     Case: 16-41344   Document: 00514065009     Page: 1   Date Filed: 07/10/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fif h Circuit
                                 No. 16-41344                           FILED
                                                                    July 10, 2017

JOHN GERARD QUINN,
                                                                   Lyle W. Cayce
                                                                        Clerk

             Plaintiff - Appellant

v.

JESUS DAMIAN GUERRERO; VINCENT ROBERTS; AARON HOWELL;
AARON SMITH; BARRY EAVES; DONNIE WILLIAMS; DREW CAUDELL;
JASON NORTON; JESSE GARCIA; TING SUN; JOEL PURSER; CITY OF
MCKINNEY, TEXAS; REX REDDEN,

             Defendants - Appellees



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


Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      John Quinn originally sued individual police officers and the City of
McKinney, Texas, in state court for claims arising from the execution of a
search warrant on his home. The state court dismissed Quinn’s claims against
the officers and instructed him to replead to clarify whether he intended to
assert federal claims. Quinn amended his petition to assert new claims under
42 U.S.C. §§ 1983 and 1985. The defendants removed the case to the district
court, which later denied Quinn’s motion to remand. The district court then
dismissed Quinn’s remaining claims against the officers and the City and
denied his claim for punitive damages. We AFFIRM.
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              FACTUAL AND PROCEDURAL BACKGROUND
      The facts underlying the search of Quinn’s home are disputed. According
to Quinn, the City of McKinney’s Special Weapons and Tactics (“SWAT”) Team
forcibly entered his home around 12:06 a.m. on August 4, 2006, to execute a
routine search warrant. Quinn’s adult son Brian, who also lived in the home,
was the subject of the warrant.       Quinn argues the police had multiple
opportunities to detain Brian in the days prior to the search but chose instead
to execute a “violent SWAT raid in the middle of the night.”
      Allegedly, the officers forcibly entered the home without first knocking
or identifying themselves. The officers were dressed in dark, paramilitary
uniforms, with no visible paraphernalia identifying themselves as police. They
carried various military-grade weapons, including assault weapons and stun
grenades, which are designed to temporarily blind, deafen, or otherwise
incapacitate the subjects of a raid.       The officers detonated at least two
grenades, one of which “blew a hole in a wall and set [Quinn’s] house on fire.”
      The home was entirely dark at the time of the search, and Quinn was in
his bedroom with the doors closed and latched. After hearing the commotion,
he loudly asked the officers to identify themselves but got no response. At that
point, Quinn retrieved a licensed handgun from his bedside table and moved
to the center of the room. “At all times,” Quinn argues, the “handgun was
pointed toward the floor with its safety mechanism fully engaged[.]” Officer
Jesus Guerrero, on the other hand, argues that Quinn pointed the gun at him.
In any event, Guerrero fired his weapon through the closed door, and one bullet
struck Quinn’s right hand. Quinn then fell to the floor, and Officer Rex Redden
kicked in the bedroom door. At no time during this interaction did the officers
ask Quinn to drop his gun or otherwise provide a warning.


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      Quinn believes the SWAT Team executed its raid in a violent manner “to
exact retribution for [his] earlier filing of a civil-rights suit against the police[.]”
Based on the officers’ conduct, he argues “the raid and the shooting were
intentional, tortious acts of terrorism conducted in bad faith, intentionally, and
with malice.”
      On July 15, 2008, Quinn sued the officers and the City of McKinney in
state court, alleging assault and battery against Guerrero; assault against the
officers using the stun grenades; intentional infliction of extreme mental
anguish, conspiracy, gross negligence, and negligence per se against the
officers; and negligence against both the officers and the City. He also sought
punitive damages and attorneys’ fees. The defendants filed special exceptions
to the original petition, seeking clarification as to whether Quinn was asserting
any federal claims. The City also moved to dismiss the claims against the
officers under Texas Civil Practice and Remedies Code § 101.106(e). The state
court granted the motion to dismiss the officers. Quinn then filed a motion for
rehearing or reconsideration, which the state court denied. The court also
sustained the defendants’ special exceptions, instructing Quinn to replead to
the extent he was asserting a federal cause of action.
      Quinn amended his original petition on March 23, 2009, to include
causes of action under 42 U.S.C. §§ 1983 and 1985. He alleged violations of
various constitutional rights, including the Fourth Amendment right to be free
from unreasonable searches and seizures. Despite the state court’s dismissal
of the defendant officers, Quinn’s amended petition also reasserted common-
law claims against them.
      The defendants removed the case to federal court on April 10, 2009,
under 28 U.S.C. § 1441(a). Quinn moved to remand the case to state court,
arguing that his original petition “sets out federal-law allegations in clear
language” by repeatedly using phrases unique to federal law — like “excessive
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force.” He thus believes the defendants’ removal after the filing of his amended
complaint was untimely. The magistrate judge recommended the motion be
denied because Quinn did not affirmatively allege federal claims until his
petition was amended. Despite being advised to do so, Quinn did not file
objections to the report and recommendation (“R&R”), which the district court
adopted in full on December 22, 2009.
      On February 23, 2010, the district court stayed this case pending the
outcome of parallel criminal proceedings against Quinn on charges of assault
against a public servant and possession of a controlled substance. The jury
acquitted Quinn of the assault but found him guilty of possession of cocaine,
which police found locked in a safe in Quinn’s bedroom during the raid. Quinn
v. State, No. 05-12-00049-CR, 2013 WL 2152641 (Tex. App.—Dallas May 17,
2013, pet. ref’d). The stay was lifted on April 11, 2014. After amending his
complaint in 2009 and 2010, Quinn amended his complaint a third and final
time on April 17, 2014. In his third amended complaint (the live complaint
here), Quinn removed the names of defendant officers Vincent Roberts, Aaron
Howell, Barry Eaves, Drew Caudell, Jesse Garcia, and Ting Sun.
      The officers then filed motions to dismiss on various grounds under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The City also moved to
dismiss the claims against it under Rules 12(b)(1) and 12(b)(6). In August
2016, the magistrate judge recommended granting the officers’ motion to
dismiss based on the statute of limitations and denying their other motions as
moot. Five days later, the magistrate judge recommended granting the City’s
motion to dismiss also. Quinn objected and moved for reconsideration of the
state court’s 2008 dismissal of the intentional-tort claims against the officers.
The district court adopted the magistrate judge’s rulings and denied Quinn’s
motion for reconsideration as untimely. Quinn timely appealed.


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                                 No. 16-41344
      Officers Roberts, Howell, Eaves, Caudell, Garcia, and Sun have moved
to be dismissed from the appeal because Quinn failed to name them in his third
amended complaint. Quinn opposes the motion, arguing that he removed some
names from the case caption to “streamline” the litigation but fully intended to
press his intentional-tort claims against all defendants. A panel of this court
ordered the motion be carried with the case.


                                 DISCUSSION
      Quinn alleges five points of error on appeal. First, he argues the district
court erred by denying the motion to remand because his original petition
included factual allegations sufficient to invoke federal jurisdiction.    As a
result, he argues the defendants’ removal several months later was untimely.
Second, he argues the state court erred in dismissing his intentional-tort
claims against the officers; in turn, he alleges the district court erred by not
reversing that dismissal.     Third, he argues the district court erred by
dismissing his federal claims against the officers on limitations grounds. In
support, he argues the state court’s dismissal of the officers was an
interlocutory decision that did not fully remove the officers from the case.
Fourth, he argues the district court erred by dismissing his claims against the
City, which he believes are viable under state and federal law. Finally, Quinn
argues he is entitled to punitive damages. We discuss each issue in turn.


I.     Denial of Quinn’s Motion to Remand
      Ordinarily, we review de novo the district court’s denial of a motion to
remand. In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam).
Nonetheless, a party is not entitled de novo review after failing to file written
objections to the magistrate judge’s R&R within a certain period of time.
Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988). To invoke the bar,
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the magistrate judge “must specifically advise the parties that objections must
be so filed.” Id. at 277. If the parties then fail to file objections, we review only
for plain error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th
Cir. 1996) (en banc), superseded on other grounds by 28 U.S.C. § 636(b)(1).
Here, the magistrate judge’s R&R on the remand issue contained a warning
about the consequences of failing to object in writing. Despite the caution,
Quinn never filed objections. We thus review the remand issue for plain error.
See Thomas v. Arn, 474 U.S. 140, 148 (1985).
      To succeed under plain-error review, Quinn must show (1) an error; (2)
that is plain or obvious; (3) that affects his substantial rights. See United
States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). To
establish an effect on his substantial rights, Quinn must show the outcome of
the proceedings would have been different had the district court decided the
issue the other way. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
the first three factors are satisfied, we have discretion to correct the error if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (alterations omitted).
      Federal courts are courts of limited jurisdiction, having the power to hear
only cases that present a federal question or are between citizens of different
states. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Because the parties
here are all Texas domiciliaries, removal jurisdiction must be based on a
federal question. The plaintiff’s federal question must appear on the face of
his well-pleaded complaint. Bernhard v. Whitney Nat’l Bank, 523 F.3d 546,
551 (5th Cir. 2008). The plaintiff need not specifically cite a federal provision
such as Section 1983, Johnson v. City of Shelby, 135 S. Ct. 346, 346–47 (2014)
(per curiam), but he must allege facts sufficient to establish a colorable issue
of federal law, see Caterpillar Inc. v. Williams, 482 U.S. 386, 391–92 (1987).
“[T]he plaintiff [is] the master of the claim,” so he may confine his arguments
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to those arising under state law even if federal claims are available. Id. at 392.
If he so chooses, there is no basis for federal jurisdiction.       Id.   Further,
anticipation of a federal defense is insufficient to establish federal-question
jurisdiction. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328
(5th Cir. 2008).
      If an action brought in state court could have been brought in federal
court originally, the defendant may remove the case to federal district court.
28 U.S.C. § 1441(a). Ordinarily, the defendant may remove within 30 days of
receiving a pleading showing the case is removable. Id. § 1446(b). If the case
is not initially removable, the defendant may remove within 30 days after
receipt of a pleading that shows the case has become removable. Id.
      In considering the motion to remand, the magistrate judge found that
Quinn’s original petition “does not specifically list any federal causes of action
or make any claims under federal law.” Despite vague references to excessive
force and the United States Constitution, Quinn alleged only assault, battery,
intentional infliction of extreme mental anguish, conspiracy, and negligence —
all state-law claims. In fact, his only explicit reference to federal law concerned
immunities the defendants may claim under the federal constitution or the
Eleventh Amendment. Quinn’s original complaint did not establish federal-
question jurisdiction.
      In response to the defendants’ special exceptions, the state court ordered
Quinn to replead any federal claims he may wish to allege.            Quinn then
amended his petition to include claims arising under federal law, including
violations of Section 1983. The defendants removed the case less than 30 days
later. Removal was thus proper, and the district court did not err in denying
Quinn’s motion to remand.
      To save his remand claim, Quinn argues his pleading included facts that
would support federal claims, which was allegedly sufficient to begin the 30-
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day calendar for removal. We agree with the analysis of a similar issue in an
unpublished opinion of this court. See Cevallos v. Silva, 541 F. App’x 390, 393
(5th Cir. 2013).       There, the plaintiff alleged a “violation of his civil and
constitutional rights” and that the defendants “acted under color of law.” Id.
His allegations “were too ambiguous to establish federal question jurisdiction
definitively.” Id. Quinn’s references to excessive force and the City’s failure to
supervise are similarly too ambiguous to allege a federal question. Given the
high bar imposed by plain-error review, the district court did not err in denying
Quinn’s motion to remand.


II.    Refusal to Reverse the State Court’s Dismissal of Quinn’s Intentional-Tort
       Claims Against the Officers

       In 2008, the state court dismissed the officers under Texas Civil Practice
and Remedies Code § 101.106(e). Immediately thereafter, Quinn filed a motion
for reconsideration, which the state court denied. Eight years later, after the
case had been removed to federal court, Quinn again requested the district
court reconsider the state court’s earlier dismissal. The district court denied
the motion as untimely and indicated it would have denied the motion on the
merits also. According to the district court, the magistrate judge’s analysis of
the issue was well-reasoned and complete.
       As a threshold matter, Quinn complains that his motion for
reconsideration in the district court was submitted after the magistrate judge
issued his R&Rs, so “there could be no analysis [the district court] could have
‘adopted’ on that point.” His allegations amount to an assertion that the
district court failed in its constitutional obligation to conduct a de novo review
of the magistrate judge’s conclusions. But the magistrate judge did discuss the
dismissal of the officers in his earlier R&R. The report focused on the statute
of limitations, but the magistrate judge stated that “even if the amended
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pleading were filed within the statute of limitations, application of the Texas
statute would require that [the officers] be dismissed here, and again, they
would be dismissed with prejudice.” His analysis is supported by numerous
citations to cases and applicable statutes. Contrary to Quinn’s assertion, then,
there was analysis for the district court to adopt.
      The district court’s refusal to reconsider the state court’s decision is
subject to review for an abuse of discretion. Fletcher v. Apfel, 210 F.3d 510,
512 (5th Cir. 2000). The focus of such review is whether the district court acted
reasonably. Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). On
the other hand, the state court’s order dismissing the defendants amounts to a
dismissal for lack of subject-matter jurisdiction. We thus afford de novo review
to the merits of the state court’s dismissal. See Zephyr Aviation, L.L.C. v.
Dailey, 247 F.3d 565, 570 (5th Cir. 2001). For clarity, we analyze each decision.
      We discuss the district court’s procedural denial first. In federal court,
any “motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” FED. R. CIV. P. 59(e). Such motions serve “the
narrow purpose of allowing a party to correct manifest errors of law or fact or
to present newly discovered evidence.” Templet, 367 F.3d at 479 (alterations
omitted). These motions should not be used to raise arguments that were
presented or could have been presented in the past. Id. An untimely motion
under Rule 59(e) is a nullity; the district court may refuse to consider it
entirely. Washington v. Patlis, 868 F.2d 172, 174 (5th Cir. 1989); 11 CHARLES
ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE
AND PROCEDURE    § 2817 (3d ed. 2017).
      Here, Quinn engages in an elaborate calculation to demonstrate that his
motion before the district court was timely. By subtracting the amount of time
the case was stayed and the days the court spent considering other motions,
he contends that he had only 49 possible days in which to make his Rule 59(e)
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motion and that his motion was made on day 44 of 49. Despite the appeal to
equity, Quinn’s claims were brought far too late to warrant reconsideration.
Quinn missed the 28-day deadline by several years, rendering his motion a
nullity. Further, Quinn failed to raise new arguments, instead attempting to
rehash the same argument presented to and rejected by the state court in 2008.
The district court did not commit an abuse of discretion by denying Quinn’s
motion for reconsideration. See Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990). 1
        We now turn to the merits of the state court’s dismissal order. Under
the Texas Tort Claims Act (“TTCA”):
        (a) The filing of a suit under this chapter against a governmental
        unit constitutes an irrevocable election by the plaintiff and
        immediately and forever bars any suit or recovery by the plaintiff
        against any individual employee of the governmental unit
        regarding the same subject matter.
        ...
        (e) If a suit is filed under this chapter against both a governmental
        unit and any of its employees, the employees shall immediately be
        dismissed on the filing of a motion by the governmental unit.

TEX. CIV. PRAC. & REM. CODE § 101.106. The City moved to dismiss the officers
under Subsection (e), and the state court granted its motion. Quinn now
argues that the court erred because Section 101.106, properly applied, does not
bar intentional-tort claims against the officers.                      In his complaint, Quinn
alleged intentional-tort and negligence claims against the officers but only
negligence claims against the city — presumably recognizing that
governmental immunity applies “to claims arising out of intentional torts.”


        1  Even if the district court construed Quinn’s motion as Rule 60(b) motion for relief from
judgment, his eight-year delay in filing was not “within a reasonable time.” See FED. R. CIV. P. 60(c).
We have previously stated that a delay exceeding one year “cannot be countenanced.” Travelers Ins.
Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1411 (5th Cir. 1994). An eight-year delay is at least equally
indefensible.

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Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.—San Antonio
1999, no pet.). Thus, he argues, his intentional-tort claims could only be
brought against the officers. 2 He argues that the state court’s dismissal order
effectively strips him of the opportunity to recover on his intentional-tort
claims, thereby violating his constitutional right to open courts.
        The Texas Supreme Court addressed this issue in a suit in which former
employees sued a school district and its superintendent for wrongful discharge
and various common-law torts. 3 Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653, 654–55 (Tex. 2008). Although the court focused on Section
101.106(b), it discussed Subsection (e) also. Id. at 658–59. It held that the
superintendent would be entitled to dismissal of the intentional-tort claims
against him upon the district’s filing of a motion to that effect. Id. The court
recognized the election-of-remedies provision requires litigants to make a
difficult choice, but it concluded that the legislature intended to reduce the
costs associated with defending duplicative lawsuits. Id. at 657.
        We later applied Garcia to decide a similar case. Bustos v. Martini Club
Inc., 599 F.3d 458, 462–63 (5th Cir. 2010). There, the plaintiff sued the City of
San Antonio, several police officers, the city manager, and the chief of police
for injuries he sustained during a bar fight with the officers. Id. at 461. The



         2 It is unclear whether Quinn sued the officers in their individual or official capacities. When

a petition does not specify the capacity in which a defendant was sued, Texas courts look past the form
of the pleadings “to ascertain the true nature of [the] claims.” Pickell v. Brooks, 846 S.W.2d 421, 424
n.5 (Tex. App.—Austin 1992, writ denied). Quinn’s petition does not call the defendants “officers” or
otherwise designate them as government employees. Regardless, his claims arise from conduct
occurring during the course of their official responsibilities, so we assume these officers were sued in
their official capacities. See Zellers v. Cortez, No. 13-09-00596-CV, 2010 WL 1839280, at *3 (Tex.
App.—Corpus Christi 2010, no pet.) (unpublished); Nueces Cnty. v. Ferguson, 97 S.W.3d 205, 216 (Tex.
App.—Corpus Christi 2002, no pet.).

        3Quinn suggests that, if uncertainty remains about the state of the law, we should certify the
question to the Texas Supreme Court. As discussed above, the Texas Supreme Court has already
announced and reaffirmed its position on the issue, so no certification is necessary.

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district court dismissed the intentional-tort claims against the officers upon
the City’s motion. Id. at 462. This court analyzed Garcia and concluded that
“if a plaintiff brings virtually any state common law tort claim against both a
governmental unit and its employees, § 101.106(e) will allow the employee
defendants to be dismissed if the governmental unit so moves.” Id. at 463.
         Garcia and Bustos control here.       As was the case in Bustos, Quinn
asserted state-law claims against the City and the officers. “[A] suit asserting
common law claims against a Texas governmental unit . . . is considered to be
under the TTCA.” Bustos, 599 F.3d at 462. Consequently, Section 101.106(e)
applies, and the officers were entitled to dismissal upon the City’s motion.
That motion was filed. The state court did not err in dismissing the common-
law claims against the officers.


III.     Dismissal of Quinn’s Federal Claims Against the Officers
         We review “de novo a district court’s order on a 12(b)(6) motion to dismiss
for failure to state a claim.” Hunter v. Berkshire Hathaway, Inc., 829 F.3d 357,
361 (5th Cir. 2016). Quinn argues the district court erred in dismissing his
federal claims against the officers as time-barred. He first argues that the
officers remained parties to the case because the state court’s dismissal under
Section 101.106(e) was improper. He then argues that, even if dismissal was
proper, the officers “were still in the case” because the state court’s order was
interlocutory. Finally, he argues the doctrines of relation back and identity of
interest save his federal claims.
         We have already determined that the state court’s dismissal of the
officers under Section 101.106(e) was proper because of the election-of-
remedies rule. The court ordered the officers be “dismissed with prejudice,” so
the officers were no longer parties. Under Texas Civil Practice and Remedies
Code § 51.014(a)(8), a party may appeal an interlocutory order that “grants or
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denies a plea to the jurisdiction by a governmental unit[.]” Substantive claims
of immunity constitute pleas to the jurisdiction. City of Houston v. Estate of
Jones, 388 S.W.3d 663, 666 (Tex. 2012). Quinn thus had the right to appeal
the state court’s dismissal of the officers under Section 101.106(e). See Austin
State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011).
      Beyond the question of Quinn’s right to appeal the dismissal, a different
rule of law applies to bar Quinn’s Section 1983 claims. “Texas courts have held
that as a general rule, where a person is prevented from exercising his legal
remedy by the pendency of legal proceedings, the time during which he is thus
prevented should not be counted against him in determining whether
limitations have barred his right.” Jackson v. Jackson, 950 F.2d 263, 265 (5th
Cir. 1992). For example, the statute of limitations on a prisoner’s Section 1983
claims may be tolled if he is first required to exhaust state remedies. Id. at
265–66. It follows, then, that the statute of limitations is not tolled during the
pendency of one suit if that suit does not hinder the claimant’s ability to bring
another. See id.
      Another panel of this court previously addressed a situation like this in
an unpublished decision, whose reasoning we conclude is sound.           Gant v.
Garofano, 119 F. App’x 602, 602 (5th Cir. 2004). The district court dismissed
prisoner Gant’s Section 1983 claims as time-barred. Id. He had previously
filed unsuccessful lawsuits in state and federal court; he argued that the
statute of limitations was tolled by the pendency of his prior lawsuits. Id. We
disagreed, relying on Texas equitable-tolling principles. Id. at 603. Nothing
about the prisoner’s prior lawsuits forced him to delay filing his Section 1983
claims; he simply waited too long to do so. Id. Thus, even while his state
lawsuit was proceeding, Quinn could have asserted Section 1983 claims in a
new suit. The statute of limitations thus continued to run in this case, expiring
well before Quinn alleged a violation of federal law.
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        To save his federal claims against the officers, Quinn asks us to apply
the relation-back doctrine. The technical pleading errors Quinn asks us to
forgive are not the type of errors that relation back is designed to fix, such as
misnomer and misidentification. See Krupski v. Costa Crociere S.p.A., 560 U.S.
538, 550 (2010); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332
S.W.3d 395, 400–01 (Tex. 2011). Quinn correctly identified the defendants he
wished to sue. The pleading error was failing to allege a federal cause of action
until it was too late. In other words, relation back is designed to ameliorate
certain kinds of mistakes, but Quinn made a tactical choice to omit his federal
claims until March 2009. As a result, the relation-back doctrine does not apply.
        Finally, Quinn argues the concept of identity of interest saves his federal
claims. Quinn adequately describes what it means for parties to share an
identity of interest using this court’s decision in Jacobsen v. Osborne, 133 F.3d
315, 320 (5th Cir. 1998): An identity of interest exists when “the parties are so
closely related in their business operations or other activities that the
institution of an action against one serves to provide notice of the litigation to
the other.” The defendant officers here certainly share an identity of interest
with the City. See id. Quinn’s problem, though, is not that he failed to name
the proper defendant and now must rely on the officers’ kinship to the City to
salvage his claims. His problem is that he sued the correct defendants on the
wrong claim and failed to correct his error until the limitations period had
expired. The shared identity of interest between the officers and the City is of
no consequence. The district court properly dismissed Quinn’s federal claims
against the individual defendants.
.
IV.     Dismissal of Quinn’s Claims Against the City
        We review de novo the district court’s grant of the City’s motion to
dismiss under Rules 12(b)(1) and 12(b)(6). See Ramming v. United States, 281
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F.3d 158, 161 (5th Cir. 2001). We analyze this issue in two parts. First we
discuss Quinn’s state-law claims, and then we turn to a review of his federal
claims.
      The magistrate judge recommended dismissing Quinn’s state-law claims
against the City because the officers acted intentionally, exonerating the City
from vicarious liability under the TTCA.         TEX. CIV. PRAC. & REM. CODE
§ 101.057. Quinn argues dismissal was improper because his complaint alleges
both intentional and negligent conduct.
      “[T]he TTCA does not apply to claims arising out of an intentional tort.”
Goodman v. Harris Cnty., 571 F.3d 388, 394 (5th Cir. 2009). If plaintiffs
classify intentional-tort claims as negligence claims, governmental immunity
still applies. Texas Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).
Quinn argues that his complaint raises a fact issue as to whether the officers
acted intentionally or negligently during the search of his home. That does not
matter, as “a negligence claim under the TTCA cannot arise out of the
intentional acts . . . of a law enforcement officer against a person[.]” City of
Waco v. Williams, 209 S.W.3d 216, 221–22 (Tex. App.—Waco 2006, pet. denied)
(collecting cases). “Claims of excessive force in the context of a lawful arrest
arise out of a battery rather than negligence, whether the excessive force was
intended or not.” City of Watauga v. Gordon, 434 S.W.3d 586, 593 (Tex. 2014).
      We dealt with the same issues in a case in which police brought a man
to a hospital for treatment after he began behaving erratically in public. Saenz
v. City of El Paso, 637 F. App’x 828, 829 (5th Cir. 2016). We agree with that
panel’s analysis. While in custody, the man was shot and killed by an El Paso
police officer. Id. The victim’s mother sued the City for negligence under the
TTCA, among other things.        Id. at 829–30.     We examined whether the
plaintiff’s claims arose from intentional conduct. Id. at 830. The gravamen of
the claim was excessive force in the shooting, which “sounds in intentional
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                                         No. 16-41344
tort.” Id. The plaintiff could not avoid dismissal of her claims by arguing
negligence. Id. at 831. The determinative question is whether the negligence
claim arises from the same facts that form the basis of the intentional-tort
claim. Id.; see also Goodman, 571 F.3d at 394. If so, governmental immunity
is not waived. Saenz, 637 F. App’x at 831.
       The magistrate judge recognized “that the alleged facts supporting
[Quinn’s] negligence claims in this case are intentional torts[.]”                          Quinn
described the incident in terms of intentional conduct, characterizing the
search as an “intentional, tortious act[] of terrorism conducted in bad faith,
intentionally, and with malice.” He now asserts that it is unclear whether
Guerrero acted intentionally or negligently to cause his injuries. Either way,
it is clear that Quinn failed to allege conduct that would suggest negligence.
Instead, he attempted to plead negligence alternatively, which is not proper.
See Saenz, 637 F. App’x at 831. His negligence claims arise from the same
conduct as his intentional-tort claims, so governmental immunity applies and
the state-law claims were properly dismissed. See Petta, 44 S.W.3d at 580.
       As for Quinn’s federal claims, the magistrate judge reviewed Quinn’s
allegations and determined that Quinn failed to state a claim against the City
under Section 1983. Quinn now argues that his complaint alleges a Section
1983 violation by asserting that the officers performed a no-knock entry
without a no-knock warrant. 4 He further argues the district court should have
permitted a period of discovery before granting the City’s Rule 12 dismissal.
       Municipal liability under Section 1983 requires evidence of some policy
or custom that causes a constitutional violation. Monell v. Dep’t of Soc. Servs.,



       4  The failure to knock and announce before executing a search warrant is not a constitutional
violation per se; instead, observation of the knock-and-announce requirement is a factor to consider
when determining the reasonableness of a search under the Fourth Amendment. Richards v.
Wisconsin, 520 U.S. 385, 394–95 (1997).
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                                  No. 16-41344
436 U.S. 658, 690–91 (1978). Specifically, “[a] plaintiff must identify: (1) an
official policy (or custom), of which (2) a policymaker can be charged with
actual or constructive knowledge, and (3) a constitutional violation whose
moving force is that policy or custom.” Valle v. City of Houston, 613 F.3d 536,
541–42 (5th Cir. 2010). A policy may be identified “through evidence of an
actual policy, regulation, or decision,” id. at 542, or through an informal custom
that represents municipal policy, Sanders-Burns v. City of Plano, 594 F.3d 366,
380 (5th Cir. 2010). A policy may also be shown through a single incident but
only if the person making the decision had final policy-making power. Valle,
613 F.3d at 542.
      To establish the City’s failure to train, Quinn must show “(1) inadequate
training procedures; (2) that inadequate training caused the task force officers
to [use excessive force]; and (3) the deliberate indifference of municipal
policymakers.” See Pineda v. City of Houston, 291 F.3d 325, 332 (5th Cir.
2002). “The inadequacy of [the] training must be closely related to the injury.”
Id. Defects in a particular training program must be specifically alleged.
Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).
      Quinn never alleges either an official policy or a widespread custom that
caused a violation of his constitutional rights. In fact, Quinn admitted before
the district court that the City’s official policies were “just fine.”        His
allegations thus amount to assertions that the officers violated the City’s
proper procedures on the execution of search warrants, the use of force, and
the use of the tactical team. Mere assertions are insufficient, though; Quinn
did not identify specific deficiencies in the City’s training procedures. See id.
He suggests the search of his home could have been intended to exact
retribution for his earlier filing of a lawsuit against the police department. If
true, that does not show a custom by the City of constitutional abuse.


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                                  No. 16-41344
      Quinn argues the police engage in a code of silence, under which officers
are tacitly encouraged to use excessive force by the department’s failure to
discipline its members for incidents like these. In support, he argues the
officers involved in the search of his home have yet to be disciplined for their
alleged misconduct. A theory of ratification is limited to “extreme factual
situations.” Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009).
“[I]t is nearly impossible to impute lax disciplinary policy to the City without
showing a pattern of abuses that transcends the error made in a single case.”
Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001). Here, Quinn
failed to allege a “pattern of complaints by other citizens.” See id. The City’s
failure to discipline the officers does not establish an unconstitutional policy or
custom.
      Quinn further argues that City officials know of a privately hosted
website that glorifies the SWAT Team with “an obscene ballad with lyrics
about murder and drugs.” As the district court noted, though, Quinn failed to
show that any City officials had either actual or constructive knowledge of the
website or its host. Finally, Quinn takes issue with the City’s use of a “threat
matrix” to determine when SWAT personnel should be employed in a given
situation. He argues the City should be liable if the officers failed to implement
the matrix correctly. Regardless, Quinn wholly failed to link the City’s use of
the matrix to the alleged constitutional violation. His allegations are thus
insufficient to establish Monell liability, and the district court correctly
dismissed his federal claims against the City.
      Quinn requests a period of discovery, after which he intends to replead
to cure any defects in his complaint. Discovery would be futile, though, because
Quinn has amended his initial petition four times and has yet to state a claim.
In any event, discovery is not permitted if the live complaint fails to allege facts
sufficient to suggest that discovery would reveal evidence in support of a viable
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                                  No. 16-41344
claim. See Lormand v. US Unwired, Inc., 565 F.3d 228, 258 (5th Cir. 2009).
Here, Quinn failed to allege negligent conduct or that the City has adopted a
policy fostering unconstitutional behavior. His requested period of discovery
is impermissible.


V.      Denial of Quinn’s Claim for Punitive Damages
        We affirm the district court’s decision dismissing all claims against the
individual officers and the City. Thus, we have no reason to discuss the issue
of punitive damages.


VI.     Motion Carried with the Case
        Finally, Defendants Roberts, Howell, Eaves, Caudell, Garcia, and Sun
moved to dismiss the appeal against them because Quinn’s live complaint
failed to name them as defendants. Because we affirm the decision to dismiss
the individual defendants, this motion is DENIED AS MOOT.
        AFFIRMED.




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