment order.
      We first entertain the defendants’ argument that any error in excluding
Ratliff’s prior testimony was harmless. If it were, we may assume that the
exclusion was erroneous and affirm nevertheless.            Saratoga Res., Inc. v.
Lexington Ins. Co., 642 F. App’x 359, 363 n.10 (5th Cir. 2016) (citing Matador
Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653 (5th Cir.
1999)). An error is harmless unless it affects “substantial rights.” Fed. R. Civ.
P. 61. Ratliff, as the “party asserting . . . error,” bears the burden of proving
such prejudice. Ball v. LeBlanc, 792 F.3d 584, 591 (5th Cir. 2015).
      But no prejudice has been shown. As we have already said, Ratliff’s
appellate brief does not even explain why the excluded testimony was relevant,
let alone demonstrate that its exclusion affected his “substantial rights.” Fed.
R. Civ. P. 61. On the contrary, none of the points, which we may assume from
the excluded testimony, was relevant to the district court’s decision to enter
summary judgment.        Ratliff’s testimony that he did not know who was
approaching his home on the night of the shooting was irrelevant because, in
the context of qualified immunity, the district court assessed the
“reasonableness of [Deputy Scudder’s] use of force . . . from the perspective of
a reasonable officer on the scene,” not from Ratliff’s perspective. Similarly,
“the direction of [Ratliff’s] gun” was immaterial to the district court’s analysis:
the district court reasoned that, irrespective of the gun’s direction, Deputy
                                        7
     Case: 19-40121      Document: 00515272825        Page: 8     Date Filed: 01/15/2020



                                     No. 19-40121
Scudder’s force was justified because “other facts [had] establish[ed] that the
suspect was a threat to the officer[s],” which would include the fact that Ratliff
had been accused of a violent crime, the fact that Ratliff was drunk and
confrontational, and the fact that Ratliff had ignored five orders to drop his
weapon. 2
      To sum up, we find that, even if the district court erred by excluding
testimony from Ratliff’s criminal trial, such error was harmless and the
testimony’s exclusion thus furnishes no basis for reversal.
                                            C.
      Finally, we consider the substantive merits of Ratliff’s appeal: whether
the district court erred by accepting the deputies’ qualified immunity defense
and awarding them summary judgment. “We review a grant of summary
judgment de novo, viewing all evidence in the light most favorable to the
nonmoving party and drawing all reasonable inferences in that party’s favor.”
Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016) (quotation omitted).
      Typically, to prevail on a motion for summary judgment, the moving
party must show “that there is no genuine dispute as to any material fact.”
Fed. R. Civ. P. 56(a). However, “[a] good-faith assertion of qualified immunity
alters the usual summary judgment burden of proof, shifting it to the plaintiff
to show that the defense is not available.” Orr v. Copeland, 844 F.3d 484, 490
(5th Cir. 2016) (quotation omitted).
      So, here, Ratliff was required to adduce summary judgment evidence
indicating that the deputies’ actions “violate[d] clearly established . . .
constitutional rights of which a reasonable person would have known.”



      2  As we shall explain later, our cases support the district court’s conclusion that,
because Ratliff ignored five orders to disarm and engaged in threatening behavior, Deputy
Scudder’s force was not unreasonable even assuming that Ratliff never raised his gun. See
Garza v. Briones, 943 F.3d 740, 747 (5th Cir. 2019).
                                            8
    Case: 19-40121     Document: 00515272825      Page: 9   Date Filed: 01/15/2020



                                  No. 19-40121
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation omitted). To determine
whether he has done so, we will assume genuinely disputed facts in his favor
and engage in a two-pronged inquiry. “The first [prong] asks whether the facts
. . . show [that] the officer’s conduct violated a [constitutional or statutory]
right.” Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (brackets and ellipsis
added).    The second “asks whether the right in question was ‘clearly
established’ at the time of the violation.” Id. at 656. For a right to be clearly
established, “its contours must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Hope v. Pelzer,
536 U.S. 730, 739 (2002) (quotation omitted).
      The district court focused exclusively on the first prong of the qualified
immunity analysis, concluding that the right at issue here, Ratliff’s Fourth
Amendment right to be free from unreasonable and excessive force, was not
violated when Deputy Scudder opened fire. See Cleveland v. Bell, 938 F.3d
672, 676 (5th Cir. 2019) (“If the plaintiff fails at either step, [a] federal court
can grant qualified immunity by addressing either step or both of them.”). To
establish a Fourth Amendment violation in this context, Ratliff must 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 clearly unreasonable.”
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007). Only the second and third
of these elements are at issue. The question is whether Deputy Scudder’s
resort to deadly force was unreasonable and excessive when the facts are
viewed “from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396
(1989).
      Our recent opinion in Garza v. Briones speaks to this question. Prior to
Garza, our cases had clearly established that deadly force is not unreasonable
when an armed suspect has ignored multiple orders to disarm and has either
                                        9
    Case: 19-40121    Document: 00515272825      Page: 10    Date Filed: 01/15/2020



                                  No. 19-40121
pointed his weapon at a person or used the weapon in such a manner as to
make a threatening gesture. See, e.g., Ramirez v. Knoulton, 542 F.3d 124, 127–
31 (5th Cir. 2008) (officer’s use of deadly force was not a Fourth Amendment
violation where an armed suspect failed to comply with an order to drop his
weapon and then “brought his hands together in front of his waist” as if “in
preparation to aim [his gun] at the officers”); see also Mace v. City of Palestine,
333 F.3d 621, 624–25 (5th Cir. 2003) (deadly force was not objectively
unreasonable when a suspect had “brandish[ed] an eighteen to twenty inch
sword” and failed to “respond to commands to drop his sword or to stop moving
toward [police] officers”); Ballard v. Burton, 444 F.3d 391, 402–03 (5th Cir.
2006) (deadly force was not unreasonable when a suspect had “refused to put
down his rifle, discharged the rifle into the air several times while near the
officers, and pointed it in the general direction of [the] officers,” even though
the suspect was not pointing his gun at anyone when he was shot).
      Garza further adds to this line of cases. In Garza, police officers received
reports that a man was “sitting alone in front of [a] truck stop’s bar playing
with a pistol and holding what appeared to be a wine bottle and a plastic bag.”
943 F.3d at 743. When the officers arrived, they discovered a suspect holding
a gun, later revealed to be a BB gun. Id. One of the officers ordered the suspect
to drop the weapon, but he “did not do so and instead continued to move the
firearm around in different directions while making facial gestures.” Id. “At
that time, [the suspect] did not have his finger on the trigger and was not
pointing the gun at anyone.” Id. Nevertheless, the suspect was later shot and
killed. Id. The administrator of the suspect’s estate sued the officers under
§ 1983, alleging that the officers’ resort to deadly force was unreasonable,
excessive, and a violation of the Fourth Amendment. Id. at 744.
      We rejected those allegations.      We held that, when “confronting an
unpredictable man armed with a dangerous weapon,” law enforcement officers
                                        10
    Case: 19-40121       Document: 00515272825        Page: 11     Date Filed: 01/15/2020



                                      No. 19-40121
“may use deadly force . . . without violating the Fourth Amendment.” Id. at
745. The plaintiff in Garza argued, as Ratliff argues now, that “a reasonable
jury could find that [the suspect] never pointed his gun at the officers.” Id. at
746. In support of this argument, the plaintiff relied on an affidavit from one
of the officer-defendants, which stated that the suspect “did not at any time
point the gun [at the] cops.” Id. at 747. Although we found that video evidence
had conclusively contradicted the affiant’s statement, we explained that this
fact was not essential to the outcome and further held that a “reasonable officer
in any of the defendants’ shoes would have believed that [the suspect] posed a
serious threat regardless of the direction [of his] gun.” Id.
       Thus, in Garza, we found that it is not unreasonable for law enforcement
officers to use deadly force against an armed suspect, irrespective of the
pointed direction of that suspect’s weapon, when the suspect has ignored
orders to drop the weapon and has displayed erratic or aggressive behavior
indicating that he may pose an imminent threat. We can concede that, here,
unlike in Garza, the video evidence is inconclusive with respect to the direction
of Ratliff’s gun. Moreover, we are willing to accept that the gun’s direction is
genuinely disputed. But we cannot agree that the pointed direction of Ratliff’s
gun is material in the context of these facts. Once Ratliff had ignored repeated
warnings to drop his weapon, the deputies here, like the officers in Garza, had
ample reason to fear for their safety. 3


       3 The deputies had been told that Ratliff was drunk and that he had nearly killed a
person earlier in the night. When they arrived on the scene, Ratliff dared the deputies to
shoot him, cursed at the deputies to get off his property, and ignored the deputies’ lawful
commands to disarm. Although we accept that it is genuinely disputed whether Ratliff knew
that he was dealing with law enforcement, we again note that facts about Ratliff’s knowledge
are beside the point. We examine the reasonableness of Deputy Scudder’s force “from the
perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396. There is no
genuine dispute about whether Deputy Scudder could reasonably have believed that Ratliff
knew he was confronting the police. After all, the deputies were in uniform and, although it
was dark, the area was illuminated by lights from Deputy Sheffield’s squad car.
                                            11
    Case: 19-40121         Document: 00515272825           Page: 12     Date Filed: 01/15/2020



                                         No. 19-40121
       Thus, we concur in the district court’s conclusion that the deputies were
entitled to qualified immunity.            Ratliff simply has not met his burden to
establish a Fourth Amendment violation in the form of unreasonable and
excessive force, much less a violation that every reasonable officer in Deputy
Scudder’s position would appreciate. See Hope, 536 U.S. at 739. The district
court was correct to enter summary judgment in favor of both deputies. 4
                                               IV.
       In sum, we hold that the district court committed no reversible error in
its dismissal of Ratliff’s Monell claim against Aransas County, nor in its
decision to exclude testimony given in Ratliff’s criminal trial, nor in its decision
to award summary judgment to both deputies under the doctrine of qualified
immunity. The district court’s judgment is therefore, in all respects,
                                                                                  AFFIRMED.




       4  In his initial brief on appeal, Ratliff does not challenge the district court’s dismissal
of the claim against Deputy Sheffield, other than to generally assert that summary judgment
should not have been awarded to “Appellees.” As such, he has waived on appeal any
argument that the district court improperly dismissed this claim. McKay v. Novartis Pharm.
Corp., 751 F.3d 694, 702 n.6 (5th Cir. 2014) (issues not raised and argued in an appellant’s
initial brief are abandoned).
                                               12
