     Case: 18-11624      Document: 00515394735         Page: 1    Date Filed: 04/24/2020




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

                                                                              FILED
                                                                           April 24, 2020
                                      No. 18-11624
                                                                           Lyle W. Cayce
                                                                                Clerk
ERIC C. DARDEN, as Administrator of the Estate of Jermaine Darden and
on behalf of the statutory beneficiaries of the Estate of Jermaine Darden
(which are Donneika Goodacre-Darden, surviving mother of Jermaine
Darden, Charles H. Darden, surviving father of Jermaine Darden,

               Plaintiff - Appellant

v.

CITY OF FORT WORTH, TEXAS,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CV-221


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       This case arises from the death of Jermaine Darden, who suffered a heart
attack and died while being arrested by police officers employed by the City of
Fort Worth. Mr. Darden’s estate sued, alleging that the officers used excessive
force and that the City was liable for failing to adequately train the officers.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 18-11624
With respect to the failure-to-train claim, the district court granted summary
judgment in the City’s favor. We affirm.
                             I. BACKGROUND
      On May 16, 2013, a large team of heavily armed police officers executed
a no-knock warrant on a private residence in Fort Worth, Texas. Darden v. City
of Fort Worth, Tex., 880 F.3d 722, 725 (5th Cir. 2018). Officer W. F. Snow was
assigned to the entry team, which was tasked with breaking down the front
door, entering the residence, and securing the premises. Id. Officer Javier
Romero drove the van that transported the team to the residence, but was also
assigned to stand guard near the front door while other officers entered the
residence and arrested the people inside. Id. Two other members of the team
wore cameras on their helmets, which captured on video some, but not all, of
the events that transpired as the warrant was executed. Id.
      When the police first arrived at the house, the entry team broke down
the front door with a battering ram, yelled that they were police, and ordered
everyone to get down. Id. A man, later identified as Jermaine Darden (“Mr.
Darden”), was kneeling on the seat of a couch near the door when the officers
entered, and he immediately raised his hands in the air. Id. Mr. Darden
weighed approximately 340 pounds. Id. As Officer Snow entered the residence,
he reached out and ripped the shirt off Mr. Darden’s back, apparently in an
attempt to get Mr. Darden from the couch to the ground. Id. The videos do not
show what happened during the twenty-five seconds that followed, and there
is conflicting testimony about what transpired. Id. at 725–26. Officer Snow
twice used a Taser on Mr. Darden, who at one point appeared to push himself
up on his hands. Id. at 726. Other people in the house repeatedly yelled, “He’s
got asthma,” and, “He can’t breathe.” Eyewitnesses also testified that Mr.
Darden told the officers he could not breathe and that he pushed himself up on


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                                  No. 18-11624
his hands because he was trying to get into a position where he could breathe.
Id.; id. at 726 n.3.
      As Officer Romero finished placing handcuffs on Mr. Darden, Mr.
Darden’s body went limp. Id. at 726. The officers then pulled Mr. Darden’s
debilitated body up into a sitting position and left him there. Id. Mr. Darden
appeared to be unconscious, and his head hung down on his chest. Id. It was
subsequently determined that Mr. Darden had suffered a heart attack and
died. Id.
      The administrator of Mr. Darden’s estate (“Plaintiff-Appellant”) brought
suit under Title 42 U.S.C. § 1983, claiming (1) that Officers Snow and Romero
used excessive force in arresting Mr. Darden; (2) that the City of Fort Worth
(“the City”) was liable for failing to adequately train the officers; and (3) that
various defendants were liable for state-law torts. Id. at 727. All of the
defendants filed motions for summary judgment, and the district court granted
those motions and dismissed the case. Darden, 880 F.3d at 727. The district
court determined that the officers had not violated clearly established law and
were thus entitled to qualified immunity. Id. Because it held that the officers
had not violated Mr. Darden’s constitutional rights, the district court also
granted summary judgment in favor of the City on the municipal liability
claims. Id.
      The administrator of Mr. Darden’s estate appealed to this court, which
reversed the district court’s dismissal of the claims against Officers Snow and
Romero. Id. at 734. The panel also vacated the dismissal of the claims against
the City, remanding the case for further proceedings. Id. On remand, the




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                                       No. 18-11624
district court again granted summary judgment in favor of the City on the
estate’s municipal liability claims. 1 This appeal followed.
                            II. STANDARD OF REVIEW
       “We review a summary judgment de novo, ‘using the same standard as
that employed by the district court under Rule 56.’” Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,
435 (5th Cir. 2000)). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                   III. DISCUSSION
       Only one question is before this court: did the district court err in
granting the City summary judgment on Plaintiff-Appellant’s municipal
liability claim? We conclude that it did not.
       A municipality may be liable under Title 42 U.S.C. § 1983 (“Section
1983”) if the municipality 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) (quoting Monnell v. New York City Dep’t Soc. Servs., 436
U.S. 658, 692 (1978)). But local governments are only responsible for “their
own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (citing
Monell, 436 U.S. at 665–83). “In limited circumstances, a local government’s
decision not to train certain employees about their legal duty to avoid violating
citizens’ rights may rise to the level of an official government policy” for
purposes of Section 1983. Connick, 563 U.S. at 61. However, “[a] municipality’s



       1  The district court also found that the City was entitled to summary judgment on
Plaintiff-Appellant’s state law claims. Plaintiff-Appellant did not address those claims in his
appellate briefing. They are therefore forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994) (“An appellant abandons all issues not raised and argued in its initial brief on
appeal.”); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (per curiam) (“Claims not
pressed on appeal are deemed abandoned.”)
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                                  No. 18-11624
culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.” Id. (citing Okla. City v. Tuttle, 471 U.S. 808, 822–23
(1985)). When such a claim is made, “the focus must be on adequacy of the
training program in relation to the tasks the particular officers must perform.”
Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (quoting City of Canton,
Ohio v. Harris, 489 U.S. 378, 390 (1989)).
      Here, Plaintiff-Appellant alleges that the City provided inadequate
training regarding the proper use of no-knock warrants, Tasers, and excessive
and deadly force. In order to succeed at this stage, the City must show that
there is no genuine dispute as to a material fact regarding (1) whether there
was an inadequacy in the City’s training policy; (2) whether the City was
deliberately indifferent in its adoption of that policy; or (3) whether the
inadequate training policy directly caused the constitutional violation
allegedly suffered by Mr. Darden. See, e.g., Sanders-Burns v. City of Plano, 594
F.3d 366, 381 (5th Cir. 2010); Zarnow v. City of Wichita Falls, 614 F.3d 161,
170 (5th Cir. 2010).
      Plaintiff-Appellant does not argue a pattern of similar constitutional
violations. Instead, it relies on the single-incident exception to that rule. As
such, the City must show that there is no genuine dispute as to whether the
constitutional violation allegedly suffered by Mr. Darden was the “highly
predictable” consequence of the City’s failure to train the officers in its Zero-
Tolerance Unit. See Valle v. City of Houston, 613 F.3d 536, 549 (5th Cir. 2010).
It has met that burden.
      The City proffered, and the district court relied on, several “General
Orders” governing police practices that were in place on the day of Mr.
Darden’s death. Those orders largely restate applicable law regarding the use
of force. While the existence of such policies is not dispositive, “[w]e consider


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                                        No. 18-11624
compliance with state requirements as a factor counseling against a ‘failure to
train’ finding.” Zarnow, 614 F.3d at 171.
       Plaintiff-Appellant seeks to evade the import of the City’s existing
policies by emphasizing that its allegations are specific to the City’s Zero-
Tolerance Unit, which specializes in serving search warrants and conducting
searches of residences, including “dynamic entries” and no-knock warrants.
Plaintiff-Appellant offered evidence, in the form of an affidavit by Dallas
Independent School District Police Chief Craig Miller, 2 that “[n]othing can
potentially be more dangerous than making a Dynamic Entry into a location”
about which officers have “very little information.” The City, Plaintiff-
Appellant emphasizes, offered no evidence that members of the Unit receive
training on the use of excessive force and Tasers in the context of dynamic
entries.
       However, “a plaintiff must allege with specificity how a particular
training program is defective.” Roberts v. City of Shreveport, 397 F.3d 287, 293
(5th Cir. 2005). Plaintiff-Appellant’s general position is that the City failed to
provide any training specific to the use of excessive force and Tasers in the
context of no-knock entries. But it has not identified—in its briefing, at oral
argument, or in post-argument supplemental briefing—how such training
would differ from the existing training on using excessive force and Tasers. 3
Even Chief Miller, in his affidavit, neglected to address this issue. Indeed, he
offered the conclusory statement that “a lack of adequate training [was] a



       2   Prior to being employed by the Dallas Independent School District, Mr. Miller served
as the Deputy Chief of the Crimes Against Persons Division of the Dallas Police Department.
Mr. Miller also served as the Homicide Unit Commander.
         3 Plaintiff-Appellant emphasizes that the City “was supposed to provide the members

of this unit with a ‘briefing sheet’ in order to ‘make sure that all of the pertinent information
is communicated to everybody that’s involved,’” but that no such information was provided.
This argument is unhelpful to Plaintiff-Appellant, as it suggests that the City did have an
official policy of providing briefing sheets before no-knock entries.
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                                       No. 18-11624
significant part of the reason [the officers] utilized more force than the
situation required” and opined that (1) “there were alternatives to conducting
a dynamic entry search warrant,” (2) the Zero Tolerance Unit “made entry into
a location without proper intelligence and ultimately caused the death of
Jermaine Darden,” and (3) “nothing can potentially be more dangerous than
making a dynamic entry into a location where, according to the briefing sheet,
they had very little information.”
       Given this gap in Plaintiff-Appellant’s allegations and summary
judgment evidence, we conclude that the City is entitled to summary judgment.
It has shown that—in this case, given the evidence now before the court—there
is no genuine dispute as to a material fact regarding whether there was an
inadequacy in the City’s training policy. 4
                                   IV. CONCLUSION
       The district court order granting summary judgment in favor of the
City on Plaintiff-Appellant’s municipal liability claims is AFFIRMED.




       4 The parties dispute whether Plaintiff-Appellant’s failure-to-train claim includes not
just a failure-to-train on the use of excessive force and Tasers, but also a failure-to train-on
rendering medical aid. That claim was largely ignored by the district court, and it is unclear
whether or not it was adequately pled. (The operative complaint alleges only that the City
“failed to implement and/or enforce policies, practices, and procedures for the Fort Worth
Police Department that respected Jermaine Darden’s constitutional rights to assistance,
protection, and equal treatment under the law”; that the City is responsible for “assuring
safety for all citizens of the City of Fort Worth”; that Mr. Darden told Officers Snow and
Romero that he could not breathe but that his pleas were ignored; that Mr. Darden “was not
provided with medical attention and sat unresponsive for at least 15 minutes before Medstar
arrived”; and that the City “failed to implement and/or enforce the policies, procedures, and
practices necessary to provide constitutionally adequate protection and assistance to [Mr.]
Darden during his struggle to survive and implemented policies, procedures and practices
which actually interfered with or prevented [Mr.] Darden from receiving the protection,
assistance, and care he deserved.”) But resolving that question is unnecessary. At no point
did Plaintiff-Appellant offer any evidence regarding how the City’s training on rendering
medical aid is defective. That claim, like the others, therefore fails.


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