IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20636

DONALD EUGENE BOYD; CHARLES PRIBILSKI, also known as Jimmy

Olson,

 Plaintiffs-Appellees-Cross Appellants

v.

CITY OF HOUSTON, TEXAS,

 Defendant-Appellant -Cross Appellee

R.M. CASHDOLLAR, as HPD Officer Sergeant and Individually; HPD Officer

RODOLFO TREVINO, Individually,

 Defendants - Cross-Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CV-2947

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit

Judges.

PER CURIAM:*

When a city’s action violates constitutional rights, victims of that action

may seek relief under 42 U.S.C. § 1983, but § 1983 does not impose vicarious

liability. The city may be held liable only for its own actions. This is black letter

United States Court of Appeals

Fifth Circuit

F I L E D

November 26, 2013

Lyle W. Cayce

Clerk

* 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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law. Because the district court inadequately conveyed this critical point to the

jury, we VACATE the judgment entered against the City of Houston and

REMAND for further proceedings. At the same time, we AFFIRM the judgment

in favor of two police officers exonerated by the jury.

I.

The Pink Monkey was a nightclub in downtown Houston. Police were

concerned that the club, though open legally, was selling alcohol to underage

patrons, selling alcohol later at night than was lawful, and tolerating the openair use and sale of narcotics. The Pink Monkey had also been the site of violence.

Patrons had reported being drugged there, and in May 2007, at least two were

shot.

This case arises from a May 2008 raid of the club. The raid was conducted

by an After-Hours Task Force, “a group that was pulled together from various

divisions throughout the [Houston Police] Department as needed to address

criminal activity in the after-hours nightclubs.” Members of the Task Force were

briefed and shown a PowerPoint presentation. The presentation instructed that

roughly 500 people were expected to be in the club, 200 of whom would be

intoxicated. Although the presentation explained that “people outside the club”

should be permitted “to leave the area,” it also advised a “Perimeter Team” to

“[e]stablish a safe perimeter” and “[m]ake arrests.” 

At around 3 a.m. on the scheduled day of the raid, Donald Boyd and

Charles Pribilski were seated outside the Pink Monkey. Boyd suffered from

lupus, a disease with which he had been diagnosed when he was around twentyeight years old. The lupus caused a stroke, leaving his “right side partially

paralyzed.”1 Working for the Pink Monkey despite his disabilities, he watched

the “door guy” to ensure that he was not pocketing money. Pribilski sat next to

1 Boyd also had a pump implanted in his stomach, which distributed “a constant flow

of [medication] . . . throughout [his] spine.”

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Boyd, his friend of nearly two decades. Earlier in the evening, Pribilski had been

promoting the Pink Monkey by doing a live broadcast for a local radio station.

The two were discussing music when Pribilski saw a burst of light.

The raid was on. Officers streamed toward the club. Pribilski and Boyd

remained seated. Pribilski testified that he “was stunned”: “[J]ust in shock, I

didn’t know what was going on.” Boyd thought police might be “going after a

wanted criminal or something.” The record is unclear whether they understood

what was happening, but clear that they did not remain seated. According to

Pribilski, an officer asked another officer what to do about Boyd and Pribilski.

Sergeant Reid Cashdollar then grabbed Boyd and—in Cashdollar’s

words—“[a]ssisted him to the ground.” 

Boyd said: “slammed.” Unable to break his fall, Boyd screamed in pain as

he hit the pavement.2 Pribilski testified that he dropped to the ground and

assisted his friend, and that he was further pushed to the ground, bound with

zip ties, and detained for roughly thirty minutes. Boyd was handcuffed by Officer

Trevino and detained for about fifty minutes. According to Boyd and Pribilski,

officers reached in their pockets while they were detained.

Boyd and Pribilski filed this § 1983 action in federal district court,3

as

amended, alleging that the City of Houston, as well as Officers Cashdollar and

Trevino, violated the plaintiffs’ Fourth Amendment right “to be secure in their

persons . . . against unreasonable searches and seizures.”4It also claimed that

the City “has a custom, policy, practice, and procedure of detaining people

without reasonable suspicion or probable cause.”

2 Boyd hit the medical pump implanted in his abdomen.

3 Plaintiffs correctly alleged that jurisdiction was proper under 28 U.S.C. § 1331.

Jurisdiction was also proper under 28 U.S.C. § 1343(a)(3).

4 U.S. CONST. AMEND. IV.

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At trial, the parties disputed the basis for the officers’ actions. Sergeant

Cashdollar claimed that within a two-second period, he told Boyd “[g]et on the

ground; get on the ground,” but did not point at the ground, took “two steps”

toward Boyd, and “[a]ssisted him to the ground” when Boyd did not comply.5

Boyd acknowledged that officers were shouting “[o]n the floor, on the floor,” but

testified that, before he was touched, no officer said anything to him—and that,

in any event, he could not have moved to the ground within two seconds.

Cashdollar also thought Boyd and Pribilski might be club employees—some of

whom were suspected of being involved in illegal activities.6 Both Sergeant

Cashdollar and Officer Trevino implied, however, that they did not suspect Boyd

or Pribilski of recent criminal conduct, but detained the two because they

understood the raid plan to instruct them to detain employees.

Boyd and Pribilski also elicited testimony about the raid plan.Their expert

witness, Roger Clark, testified that police should have used non-raid strategies

to abate the problems at the Pink Monkey. He also criticized the raid as being

understaffed, opined that it “called for quick response and it created an urgency

that enhanced the danger unnecessarily,” and described other raids that had

occurred in years prior. 

Kurt Munden also testified about the raid, which took place when he was

an Assistant Chief of Police. He claimed that the Task Force had conducted three

raids prior to the Pink Monkey raid, each of comparable (but smaller) size, and

that other raids had also taken place. Munden did not testify, however, that the

Chief of Police was aware of the raids or their details. Similarly, he testified that

the Mayor and Chief of Police did not sign the Pink Monkey raid plan and did

not review the PowerPoint presentation.

5 A news cameraman also testified that he heard officers yelling, “‘Get down, police, get

on the floor,’ things [of] that nature.”

6 Cashdollar testified that he was suspicious of Pribilski in part because Pribilski was

“[t]exting.”

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The district court instructed the jury that a constitutional violation

occurred; specifically, that “search and seizure of the plaintiffs’ person was

without probable cause and was unlawful and a violation of the Fourth

Amendment.” The court submitted to the jury the question of the City’s liability.

The jury found that a “custom, policy, or practice of the City of Houston was a

proximate cause of the wrongful acts of the officers against Donald Boyd or

Charles Pribilski.” It also found that Cashdollar and Trevino did not

intentionally commit acts that violated Pribilski’s or Boyd’s constitutional rights.

The district court entered judgment only against the City, awarding damages,

costs, and fees. The City appeals, and plaintiffs cross-appeal. 

II.

The City raises several alleged errors in its opening brief. Its most

compelling argument is that the district court misinformed the jury concerning

§ 1983 municipal liability. To demonstrate error, the City must establish “that

the charge as a whole creates ‘substantial and ineradicable doubt whether the

jury has been properly guided in its deliberations.’”7“[E]ven if the jury

instructions were erroneous, we will not reverse if we determine, based upon the

entire record, that the challenged instruction could not have affected the

outcome of the case.”8

Section 1983 provides a cause of action against “[e]very 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 . . . to the

deprivation of any rights . . . secured by the Constitution.”9 A municipality is a

7 Wright v. Ford Motor Co., 508 F.3d 263, 268 (5th Cir. 2007) (citation omitted) (internal

quotation marks omitted).

8

Id. (citation omitted) (internal quotation marks omitted).

9

42 U.S.C. § 1983.

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“person” within the meaning of § 198310—one not entitled to Eleventh

Amendment or qualified immunity.11

A § 1983 plaintiff seeking relief from a municipality “must show that the

municipal action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action and the

deprivation of federal rights.”12In other words, “[t]he plaintiff must . . .

demonstrate that, through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged.”13 These requirements are satisfied

when a “municipal action itself violates federal law, or directs an employee to do

so.”14 So, for example, when considering “formal decisions of municipal

legislative bodies,” “proof that the municipality’s decision was unconstitutional”

suffices to establish municipal liability.15 Likewise, when a policymaker

“specifically direct[s] the action resulting in the deprivation of” a plaintiff’s

rights, “[n]o questions of fault or causation” arise.16

But when a plaintiff contends that a “facially lawful municipal action has

led an employee to violate a plaintiff’s rights,” he “must demonstrate that the

municipal action was taken with deliberate indifference as to its known or

obvious consequences.”17“If a [training] program does not prevent constitutional

10 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978) (overruling Monroe v.

Pape, 365 U.S. 167 (1961)).

11

Id. at 690 n.54 (Eleventh Amendment immunity); Owen v. City of Independence, 445

U.S. 622, 638 (1980) (qualified immunity).

12 Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997).

13

Id.

14

Id.

15

Id. at 406.

16

Id.

17

Id. at 407 (citation omitted) (internal quotation marks omitted).

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violations, municipal decisionmakers may eventually be put on notice that a new

program is called for” and “[t]heir continued adherence to an approach that they

know or should know has failed to prevent tortious conduct by employees may

establish the conscious disregard for the consequences of their action—the

deliberate indifference—necessary to trigger municipal liability.”18 

So long as the municipal policy at issue is facially lawful, the “deliberate

indifference” requirement applies even where a plaintiff relies on a “custom,” as

opposed to a formal legislative act.19 This because the relevant question then is

not whether a municipality is aware of and indifferent to the existence of a

custom; rather, it is whether the municipality is indifferent “to the risk that a

violation of a particular constitutional . . . right will follow” from that custom.20

This principle complements the principle that a municipality can be held liable

if—and only if—it is the entity doing the acting. That is a city may act by

directing a facially lawful raid, but absent proof of deliberate indifference, it

cannot be held liable for its employees’ actions during that raid where those

actions are alleged to be due to its custom.

The City contends that the district court’s jury instructions failed to charge

this “deliberate indifference” requirement. The district court’s causation

instruction read:

The plaintiffs must also prove by a preponderance of the

evidence that the act(s) or failure to act by the defendant was a

proximate cause (cause-in-fact) of the damages the plaintiffs

suffered. An act or a failure to act is a proximate cause of an injury

or damages if it appears from the evidence that the act or omission

played a substantial part in bringing about or actually causing the

injury or damages. An act or omission is a proximate cause of the

plaintiff’s injuries or damages if it appears from the evidence that

18

Id. (citation omitted) (internal quotation marks omitted).

19 See Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).

20 Bryan Cnty., 520 U.S. at 411.

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the injury or damage was a reasonably foreseeable consequence of

the act or omission.

The relevant interrogatory inquired:

Do you find by a preponderance of the evidence that any

custom, policy, or practice of the City of Houston was a proximate

cause of the wrongful acts of the officers against Donald Boyd or

Charles Pribilski?

The district court also instructed that:

The plaintiffs also claim that the City of Houston, through

acts or omissions, ratified The After Hours Task Force Operation,

. . . thereby sanctioning the conduct of defendant officers. When a

plaintiff is deprived of a constitutional right as a result of an

“official policy” of a city, the city is liable for the deprivation.

Therefore, if you find that the plaintiff was injured as the proximate

or legal result of City of Houston’s policy, custom, ordinance,

regulation or decision, whether made by its lawmakers or by those

officials whose edicts or acts may fairly be said to represent official

policy, the City itself will be responsible.

In order for a plaintiff to establish this claim, he must prove:

(1) a policy or custom existed; (2) the governmental policy makers

actually or constructively knew of its existence; (3) a constitutional

violation occurred; and (4) the custom or policy served as the moving

force behind the violation. You are instructed that the Court finds

as a matter of law that a constitutional violation occurred. 

Our inquiry begins with whether the relevant City policy was facially

lawful and did not direct unlawful action. Reading the charge as a whole as we

are required to do,21 we find that the parties have not identified the “policies or

customs” at issue with precision. The jury could have thought the “custom” at

issue was one of arresting persons without probable cause. That custom would

be facially unlawful—and as an unlawful act of the City, it could give rise to

municipal liability.22 But the jury might also have found the custom to be raiding

21 See Wright, 508 F.3d at 268.

22 The jury might also have thought that the City adopted the Pink Monkey raid plan

as one of its policies, and jurors could have understood the raid plan to call for unlawful

actions.

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clubs suspected of illegal activity. No one disputes the legality of doing or

directing that conduct, so the City could be held liable for rights violations

during raids only if it was deliberately indifferent to their possibilities. Or the

jury might instead have understood the City to have adopted the Pink Monkey

raid plan as one of its policies, but understood the raid plan not to direct

unlawful actions. If the jury did so, then it could hold the City liable for those

unlawful actions only if the City was deliberately indifferent to those violations’

possible occurrence. Given these possibilities, we are left with “substantial and

ineradicable doubt whether the jury [was] properly guided in its deliberations.”23

The jury could have answered “Yes” to the relevant interrogatory without

finding the “requisite degree of culpability”24—holding the City liable not for the

City’s actions, but for the unauthorized actions of its employees.

This was a salient weakness in the jury instructions. The plaintiffs elicited

testimony concerning raids prior to the Pink Monkey raid, primarily from Roger

Clark, who explained:

[T]here’s a four-year history of 26 raids of this type that occurred,

and . . . there . . . appears to be a pattern in the department of doing

these types of raids which result in unnecessary detention . . . . I

totaled the number of detentions that occurred [during those prior

raids]. There were a total of 5,496 detentions that occurred in this,

in over the period of these four years of 26 raids that appear to occur

for hours, people not free to go or to do anything. . . . And . . . this

pattern that had been established over this four-year period of these

excessive detentions then ended with the Pink Monkey and are

reflected in this episode . . . .

A reasonable jury might have been unwilling to infer from that testimony that

the City was deliberately indifferent to or directed rights violations, but might

have asked how many of those detentions were unlawful, and how many of those

unlawful detentions came to the City’s attention, and how the City responded to

23 Wright, 508 F.3d at 268 (citation omitted) (internal quotation marks omitted).

24 Bryan Cnty., 520 U.S. at 404.

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alleged constitutional violations.25 While officers testified that they detained

plaintiffs in accord with the raid plan, the jury might have concluded that the

plan did not call for detentions of this duration—that is, for detentions so long

that they transformed into unconstitutional arrests.26

 While the jury may well

have had before it sufficient evidence to find the City liable, a matter we do not

need to reach and hence do not, we cannot uphold a verdict responding to these

instructions. The judgment must be vacated.27

We turn to the cross-appeal. 

III.

The district court instructed the jury that defendants’ constitutional rights

were violated. The jury found that the City was liable for those violations. But

the jury also found that Sergeant Cashdollar and Officer Trevino were not liable

—a verdict that, according to the cross-appeal, was insufficiently supported by

the evidence. 

The district court charged the jury as follows:

The fact that the Court has instructed you that the search and

seizure of the person of the plaintiffs violated their Fourth

Amendment rights does not end the inquiry. The plaintiffs must

prove by a preponderance of the evidence that either (1) the

defendant officers were plainly incompetent; or (2) that they

knowingly violated the law regarding the plaintiffs’ constitutional

rights. If you find however that the defendant officers were ignorant

of the law, or had a “reasonable belief” that they could arrest and

search the plaintiffs, then you cannot find them liable even though

25 The jury would have had particular difficulty concluding that the City was

deliberately indifferent to the risk of unlawful searches—constitutional violations distinct from

the unlawful detentions on which the aforementioned testimony focused.

26 This theory of liability has another difficulty: it is difficult to impute knowledge of

the Pink Monkey raid in particular to the City’s policymakers, even if its policymakers were

likely aware of a broader custom of raids.

27 On remand, the district court is free to reconsider its evidentiary rulings and other

jury instructions.

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the plaintiffs’ rights were in fact violated as a result of the

defendant officers’ conduct.

The district court then posed this interrogatory: “Do you [find] from a

preponderance of the evidence that . . . the defendants intentionally committed

acts that violated the plaintiff Donald Boyd’s federal constitutional right not to

be subjected to an unreasonable search of his person or an unreasonable

detention?” The court posed a substantively identical interrogatory regarding

Pribilski. To both questions, the jury answered, “No.”28

Plaintiffs contend on cross-appeal that no reasonable jury could have

reached this conclusion. Their two-paragraph cross-appeal is limited. Plaintiffs

did not object to the district court’s instruction that is relevant here, nor do they

purport to renew any such objection. They do not contend that, regardless of the

evidence, the district court should have decided the qualified-immunity question

rather than submitting that question to the jury. Nor do they contend that the

district court reversibly erred in admitting certain evidence.29 Even if the error

was preserved, it is without merit.

* * *

The judgment against the City is VACATED and the cause is

REMANDED for further proceedings consistent with this opinion. The judgment

in favor of Officer Cashdollar and Trevino is AFFIRMED. 

28 The court asked the jury to answer this question with respect to each of Cashdollar

and Trevino. Technically, then, the jury answered “No” to four questions—two with respect

to Boyd and two with respect to Pribilski.

29

Indeed, it is only in reply to Cashdollar and Trevino’s response to the cross-appeal

that plaintiffs claim that, in the district court, they argued that officers were impermissibly

permitted to opine about the law.

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