PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 1 OF 8

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS 

WACO DIVISION

DIANE REED BRIGHT, INDIVIDUALLY,

and as the PERSONAL REPRESENTATIVE 

FOR THE ESTATE OF DECEDENT, 

JAMES SCOTT REED

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Plaintiff, §

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v. § CIVIL ACTION NO. 6:20-CV-431

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THE CITY OF KILLEEN, TEXAS; 

ANTHONY R. CUSTANCE; RICHARD A. 

HATFIELD, JR.; FRED L. BASKETT; and 

CHRISTIAN SUESS,

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Defendants. §

PLAINTIFF’S SUR-REPLY TO DEFENDANT ANTHONY R. CUSTANCE’S

MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT

Plaintiff Diane Reed Bright, individually and as the personal representative for the Estate 

of Decedent James Scott Reed, files this Sur-Reply to Defendant Anthony R. Custance’s Reply

(Doc. 27) in support of his Motion to Dismiss (Doc. 20), in order to address several 

mischaracterizations of the law raised in the Reply. Bright respectfully shows the Court as follows:

A. Custance relies on an incorrect reading of the law of this Circuit to claim that

“without involvement in the actual injury”—i.e., the fatal gunshot wound—

“Custance cannot be liable under §1983.”1

Custance incorrectly claims that “[r]egardless of the level of force used, if the shots fired 

by Custance did not cause Reed’s death a necessary element of an excessive force claim against 

Custance is lacking as no injury inflicted by Custance would exist.” (Doc. 27 at 3). Under the law 

of this Circuit, Custance did not need to fire the bullet that physically injured Reed to face Section 

1 Doc. 27 at 2–3.
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 2 OF 8

1983 liability, because Bright’s Section 1983 claims based on violating Reed’s Fourth Amendment 

require no physical injury. 

In rejecting prior requirements that a Section 1983 plaintiff must allege a “significant 

injury” to state a claim for a Fourth Amendment violation, the Fifth Circuit “held that a plaintiff 

need only allege ‘an injury’ to state a claim under the Fourth Amendment. This reduction 

established the elimination of a need for a physical injury because it greatly widened the scope of 

redressable injuries.” Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004) (quoting Harper 

v. Harris Cty., 21 F.3d 597, 600 (5th Cir. 1994) (overruling the Fourth Amendment significant 

injury requirement in light of Hudson v. McMillan, 503 U.S. 1, 10 (1992)). Furthermore, the Flores

court explained, “[t]he observation that substantial psychological injuries now satisfy the injury 

element makes it entirely clear that no physical injury is necessary to state a Fourth Amendment 

claim.” Id. at 400–01 (emphasis added).

Consistent with this standard, the Northern District of Texas recently reaffirmed that 

“[a]njury need not be physical to satisfy § 1983’s injury requirement,” rejecting the contention that 

plaintiffs failed to state an excessive force claim because they suffered only emotional and 

psychological injuries. See, e.g., Edwards v. Oliver, No. 3:17-cv-01208-M-BT, 2020 WL 4073764, 

at *13, *13 n.135 (N.D. Tex. Jul. 2, 2020), report & recommend. adopted, 2020 WL 4057540 (Jul. 

20, 2020) (further noting that in Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998), plaintiffs “asserted 

valid claim under § 1983 for constitutional violation for excessive force when they alleged that 

officer’s abusive behavior and use of excessive force during initial stop of driver’s vehicle and 

ensuing chase caused them severe emotional harm.”). None of these courts required the defendant 

officers to inflict physical injury on the plaintiffs in order to state a valid excessive force claim.

Accordingly, Custance need not be responsible for Reed’s physical injuries in order to hold 
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 3 OF 8

him liable for using excessive force, in violation of Reed’s Fourth Amendment rights.

B. Custance also wrongly cites Lytle and Petta as holding that, unless Custance’s shots 

actually struck Reed, his use of lethal force was not a Fourth Amendment “seizure.” 

Only by mischaracterizing what the Fifth Circuit has said about when a person is “seized” 

and by relying on cases outside this jurisdiction can Custance claim that his objectively 

unreasonable use of lethal force was not a “seizure.” (Doc. 27 at 3). First, he claims, “Lytle does 

not support Plaintiffs’ ‘seizure’ argument as it held that the seizure occurred when the bullet struck 

the occupant.” (Doc. 27 at 3). Second, Custance contends that in Petta, “[t]he errant shot at the 

moving vehicle was not one of the matters indicated by the court to constitute a seizure of the 

children in the car.” (Id.). And third, Custance cites two cases from different circuits as support for 

the proposition that “shots fired that do not hit the subject do not constitute a seizure by physical 

force under the Fourth Amendment.” (Id. at 4) (citing Rodgers ex rel Rodgers v. Smith, 188 Fed. 

Appx. 175, 180-81 (4th Cir. 2006) and Carr v. Tatangelo, 338 F.3d 1259, 1267, 1270-71 (11th 

Cir. 2003)).

Custance conflates what Petta and Lytle said about seizures. In Petta, the officer fired at 

the car in order to stop the car from fleeing but missed, and the car was not stopped by the gunfire.

See Petta, 143 F.3d at 913–14. Thus, because the instrument used to seize Petta and her children 

in the car did not stop the car, it did not succeed in seizing Petta or her children. Id. Likewise, the 

officer in Lytle attempted to stop the movement of a suspect fleeing in a vehicle by striking the 

driver with a bullet and, when the officer succeeded in shooting the driver, he succeeded in 

stopping the fleeing suspect. See Lytle v. Bexar County, Tex., 560 F.3d 404, 407–08 (5th Cir. 2009). 

Thus, the intended instrument seized the driver. Id.

It is well-settled Supreme Court precedent that “[a] person is seized and thus entitled to 

challenge the government’s action when officers, by physical force or a show of authority, 
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 4 OF 8

terminate or restrain the person’s freedom of movement through means intentionally applied.”

Brendlin v. California, 551 U.S. 249, 249 (2007) (citing Florida v. Bostick, 501 U.S. 429, 434 

(1991) and Brower v. County of Inyo, 489 U.S. 593, 597 (1989)). And, even where “police actions 

do not show an unambiguous intent to restrain,” for instance, “the test for telling when a seizure 

occurs is whether, in light of all the surrounding circumstances, a reasonable person would have 

believed he was not free to leave.” Id. When it is unclear whether the police action prompted a 

“desire to leave,” the “coercive effect of the encounter” can be measured better by asking whether 

“a reasonable person would feel free to decline the officers’ requests or otherwise terminate the 

encounter.” Id. (quoting Bostick, 501 U.S. at 435–436). Further, the Supreme Court has cautioned: 

In determining whether the means that terminates the freedom of movement is the 

very means that the government intended we cannot draw too fine a line, or we will 

be driven to saying that one is not seized who has been stopped by the accidental 

discharge of a gun with which he was meant only to be bludgeoned, or by a bullet 

in the heart that was meant only for the leg. We think it enough for a seizure that a 

person be stopped by the very instrumentality set in motion or put in place in order 

to achieve that result.

Brower, 489 U.S. at 599.

Here, however, Custance used gunfire to restrain Reed’s freedom of movement, in order 

to effect an arrest. He successfully used the gunfire to restrain Reed, because Reed was not free to

leave or otherwise terminate the encounter, as doing so would mean subjecting himself to gunfire.

Thus, the effect of the force was to “seize” Reed in violation of his Fourth Amendment rights.

Custance’s reliance on cases from other circuits does not change this result.

And because Custance misunderstands what “injury” may “satisfy the other elements of an 

excessive force claim”—presuming it includes only physical injury—Custance also 

misunderstands Bright as claiming that Custance’s “firing of shots constituted a ‘seizure,”

subjecting him to excessive force liability on that basis alone. (Doc. 27 at 3). In fact, Bright alleges 

that when Custance used excessive deadly force against Reed, Custance seized Reed, causing him 
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 5 OF 8

“severe emotional distress and anguish,” at a minimum, and physical injury if evidence shows that 

Custance’s bullets actually caused Reed any physical harm. (Doc. 1 ¶¶ 112, 129). As explained 

above, such injuries are sufficient to satisfy the “injury” element of an excessive force claim. Thus, 

the concern that Bright’s “seizure” claim “does not satisfy the other elements of an excessive force 

claim” is misplaced. (See Doc. 27 at 3). 

C. Even as Custance misrepresents the “authorities in this Circuit” as holding that the

“intra-corporate conspiracy” bars Bright’s claims of a “conspiracy between officers 

of the city,”2the authorities he cites note an exception—one that applies here.

Custance incorrectly presumes that Bright’s argument in her Response—that the intracorporate conspiracy doctrine does not bar claims against officers for conspiring in their individual 

capacities—cannot be squared with law of this Circuit. As support, Custance cites Benningfield as 

holding that “multiple officers from the same police department constituted a single entity 

incapable of conspiring with itself.” Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 

1998). What Custance fails to acknowledge is that Benningfield went on to recognize that an 

exception to the intra-corporate conspiracy doctrine may exist “where corporate employees act for 

their own personal purposes.” Id. at 379. 

Here, Bright alleges that Custance and the Defendant Officers in their individual capacities 

sought to prevent Bright from holding them liable individually for injuring and killing Reed.

Bright’s Complaint, therefore, alleges that Custance and the Defendant Officers have an 

independent stake in the conspiracy. These conspiracy claims—alleged against the officers in their 

individual capacities—center on what the officers did for their own personal purposes, not on 

behalf of the City as its employees.

The other cited cases also do not address claims against officer for actions taken in their 

2 Doc. 27 at 5–6.
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 6 OF 8

individual capacity. See Thornton v. Merchant, 526 Fed. Appx. 385, 388 (5th Cir. 2013) (alleged 

conspiracy between the Texas Department of Criminal Justice and its employees); see also Hilliard 

v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994) (conspiracy alleged between school board and the 

board’s superintendent); Williams v. City of Austin, 2017 W.L. 2963513*6 (W.D. Tex. 2017)

(conspiracy claims “exclusively concern[ed] the actions” of officers “committed in the scope of 

their duties as employees of APD,” not in their individual capacities). Therefore, none of the other 

cases suggest the exception does not apply to Bright’s claims against the officers for conspiring in 

their individual capacities—outside the scope of their duties as City employees—and for their own 

personal purposes. 

CONCLUSION & PRAYER

When the law Custance mischaracterizes in his Reply is presented accurately, Bright’s 

allegations are sufficient to state claims against Custance for violating Reed’s Fourth Amendment 

and for conspiring to deprive Bright of her Fourteenth Amendment rights. Accordingly, Plaintiff 

Diane Reed Bright, individually as the surviving mother of James Scott Reed, deceased, and as the 

personal representative for the Estate of Decedent James Scott Reed, respectfully re-urges her 

request that this Court deny Defendant Anthony R. Custance’s Motion to Dismiss (Doc. 20) in its 

entirety. Plaintiff further respectfully seeks all other relief to which she may be entitled.
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 7 OF 8

Respectfully submitted,

By:/s/ Daryl K. Washington

Daryl K. Washington

State Bar No. 24013714 

dwashington@dwashlawfirm.com

WASHINGTON LAW FIRM, PC

325 N. St. Paul St., Suite 3950

Dallas, Texas 75201

Telephone: (214) 880-4883

Facsimile: (214) 751-6685

ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF CONFERENCE

On August 3, 2020, Plaintiff’s counsel conferred with Defendant Custance’s counsel

Charlie Olson, who advised that he was opposed to Plaintiff’s motion. For these reasons, Plaintiff 

files this Motion as opposed.

/s/ Daryl K. Washington

Daryl K. Washington
PLAINTIFF’S SUR-REPLY TO DEFENDANT CUSTANCE’S MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT PAGE 8 OF 8

CERTIFICATE OF SERVICE

I hereby certify that on August 4, 2020, I electronically filed the foregoing document with the 

Clerk of the Court for the U.S. District Court, Western District of Texas, using the electronic case 

filing (“ECF”) system of the Court. All counsel of record were served via electronic service through 

the ECF system.

Charles D. Olson

colson@haleyolson.com

Michael W. Dixon

mdixon@haleyolson.com

HALEY & OLSON, P.C.

100 N. Ritchie Road, Suite 200

Waco, Texas 76712

Attorneys for Defendant 

Anthony R. Custance

Roy L. Barrett

barrett@namanhowell.com

Joe Rivera

jrivera@namanhowell.com

NAMAN, HOWELL, SMITH & LEE, PLLC

400 Austin Avenue, Suite 800

P.O. Box 1470

Waco, Texas 76703-1470

Attorneys for Defendant the City of Killeen, 

Texas, Richard A. Hatfield, Jr., Fred L. 

Baskett, and Christian Suess

/s/ Daryl K. Washington

Daryl K. Washington