     Case: 17-10529      Document: 00514231479         Page: 1    Date Filed: 11/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-10529                                FILED
                                  Summary Calendar                       November 9, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
MICHELLE SKYY; SEAN VALDEZ,

              Plaintiffs - Appellants

v.

CITY OF ARLINGTON,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:17-CV-019


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Plaintiffs-Appellants Michelle Skyy (“Skyy”) and Sean Valdez (“Valdez”)
(collectively, “Appellants”) appeal the district court’s memorandum opinion
and order dismissing their First Amended Complaint (“Complaint”) because
Appellants’ Complaint failed to allege sufficient facts against the City of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10529
Arlington (“City”) to overcome the general prohibition against holding a
municipality liable for acts of its officials as set forth in Monell v. New York
City Dep’t Soc. Servs., 436 U.S. 658 (1978).       Similarly, the district court
dismissed Appellants’ claims for punitive damages against the City as
foreclosed by City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). We
AFFIRM.
           I.    BACKGROUND AND PROCEDURAL HISTORY
      On April 29, 2015, Appellants agreed to file for a divorce after which
Skyy packed her belongings to leave Appellants’ home. In the course of leaving,
Skyy picked up money sitting on a coffee table in the Appellants’ living room.
Valdez, believing some of the money belonged to him, prevented Skyy from
leaving the home. Appellants agreed to split the money equally. Continuing
to retrieve belongings to leave the home, Skyy picked up Valdez’s AR-15 rifle
leading Valdez to follow her to her Hummer to take back the AR-15 rifle. In
doing so, Valdez violently grabbed Skyy’s arm and told her to leave. After
Valdez took the gun and went inside the home, a terrified Skyy phoned the
police. The emergency dispatcher directed Skyy to wait nearby Appellants’
home for police to arrive. At some point after the first Arlington Police
Department (“APD”) police officer arrived and took Skyy to a nearby park,
Valdez left Appellants’ home to search for Skyy. As Valdez walked out of the
side gate of Appellants’ home, APD officers arrested him. While transporting
Valdez to jail, APD officers requested his permission to enter the home — he
denied their requests. Similarly, Skyy, while waiting at the nearby park,
denied APD officers’ requests to enter the home.
      Without having a warrant or Appellants’ permission, APD officers
entered Appellants’ home. While officers searched the home, Skyy was unable
to enter the home to eat special dietary food. She was told that she would be
placed in cuffs if she tried to leave before APD officers permitted her to go.
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                                        No. 17-10529
Roughly three hours after initially entering the home, APD officers received a
warrant to retrieve the AR-15 rifle. 1 Valdez informed APD officers that Skyy
had two guns, and officers sought to get those weapons out of her vehicle. After
complying with the request to get those weapons, Skyy rejected APD officers’
requests for her car keys, saying she would not give them authorization to go
into her car. Despite that denial, APD officers entered her vehicle eventually
having the Hummer towed away.
       Skyy was arrested 2 and taken to the City of Arlington jail. Skyy, after
informing the jail’s check-in officer of her medical conditions 3 and her inability
to eat all day given the events, was never provided any food. This failure
occurred despite assurances on two occasions that someone would provide her
with food. Skyy starved for 2 days, losing 6 pounds while in jail. Skyy was also
kept in a very small holding cell for over 6 hours with no restroom or water,
which caused her severe abdomen pains.
       Based on these events, Appellants filed an action under 42 U.S.C. § 1983,
seeking monetary and punitive damages for the City’s alleged violation of their
Fourth Amendment right to be free from unreasonable searches and seizures.
Skyy, focusing on her time spent in the City of Arlington jail, further alleged
that the City violated her Eight Amendment rights to be free from cruel and
unusual punishment.
       The City moved to dismiss Appellants’ Complaint, arguing that the City,
under Monell, could not be held liable for the events giving rise to Appellants’




       1  The warrants were left on the coffee table of the home and neither warrant was
shown to Appellants prior to officers entering the home.
        2 Albeit irrelevant to the analysis in this case, the reason for Skyy’s arrest is unclear

from the record. Presumably, the marijuana grow tent discussed in Appellants’ briefing of
the affidavit issue played a role in her arrest.
        3 Skyy suffers from Celiac Sprue Disease (severe wheat gluten allergy) and

Endometriosis.
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                                       No. 17-10529
alleged constitutional injuries unless the wrongful conduct of an employee was
undertaken pursuant to policy or custom of the City. Similarly, the City
argued that punitive damages against the City were barred under City of
Newport. In an 8-page memorandum opinion and order, the district court
granted the City’s motion to dismiss, concluding that Appellants’ Complaint
failed to satisfy the Monell test for imposing municipal liability based on its
failure to plead any facts establishing a custom or policy of the City that led to
the constitutional tort. The district court also agreed with the City’s position
that punitive damages against the City were prohibited under City of Newport.
The district court denied Appellants’ motion to alter or amend judgment.
Appellants timely appealed.
                                    II.    DISCUSSION
       This court reviews the dismissal of a complaint under Rule 12(b)(6) de
novo, applying the same standard as the district court. At this stage, the
inquiry is primarily cabined to the complaint. 4 See Hale v. King, 642 F.3d 492,
498–99 (5th Cir. 2011) (per curiam). To survive a motion to dismiss, the
complaint “must provide the plaintiff’s grounds for entitlement to relief—
including factual allegations that when assumed to be true raise a right to
relief above the speculative level.” Rosenblatt v. United Way of Greater
Houston, 607 F.3d 413, 417 (5th Cir. 2010) (citation and quotation marks
omitted). In this case, because Appellants are pro se, we construe the complaint
liberally. See Bustos v. Martini Club, Inc., 599 F.3d 458, 465 (5th Cir. 2010).
Cf. Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (“Although we



       4 In addition, “court[s] may take into account documents incorporated into the
complaint by reference or integral to the claim, items subject to judicial notice, matters of
public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App’x 408,
409 (5th Cir. 2013) (per curiam) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007)).
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                                        No. 17-10529
liberally construe pro se briefs, such litigants must still brief contentions in
order to preserve them.”).
                                       A. Monell Liability
       Pointing to the City of Arlington Personnel Manual (“Manual”),
Appellants essentially argue that the City should be held liable because its
officers are directed to follow certain procedures and, in this case, those officers
did not do so. 5
       The City can only be liable under Section 1983, however, “for acts that
are directly attributable to it ‘through some official action or imprimatur.’”
James v. Harris Cty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quotation marks omitted)).
Beyond the mere presence of a constitutional violation by municipal
employees, a plaintiff must also show “that an official policy promulgated by
the municipality’s policymaker was the moving force behind, or actual cause
of, the constitutional injury.” 6 Id. (citation omitted). Where the policy is not
facially unconstitutional, a plaintiff must show that it was “adopted with
deliberate indifference to the known or obvious fact that such constitutional
violations would result.” James, 577 F.3d at 617 (citation and quotation marks
omitted). Although establishing a municipal policy is usually done via “written



       5  Appellants did not sue the individual officers, but the Complaint includes a comment
under the “Defendants” heading stating “that [the] Complaint against them is in an Official
Capacity involving City of Arlington (Police Department).” To the extent that Appellants
sought to sue the officers in their official capacity, those claims are construed as against the
municipality. See Brooks v. George Cty., 84 F.3d 157, 165 (5th Cir. 1996).
        6 Where there is no policy but the individual or entity violating the constitutional

rights in a singular instance is a policymaker, the decision may constitute official policy. See,
e.g., Burge v. Par. of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (citation omitted). As
we have previously held, however, it is not necessary for plaintiffs to identify a specific
policymaker at the motion to dismiss stage. See Groden v. City of Dallas, 826 F.3d 280, 283–
84 (5th Cir. 2016) (“[T]he specific identity of the policymaker is a legal question that need not
be pled; the complaint need only allege facts that show an official policy, promulgated or
ratified by the policymaker, under which the municipality is said to be liable.”).
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policy statements, ordinances, or regulations,” this circuit also views
municipality customs—“widespread practice that is so common and well-
settled”—as municipal policy. Peterson v. City of Fort Worth, 588 F.3d 838, 847
(5th Cir. 2009); see also Gates v. Texas Dep’t of Protective and Regulatory Servs.,
537 F.3d 404, 436 (5th Cir. 2008) (“A custom is shown by evidence of a
persistent, widespread practice of government officials or employees, which,
although not authorized by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that fairly represents
government policy.”) (citation omitted). “Isolated violations are not the
persistent, often repeated, constant violations, that constitute custom and
policy as required for municipal section 1983 liability.” Piotrowski, 237 F.3d at
581 (citation and marks omitted). “[T]here must be a direct causal link between
the municipal policy and the constitutional deprivation.” Id. at 580.
        Appellants, ostensibly attempting to demonstrate a municipality custom
or policy that served as the moving force behind their constitutional
deprivation, rely upon various portions of the Manual. First, Appellants argue
that the Manual’s directive that “employee[s] shall obey and shall not engage
in any conduct prohibited by the United States, Texas, or any other state or
political subdivision wherein the conduct of the employee occurred” satisfies
the imposition of liability upon the City for Appellants’ Fourth Amendment
violations as well as Skyy’s Eight Amendment violations. 7 City of Arlington,
Texas       Personnel      Manual,       §       201.02.A,     http://www.arlington-
tx.gov/employment/wp-content/uploads/sites/21/2016/12/Personnel-
Manual.pdf (hereinafter, “Manual”). In promulgating such rules, Appellants
maintain, the City controls their employees. Appellants reason that because


        7Appellant Skyy explicitly states as much with respect to her Eight Amendment
claim, arguing that, given these Manual pronouncements, “[t]here is an affirmative link
between the policy of City of Arlington Personnel Manual and the Eight Amendment.”
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                                  No. 17-10529
three APD officers failed to “follow established employee policy by illegally
entering their home,” the City is subject to liability.      In the same vein,
Appellants contend that a City of Arlington detective and APD officer violated
the Manual directive that “[n]o employee may knowingly enter, or cause to be
entered, any inaccurate, false, or improper information, or misrepresent the
facts in any City records or reports, whether such reports are oral or written”
when providing their affidavits to support search warrants without including
context for how they located a marijuana grow tent. Id. at § 201.09.A
      Appellants’ arguments simply misconstrue the showing necessary at this
stage to overcome the general prohibition against a municipality’s liability
based on a theory of vicarious liability or respondeat superior. Indeed, distilled
to their essence, Appellants’ claims are rooted in a theory of respondeat
superior—that is, the City should be held liable because its officers are directed
to follow certain procedures and, in this case, those officers in the course of
their employment did not do so. Such claims are prohibited. In Young v. City
of Houston, 599 F. App’x 553, 555 (5th Cir. 2015), this circuit analyzed a
“complaint alleg[ing] that [plaintiff] was injured despite policies in place to
prevent injury.” In other words, the plaintiff’s injury stemmed from “City
employees’ disregard of these city policies.” Id. The Young panel appropriately
held that “[Young’s] respondeat superior claim is not cognizable under § 1983.”
Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)).
      Of course, Appellants’ Complaint would survive if sufficient facts are
alleged to demonstrate a City custom. See Peterson, 588 F.3d at 847.
Additionally, given that the alleged policies do not facially violate or authorize
the violation of the constitutional rights Appellants assert have been violated,
Appellants might also allege facts sufficient to show that the purported policies
were adopted with deliberate indifference to the likelihood that APD officers
would violate citizens’ Fourth and Eighth Amendment rights. However, by
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                                  No. 17-10529
relying on their single incident with APD officers, and without identifying
similar incidents demonstrating a persistent, widespread practice of
government officials or employees, Appellants’ Amended Complaint fails to
allege sufficient facts to demonstrate either deliberate indifference or a City
custom. See Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995)
(holding that the plaintiff did not state a Section 1983 claim against the
municipality where the alleged injury stemmed from actions of individual
police officers, not city policy or custom); see also Johnson v. Deep E. Texas Reg’l
Narcotics Trafficking Task Force, 379 F.3d 293, 309–10 (5th Cir. 2004) (holding
that the plaintiff did not plead sufficient facts to demonstrate deliberate
indifference when failing to plead “that there had ever been any similar
incidents (or allege any other facts suggesting that the alleged policy was
adopted or maintained with deliberate indifference to constitutional rights)”).
                                B. Punitive Damages
   Appellants seek five million dollars in punitive damages. Concluding that
punitive damages for actions of its officials were not accorded against a
municipality at common law in 1871 when Congress enacted the first iteration
of Section 1983, the Supreme Court, in City of Newport, held that a
municipality was immune from the imposition of punitive damages unless
Congress specifically provides to the contrary. 453 U.S. at 259–71. When this
circuit has had occasion to address the issue of punitive damages against a
municipality we have faithfully applied City of Newport, rejecting attempts to
impose punitive damages for constitutional and other violations where
Congress has not expressed a clear intention to do so. See Gil Ramirez Grp. v.
Houston Indep. Sch. Dist., 786 F.3d 400, 412–13 (5th Cir. 2015); Stern v. Hinds
Cty., 436 F. App’x 381, 382 (5th Cir. 2011). Because Congress has not expressed
a clear intention to permit punitive damages against municipalities in Section


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                               No. 17-10529
1983 actions stemming from alleged Fourth and Eighth Amendment
violations, Appellants’ are barred from seeking punitive damages.
                            III.   CONCLUSION
     For the foregoing reasons, the district court’s judgment is AFFIRMED.




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