     Case: 18-20723      Document: 00515418348         Page: 1    Date Filed: 05/15/2020




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

                                                                                FILED
                                      No. 18-20723                          May 15, 2020
                                                                           Lyle W. Cayce
LAURA COVINGTON,                                                                Clerk


              Plaintiff - Appellant

v.

CITY OF MADISONVILLE, TEXAS; MADISONVILLE POLICE
DEPARTMENT,

              Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3300


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Laura Covington appeals the district court’s Rule
12(b)(6) dismissal of her claims asserted under 42 U.S.C. § 1983 against
Defendant-Appellee City of Madisonville, Texas (“City”). Finding reversible
error only with respect to the district court’s dismissal of Plaintiff-Appellant’s
“single incident” failure to supervise claim and ratification claim, we
REVERSE IN PART, AFFIRM IN PART, and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20723
                                  BACKGROUND
I. Procedural Background
         In November 2013, Plaintiff-Appellant, Laura Covington (“Laura”) filed
suit against individual defendants and the City of Madisonville, Texas (“the
City”), seeking to recover damages, under 42 U.S.C. § 1983, arising from her
unlawful arrest on November 9, 2011, and consequent temporary loss of child
custody. Laura was arrested and charged with a drug offense as a result of her
ex-husband, Jeffrey Covington (“Jeffrey”), an officer with the Madisonville
Police     Department     (“MPD”),    having   had    methamphetamine        planted
underneath her vehicle. The charges against Laura eventually were dismissed
in January 2013, and she regained custody of the children. In February 2013,
following a lengthy investigation, Jeffrey and former MPD officer Justin
Barham were arrested. Jeffrey was indicted on February 25, 2013. In April
2014, a jury found Jeffrey guilty of retaliation for which he received a probated
sentence of 5 years confinement in the state prison, was required to surrender
his peace officer license, and served 30 days confinement in county jail.
         In the instant civil matter, Laura prevailed at trial on her claims against
Jeffrey and other individual defendants and was awarded monetary damages.
Prior to trial, however, the district court granted two Rule 12(b)(6) motions to
dismiss filed by the City. The first motion was granted with Laura being
allowed to amend her complaint. The district court granted the second motion
with prejudice, however, reasoning that Laura had already had an opportunity
to amend, and that any additional amendment would be futile. Thereafter,
Laura filed a motion for reconsideration, contending the district court had not
“specifically addressed” certain “critical allegations” in the second amended
complaint “establishing municipal liability.” The district court denied the
motion, stating that it had thoroughly considered the parties’ arguments and


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                                       No. 18-20723
relevant caselaw, and Laura’s motion did not identify any manifest error or
law or fact. 1 This appeal followed.
II. Factual Background
       According to the second amended complaint, Laura and Jeffrey married
in 2003, divorced in 2004, married a second time in 2007, and divorced again
in 2010. Prior to their first marriage, Jeffrey was an officer of the MPD, which
employs a force of 6–8 persons for the City’s population of approximately 4,500.
Between 2006 and 2009, however, Jeffrey was employed by DynCorp
International, a private corporation headquartered in Dubai, which served as
a private security contractor to the United States Army’s forces in Iraq. Jeffrey
worked as a police advisor in Iraq. In 2009, however, finding Jeffrey had
violated United States Policies and Codes of Conduct (by attempting to
improperly purchase Viagra from an Iraqi vendor), DynCorp terminated his
employment.
       Upon Jeffrey’s return to Madisonville, Chief of Police Clendennen re-
hired him and, in May 2010, promoted him to K-9 officer. In July 2010, Jeffrey
became a Patrol Sergeant. In that role, he supervised all Patrol Officers and
was in charge of the MPD’s confidential informants.
       Laura and Jeffrey’s relationship can fairly be described as troubled and
acrimonious. The parties’ briefs and the second amended complaint describe
a 2009 incident involving Laura raising a baseball bat “as if to hit him but not
hit him,” when, according to Laura, Jeffrey “‘snapped,’ grabbed [her] throat,
threw her on the couch, [and] put his knee in [her] chest while choking her.”



       1   Rather, the district court explained: “Plaintiff simply rehashes her previous
arguments and takes issue with the Court’s alleged failure to specifically address all of her
‘critical allegations establishing municipal liability.’” The district court added: “The Court
need not specially respond to every one of Plaintiff’s allegations in order to conclude that she
failed to meet the pleading standard for municipal liability.” “Accordingly, the Court stands
by its previous Opinion and Order.”
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The Madisonville police were called and responded. Apparently because the
incident involved an MPD officer, Texas Ranger Stephen Jeter was asked to
investigate the matter. Prosecution was later declined by the district attorney.
Thereafter, Chief Clendennen required another officer to be present whenever
Laura and Jeffrey were together. Later, in 2010, Child Protective Services and
Texas Ranger Jeter investigated Jeffrey for allegedly improperly disciplining
one of the children. The case was presented to a grand jury, but no charges
were brought.
      The methamphetamine found underneath Laura’s vehicle on November
9, 2011, was discovered when a Texas state trooper, Carl Clary, stopped her
for speeding and conducted a consensual search of her vehicle. Although
Trooper Clary did not initially intend to search vehicle, he did so when Jeffrey,
upon hearing Laura’s name over the police radio, called Trooper Clary’s cell
phone. Jeffrey told Trooper Clary that Laura had tried to run over Jeffrey’s
current wife that morning and had drugs hidden in a magnetic key holder
hidden under her vehicle. When Trooper Clary found the methamphetamine,
Laura denied that that it belonged to her, and accused Jeffrey of planting the
drugs, stating that she knew “something like this was going to happen.”
Concluding that Laura likely was correct, Trooper Clary reported the incident
to the district attorney and Texas Ranger Andres De La Garza for
investigation. Ultimately, the charges against Laura were dropped, the
children were returned to Laura’s custody, and Jeffrey was indicted, tried, and
convicted.
      Laura alleges that, after she and Jeffrey divorced in 2010 and he re-
married, he sought to have her arrested in an effort to gain custody of their




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                                       No. 18-20723
young children. 2 According to the second amended complaint, Jeffrey
frequently complained about his ongoing custody battles with Laura to other
MPD officers and urged them to try to “find any reason to stop her and arrest
her” in order to help his custody case. Eventually, Jeffrey sought to recruit one
of the police department’s CI’s (“confidential informants”) to plant illegal drugs
in/on her vehicle. Laura alleges that drugs actually were planted twice—in
March 2011 and November 2011—but the novice officer searching her vehicle
the first time, in August 2011, failed to find them. To avoid such failure the
second time, Jeffrey allegedly told Trooper Clary—two months before the
November 2011 traffic stop—exactly how and where the drugs were hidden
underneath Laura’s vehicle. After drugs were found in her vehicle on
November 9, 2011, Jeffrey filed an emergency ex parte petition seeking custody
of the children. Ultimately, the children were returned to Laura’s custody and,
on November 8, 2012, Jeffrey voluntarily relinquished his parental rights to
the children.
                                       ANALYSIS
       Considering the City’s second motion to dismiss, filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, the district court determined
that Jeffrey’s fabrication of evidence against Laura caused her to be arrested,
falsely charged with a drug offense, and temporarily deprived of custody of her
children. The district court likewise was satisfied that the events violated
Laura’s Fourteenth Amendment constitutional rights. Additionally, the
district court accepted as true Laura’s allegations that the Madisonville Chief
of Police acted as the official policymaker for the City relative to the MPD.



       2 The second amended complaint alleges that Jeffrey’s second wife, April, demanded
that he “get rid of Laura, even if that meant getting rid of his children with Laura, or April
was going to leave him.” Thereafter, “April and Jeffrey set out devising a plan to get rid of
Laura so as to obtain custody of Laura’s children.”
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Nevertheless, the district court concluded that Laura’s allegations failed to
satisfy the “policy” and “moving force causation” elements necessary to
establish municipal liability under 42 U.S.C. § 1983. Accordingly, because
Laura had already had an opportunity to amend her complaint, the district
court dismissed her claim for municipal liability against the City with
prejudice. On appeal, Laura challenges the district court’s negative assessment
of her “policy” and “causation” allegations. 3
I. Rule 12(b)(6)
       An appellate court conducts a de novo review of a federal court’s
dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). See
Clyce v. Butler, 876 F.3d 145, 148 (5th Cir. 2017). Rule 12(b)(6) of the Federal
Rules of Civil Procedures authorizes the filing of motions to dismiss asserting,
as a defense, a plaintiff's “failure to state a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6). Thus, claims may be dismissed under
Rule 12(b)(6) “on the basis of a dispositive issue of law.” Neitzke v. Williams,
490 U.S. 319, 326 (1989). Dismissal under Rule 12(b)(6) also is warranted if
the complaint does not 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Where the well-pleaded facts of a complaint do not permit a court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has
not shown— “‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 678–79
(quoting Fed. Rule Civ. P. 8(a)(2)). Thus, a complaint's allegations “must make
relief plausible, not merely conceivable, when taken as true.” United States ex


       3 Laura additionally argues that the district court erred by evaluating her motion for
reconsideration pursuant to the standard for Federal Rule of Civil Procedure 59 (e) rather
than the more lenient standard applicable to Federal Rule of Civil Procedure 54 (b). Even if
such error occurred, it is harmless because it does not impact our resolution of the substantive
aspects of Laura’s appeal.
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                                   No. 18-20723
rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009); see also Twombly,
550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief
above the speculative level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”).
      “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678. Factual allegations that are “merely consistent with a
defendant's liability . . . stop[] short of the line between possibility and
plausibility of entitlement to relief,” and thus are inadequate. Id. (internal
quotation marks omitted). Accordingly, the requisite facial plausibility exists
“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. “Determining whether a complaint states a plausible claim for relief” is “a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. See also Robbins v. Oklahoma, 519
F.3d 1242, 1248 (10th Cir. 2008) (degree of required specificity depends on
context, i.e., the type of claim at issue).
      In evaluating motions to dismiss filed under Rule 12(b)(6), the court
“must accept all well-pleaded facts as true, and [] view them in the light most
favorable to the plaintiff.” McCartney v. First City Bank, 970 F.2d 45, 47 (5th
Cir. 1992). Further, “[a]ll questions of fact and any ambiguities in the
controlling substantive law must be resolved in the plaintiff's favor.” Lewis v.
Fresne, 252 F.3d 352, 357 (5th Cir. 2001). On the other hand, courts “are not
bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 556 U.S. at 678
(“tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions”). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
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                                 No. 18-20723
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also Christopher v.
Harbury, 536 U.S. 403, 416 (2002) (elements of a plaintiff's claim(s) “must be
addressed by allegations in the complaint sufficient to give the defendant fair
notice”). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Though [a
plaintiff] need not offer proof of her allegations at this stage, she still must
plead facts that plausibly support each element of § 1983 municipal liability[.]”
Peña v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (citing Iqbal,
556 U.S. at 678).
      In determining whether a plaintiff's claims survive a Rule 12(b)(6)
motion to dismiss, the factual information to which the court addresses its
inquiry is limited to (1) the facts set forth in the complaint, (2) documents
attached to the complaint, and (3) matters of which judicial notice may be
taken under Federal Rule of Evidence 201. See Norris v. Hurst Tr., 500 F.3d
454, 461 n. 9 (5th Cir. 2007); R2 Invs. LDC v. Phillips, 401 F.3d 638, 640 n. 2
(5th Cir. 2005). When a defendant attaches documents to its motion that are
referred to in the complaint and are central to the plaintiff's claims, however,
the court can also properly consider those documents. Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “In so attaching, the
defendant merely assists the plaintiff in establishing the basis of the suit, and
the court in making the elementary determination of whether a claim has been
stated.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.
2000).




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                                  No. 18-20723
II. Municipal Liability under 42 U.S.C. § 1983
      Title 42 U.S.C. § 1983 provides in relevant part:
                 Every person who, under color of any statute,
            ordinance, regulation, custom, or usage, of any State .
            . . subjects, or causes to be subjected, any citizen of the
            United States or other person within the jurisdiction
            thereof to the deprivation of any rights, privileges, or
            immunities secured by the Constitution and laws,
            shall be liable to the party injured in an action at law,
            suit in equity, or other proper proceeding for redress[.]

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. Monell v. New York
City Dept. of Social Servs., 436 U.S. 658, 692 (1978). But, under § 1983, local
governments are responsible only for “their own illegal acts.” Pembaur v.
Cincinnati, 475 U.S. 469, 471 (1986) (emphasis in original) (citing Monell, 436
U.S. at 665–683). They are not vicariously liable under § 1983 for their
employees' actions. Id. at 478.
       Municipal liability under § 1983 has three elements: (1) a policymaker;
(2) an official policy; and (3) a violation of a constitutional right whose “moving
force” is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578
(5th Cir. 2001) (citing Monell, 436 U.S. at 694). Requiring satisfaction of these
elements is “necessary to distinguish individual violations perpetrated by local
government employees from those that can be fairly identified as actions of the
government itself.” Id.
      An official policy “usually exists in the form of written policy
statements, ordinances, or regulations, but may also arise in the form of a
widespread practice that is ‘so common and well-settled as to constitute a
custom that fairly represents municipal policy.’” James v. Harris Cty., 577
F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579). Whatever
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                                 No. 18-20723
its form, to yield municipal liability under § 1983, the policy must have been
the “moving force” behind the plaintiff’s constitutional violation. Piotrowski,
237 F. 3d at 580 (quoting Monell, 436 U.S. at 694). In other words, a plaintiff
“must show direct causation, i.e., that there was ‘a direct causal link’ between
the policy and the violation.” James, 577 F.3d at 617 (quoting Piotrowski, 237
F.3d at 580). “Where an official policy or practice is unconstitutional on its
face, it necessarily follows that a policymaker was not only aware of the
specific policy, but was also aware that a constitutional violation [would] most
likely occur.” Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003)
(citing Piotrowski, 237 F.3d at 579).
      On the other hand, where an alleged policy is facially innocuous,
establishing the requisite official knowledges necessitates that a plaintiff
demonstrate that the policy was promulgated or “implemented with
‘deliberate indifference’ to the ‘known or obvious consequences’ that
constitutional violations would result.” See Alvarez v. City of Brownsville, 904
F.3d 382, 390 (5th Cir. 2018) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v.
Brown, 520 U.S. 397, 407 (1997)), cert. denied, 139 S. Ct. 2690 (2019); Burge,
336 F.3d at 370 (must show “facially innocuous” policy or custom was
“promulgated with deliberate indifference to the known or obvious
consequences    that   constitutional   violations   would    result”)   (internal
quotations omitted).
      Establishing deliberate indifference generally requires a “‘pattern of
similar violations’” arising from a policy “so clearly inadequate as to be
‘obviously likely to result in a constitutional violation.’” Burge, 336 F.3d at
370 (quoting Thompson v. Upshur Cty., 245 F.3d 447, 459 (5th Cir. 2001)). A
narrow “single incident” exception to the pattern requirement, however, has
been recognized. Id.    For deliberate indifference to be based on a single
incident, “‘it should have been apparent to the policymaker that a
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                                  No. 18-20723
constitutional violation was the highly predictable consequence of a
particular policy.’” Alvarez, 904 F.3d at 390 (quoting Burge, 336 F.3d at 373)
(alleged facts must be such that “it should have been apparent to the
policymaker that a constitutional violation was the highly predictable
consequence of a particular policy or failure to train”).
      Mere negligence, even gross negligence, is not sufficient to establish
deliberate indifference. Brown v. Bryan Cty, OK, 219 F.3d 450, 460–63 (5th
Cir. 2000). The causal link “moving force” requirement and the degree of
culpability “deliberate indifference” requirement must not be diluted, for
“where a court fails to adhere to rigorous requirements of culpability and
causation, municipal liability collapses into respondeat superior liability.”
Alvarez, 904 F.3d at 390 (internal quotations omitted).
III. Application of Legal Principles
      On appeal, Laura argues the district court erred in finding her “policy”
and “moving force causation” allegations insufficient to withstand Rule
12(b)(6) scrutiny. Specifically, she contends the allegations of her second
amended complaint support three theories of municipal liability against the
City: (1) the Chief of Police maintained a custom and practice of tolerating
misconduct among officers in the MPD; (2) the Chief of Police failed to
supervise Jeffrey’s management of the confidential informants and control of
all narcotic investigations; and (3) the Chief of Police failed to screen Jeffrey’s
application to the MPD, and, in particular, to be a K-9 narcotics officer, when
he had a history of drug violations. She maintains that the facts alleged
support an inference that Chief Clendennen and/or Chief May acted with
deliberate indifference “either by ignoring the obvious risk that constitutional
violations would occur, or a pattern of conduct that should put the Chief on




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notice there was a risk of constitutional violations by one of his officers.” 4
Additionally,     she   contends,    “the    Chief   of   Police    ratified   Jeffrey’s
unconstitutional actions because, while both Chief Clendennen and Chief
May were well aware of what Jeffrey was planning, they failed to intervene
to stop it, and Chief May went so far as to cover up evidence of Jeffrey’s
culpability during the ensuing investigation and fallout after Jeffrey was
indicted.”
      Although Laura’s brief references “three theories” of municipal
liability, her claims essentially allege deficiencies in Chief Clendennen’s
hiring policy, relative to hiring Jeffrey upon his 2009 termination from
DynCorp, and Chief Clendennen’s and Chief May’s (allegedly inadequate)
supervision policies. Regarding supervision, she attempts to allege both types
of actionable “unofficial” supervision policies, i.e., a “widespread practice [of
tolerating officer misconduct] that is so common and well-settled as to
constitute a custom that fairly represents municipal policy” and a “single
incident” municipal policy focused solely on Jeffrey’s conduct.
     A. Hiring Policy
      Focusing first on hiring, we affirm the district court’s dismissal of
Laura’s hiring policy claim without hesitation. Viewing Jeffrey’s 2009 hiring
as a “single incident policy” of inadequate screening, Laura’s factual
assertions regarding “deliberate indifference” and “moving force causation”
are inadequate to state a legally viable claim for municipal liability. In other
words, the allegations of the second amended complaint do not reasonably
support an inference that “it should have been apparent [to Chief
Clendennen] that the constitutional violations suffered by Laura were the
‘highly predictable consequence’” of the Chief’s lackluster screening practices


     4   Chief May replaced Chief Clendennen in September 2011.
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                                  No. 18-20723
relative to a former employee seeking to return to the MPD or that Chief
Clendennen purposely chose to ignore that risk. For similar reasons, Laura’s
assertions fail to establish any connection between Chief Clendennen’s hiring
practice deficiencies and the constitutional violations she suffered, much less
the “moving force” direct causation that is required.
      B. Supervision Policy – “Widespread Practice”
      Regarding supervision, Laura’s submissions outline various alleged
infractions and instances of wrongdoing by other officers employed by the
MPD in support of her “widespread practice” supervision claim. She adds:
“nearly one-half of the City’s police were fired or resigned in a six-month
period.” None of the conduct alleged, however, bears the necessary similarity
to the purposeful fabrication and planting of evidence/false arrest misconduct
involved here. Indeed, in many instances, the allegations reflect some
disciplinary or other remedial actions being taken by the supervising police
chief. Furthermore, a voluntary resignation is not itself indicative of an
inadequate supervision policy. Finally, without more information, the
departure numbers alleged by Laura are not particularly meaningful. For
instance, no assertion of typical turnover rates is given, especially for a small-
town police force of, at most, only 6–8 officers. Thus, the district court’s
rejection of these assertions as supporting an actionable claim warrants
affirmance.
      C. Supervision Policy – “Single Incident”
      On the other hand, the propriety of the district court’s dismissal of
Laura’s alleged “single incident” supervision claim—focusing solely on
Jeffrey’s misconduct relative to Laura’s November 9, 2011 false arrest—
presents a much closer call. Laura’s second amended complaint alleges:
“Everybody at the police department (if not the entire community) knew
about [Jeffrey’s] battle with [Laura], and his efforts to conspire to have
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                                  No. 18-20723
[Laura] wrongfully arrested and prosecuted.”         More importantly, Laura
specifically alleges that, on separate occasions, two MPD officers—Officer
Sims and Officer Jonathan Lawrenz—reported Jeffrey’s intentions and
efforts (relative to having Laura arrested based on planted illegal drugs)
directly to Chief May. In response, rather than personally investigating the
reports, or referring them to the Texas Rangers for investigation, Chief May
allegedly did nothing to determine their validity. Instead, when Officer Sims
purportedly told Chief May, in October 2011, that “he was getting a lot of word
from [his] snitches that Jeff is trying to find somebody to plant dope on Laura’s
car because of this custody battle,” Chief May only responded: “Well, I don’t
believe it. It’s just a bunch of crackheads.”
      Viewing the allegations of the second amended complaint in Laura’s
favor, as we must, Officer Sims’ “snitches” presumably refer to the
confidential informants of which Jeffrey allegedly was “in charge,” and from
whom the MPD regularly sought to obtain information in aid of their drug
investigations. Construed in this manner, Chief May’s deliberate and
outright rejection of the possible validity of what the “snitches” were saying—
without conducting even a minimal investigation—arguably falls short. This
is particularly so given Officer Sims’ experience and credentials—his
employment by the MPD since November 2004, and his twenty-six years with
the United States Military Police/C.I.D., including active service in Iraq as a
military police officer (attached to the Drugs C.I.D.)—and his presumed
credibility. Finally, had Chief May chosen to investigate the egregious and
unlawful misconduct that his officers reported to him, he also likely would
have discovered the “audio and video records of Jeffrey conspiring against
Laura” that Jeffrey had saved on the MPD’s computer system.
      As set forth above, however, asserting an actionable failure to supervise
§ 1983 municipal liability claim requires allegations establishing a “direct
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                                 No. 18-20723
causal link between the policy and the proclaimed violation.” The policy also
must have been implemented by the policymaker with the requisite
culpability, i.e., “deliberate indifference” to the “known or obvious
consequences” that constitutional violations would result.
      Regarding causation, the asserted motivations for Jeffrey’s conduct
were purely personal. Nevertheless, construing the allegations of the second
amended complaint in Laura’s favor, had Chief May investigated the reports
of Jeffrey’s “false arrest” plot, a reasonable inference can be drawn—
especially given the allegations regarding the number of persons aware of
Jeffrey’s plan—that Laura’s arrest, criminal charges, and loss of child custody
would have been prevented or at least promptly remedied. Thus, in that
sense, the City caused the violation by not timely employing appropriate
supervisory measures in order to prevent reasonably anticipated unlawful
conduct by a city employee.
      Similarly, the obvious likely consequence of a municipal supervisor’s
refusal to investigate a municipal employee’s scheme—to plant evidence in
order to bring about a false arrest and criminal charges—is that the plot
works as planned, i.e. the evidence is planted, the false arrest is made, and
criminal charges follow. What’s more, the information provided by Officers
Sims and Lawrenz is not the only information that Chief May had tending to
support the likelihood that Jeffrey was trying to do exactly what the
“snitches” said he was doing. Chief May allegedly was personally aware of the
ongoing custody disputes between Laura and Jeffrey and their acrimonious
history. Furthermore, Chief May had to realize that, if Jeffrey was attempting
such a scheme, the likelihood of its success was fairly high. Given Jeffrey’s
position as senior narcotics investigator and his involvement with the MPD
confidential informants, he presumably had access to illegal drugs and
persons willing and able to plant them. And, as evidenced by Jeffrey’s
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                                  No. 18-20723
telephone call to Trooper Clary, which caused Trooper Clary to search Laura’s
vehicle for drugs when he otherwise would not, Jeffrey’s law enforcement
status at least potentially increased the likelihood that the planted drugs
eventually would be discovered by another law enforcement officer and Laura
arrested.
      In short, construing Laura’s allegations in the manner required for
Rule 12(b)(6) motions, this close call is one that, at this stage of the
proceeding, should have gone in Laura’s favor. Although Laura’s supervision
claim ultimately may not withstand a motion for summary judgment filed
after discovery, or prevail at trial, neither scenario is determinative of this
appeal. Accordingly, we find the district court erred in dismissing Laura’s
failure to supervise § 1983 claim with prejudice.
      D. Ratification
      Laura’s final argument on appeal in support of municipal liability is
her assertion that Chief May, a policymaker, ratified Jeffrey’s unlawful
actions. Ratification in this context requires that a policymaker knowingly
approve a subordinate's actions and the improper basis for those actions. City
of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Beattie v. Madison Cty.
Sch. Dist., 254 F.3d 595, 603 n.9 (5th Cir. 2001). Otherwise, unless conduct is
“manifestly indefensible,” a policymaker’s mistaken defense of a subordinate
who is later found to have broken the law is not ratification chargeable to the
municipality. Coon v. Ledbetter, 780 F.2d 1158, 1161–62 (5th Cir. 1986)
(sheriff’s defense of deputies premised upon his acceptance of their version of
events did not equate to county policy approving reckless police behavior).
      Regarding ratification, Laura’s brief argues that Chief May ratified
Jeffrey’s unconstitutional conduct by “fail[ing] to intervene to stop” him and
by “cover[ing] up evidence of Jeffrey’s culpability during the ensuing
investigation and fallout after Jeffrey was indicted.” In short, she maintains
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   Case: 18-20723    Document: 00515418348      Page: 17   Date Filed: 05/15/2020



                                 No. 18-20723
that Chief May tried to “cover up [Jeffrey’s conduct] after it was clear what
[he] had done.” Relatedly, her second amended complaint alleges that Chief
May failed to provide audio recordings, which he and Sims discussed in late
July 2012, to the Texas Ranger investigating Jeffrey’s conduct, and failed to
properly label and investigate a statement written by Toby Smith (a
confidential informant) asserting that Jeffrey had offered to pay Smith to
plant drugs in Laura’s car, that “[m]onths later[,] she gets busted” and “[w]as
set up.” Construed in Laura’s favor, and considered together with her
assertions regarding Chief May’s alleged failure to supervise Jeffrey prior to
planted drugs being found in her vehicle in November 2011, we likewise
conclude that Laura’s ratification assertions, though cursorily stated, are
sufficient to survive Rule 12(b)(6) attack. Thus, the district court also erred
in dismissing Laura’s § 1983 municipal liability claim insofar as it is premised
upon Chief May’s alleged ratification of Jeffrey’s unlawful actions against
Laura.
                               CONCLUSION
      Applying governing legal principles, we hold that the district court
erred in dismissing the “single incident” failure to supervise claim, and the
ratification claim, asserted against the City of Madisonville, Texas, pursuant
to 42 U.S.C. § 1983, by Plaintiff-Appellant Laura Covington. Finding no
reversible error relative to the district court’s dismissal of the remainder of
the claims asserted herein, we REVERSE IN PART, AFFIRM IN PART, and
REMAND.




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