                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         September 5, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 FRONALEE SOTO, as administrator for
 the estate of Antonio Jimenez,

       Plaintiff - Appellant,

 v.                                                         No. 17-6227
                                                     (D.C. No. 5:16-CV-00416-F)
 BOARD OF COUNTY                                            (W.D. Okla.)
 COMMISSIONERS OF CADDO
 COUNTY, OKLA.; LENNIS MILLER,
 Sheriff of Caddo County, Okla., in his
 official capacity; CADDO COUNTY
 BUILDING AUTHORITY,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.
                  _________________________________

      Fronalee Soto, as administrator of the estate of Antonio Jimenez, appeals the

dismissal of her 42 U.S.C. § 1983 complaint against the Board of County

Commissioners of Caddo County, Oklahoma; Caddo County Sheriff Lennis Miller in



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
his official capacity; and the Caddo County Building Authority. Ms. Soto alleged her

son, Mr. Jimenez, died in the custody of the Caddo County jail as a result of the

Defendants’ municipal policies. The district court ruled Ms. Soto failed to provide

enough factual content to state a plausible claim against any of the Defendants and

thus dismissed her complaint under Fed. R. Civ. P. 12(b)(6). We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      I. Background.

      Mr. Jimenez was placed in custody for delinquent child support in the Caddo

County Jail on April 21, 2014. He died there 59 hours later. Ms. Soto alleges these

facts:1 Mr. Jimenez was intoxicated when he was placed in custody; he was

pepper-sprayed and tased; he was restrained in a chair for four hours and left alone in

a padded cell for twelve hours; he received no medical care; and as a result of the

foregoing, he vomited and died.

      Ms. Soto asserted four § 1983 claims against the Defendants, all based on

municipal liability: (1) excessive force; (2) inadequate training and supervision

amounting to deliberate indifference; (3) failure to render adequate medical care; and

(4) unconstitutional policies, practices and procedures to withhold medical care.

      In her excessive-force claim, Ms. Soto alleged in the most general terms that

unidentified jail officers used excessive force against Mr. Jimenez. She asserted the


      1
         Ms. Soto twice amended her complaint; the operative complaint under review
is her second amended complaint. She amended her first complaint before the court
ruled on Defendants’ motion to dismiss, and the district court granted Defendants’
motion to dismiss her amended complaint, with leave to amend.
                                           2
Defendants were liable for the officers’ actions, but did not allege any facts other

than her assertion that the officers were employed by Defendants. She referenced,

without any explanation, Caddo County’s Use of Force Policy.

       The district court dismissed the excessive force claim because § 1983 does not

permit municipal liability under a theory of respondeat superior or vicarious liability,

and Ms. Soto failed to allege any facts to suggest the Use of Force policy was the

moving force behind any actions taken with respect to Mr. Jimenez. See Mocek v.

City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (“A municipality is not

liable solely because its employees caused injury,” but rather, because the

municipality, “[t]hrough its [own] deliberate conduct, . . . [was] the ‘moving force’

behind the injury.” (emphasis and internal quotation marks omitted)).

       In her inadequate-training-and-supervision claim, Ms. Soto attached the Caddo

County Jail’s Operations Manual and alleged Defendants failed to comply with

unspecified provisions of this Manual. She alleged that unnamed jail officials

unnecessarily pepper sprayed and tased Mr. Jimenez and that he died as a result of

unspecified policies and procedures at the jail. And she alleged Defendants allowed

the jail to operate with little or no regard for the safety and well-being of the inmates.

The district court dismissed this claim because Ms. Soto’s allegations were

conclusory and insufficient to establish liability, as she failed to allege any facts

showing the Defendants failed to train or supervise jail officials adequately or failed

to provide for the health and safety of inmates.



                                            3
      In her lack-of-medical-care claim, Ms. Soto alleged unspecified officers knew

that Mr. Jimenez was intoxicated when he was booked into the Caddo County jail;

knew this could make him dehydrated or susceptible to complications, including a

reaction to pepper spray and tasing; that these unspecified jail officers did nothing to

respond to an unspecified medical condition confronting them, or their unspecified

actions were a departure from an adequate medical response; and that a jail policy

requiring the County Sheriff be notified before transferring an inmate to the hospital

placed Mr. Jimenez’s life in jeopardy. The district court dismissed this claim

because Ms. Soto failed to identify any facts showing that any municipal policy was

the moving force behind any alleged lack of medical care.

      Finally, in her unconstitutional-policies claim, Ms. Soto alleged Defendants

had a constitutional obligation to develop policies and procedures to provide

adequate medical treatment for inmates. She attached several jail policies, and

alleged generally that the Defendants failed to implement or enforce these policies.

The district court dismissed this claim because Ms. Soto failed to set forth any facts

showing how the Defendants failed to implement or enforce these policies or that any

of the attached policies was the moving force behind any alleged constitutional

violation.

      Thus, the district court ruled that Ms. Soto’s second amended complaint failed

to set forth sufficient facts to state a plausible § 1983 claim against any of the




                                            4
Defendants and dismissed her complaint with prejudice. Ms. Soto filed a motion for

reconsideration or new trial, which the court denied. Ms. Soto timely appeals.2

       II. Standard of Review.

       Federal pleading rules call for “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint

need not set forth “detailed factual allegations, but it demands more than an

unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of action

will not do.” Id. (internal quotation marks omitted).

       Rule 12(b)(6) authorizes a court to dismiss a complaint for failure to state a

claim. “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678 (internal quotation marks omitted). A claim is plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. “The [factual]

allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just

speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247


       2
        Ms. Soto also filed a motion for reconsideration or new trial, which the court
denied. Ms. Soto’s notice of appeal challenged that denial, but she does not assert
any challenge to the denial in her opening brief. Thus, Ms. Soto has waived appellate
review of the denial of her post-judgment motion. See SCO Grp., Inc. v. Novell, Inc.,
578 F.3d 1201, 1226 (10th Cir. 2009) (“An issue or argument insufficiently raised in
a party’s opening brief is deemed waived.”).
                                             5
(10th Cir. 2008). Allegations that are “so general that they encompass a wide swath

of conduct, much of it innocent,” will not be sufficient. Khalik v. United Air Lines,

671 F.3d 1188, 1191 (10th Cir. 2012).

       “The legal sufficiency of a complaint is a question of law, and a Rule 12(b)(6)

dismissal is reviewed de novo.” Smith v. United States, 561 F.3d 1090, 1098

(10th Cir. 2009). To make this assessment, we first discard allegations in the

complaint that are “legal conclusions” or “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

We accept as true the remaining, well-pleaded (that is, plausible, non-conclusory, and

non-speculative) factual allegations and construe them in the light most favorable to

the plaintiff. Id. at 679.

       III. Discussion.

       “A municipality or other local government may be liable under [§ 1983] if the

governmental body itself subjects a person to a deprivation of rights or causes a

person to be subjected to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60

(2011) (internal quotation marks omitted). “But, under § 1983, local governments

are responsible only for their own illegal acts.” Id. (internal quotation marks

omitted). “They are not vicariously liable under § 1983 for their employees’

actions.” Id.; see also Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996) (“A

municipality may not be held liable under [ ] § 1983 simply because it employs a

person who violated a plaintiff’s federally protected rights.”).



                                            6
       There are three requirements for municipal liability under 42 U.S.C. § 1983:

(1) the existence of an official policy or custom; (2) a direct causal link between the

policy or custom and the constitutional injury; and (3) that the defendant established

the policy with deliberate indifference to an almost inevitable constitutional injury.

Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769-70 (10th Cir.

2013). “It is only when the execution of the government’s policy or custom . . .

inflicts the injury that the municipality may be held liable under § 1983.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989) (internal quotation marks omitted). A

“single incident of unconstitutional activity is ordinarily not sufficient to impose

municipal liability.” Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009).

      On appeal, Ms. Soto first argues the district court applied the incorrect

standard in ruling on the Rule 12(b)(6) motion to dismiss. She claims it applied a

summary-judgment standard under Fed. R. Civ. P. 56, not the plausibility standard

used under Rule 12(b)(6). Her support for this argument is a list of cases cited in the

district court’s order that had been decided at the summary-judgment stage. But in

every example cited by Ms. Soto, the district court cited the case in question for the

relevant § 1983 standards for legal liability, not for the procedural review standards

used to determine if a § 1983 complaint is subject to dismissal. E.g., Aplt. App.

at 191 (citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010), for its

holding that “a municipal policy may take the form of the failure adequately to train

or supervise employees”); id. (citing Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397,

411 (1997), for its holding that a § 1983 plaintiff must allege facts showing that a

                                            7
municipal action reflects deliberate indifference to the constitutional risk). We find

no basis whatsoever to conclude the district court misapplied the Rule 12(b)(6)

standard.

       Next, Ms. Soto argues that her complaint provided all the information

available to her, and that she can only provide additional facts if she is allowed to

proceed past the pleading stage and conduct discovery. But the courts will not

“unlock the doors of discovery for a plaintiff armed with nothing more than” legal

conclusions, conclusory allegations, and speculation. Iqbal, 556 U.S. at 678-79.

       Ms. Soto argues she should not be required to identify the particular policy the

Defendants violated. She cites cases from outside this circuit decided before Iqbal,

mostly unpublished district court cases, which held the plaintiffs in those cases did

not need to identify the precise municipal policy at the pleading stage. And she

asserts, without authority, that there is no case law that supports the district court’s

ruling that she must allege facts showing the policies she attached were the moving

force behind the constitutional deprivation.

       Ms. Soto’s arguments ignore well-established Tenth Circuit precedent holding

a § 1983 municipal liability claim must include factual allegations that a particular

municipal custom or policy was the moving force behind the constitutional injury in

order to withstand a Rule 12(b)(6) dismissal. See, e.g., Pyle v. Woods, 874 F.3d

1257, 1266 (10th Cir. 2017) (affirming Rule 12(b)(6) dismissal of municipal-liability

claim where the plaintiff only provided a formulaic recitation of the elements of the

claim, and failed to provide sufficient factual allegations of a link between the injury

                                            8
and the municipal policy or custom); see Mocek, 813 F.3d at 934 (affirming Rule

12(b)(6) dismissal of complaint that asserted a municipal policy was the moving

force behind the injury, but cited “no particular facts in support of these threadbare

recitals of the elements of a cause of action” (internal quotation marks omitted));

Moss, 559 F.3d at 1169 (affirming Rule 12(b)(6) dismissal because plaintiffs failed to

allege any conduct by the sheriff or county apart from their employees’ actions);

Beedle v. Wilson, 422 F.3d 1059, 1074 (10th Cir. 2005) (affirming Rule 12(b)(6)

dismissal where plaintiff failed to identify a municipal policy or custom that caused

the plaintiff’s injury).

       Here, Ms. Soto did not allege sufficient facts that show any link between the

municipal policies she attached to her complaint and the alleged deprivation of

Mr. Jimenez’s constitutional rights. As in the cases above, aside from speculation

and conclusory statements, there are no allegations in Ms. Soto’s complaint that give

rise to an inference that the Defendants themselves established a deliberate policy or

custom that was the moving force behind Mr. Jimenez’s death. All of her allegations

are the sort of “naked assertions devoid of further factual enhancement” that Iqbal

instructs courts to disregard. 556 U.S. at 678 (brackets and internal quotation marks

omitted).

       We affirm.


                                            Entered for the Court

                                            Joel M. Carson
                                            Circuit Judge

                                           9
