United States Court of Appeals

for the Fifth Circuit

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No. 22-20611

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Stephanie Zavala, 

Plaintiff—Appellant,

versus

Harris County, Texas; N. Harmon, Jailer; Diaz, Jailer, 

Defendants—Appellees.

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Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:19-CV-3341

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Before Wiener, Willett, and Douglas, Circuit Judges.

Per Curiam:*

On September 12, 2017, Stephanie Zavala was arrested for 

misdemeanor criminal trespass and booked into the Harris County Jail. While 

confined, Zavala alleges that “one or more of the other inmates punched, 

kicked, and threw her on the floor where her head struck the concrete while 

two unidentified jailers looked on for several minutes.” Zavala also alleges 

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

November 21, 2023

Lyle W. Cayce

Clerk

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2

that, on a prior occasion, she requested water from Jailer Napoleon Harmon.

She says that, instead of giving her water, he placed her in a cell and used a 

hog-tie on her by shackling her wrists to her ankles because he was “annoyed 

with” her. In response, Zavala filed a complaint with the Harris County 

Sheriff’s Office of the Inspector General (OIG).1 Zavala contends that when 

she asked Harmon for water, he “pointed to the area where the disgusting 

toilet was and said [Zavala] could drink from there.” In her OIG complaint, 

Zavala stated that the combined toilet and sink area in the holding cell was 

unsanitary, but she did end up drinking water from the sink. 

Zavala filed a 42 U.S.C. § 1983 complaint and two amended 

complaints naming as defendants Harris County, Texas, (County) and

Harmon.

2 The district court granted a motion for judgment on the pleadings 

and dismissed all claims against the County on November 23, 2021. On

October 19, 2022, the district court granted summary judgment in favor of 

Harmon, dismissing with prejudice the Fourth and Fourteenth Amendment 

excessive force claims against him. The court also granted summary 

judgment in favor of Harmon for depriving Zavala of water when she was 

allegedly dehydrated in violation of the Fourteenth Amendment. Zavala 

timely appealed. 

Zavala does not challenge the district court’s dismissal of her waterdeprivation claim against Harmon or of her Fifth Amendment Due Process 

claim. Zavala does, however, challenge the district court’s judgment for the 

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1 There were two toilets in Zavala’s holding cell. Both toilets were 

connected to sinks. One of the toilets was clogged and had a sink on top of 

it. The other toilet appeared to be functioning.

2 Zavala also brought claims against a jailer identified only as “Jailer Diaz.”

The district court dismissed the claims against Diaz without prejudice for 

failure to serve pursuant to Fed. R. Civ. P. 4(m). Zavala does not 

challenge the district court’s dismissal of Diaz in this appeal.

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County on the pleadings (second amended complaint), which concluded that 

Zavala failed to state a claim for municipal liability under Monell v. Dep’t of

Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978). See Fed. R. Civ. P.

12(c). She also appeals the district court’s grant of summary judgment in 

favor of Harmon on qualified immunity groundsfor the excessive force claim.

Both challenges fail.

I

A

We review de novo the district court’s grant of the County’s motion 

for judgment on the pleadings. Harrison v. Brookhaven Sch. Dist., 82 F.4th 

427, 429 (5th Cir. 2023) (per curiam). For a motion for judgment on the 

pleadings, we review “whether, in the light most favorable to the plaintiff, 

the complaint states a valid claim for relief.” Id. (quoting Doe v. MySpace, 

Inc., 528 F.3d 413, 418 (5th Cir. 2008) (citations omitted)); Fed. R. Civ. 

P. 12 (c). A Monell claim is used to assert liability for municipal policy. Webb 

v. Town of Saint Joseph, 925 F.3d 209, 214–15 (5th Cir. 2019). We have 

identified three ways this liability can be established: 

First, a plaintiff can show written policy statements, 

ordinances, or regulations. Second, a plaintiff can show a 

widespread practice that is so common and well-settled as to 

constitute a custom that fairly represents municipal policy. 

Third, even a single decision may constitute municipal policy 

in rare circumstances when the official or entity possessing 

final policymaking authority for an action performs the specific 

act that forms the basis of the § 1983 claim.

Id. (quotation marks and citations omitted). 

Zavala alleges that the County has a widespread practice of allowing 

excessive use of force in the jail. She points to prior instances of an officer 

beating an inmate, an officer leaving an inmate in a squalid cell, and officers 

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shooting suspects outside the jail setting that she says show a pattern of 

conduct that fairly represents municipal policy. She contends that, as part of 

this policy, the County (1) failed to intervene when other inmates threw her 

on the floor, and (2) allowed Harmon to hog-tie her. 

“Where prior incidents are used to prove a pattern, they 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.” Peterson v. 

City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009) (internal quotation 

marks and citation omitted). “A pattern requires similarity and specificity; 

prior indications . . . must point to the specific violation in question.” Id. at 

851 (alteration adopted) (internal quotation marks and citation omitted). The 

incidents to which Zavala points do not have the requisite similarity to be

deemed a custom, adopted as official policy, and are not analogous to the facts 

here. As the district court observed, she has not alleged instances where 

jailers failed to intervene or used hog-ties in circumstances like hers. She thus 

fails to show a “practice that is so common and well-settled as to constitute 

a custom that fairly represents municipal policy.” See Webb, 925 F.3d at 215 

(citation omitted).

Zavala also cannot prevail on any other theory of municipal liability. 

She does not show that the County was “deliberate[ly] indifferen[t] to an 

obvious need” in training its employees with respect to those issues. See 

Peterson, 588 F.3d at 849. Nor has she alleged facts supporting liability under 

a ratification theory. Id. at 848 (citation omitted) (explaining that ratification 

may occur when “the authorized policymakers approve a subordinate’s 

decision and the basis for it,” but that only happens in “extreme factual 

situations.”) To the extent that Zavala argues these claims should be 

maintained because she has yet to obtain discovery, the district court 

determined correctly that she had ample prior opportunity to do so. Thus, 

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we agree with the district court that Zavala failed to state a Monell claim 

against the County. Monell, 436 U.S. at 690-91, 94. 

B

We review the adverse summary judgment ruling granted by the 

district court on the excessive force claim against Harmon de novo. See Estate

of Henson v. Wichita County, 795 F.3d 456, 461 (5th Cir. 2015). Summary

judgment is proper if “the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). Where, as here, Harmon asserts qualified 

immunity, the burden shifts to Zavala to overcome that defense. See Melton 

v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc). “[T]he plaintiff must 

show that the official violated a [plaintiff’s] statutory or constitutional right” 

and “that the right was clearly established at the time of the challenged

conduct.” Id. (internal quotation marks and citations omitted). Which prong

of that analysis to address first is within our discretion. See Pearson v. 

Callahan, 555 U.S. 223, 236 (2009).

Although Zavala asserts that Harmon used excessive force in violation

of both the Fourth and Fourteenth Amendments, “[t]he constitutional rights 

of a pretrial detainee are found in the procedural and substantive due process 

guarantees of the Fourteenth Amendment.” Cope v.Cogdill, 3 F.4th 198, 206 

(5th Cir. 2021) (citation omitted), cert. denied, 142 S. Ct. 2573 (2022);see Boyd 

v. McNamara, 74 F.4th 662, 673 n.3 (2023) (the Fourteenth Amendment “is 

the locus of the right of a pretrial detainee to be free from excessive force and 

is therefore the source of the right at issue here.”) “Nevertheless, the 

standard for excessive force is the same under either provision: whether the 

force was objectively unreasonable in light of the facts and circumstances of 

each particular case.” Boyd, 74 F.4th at 673 n.3 (internal quotation marks and 

citation omitted). Accordingly, we consider Zavala’s excessive force claim 

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under the Fourteenth Amendment, and we resolve this claim under qualified 

immunity’s second prong—whether the right was clearly established at the 

time of Harmon’s alleged misconduct. See Pearson, 555 U.S. at 236.

This court considered the use of hog-tie restraints in Pratt v. Harris 

County, 822 F.3d 174, 182–85 (5th Cir. 2016). There, in a divided opinion, we 

recognized that “hog-tying is a controversial restraint,” but that “we have 

never held that an officer’s use of a hog-tie restraint is, per se, an 

unconstitutional use of excessive force.” Id. at 182. To prevail on an 

excessive force claim, the plaintiff must still show “that the force purposely 

or knowingly used against him was objectively unreasonable.” Kingsley v. 

Hendrickson, 576 U.S. 389, 396–97 (2015). 

Zavala argues that Harmon’s conduct constituted excessive force 

under the factors outlined in Kingsley and that this “clearly establishes his 

violation.” Kingsley suggests that we consider, among other factors, “the 

relationship between the need for the use of force and the amount of force 

used; the extent of the plaintiff’s injury; . . . the threat reasonably perceived 

by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 

U.S. at 397. And on the Kingsley factors, Harmon’s use of hog-ties was not 

clearly a use of excessive force.

Here, Zavala’s medical intake screening form indicated that “she had

a history of panic attacks, anxiety, and depression, she was exhibiting 

inappropriate behavior and was screaming, singing loudly, at times showed 

some signs of being incoherent, and possible self-injurious behavior.” It was 

also recorded that Zavala “was having suicidal ideations, had been watching 

Netflix about killings, and was hearing voices.” By her own admission, 

Harmon only placed Zavala in the hog-tie restraint after she was “yelling for 

help” and exhibiting behavior described as inappropriate, disorderly, and 

self-injurious. Zavala does not allege any severe injuries, nor does she 

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contend that she was at risk of death from the hog-tie restraint. Her main 

complaints are that she was denied water while restrained, suffered minor 

scrapes and bruises, and has mental health issues from the incident.3 Thus,

Zavala fails to show that Harmon’s conduct was unconstitutionally 

unreasonable or excessive under clearly established law. Further, this is not

“an obvious case” where the constitutional violation would be clear “even 

without a body of relevant case law.” See Brosseau v. Haugen, 543 U.S. 194, 

199 (2004). Therefore, Harmon is entitled to qualified immunity. 

II

For the aforementioned reasons, we AFFIRM the judgment of the 

district court. 

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3 As noted above, Zavala admitted to having various mental health issues 

prior to her arrest. 

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