# United States Court of Appeals **for the Fifth Circuit**

No. 20-40580

James Chad York, Individually ; Sandy Lynn Winfrey York, Individually ; Loreal Fultz, as Independent Administrator of , and on behalf of , The Estate of Chaz Logan York and his heirs-in law , Plaintiffs—Appellants ,

versus Chase Aaron Welch; The City of Beaumont, Defendants—Appellees

.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:18-CV-522

Before Richman, Chief Judge , and Davis and Dennis, Circuit Judges

. Priscilla Richman, Chief Judge : * After an off-duty police officer shot and killed Chaz York, his family and estate (collectively the Yorks) brou ght this 42 U.S.C. § 1983 suit against the officer and the City of Beaumont, the municipality that employed that officer. The district court dismissed th e case based on a Rule 12(c) motion for judgment on the pleadings. Becaus e the Yorks have not plausibly pleaded

* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED February 26, 2024 Lyle W. Cayce Clerk Case: 20-40580 Document: 49-1 Page: 1 Date Filed: 02/26/2024No. 20-40580

2 a theory of Monell 1 liability against the municipalit y, we affirm the district court’s dismissal.
I This case presents tragic and unse ttling facts. In October 2016, offduty Beaumont Police Officer Chase Welc h shot and killed Chaz York in the parking lot of Madison’s, a restaurant and bar. The Yorks allege the following: An individual named Levi Severson assaulted Chaz without provocation on the patio area of the bar at Madison’s. Madison’s employees then expelled both Chaz and Severson from the premises, with Severson exiting the front entrance and Chaz be ing escorted throug h the back. While passing through the patio, Chaz enco untered and began exchanging words with his ex-girlfriend. Madison’s employees separated the two, then continued to escort Chaz from the premises, with one of the employees pushing and verbally arguing with Chaz along the way. Meanwhile, another individual appeared at the back of th e bar, saying “Beaumont PD, Beaumont PD,” but provided no further identifi cation. That individual was Chase Welch.
After Chaz abandoned the confrontation at Madison’s and left the premises accompanied by a friend, Welch and Madison’s employees continued to follow Chaz around the building and to his vehicle. During that time, both Madison’s employees and Welc h engaged in verbal confrontations and threats with Chaz. When Chaz an d his friend reached the vehicle, his friend helped Chaz into the backseat on the driver’s side before seating herself behind the wheel. Once Ch az was inside, Welch continued to

1 Monell v. Dep’t of Soc. Servs. , 436 U.S. 658 (1978). Case: 20-40580 Document: 49-1 Page: 2 Date Filed: 02/26/2024No. 20-40580

3 threaten and harass Chaz, yelling at Chaz to “get out you pussy” and banging on Chaz’s car with his ha nds while taunting Chaz. As Chaz’s friend prepared to driv e away, she noticed Chaz had exited and was standing outside the vehicle. Chaz’s friend followed Chaz out, grabbed him, and attempted to pull him back inside. As she did so, Welch discharged his firearm three times. Chaz turned and ran away from Welch as Welch continued to fire in Chaz’s dire ction. Welch discharged eight to ten bullets in total, five of which struck Chaz—one in each arm, one in his right thigh, one in his chest, and one in his back. The fatal shot s struck Chaz after he turned away from Welch. Welch then fled the scene. In contrast to the Yorks’ allegation, Welch co ntends that he shot Chaz in self-defense after Chaz opened his car trun k, grabbed a base ball bat, and charged Welch. The Yorks’ First Amended Comp laint alleges that Beaumont misrepresented to the public the ev ents of the shooting by supporting Welch’s version of events, and by descri bing the incident as a barroom fight that spilled into the parking lot. Furt her, the Yorks aver, Beaumont engaged in a cover-up of the shooting by failing to produce certain records requested during discovery—instead launching objections to those requests—and by accusing witnesses who claimed that Chaz was unarmed of “lying and ‘tampering with evidence.’” Critica lly, however, the Yorks did not follow up on the discovery requests, failing to obtain rulings despite having ample time to do so. Additionally, the Yorks highlight th at Beaumont disciplined Welch for certain acts of prior misconduct, suspen ding him for multiple episodes, but did not discipline Welch for certain ac ts of misconduct involving allegedly unreasonable or excessiv e force, including the shoot ing and killing of Chaz. Welch received various promotions and sa lary increases despite this history, and Welch was not disciplined for shoot ing and killing Chaz. More generally, Case: 20-40580 Document: 49-1 Page: 3 Date Filed: 02/26/2024No. 20-40580

4 the Yorks also highlight that from 2 008 to 2018, Beaumont received 112 citizen complaints against the police department, thirty of which allegedunreasonable or unauthorized use of force. Beaumont sustained only twentyone of the total 112 compla ints. During that same period, roughly 8% of administrative complaints (eighteen out of 229) concerned the use of force. Finally, the Yorks underscore that Beaumo nt did not authorize its officers to carry their tasers while off duty; instead, they could carry only their firearm. Chaz’s family and estate brought this § 1983 action against both Welch and the City of Beaumont in October 2018, seeking relief for violations of the Fourth and Fourteenth Amendmen ts. Welch ultimately settled with the Yorks out of court, leaving only their theory of Monell liability against Beaumont. In January 2019, the distri ct court entered its scheduling order, thus beginning discovery, and in April 2019, the Yorks filed their First Amended Complaint. In response, Be aumont filed an untimely motion to dismiss under Federal Rule 12(b)(6). The district court converted the motion into a Rule 12(c) motion for judgment on the pleadings and granted it, reasoning that mu nicipal liability under Monell could not attach.
II As an initial matter, the district court did not err when it construed Beaumont’s untimely Rule 12(b)(6) mo tion as a Rule 12(c) motion for judgment on the pleadings. 2 In Jones v. Greninger , 3 this court explained that untimely Rule 12(b) motions “will be trea ted as a motion for judgment on the

2 See Jones v. Greninger , 188 F.3d 322, 324 (5th Cir. 1999); see also Puckett v. Comm’r , No. 99-20697, 2000 WL 554440, at *2 (5 th Cir. Apr. 12, 2000) (per curiam) (unpublished).

3 188 F.3d 322 (5th Cir. 1999). Case: 20-40580 Document: 49-1 Page: 4 Date Filed: 02/26/2024No. 20-40580

5 pleadings based on a failure to state a claim on which relief may be granted.” 4 Accordingly, the district court co mmitted no error when it treated Beaumont’s untimely Rule 12(b)(6) motion as a Rule 12(c) motion.
This court reviews a district court’ s ruling on a Rule 12(c) motion de

novo. 5 The motion is subject to the sa me standard as a motion to dismiss under Rule 12(b)(6). 6 Under that standard, set out by the Supreme Court in Bell Atlantic Corp. v. Twombly , 7 “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, ac cepted as true, to ‘state a claim to relief that is plausible on its face.’” 8 “A claim has facial plausibility when the plaintiff pleads factual content that a llows the court to draw the reasonable inference that the defendant is lia ble for the misconduct alleged.” 9 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 A municipality cannot be he ld liable under a theory of respondeat superior

. 11 Rather, “[i]t is only when the execution of the government’s policies or custom inflicts the injury that the municipality may be held liable

4 Id. at 324.

5 Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312 (5th Cir. 2002).

6 Doe v. MySpace, Inc. , 528 F.3d 413, 418 (5th Cir. 2008).

7 550 U.S. 544 (2007).

8 Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570).

9 Id.

10 Id.

11 City of St. Louis v. Praprotnik , 485 U.S. 112, 12 1-22 (1988) (citing Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978)). Case: 20-40580 Document: 49-1 Page: 5 Date Filed: 02/26/2024No. 20-40580

6 under § 1983.” 12 Per Monell , “municipal liability under section 1983 requires proof of three elements: [1] a policymaker; [2] an official policy; and [3] a violation of constitutional rights whose ‘moving force’ is the policy or custom.” 13 The second element—an official policy—includes “[a] policy statement, ordinance, regulation, or deci sion that is offi cially adopted and promulgated by the municipality’s lawm aking officers or by an official to whom the lawmakers have delegated policy-making authority.” 14 An official policy may also be “[a] persistent, wide spread practice of city officials or employees, which, although not auth orized by officially adopted and promulgated policy, is so common and we ll settled as to constitute a custom that fairly represents municipal policy” 15 and “practically have the force of law.” 16 The third, “moving forc e” element requires that the plaintiff “show that the municipal action was taken with the requisite degree of culpability and . . . demonstrate a direct causal lin k between the municipal action and the deprivation of federal rights.” 17 The culpability prong requires that the municipality be at least deliberately indifferent to the known or obvious

12 City of Canton v. Harris , 489 U.S. 378, 385 (1989) (internal quotation marks and ellipsis omitted) (quoting Springfield v. Kibbe , 480 U.S. 257, 267 (1987) (O’Connor, J., dissenting)).

13 Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell , 436 U.S. at 694).

14 Webster v. City of Houston , 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam).

15 Id

. 16 Peña v. City of Rio Grande City , 879 F.3d 613, 621-22 (5 th Cir. 2018) (quoting Connick v. Thompson , 563 U.S. 51, 61 (2011)).

17 Bd. of Cnty. Comm’rs v. Brown , 520 U.S. 397, 404 (1997). Case: 20-40580 Document: 49-1 Page: 6 Date Filed: 02/26/2024No. 20-40580

7 consequences of municipal actions. 18 The causation prong requires proximate causation. 19 “Where a plaintiff claims that the municipality has not directly inflicted an injury, but no netheless has caused an employee to do so, rigorous standards of cu lpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” 20 “To proceed beyond the pleading st age, a complaint’s ‘description of a policy or custom and its relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain specific facts.’” 21 Here, the Yorks allege six Beaumont policie s that they argue give rise to Monell liability:
First , Plaintiffs-Appellants identified that the City of Beaumont adopted a policy and/or custom in which its off duty officers were not allowed to carry tasers was a moving force behind the constitutional violations. Second , Plaintiffs-Appellants identified that the City of Be aumont adopted a policy and/or custom in which its officers (whether off duty or not) were taught to shoot to kill, and not to shoot to injure was a moving force behind the constitutional violations. Third , PlaintiffsAppellants identified that the City of Beaumont’s widespread and persistent use of excessive force by its officers, which became so common place as to constitute a custom and/or policy, was a moving force behind the constitutional violations. Fourth , Plaintiffs-Appellants identified that the City of Beaumont’s failure to train its officers in non-lethal weapons

18 See id. at 407.

19 Rheuark v. Shaw , 628 F.2d 297, 305 (5th Cir. 1980).

20 Brown , 520 U.S. at 405.

21 Peña , 879 F.3d at 622 (quoting Spiller v. City of Tex. City, Police Dep’t , 130 F.3d 162, 167 (5th Cir. 1997)). Case: 20-40580 Document: 49-1 Page: 7 Date Filed: 02/26/2024No. 20-40580

8 while off duty was a moving force behind the constitutional violations. Fifth , Plaintiffs-Appellants identified that the City of Beaumont’s policy of a “code of silence” in which a cover up of instances of excessive fo rce was a moving force behind the constitutional violations. Sixth , Plaintiffs-Appellants identified that the City of Beaumont’s failure to discipline/ratification of Office r Welch’s excessive use of force was a moving force behind th e constitutional violations. None of the Yorks’ six theories satisfy the Twombly standard for two primary reasons: the alleged policies ar e not policies at all, or the alleged policies were not “moving forces” behi nd the underlying constitutional deprivation.
A The Yorks do not plausibly plead th at either the off-duty taser-carry policy or the shoot-to-kill policy was a moving force behind the underlying constitutional violation. The Yorks seek to impose Monell liability based on Beaumont Police Chief Singletary’s post-shooting interview in which Singletary stated Beaumont police office rs do not carry tasers off duty, and later commented, “Officers are not taught to shoot at an arm or a leg, because it[’]s dangerous if our office rs are trained to shoot an arm or a leg in a high stress situation then they miss.” 22 He explained, “the se officers could get hurt or killed and innocent bystand[ e]r[]s could get hurt or killed.” 23 The Yorks’ argument concerning th e off-duty taser-carry policy does not satisfy the causation prong, for any causal nexus between Beaumont’s policies and Chaz’s death is too attenu ated to be consid ered a proximate

22 Ashley DeVriend, Police Chief supports officer after shooting , KFDM (Oct. 18, 2016, 10:28 PM), https://kfdm.com/news/l ocal/police-chief-supports-officer-aftershooting.

23 Id. Case: 20-40580 Document: 49-1 Page: 8 Date Filed: 02/26/2024No. 20-40580

9 cause of Chaz’s death. As the district court pointed out, no policy required Welch to carry his firearm in lieu of his taser. The Yorks pled no facts tending to show that Welch would have carried and used a taser had he been permitted to do so. The district co urt properly dismissed this theory. Nor do the Yorks plausibly allege that the shoot-to-kill policy was a moving force behind the constitutional violation. Shooting to kill and not injure is standard police practice, 24 and there is no allegation that the City had a policy that authorized or encouraged the use of lethal force in all encounters or in encounters like the one that allegedly occurred with Chaz.
B The Yorks have not plausibly plea ded that Beaumont maintained a policy of widespread and persistent use of excessive force. “If actions of city employees are to be used to prove a custom for which the municipality is liable,” our court has reasoned, “those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.” 25 In support of their theory that Beau mont adopted a cust om of allowing excessive force, the Yorks cite to st atistics from 2008 to 2018, “which showed 26% of all complaints”—thirty out of 112—“made about the City of Beaumont by citizens related to ‘unaut horized use of force’ or ‘unreasonable use of force’ claims.” This “substanti al number of similar complaints,” the Yorks contend, shows “a pattern and practice of excessive force by its

24 See Experts on Why Police Aren’t Trained to Shoot to Wound , ABC News (July 7, 2016, 6:46 PM), https://abcnews.go. com/US/police-trained-shoot-woundexperts/story?id=40402933.

25 Webster v. City of Houston , 735 F.2d 838, 842 (5th Cir. 1984). Case: 20-40580 Document: 49-1 Page: 9 Date Filed: 02/26/2024No. 20-40580

10 officers.” Despite discovery beginning as early as January 2019, the Yorks failed to obtain factual context and detail concerning the alleged 26% of incidents of police misconduct. That failure brings this case within the purview of Peterson v. City of Fort Worth

. 26
In Peterson , the plaintiff sought to create a fact question to overcome summary judgment by citing “to 27 complaints of excessive force between 2002 and 2005.” 27 Those complaints, he argu ed, revealed “that the city maintained an official policy that was permissive of excessive force.” 28 The court rejected the plaintiff’s theory due to the lack of factual development behind those complaints, noting that “[a] pattern requires similarity and specificity; ‘[p]rior indications canno t simply be for any and all “bad” or unwise acts, but rather must point to the specific violation in question.’” 29 The plaintiff in Peterson provided no information concerning the size of the police department or how many arrests that department made during the relevant time period. 30 The Yorks’ generic statis tics are likewise devoid of factual development and context.
The fact that the court decided Peterson at the summary judgment stage does not change our conclusion. At oral argument, counsel for the Yorks conceded that the Yorks serv ed Beaumont with requests for production concerning those complaints against Beaumont and was met with objections to those requests but failed to obtain rulings on those objections.

26 588 F.3d 838 (5th Cir. 2009).

27 Id. at 850.

28 Id.

29 Id. at 851 (quoting Estate of Davis ex rel. McCully v. City of North Richland Hills , 406 F.3d 375, 383 (5th Cir. 2005)).

30 Id. at 851-52. Case: 20-40580 Document: 49-1 Page: 10 Date Filed: 02/26/2024No. 20-40580

11 As a result of that failure, the Yorks’ theory of widespread use of excessive force cannot succeed. The Yorks “failed to provide context that would show a pattern of establishing a municipal po licy” despite having the opportunity to do so. 31 Just as “27 incident s of excessive force over a period of four years do not reflect a pattern that can be said to represent official policy,” so too are thirty citizen complaints over a ten- year period insufficient to establish a
custom. 32
C The Yorks have not plausibly plea ded that Beaumont’s allegedly inadequate training of Welch was a moving force behind the underlying constitutional violation. To establish municipal liability under a failure-totrain theory, the Yorks must prove three elements: “1) [Beaumont] failed to train or supervise the officers involved ; 2) there is a causal connection between the alleged failure to supervis e or train and the alleged violation of the plaintiff’s rights; and 3) the failu re to train or supervise constituted deliberate indifference to the plaintiff’s constitutional rights.” 33 The Yorks argue that Beaumont failed to train its officers on non-lethal force while off duty, and that this failure amounted to “deliberate indifference” to the health and safety of the citizenry.

31 Id. at 851.

32 Id. at 852.

33 Thompson v. Upshur Cnty. , 245 F.3d 447, 459 (5th Cir. 2001). Case: 20-40580 Document: 49-1 Page: 11 Date Filed: 02/26/2024No. 20-40580

12 In Littell v. Houston Independent School District , 34 this court clarified the two means of proving municipal liab ility under a failure-to-train theory outlined by the Supreme Court in City of Canton v. Harris : 35 Sometimes . . . municipal employ ees will violate constitutional rights “so often” that the factfi nder can infer from the pattern of violations that “the need for further training must have been plainly obvious to the policymakers.” This proof-by-pattern method is “ordinarily necessary.” But even absent proof of pattern, deliberate indifference can still be inferred if the factfinder determines that the risk of constitutional violations was or should have been an “obvious” or “highly predictable consequence” of the alleged training inadequacy. 36 The Yorks rely on the latter sing le-incident theory of liability. The Yorks’ First Amended Complain t does not plausibly plead that Beaumont was deliberately indifferent to th e need, if any, for further training. This court has explained that “the [s ingle-incident] exception is generally reserved for those cases in which the government actor was provided no training whatsoever.” 37 Moreover, “[a] munici pality’s culpability for a deprivation of rights is at its most te nuous where a claim tu rns on a failure to train.” 38 The Yorks’ First Amended Co mplaint concedes that Welch “received significant training relating to the physical aspects of being a police officer.” The Yorks argue th at Welch “did not receive any training that

34 894 F.3d 616 (5th Cir. 2018).

35 489 U.S. 378 (1989).

36 Littell , 894 F.3d at 624 (ellipsis omitted) (first quoting Harris , 489 U.S. at 390 n.10; then quoting Bd. of Cnty. Comm’rs v. Brown , 520 U.S. 397, 409 (1997); and then quoting Brown , 520 U.S. at 409).

37 Peña v. City of Rio Grande City , 879 F.3d 613, 624 (5th Cir. 2018).

38 Connick v. Thompson , 563 U.S. 51, 61 (2011). Case: 20-40580 Document: 49-1 Page: 12 Date Filed: 02/26/2024No. 20-40580

13 Plaintiffs[]-Appellants could find relating to using non-lethal weapons while off duty by the Beaumont Police Department.” But Welch did receive training about the use of non-lethal force , and the Yorks fail to allege how that training should have differentiated between on- and o ff-duty situations. The Yorks’ framing of this issue runs afoul of the reasoning of our decision in Peña v. City of Rio Grande City 39 and therefore fails. That case involved a minor suspect, Peña, who sought to hold a municipality liable after one of its officers tased her as she fled. 40 This court held that Peña could not satisfy the Twombly standard, explaining that “the [single-incident] exception is generally reserved for those cases in which the government actor was provided no training whatsoever.” 41 Peña’s complain t “acknowledge[d] that [the officers involved in the inci dent] received taser training from other officers, so her allegations [could not] sa tisfy the exacting test for the narrow single-incident exception.” 42 Even accepting the Yo rks’ factual allegations as true—that Welch did not receive trai ning in the use of non-lethal force while off duty—recovery on this theory is not plausible. The absence of training while off duty constitutes the “sort of nuan ce [that] simply cannot support an inference of deliberate indifference.” 43 The district court properly dismissed this theory.
D The Yorks have not plausibly pl eaded a theory of ratification. They argue that both Beaumont and Chief Si ngletary ratified Welch’s conduct by

39 879 F.3d 613 (5th Cir. 2018).

40 Id. at 616.

41 Id. at 624.

42 Id. ; see also Littell v. Hous. Indep. Sch. Dist. , 894 F.3d 616, 624-25 (5th Cir. 2018).

43 Connick , 563 U.S. at 67. Case: 20-40580 Document: 49-1 Page: 13 Date Filed: 02/26/2024No. 20-40580

14 failing to discipline his use of excessive force in both the shooting giving rise to this suit and in past incidents. Additionally, the Yorks allege that Beaumont itself, through its official po licymakers, engaged in misconduct by covering-up the details of the shooting through its denial and proffering of an alternative version of events. However, this court has curtailed the applicability of a ratification theory. In Peterson v. City of Fort Worth , the plaintiff argued ratification based on the Police Chief’s post-investigati on determination that the offending officers’ conduct “complied with the department’s policies.” 44 The court rejected this theory, explaining, “our precedent has limited the theory of ratification to ‘extreme factual situations.’” 45 Further, “we have also explained that a policymaker who defend s conduct that is later shown to be unlawful does not necessarily incur lia bility on behalf of the municipality.” 46 Whether a case presents an extr eme factual situation—as in this court’s opinion in Grandstaff v. City of Borger 47 —such that a theory of ratification applies is a question of law. 48 We hold that the facts of this case do not present such an extr eme factual situation. In Grandstaff , “officers and a city police force failed, at great cost . . . [then] denied their failures and concerned themselves only with unworthy , if not despicable , means to avoid

44 588 F.3d 838, 848 (5th Cir. 2009).

45 Id. (quoting Snyder v. Trepagnier , 142 F.3d 791, 798 (5th Cir. 1998)).

46 Id. ; see also Coon v. Ledbetter , 780 F.2d 1158, 1161 (5th Cir. 1986) (explaining that precedent “does not stand for the broad proposition that if a policymaker defends his subordinates and if those subordinates are la ter found to have broken the law, then the illegal behavior can be assumed to have resulted from an official policy”).

47 767 F.2d 161 (5th Cir. 1985).

48 See Peterson , 588 F.3d at 848 n.2 (“On the co ntrary, our conclusion rests on a legal determination that the facts here, even vi ewed in the light most favorable to Peterson, do not satisfy the legal standard se t out in our ratification caselaw.”). Case: 20-40580 Document: 49-1 Page: 14 Date Filed: 02/26/2024No. 20-40580

15 legal liability.” 49 The officers had pursued a suspect onto the ranch of an innocent third party, then recklessly “poured” gunfire on that third party, killing him. 50 “Following this incompetent and catastrophic performance, there were no reprimands, no discha rges, and no admissions of error.” 51 Such striking misconduct , coupled with “the subsequent acceptance of dangerous recklessness by the policymak er,” sufficed to support the jury’s finding that the municipality had a custom of misconduct such that it could be held liable under Monell

. 52 Here, rather than “several officers in several episodes” engaging in police misconduct as in Grandstaff , 53 only a single officer was involved in a single shooting. Further, the officers in Grandstaff “were evasive and forgetful and self-contradictory,” 54 while here, despite having ample time to depose Beaumont policymakers and personnel and otherwise conduct discovery, the Yorks have offered on ly vague and conclusory allegations, devoid of factual enhancement, concer ning Beaumont’s alleged cover-up. The Yorks have not pleaded “enough fact s to raise a reasonable expectation that discovery will reveal evidence of [illegality],” 55 in large part because discovery has not revealed evidence of illegality. 56

49 Grandstaff , 767 F.2d at 166.

50 Id. at 168.

51 Id. at 171.

52 Id.

53 Id.

54 Id. at 166 & n.1.

55 Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 557 (2007).

56 Cf. Netto v. Amtrak , 863 F.2d 1210, 1216 (5th Cir. 1989) (“As this Court has previously stated, a plaintiff’s entitlement to discovery before a ruling on a motion for summary judgment is not unlimited and may be cut off when the re cord shows that the Case: 20-40580 Document: 49-1 Page: 15 Date Filed: 02/26/2024No. 20-40580

16 Moreover, at its core, in large part, the Yorks’ ra tification theory seeks to impose Monell liability on Beaumont based on Beaumont’s disagreement with the Yorks’ factual allegations. In other words, the Yo rks treat a factual dispute as evidence of a more nefarious plot to co ver up the shooting. For example, the Yorks contend that the cover-up “was seen in [Beaumont’s] post-shooting reporting of Chaz York, wherein it immediately went on the defensive, stating that [Chaz] had a ba t, and was a danger to the public.” Though we must accept the Yorks’ fact ual allegations as true, we need not accept their attempted bootstrapping of Beaumont’s denial of particular factual allegations with evidence of a cover-up sufficient to survive a judgment on the pleadings. Instead, the plaintiff must present some factual allegations aliunde the defendant’s denial. 57 The Yorks attempt to do so, but the remainder of the alle gations concerning a cove r-up are conclusory and devoid of factual enhancement and therefore insufficient to survive dismissal. 58 Under the Yorks’ reasoning, anytime a municipality issued a press release, and something in that release turned out to be untrue, the plaintiff would necessarily survive Rule 12(b)(6) dismissal and be entitled to discovery. We decline to expand Monell liability in so drastic a regard.

requested discovery will not be likely to produce facts he needs to withstand a summary judgment motion.” (citing Paul Kadair, Inc. v. Sony Corp. of Am. , 694 F.2d 1017, 1029-30 (5th Cir. 1983))).

57 Cf. Coon v. Ledbetter , 780 F.2d 1158, 1161 (5th Cir. 1986) (“[T]he statement does not necessarily advocate or excuse the use of excessive force. Sheriff Ledbetter denied that such a meaning was either intended or in cont ext was so understood. This denial was not rebutted by contrary evidence, and it follows th at Jackson County could not be held liable on the basis of the sheriff’s statement.”).

58 See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Case: 20-40580 Document: 49-1 Page: 16 Date Filed: 02/26/2024No. 20-40580

17 E Finally, the Yorks have not plausibly pleaded that Beaumont maintained a code of silence throug h which the munici pality covered up instances of excessive force. The York s argue that Beaumont adopted a code of silence under which Beaumont “cover [ed] up and/or fabr icat[ed] stories when officers used excessive force.” The Yorks support this theory by again offering Beaumont police statistics, which detail that 74% of citizen complaints resulted in a lack of di sciplinary action being taken against Beaumont officers. Only 18.75% of citi zen complaints were sustained. The Yorks then reallege that Beaumont engaged in a cover-up, fabricating evidence and misleading the public abou t the circumstances of Chaz’s killing. On multiple occasions, our circuit has treated a code-of-silence theory as identical to a ra tification theory. 59 For the same reasons the Yorks’ ratification theory fails, so too does the Yorks’ code-of-silence theory. Additionally, we reiterate that the gene ric statistics the Yorks proffer lack the context necessary to render their clai m facially plausible. Moreover, the Yorks’ attempted factua l enhancements concerning Beaumont’s alleged cover-ups of excessive force rely solel y on the events surrounding Chaz’s death, suggesting that any cover-up was an isolated incident and “not the persistent, often repeated constant vi olations that constitute custom and policy.” 60 Accordingly, the district cour t properly dismissed this theory.

59 See, e.g. , Quinn v. Guerrero , 863 F.3d 353, 365 (5th Cir. 2017) (“Quinn argues the police engage in a code of silence. . . . A theo ry of ratification is limited to ‘extreme factual situations.’” (quoting Peterson v. City of Fort Worth , 588 F.3d 838, 848 (5th Cir. 2009))); Snyder v. Trepagnier , 142 F.3d 791, 797-98 (5th Cir. 1998) (construing Grandstaff as a code of silence case).

60 Campbell v. City of San Antonio , 43 F.3d 973, 977 (5th Cir. 1995) (quoting Bennett v. City of Slidell , 728 F.2d 762, 768 n.3 (5th Cir. 1984)). Case: 20-40580 Document: 49-1 Page: 17 Date Filed: 02/26/2024No. 20-40580

18 * * *
The circumstances behind Chaz’s death are troubling. But the Supreme Court has repeatedly admonished that we distinguish acts of the municipality from those of its employ ees. The Yorks have not plausibly pleaded that Beaumont’s conduct was a moving force behind Chaz’s death. For the foregoing reasons, we AFFIRM the judgment of the district court. Case: 20-40580 Document: 49-1 Page: 18 Date Filed: 02/26/2024