     Case: 15-50467      Document: 00513374395         Page: 1    Date Filed: 02/10/2016




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

                                                                                  FILED
                                      No. 15-50467                           February 10, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
ROSWITHA M. SAENZ, Individually and on the behalf of the estate of
Daniel Saenz,

               Plaintiff - Appellant

v.

THE CITY OF EL PASO,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CV-244


Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges.
PER CURIAM:*
       Daniel Saenz was in police custody when he was shot and killed by an El
Paso police officer. Saenz’s mother, Roswitha Saenz, sued the City of El Paso
(“the City”), asserting state-law claims under the Texas Tort Claims Act
(“TTCA”) and Monell claims. The district court dismissed all of Saenz’s claims




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50467
against the City for failure to state a claim. Saenz now appeals. Because his
complaint fails to state a plausible claim for relief, we AFFIRM.
                                        I.
      On or about March 3, 2013, Daniel Saenz was at a grocery store in El
Paso, Texas. While he was at the store, Saenz, who suffered from hypoglycemic
episodes, fell ill and began to cry and ask for hugs. El Paso police officers and
EMS personnel were dispatched to the store, where they found Saenz crying
and slouched on a motorized shopping cart.             Saenz began to twitch
uncontrollably and was taken to Del Sol Medical Center for treatment. While
at Del Sol, Saenz allegedly attacked one or more individuals and was arrested.
While in custody, Saenz was handcuffed, unarmed, and restrained, when
Officer Jose Flores (“Flores”), an El Paso police officer, shot and killed Saenz.
      Roswitha Saenz, acting individually and on behalf of Daniel Saenz’s
estate, sued the City under 42 U.S.C. § 1983 for violating her and Daniel
Saenz’s constitutional rights. Roswitha Saenz also sued the City for negligence
under the TTCA. The City moved to dismiss the claims under Rule 12(b)(6),
and the district court granted the motion. Relevant to this appeal, the district
court found that Saenz’s negligence claim was barred under Texas law and
that he failed to plausibly allege a § 1983 failure-to-train claim.
      Saenz moved for reconsideration, or alternatively, for leave to file a
fourth amended complaint. The district court reaffirmed its conclusion that
Saenz failed to allege a plausible failure-to-train claim and also denied leave
to amend. Finding “no just reason for delay,” the district court entered final
judgment in favor of the City under Rule 54(b). Saenz now appeals, contending
that the dismissal of the failure-to-train and negligence claims was error.
                                       II.
      We review the district court’s grant of a motion to dismiss under Rule
12(b)(6) de novo, accepting all well-pleaded facts as true and viewing those
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                                  No. 15-50467
facts in the light most favorable to the plaintiff. Thompson v. City of Waco, 764
F.3d 500, 502 (5th Cir. 2014). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015)
(citation and internal quotation marks omitted).
                                       III.
      On appeal, Saenz asserts that the district court erred in dismissing his
claims against the City for (1) negligent misuse of a firearm under the TTCA
and (2) inadequate training of police officers under § 1983. As explained below,
the district court did not err with regard to either issue.
                                        A.
      We turn first to Saenz’s TTCA claim against the City.              The TTCA
provides that “[a] governmental unit in the state is liable for: . . . personal
injury and death so caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to
the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(2). The TTCA creates a limited waiver of sovereign immunity “for
certain negligent conduct, but it does not waive immunity for claims arising
out of intentional torts.” City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex.
2014). Thus, “[i]f a plaintiff pleads facts which amount to an intentional tort,
no matter if the claim is framed as negligence, the claim generally is for an
intentional tort and is barred by the TTCA.” Harris Cty. v. Cabazos, 177
S.W.3d 105, 111 (Tex. App.—Houston [1st Dist.] 2005).


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       Under Texas law, then, the question is whether Saenz’s claim arises out
of an intentional tort. Saenz alleges that Officer Flores (1) “pulled out his
loaded pistol, and . . . shot and killed Daniel Saenz,” and (2) used “excessive
force in handcuffing, shackling, tasing, shooting and killing Daniel Saenz . . . .”
The gravamen of Saenz’s claim is that Officer Flores used excessive force in
wrongfully shooting Saenz. Such a claim sounds in intentional tort. See
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (“[W]e have limited
liability for excessive force to situations in which the use of force was the result
of an intentional and knowing act . . . .”). Saenz’s claim is thus a claim for
which sovereign immunity has not been waived. City of Watauga, 434 S.W.3d
at 589 (“[T]o be viable, the claim cannot arise out of an intentional tort.”).
           Nor can Saenz avoid this bar by pleading negligence alternatively. 1 A
plaintiff may not maintain a negligence claim under the TTCA where the claim
is based on “the same conduct” as the intentional tort claim. See Tex. Dep’t of
Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see also Goodman v.
Harris Cty., 571 F.3d 388, 394 (5th Cir. 2009) (explaining that the TTCA
excludes “allegations against a governmental unit arising out of the same
conduct that formed the basis of the intentional tort claims against its
employee”). In this case, Saenz alleges no distinct facts aside from those that
formed the basis of the excessive force claim. Because Saenz’s negligence claim
relies on the same conduct as the excessive force allegations, it falls outside the




       1 Saenz asserts that Officer Flores characterized the shooting as accidental. Because
these assertions refer to matters outside the pleadings, we do not consider them. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court reviews only
the well-pleaded facts in the complaint, it may not consider new factual allegations made
outside the complaint . . . .”). We note, however, that considering the statement would not
change our analysis. Even assuming the shooting was accidental, the complaint alleges
underlying intentional conduct: the use of force to restrain Saenz. Under City of Watauga,
this underlying intentional conduct forecloses a TTCA claim. 434 S.W.3d at 593–94.
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                                   No. 15-50467
TTCA’s “limited waiver of sovereign immunity.” Goodman, 571 F.3d at 394
(internal quotation marks and citation omitted).
      Saenz’s TTCA claim against the City arises out of an intentional tort,
and the district court thus did not err in dismissing the claim.
                                         B.
      We next consider Saenz’s § 1983 claim that the City failed to adequately
train its police officers in the proper use of force.
      Pretrial detainees are protected against the excessive use of force “by the
due process clause of the Fifth or Fourteenth Amendments.” Gutierrez v. City
of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998). Though municipalities are
liable for constitutional violations under § 1983, it is well-established that
§ 1983 offers no respondeat superior liability. See Monell v. Dep’t of Social
Servs. of City of New York, 436 U.S. 658, 690, 694 (1978).               Instead, a
municipality “is liable only for acts directly attributable to it through some
official action or imprimatur,” Peterson v. City of Fort Worth, 588 F.3d 838, 847
(5th Cir. 2009) (internal quotation marks omitted), and a plaintiff must thus
“show the deprivation of a federally protected right caused by action taken
pursuant to an official municipal policy,” Valle v. City of Houston, 613 F.3d 536,
541 (5th Cir. 2010) (internal quotation marks omitted).
      “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 § 1983.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). Thus, a municipality’s failure to
train its officers can give rise to § 1983 liability if the municipality’s failure to
adopt an adequate training policy is the moving force behind a constitutional
violation. See Kitchen v. Dallas Cty., 759 F.3d 468, 476–77 (5th Cir. 2014).
However, “[a] municipality’s culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61.
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                                  No. 15-50467
      To plead a plausible failure-to-train claim, a plaintiff must allege facts
that allow the court to draw the reasonable inference that (1) the
municipality’s training procedures were inadequate; (2) the municipality was
deliberately indifferent in adopting its training policy; and (3) the inadequate
training policy directly caused the constitutional violation. Sanders-Burns v.
City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); see also Speck v. Wiginton, 606
F. App’x 733, 736 (5th Cir. 2015). Because Saenz does not plausibly allege that
the City was deliberately indifferent, his complaint fails.
      A plaintiff must allege facts to plausibly suggest the municipality’s
deliberate indifference to the need for proper training. Ordinarily, to meet this
burden, a plaintiff may allege that the municipality had “[n]otice of a pattern
of similar violations,” which were “fairly similar to what ultimately
transpired.” Id. at 381; see also Connick, 563 U.S. at 62–63. “The number of
incidents and other allegations necessary to establish a pattern representing a
custom, on a motion to dismiss, varies . . . .” Moreno v. City of Dallas, No. 3:13-
CV-4106-B, 2015 WL 3890467, at *8 (N.D. Tex. June 18, 2015). Here, Saenz
alleges twenty-one previous incidents, spanning a period of nineteen years,
involving an individual killed by a police officer. However, these allegations
do not allow the court to draw the reasonable inference that any of these events
were anything more than isolated incidents.            Without further context
surrounding the circumstances, the allegations of prior shootings do not
plausibly suggest a pattern of abuses to which the City was deliberately
indifferent.   Though Saenz is not required to provide detailed factual
allegations, the complaint must “raise a right to relief above the speculative
level.” In re La. Crawfish Producers, 772 F.3d 1026, 1029 (5th Cir. 2014)
(quoting Twombly, 550 U.S. at 555).             Without some further factual
enhancement, Saenz’s complaint “stops short of the line between possibility
and plausibility.” Twombly, 550 U.S. at 546.
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                                  No. 15-50467
      Alternatively, a plaintiff may allege deliberate indifference if the specific
injury suffered is a “patently obvious” or “highly predictable” result of
inadequate training. Connick, 563 U.S. at 64. Saenz asserts that this rare
single-incident exception applies to his case. We disagree and conclude that
our analysis in Speck is instructive. There, we observed that as an example of
single-incident liability, the Supreme Court has hypothesized a situation
where a municipality “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.” Speck, 606
F. App’x at 736–37 (quoting Connick, 563 U.S. at 63–64). As in Speck, “[t]he
claim alleged here is not comparable,” and Saenz “offers no case law involving
similar facts that relied on the isolated event exception.”        Id.   Thus, the
complaint fails to plausibly allege that this incident falls within the narrow
range of circumstances giving rise to single-incident liability.
      Because Saenz’s      complaint fails to      plausibly allege      deliberate
indifference, we need not address the remaining elements of his failure-to-train
claim against the City. And accordingly, we conclude that the district court
did not err in dismissing Saenz’s § 1983 claim.
                                       IV.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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