     Case: 14-10955      Document: 00512972661         Page: 1    Date Filed: 03/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10955                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 17, 2015
ROBERT EUGENE SPECK,                                                       Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

GARRETT WIGINTON; CHAD DAVIS; BRENT BLACKMON; MITCH
GALVAN,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CV-276-A


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff Robert Speck filed this lawsuit against the Defendants, police
officers and the police chief for the City of Granbury, for violating his
constitutional rights. The complaint alleges that Speck saw strange men
moving outside his home, pulled out his gun, and opened the front door to
investigate. Speck put his gun down when he realized the men were police


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10955
officers. At that point, two of the officers grabbed Speck, and one forced him
to the ground with a leg sweep. The officers then arrested Speck for public
intoxication. Speck brought claims against the officers in their individual and
official capacities for excessive force and due process violations.                 He also
brought a claim against Chief of Police Galvan for failing to provide adequate
training to the officers. In the failure to train claim, he contended that “it is
apparent from the facts of this case that Defendant Galvan never trained his
officers that a person has a Second Amendment right to stand on the curtilage
of his residence with a firearm,” “that it is a violation of a person’s Fourteenth
Amendment Due Process rights to be arrested and jailed on an offense for
which the person cannot be jailed or incarcerated if convicted,” and that
excessive force should not be used when investigating Class C misdemeanors.
ROA 97.
       The Defendants moved to dismiss under Rule 12(b)(6). As to the claims
asserted against the officers in their individual capacities, they asserted
qualified immunity. With respect to the official capacity claims, they noted
that those should be treated as claims against the City and should fail because
no municipal policy or practice was identified that caused the conduct about
which Speck complains. Galvan asserted that he had no involvement in the
arrest and that he was not liable under a failure to supervise theory because
there were insufficient factual allegations identifying any inadequacy in
training procedures.
       The district court granted the motion in part. With a couple of exceptions
not relevant here, 1 it reserved ruling on the individual capacity claims and the


       1 The district court dismissed the Fifth Amendment claims because that provision
applies to the federal government. It also dismissed the excessive force claim against Officer
Brent Blackmon, whose only alleged involvement in the arrest was to place handcuffs on
Speck. The district court did not enter a final judgment on those claims, and Speck does not
challenge those two rulings on appeal.
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                                     No. 14-10955
defense of qualified immunity, stating only that the “relief sought [for those
claims] . . . would more appropriately be sought by a motion for summary
judgment.” ROA 187. The district court construed the official capacity claims
brought against the police officers as seeking to establish municipal liability.
In dismissing them, it reasoned that Speck failed to plead any facts “from
which it plausibly can be inferred that any of the events of which plaintiff
complains resulted from any policy or custom of [the] City.” ROA 193–94.
Using similar reasoning, the district court also dismissed the individual
capacity claim based on the failure to train against Chief Galvan. It then
entered a final judgment as to certain parties for all the official capacity claims
and the claims against Galvan.
      On appeal, Speck argues that (1) the Defendants violated his
constitutional rights by arresting him and (2) his allegations are sufficient to
support a claim for failure to train. That first issue is beyond the scope of this
appeal because the district court did not decide if a constitutional violation took
place or enter a final judgment on the individual capacity claims. Those claims
are still pending in the district court. See Janvey v. Alguire, 647 F.3d 585, 604
(5th Cir. 2011) (observing that we only address issues decided by the district
court in its judgment).
      Therefore, the only issue before us is whether the district court erred in
its dismissal of the failure to train claim. Speck first contends that the district
court applied a heightened pleading standard for civil rights cases contrary to
Leatherman v. Tarrant Cnty., 507 U.S. 163, 168 (1993). But the district court
correctly stated that the proper standard was Rule 8 as interpreted by Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009). It did not purport to apply a higher standard because this
case involved civil rights claims.


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                                  No. 14-10955
      Nor did district court err in applying the ordinary pleading standard to
the failure to train allegations.    A claim for failure to train must allege
sufficient facts to show that (1) the municipality adopted inadequate training
policy procedures, (2) acted with deliberate indifference in doing so, and (3) the
inadequate training policy directly caused the plaintiff’s injury.      Sanders-
Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010).
      Dismissal of Speck’s conclusory failure to train claim was proper for at
least two reasons. For one, the allegations do not satisfy the first element
because he alleges no facts about what training Granbury provided or failed to
provide. Complaints typically satisfy the first element by alleging facts related
to the locality’s actual training program. See, e.g., Burge v. St. Tammany
Parish, 336 F.3d 363, 369 (5th Cir. 2003) (evaluating the longstanding practice
of failing to maintain sheriff’s records and provide them to defendants in
context of claim challenging failure to train record keepers); Beard v. Harris
Cnty., 2005 WL 2647972, *3 (S.D. Tex. Oct. 17, 2005) (considering the
guidelines promulgated in the Standard Operating Procedures of the Harris
County Precinct Five Constables Department). Speck instead makes only the
conclusory allegation that it is “apparent from the facts of this case” that the
excessive force training, to use one of his claims as an example, was
insufficient. ROA 97. He provides no factual allegations about the content of
the excessive force training or how thorough or cursory it may have been.
Speck is thus asking us to make the inference that a single alleged incident of
misconduct means officers are inadequately trained. That inference is at odds
with the law against respondeat superior liability in section 1983 cases, which
is a rule premised on the common sense proposition that officer misconduct is
often a result of the independent decisions of officers rather than direction from
superiors.


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                                 No. 14-10955
      Similar reasoning demonstrates that Speck also fails to raise sufficient
factual allegations to meet the deliberate indifference standard. A “pattern of
similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to
train.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011). No such pattern is
alleged here, even in a conclusory manner. An exception may exist if the
plaintiff’s injury is a “patently obvious” or “highly predictable” result of
inadequate training, and Speck asserts that rare exception applies to his case.
See id. at 1361 (describing so-called “single-incident liability” as rare);
Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). As an example of this
exception, the Supreme Court has identified a hypothetical in which a locality
“arms its police force with firearms and deploys the armed officers into the
public to capture fleeing felons without training the officers in the
constitutional limitation on the use of deadly force.” Connick, 131 S. Ct. at
1361 (quoting City of Canton v. Harris, 489 U.S. 378 (1989)) (explaining that
“the known frequency with which police attempt to arrest fleeing felons and
that the ‘predictability that an officer lacking specific tools to handle that
situation will violate citizens’ rights’” might make it “highly predictable” that
constitutional violations would result from the failure to train). The claim
alleged here is not comparable, and Speck offers no case law involving similar
facts that relied on the isolated event exception.
      For these reasons, the district court correctly dismissed the official
capacity claims brought against the officers and the claims brought against
Galvan. We express no opinion on the other issues Speck raises concerning the
individual capacity claims against the officers that were not dismissed at the
pleading stage. AFFIRMED.




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