### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20636

DONAL D E U G ENE BOYD; CHARLES P RIBILSKI, also known as Jimmy Olson,
Pl aintif f s - Ap p e l l e e s - C r o s sAp p e ll ant s v. CITY OF HOUSTON, TEXAS,
D e f e n d a n t

- Ap p e l l a n t- C r o s sAp p e l l e e R.M. CASHDOLLAR, a s HPD Officer Sergeant and I ndividually ; H P D 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

B e f ore S TEWART, Chief Judge, a nd HIGGINBOTHAM and JONES, Circui t Judges. PER CURIAM: * When a city’s action v i o l a t e s constitutional rights, victims of that action may seek relief under 42 U.S.C. § 1983, but § 1983 does not impos e v icarious liability. The city may b e held liable only f or its o wn actions. This is black letter U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-20636 Document: 00512454490 Page: 1 Date Filed: 11/26/2013No. 11-20636

law. Because the district c ourt inadequat ely conveyed this critical point to the j u r y , w e V

ACATE the judgment entered a gainst the City of H oust o n a n d REMAND for further proceedings. At the same t ime, we AFFIRM the judgment in favor of two police officers exonerated by the jury. I. The Pink Monkey w a s a n ightclub in downtown Houston. Police were concerned th a t t h e club, though open legally, was selling alcohol to underage patrons, selling alcohol later at night than was lawful, and tolerating the openair use and s a le of narcotics. The Pink Monkey had also been the s ite of violence. Patrons had reported being drugged there, and in May 2007, at least two were shot. This case arises from a May 2008 r aid of the club. The raid was conducted by an After-Hours Task Force, “a group that was pulled t o gether from various divisions throughout t he [ H o u s ton Police] Department as needed to address criminal activity in the after-hours nightclubs.” Members of the Task Force were briefed and shown a PowerPoint p resentation. The presentation i nstructed that roughly 5 0 0 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,” i t a l s o a d v i sed a “Perimeter Team” to “[e]stablish a safe perimeter” and “[m]ake arrests.” At around 3 a.m . o n the scheduled day of the raid, Donald B oyd and Charles Pribilski were s eated outside the P i n k M onkey. Boyd s uffered from lupus, a disease with w h i ch he had been diagnosed when he was around twentyeight years old. The lupus caused a stroke, leaving his “right side p a r t i a lly paralyzed.” 1 Working f o r t he P i n k M onkey despite his disabilities, he watched the “door guy” t o ensure that he was not pocketing money. Pribilski sat next to

1 Boyd als o had a p um p im p lanted in his s tom ach, w hich d is tributed “a cons tant f low of [ m ed ication]

. . . throughout [ his ] s p ine. ” 2 Case: 11-20636 Document: 00512454490 Page: 2 Date Filed: 11/26/2013No. 11-20636

Boyd, his friend of nearly two decades. Earlier in the evening, P ribilski had been promoting the Pink Monkey by d o i n g a live broadcast for a local radio station. The two were discussing music when Pribilski saw a burst of light. T h e raid w as on. O fficers streamed toward the club. Pribilski a n d B o y d remained seated. Pribilski testified th a t h e “ was stunned”: “[J]ust in shock, I didn’t know what was going o n.” Boyd thought police m ight b e “going after a wanted criminal o r 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 C a shdollar’s words—“[a]ssisted him to the ground.” Boyd s aid: “slammed.” Unable t o break his fall, Boyd screamed in pain as he hit the p avement. 2 Pribilski t e s t i f ied that he dropped to the ground and assisted his friend, and t hat he was further pushed t o th e g r o u nd, bound with zip ties, and detained for r oughly thirty m inutes. Boyd was h an d c uf f ed by Officer Trevino and detained for about f ifty minutes. According to Boyd and Pribilski, officers reached in their pockets while they were detained. Boyd and P r ib i l s k i filed this § 1 983 action in f ederal district court, 3 as amended, alleging that the City o f Houston, as well a s Officers C ashdollar and Trevino, violated the plaintiffs’ F ourth Amendment right “to be secure in their
persons . . . against unreasonable searches and seizures.” 4 I t also claimed that the City “has a custom, p olicy, practice, and p ro c e d u r e of detaining people without reasonable suspicion or probable cause.”

2 Boydhit the med ical p um p im p lanted in his abd om en.

3 Plaintif

f s correctly alleged that juris d iction w as p rop er und er 2 8 U

. S. C

. § 1331. Juris d iction w as als o p rop er und er 28 U

. S. C. § 1343( a) (3)

.

4 U

. S. C ON ST

. A

M E N D

. IV. 3 Case: 11-20636 Document: 00512454490 Page: 3 Date Filed: 11/26/2013No. 11-20636

At trial, t he parties d i sputed the basis f or the officers’ actions. Sergeant Cashdollar claimed that within a two-second period, he told Boyd “[g]et on the g r ound; g et o n the ground,” but did not point at the ground, took “ t w o s t e p s ” toward Boyd, and “[a]ssisted him to the g r o u n d” when Boyd did not comply. 5 Boyd acknowledged that officers were shouting “[o]n the floor, o n the floor,” but testified that, before he was touched, no officer said anything to him—and that, in any event, he could not h ave moved to the groun d w i t h i n t wo seconds. Cashdollar also thought Boyd and Pribilski might be club employees—some of whom were suspected of being involved i n illegal activities. 6 Both Sergeant Cashdollar a nd Officer Trevino implied, however, t hat they did not suspect Boyd

or P ribilski of recent criminal conduct, but detained the t wo b ecause they understood the raid plan to instruct them to detain employees. B o y d a nd Pribilski also elicited testimony about the raid plan. Th e ir e xp e rt 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 t hat it “called for quick r esponse and it created a n urgency that enhanced t he danger unnecessarily,” and described ot h e r r a i ds t hat had occurred in years prior. Kurt M unden also testified about the raid, which took place when he was
an Assistant Chief of Police. He claimed that the Task F orce 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 t e stify, however, that the Chief of Police was aware o f the raids or their details. S imilarly, he testified that the Mayor and C hief of Police did not sign the Pink M onkey raid p l a n a n d d i d not review the PowerPoint presentation.

5 A new s cam eram an als o tes tif ied that he heard of

f icers yelling, “‘G et d ow n, p olice, get on the floor, ’ things [ of ] that nature. ”

6 Cas hd ollar tes tif

ied that he w as s us p icious of Pribils k i in p art becaus e Pribils k i w as “[ t] exting. ” 4 Case: 11-20636 Document: 00512454490 Page: 4 Date Filed: 11/26/2013No. 11-20636

The district court instructed the jury t h a t a constitutional violation occurred; specifically, that “search and seizure of the plaintiffs’ person was without probable cause and was u n l a w f ul and a violation of the Fourth Amendment.” The court submitted to t he jury the question of t he City’s l iability. The j ury found that a “custom, policy, o r p r a c t i ce of the City of Houston was a proximate cause of the wrong f u l acts of the officers against Donald Boyd or Charles Pribilski.” It a lso found that Cashdollar and Trevino did not i n t e n ti o n al ly c o m m i t a c t s th at violated Pribilski’s o r Boyd’s constitutional ri gh t s . The district court e n tered judgment only against the City, a warding damages, costs, and fees. The City appeals, and plaintiffs cross-appeal.

II. The City raises several alleged e r r o r s i n its opening brief. I ts most compelling argument is that t he district court misinformed the j ury concerning § 1983 municipal liability. To demonstrate error, t he City must establish “that the charge as a whole c reates ‘substantial and ineradicable doubt whether the jury has been p roperly guided in its de liberations.’” 7 “[E]ven if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, t hat the challenged instruction could not h ave a ffected 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 us a g e , of any State

. . . subjec t s , o r c a uses to be s ubjected, any citizen of the United States

. . . to the deprivation o f 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 om itted ) (internal quotation m ark s om itted )

.

8 Id. (citation om itted ) (internal quotation mark s om itted)

.
9 42 U

. S. C. § 1983. 5 Case: 11-20636 Document: 00512454490 Page: 5 Date Filed: 11/26/2013No. 11-20636

“pers o n” within the m eaning of § 1983 1 0—one not entitled to Eleventh Amendment or qualified immunity. 1 1 A § 1983 plaintiff seeking relief from a municipality “must show that the municipal action was taken with the requisite degree of culpability a n d m u s t dem o n s t r a t e a direct causal link between the municipal action and the deprivation of federal rights.” 1 2 In other words, “[t]he plaintiff must

. . . demonstrate that, through its d e l i b e rate conduct, the municipality was the ‘moving force’ behind t he injury alleged.” 1 3 These r e q u irements are satisfied when a “municipal action itself violates f ederal law, o r directs an employee to d o so.” 1 4 So, for example, w hen considering “formal decisions of mun icipal legislative bodies,” “ proof that the municipality’s decision was unconstitutional” suffice s to establish municipal liability. 1 5 Likewise, when a p olicymaker “sp e c i fically direct[s] t he action resulting in the deprivation o f” a plaintiff’s rights, “[n]o questions of fault or causation” arise. 1 6 But when a plaintiff contends that a “facially lawful municipal action has led an employee to violate a plaintif f ’ s r i ghts,” he “ must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.” 1 7 “If a [training] program d oes not prevent constitutional

1 0 Monel l v . D ep ’t of Soc. Serv s. , 4 3 6 U

. S. 658, 690–91 ( 1978) ( overruling M onroe v . Pa pe , 365 U

. S. 167 ( 1961) )

.
1 1 Id. at 690 n. 54 ( Eleventh A m end m ent im m unity) ; O w en v . Ci t y of Indep endence , 445 U

. S. 622, 638 ( 1980) ( qualif ied im m unity)

.
1 2 Bd. of Cnty. Com m ’rs of Brya n Cnty. , Okl a. v . Brow n , 520 U

. S. 397, 404 (1997)

.
1 3 Id.

1 4 Id.

1 5 Id. at 406.

1 6 Id.

1 7 Id. at 407 ( citation om itted) (internal quotation m ark s om itted )

. 6 Case: 11-20636 Document: 00512454490 Page: 6 Date Filed: 11/26/2013No. 11-20636

violations, municipal decisionmakers may eventually be p u t o n notice that a new program is called f

o r” and “[t]heir c ontinued adherence to an a pproach that they know or should know has failed to prevent tortious conduct by employees m ay establish the conscious disregard for t h e c onsequences of their action—the deliberate indifference—necessary to trigger municipal liability.” 1 8 So long as the municipal policy at i ssue is facially lawful, the “deliberate indifference” requirement applies even where a plaintiff relies on a “custom,” as opposed to a formal l egislative act. 1 9 This because the relevant question then is not whether a municipality is aware of and indiffe r e n t t o t h e existence of a custom ; rather, it is whether the municipality is indifferent “to the r i s k that a violation of a particular constitutional

. . . right will follow” from that c ustom. 2 0 This principle complements the principle that a m unicipality c an be h eld liable if—and only if—it is the entity doin g t h e a c t i n g
. That is a city may act by directing a f

acially lawful raid, b u t a b s e nt proof of deliberate indifference, it cannot be held liable f o r its employees’ actions during that raid w here those actions are alleged to be due to its custom. The City contends that t he district court’s jury i n s tru c t i o n s f ail e d t o charge this “deliber a t e indifference” requirement. The district court’s causation instruction read:

The plaintiffs m ust also p r o v e by a preponderance of t h e evid e n c e that the act(s) or failure to a ct by t he defendant was a proximate cause (cause-in-fact ) of the d amages t h e plaintiffs suffered. An act or a f

ailure to act is a proximate cause of an injury or damages if it appears from the evidence t hat the a ct or omission played a s ubstantial part in bringing about or actually causing t h e injury or damages. An act or omission is a proximate c ause of t h e plaintiff’s injuries or d amages i f it appears from the evidence that

1 8 Id. ( citation om itted ) (internal quotation m ark s om itted )

.
1 9 See Burge v . St. Ta m m a ny Pa ri sh , 336 F. 3d 363, 370 ( 5th Cir. 2003)

.
2 0 Brya n Cnty. , 520 U. S. at 411. 7 Case: 11-20636 Document: 00512454490 Page: 7 Date Filed: 11/26/2013No. 11-20636

the injury or d amage was a reasonably foreseeable consequence of the act or omission. The relevant interrogatory inquired:

Do you find by a prepondera n c e of t he e vidence that any custom, policy, or practice of t he City of Houston was a pro x i m a t e cause of t he wrongful a ct s o f t h e officers a gainst Donald Boyd or Charles Pribilski? The district court also instructed that:

The plaintiffs also claim that t h e C i t y o f Houston, through acts or omissions, r a t i f i e d The After Hours T a sk Force Operation,

. . . thereby sanctioning the conduct o f d efendant officers. W h e n a plaintiff is depri v e d o f a constitutional right as a result o f an “of f i c ial policy” o f a city, the city is l iable for the deprivation. Therefore, if you f

ind that the plaintiff was injured a s the proximate or legal result o f City o f Houston’s policy, c u stom, o rdinan ce, regulation or d ecision, whether made by its lawmakers or by those officials whose edicts o r acts may fairly be s aid to represent o fficial policy, the City itself will be responsible. In order for a plaintiff to establish this claim, h e 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 s erved as t he moving force b ehind the violation. You are i n structed that t h e Court fin d s as a matter of law that a constitutional violation occurred. Our inquiry begins w i t h w h ether the r elevant City policy was facially lawful and did n ot direct unlawful action. Reading the c harge as a whole as we
are required to do, 2 1 we find that the p arties have not identified the “policies or customs” at issue with precision. The jury c ould have thought the “ c u s t o m ” at issue was one of a rresting persons without probable cause. That custom would b e f a cially unlawful—and as an unlawful a ct of t he City, it could give ri s e t o municipal liability. 2 2 But the jury might also have found the custom to b e raiding

2 1 See Wright , 508 F. 3d at 268.

2 2 The jury m ight als o have thought that the C ity ad op ted the Pink M onk ey raid p lan as one of its policies , and jurors could h a ve u n d ers tood the raid p lan to call f or unlaw ful actions

. 8 Case: 11-20636 Document: 00512454490 Page: 8 Date Filed: 11/26/2013No. 11-20636

clubs suspected of illegal activity. N o one disputes the legality of doing or directing that conduct, so t h e C i ty could be held liable for rights violations during raids only if it was deliberately indifferent t o t h e ir possibilities. Or the jury might instead h ave understood the City to have adopted the Pink Monkey raid plan as one of its policies, bu t u nderstood the raid plan not to direct

u n l a w f u l a c t i ons. If the jury did so, then i t could hold t he City liable for tho s e unlawful actions only if the City was deliberately i n different to those violations’ possible occurrence. Given t hese possibilities, we are left with “substantial and iner a dicable doubt whether the jury [was] properly guided i n its d e liberations.” 2 3 The j ury c ould h ave answ e r ed “Yes” to the relevant interrogatory without finding the “requisite degree of culpability” 2 4—holding the City liable not for the City’s actions, but for the unauthorized actions of its employees. This was a salient weakness in t he jury instructions. T he plaintiffs elicited testimony concerning raids p rior to t he Pink Monkey raid, p rimarily from Roger Clark, who explained: [ T ]here’s a four-year history of 26 raids of this type that occ u r r e d , and

. . . t here

. . . appears to be a p attern i n the department of doing t h e s e types of raids which result i n unnecessary d etention

. . . . I totaled the number of detentions that occurred [during those prior raids]. There were a total of 5,496 detentions t hat occurred in this, in over the period of these four years of 26 raids that a ppear to occur for hours, people not free to go or to d o anything.

. . . And

. . . this pattern that had been established over this four-year period of these e xcessive d etentions then ended with the Pink Monkey and a r e reflected in this episode . . . . A r easonable j ury might have been unwilling to infer from that testimony that the City was d eliberately indifferent to o r 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

2 3 Wright , 508 F. 3d at 268 ( citation om itted ) (internal quotation m ark s om itted )

.
2 4 Brya n Cnty. , 520 U. S. at 404. 9 Case: 11-20636 Document: 00512454490 Page: 9 Date Filed: 11/26/2013No. 11-20636

alleged constitutional violations. 2 5 Whil e officers testified that they d etained plaintiffs in accord with the raid plan, t he 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. 2 6While the jury may well have had before it sufficient e vidence to f ind t h e City liable, a matter we do not need to reach and hence do not, we cannot uphold a verdict r esponding to these instructions. The judgment must be vacated. 2 7 We turn to the cross-appeal. I II. Th e district court instructed the jury that defendant s ’ c o n s t it u ti o n al ri gh t s were violated. The j ury 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 i nsufficiently supported by the evidence. The district court charged the jury as follows: The fact that the C ourt has instructed you that the s earch and seizure of t he person of the plaintiffs v i o lated their Fourth Amendment rights does not e nd the i n q u i r y. The p laintiffs must prove by a p r e p onderance of the evidence that either (1) t h e d e fendant officers were plainly incompetent; or (2) that t hey knowingly violated the law regarding t he plaintiffs’ constitutional rights. If y ou find however that t he defendant officers w ere ignorant of the law, or had a “reasonable belief” th a t they could arrest and search the plaintiffs, t hen you cannot find them liable even though

2 5 The jury w oul d h a ve had p articular d if f iculty conclud ing that the City w as d eliberately ind if

f erent t o t h e ri sk o f u nl a wf ul s e a r c h e s—c o n s t i t u t i o n al violations d is tinct f rom the unlaw f

ul d etentions on w hich the af orem entioned tes tim ony f ocus ed

.
2 6 This theory of liability has another d i f f i c u l t y : it is d if

f icult to im p ute k now led ge of the Pink M onk ey raid in p articular to the City’s p olicym ak ers , even if its policym ak ers w ere lik ely aw are of a broad er cus tom of raid s .

2 7 O n rem and , the d is trict court is f ree to recons id er its evid entiary rulings and other jury ins tructions

. 10 Case: 11-20636 Document: 00512454490 Page: 10 Date Filed: 11/26/2013No. 11-20636

the plaintif

f s ’ r i g h t s w ere in fact violated as a result of t h e defendant officers’ conduct. The district court then posed this interrogatory: “Do you [find] from a preponderance o f t he evidence that

. . . the defendants intentionally committed acts that violated t he plaintiff Donald Boyd’s federal constitutional right not to be s u bj e c t e d to an unreasonable search of his person or an unreasonable detention?” The c ourt p o s ed a substantively i dentical interrogatory regarding Pribilski. To both questions, the jury answered, “No.” 2 8 Plaintiffs contend on c r o s s - appeal that no reasonable jury could have reached this conclusion. Their two-paragraph cross-appeal is l imited. Plaintiffs did not o bject to the district court’s instruction that is relevant here, nor do they purport to renew any such objection. They do not c ontend that, regardless of the evidence, the district court should have d e cided the qualif i e d -immunity question rather than submitting that question t o the jury. Nor do they contend that the district court reversibly erred in admitting certain e vidence. 2 9 Even if the error was preserved, it is without merit. * * * T h e judgment against the C ity is V ACATED and the cause i s REMAN D E D f

o r f u rther proceedings consistent with this opinion. The judgment in favor of Officer Cashdollar and Trevino is AFFIRMED.

2 8 The court as k ed the j ury to ans w er this ques tion with res p ect to each of Cas hd ollar and Trevino. Techn i c a l l y , then, the jury ans wered “N o” to f our ques tions

—tw o w ith res p ect to Boyd and tw o w ith res p ect to Pribils k i.

2 9 Ind eed , it is only in rep ly to Cas hd ol l a r and T revino’s res p ons e to the cros s - ap p eal that p laintif

f s claim that, in the d is trict court, they argued that of f icers were im perm is s ibly p erm itted to op ine about the law

. 11 Case: 11-20636 Document: 00512454490 Page: 11 Date Filed: 11/26/2013