PLAINTIFF’S SUR-REPLY TO CITY OF KILLEEN’S MOTION TO DISMISS PAGE 1 OF 5

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 CITY OF KILLEEN’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 the City of Killeen’s Reply (Doc. 

32-2) in support of its Motion to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6) (Doc. 

21), in order to address several mischaracterizations of the law and facts raised in the Reply. Bright 

respectfully shows the Court as follows:

A. The City incorrectly interprets the law and facts supporting Bright’s claims based on 

the City’s training policies.

Bright identified training failures more specifically than City is capable of doing. Generally 

replying that it “absolutely has policies relevant to the use of force and execution of warrants” and 

some general training “on those issues” does not address the training failure Bright specifically 

alleges. Rather than state what training it provides to address Bright’s concerns, or why that 

training is sufficient, the City strains to fault Bright’s more specific allegations as still not specific 

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enough. Despite admitting that “the content of City policy or the exact details of training might be 

uniquely within the City's knowledge,” the City would hold Bright to an impossible—and

impermissible standard. See Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995) (a plaintiff is 

not required to plead facts “peculiarly within the knowledge of defendants.”). In doing so, the City 

avoids addressing the specific—and necessary—training Bright alleges the City failed to provide 

its officers, while attempting to rely on its own generalized arguments. This Court should not 

dismiss Bright’s valid claims based on the City’s evasive maneuvers.

The City effectively contends that, unless the City itself attributed certain violations to the 

Officers, it could not have ratified their conduct. If this were the standard, it would encourage cities 

not to find that its officers violated any standard, so that if that city then elected not to discipline 

those officers, it could not later be accused of approving of misconduct. Surely that cannot be what 

the Supreme Court intended. Rather, Bright alleges that the City elected not to discipline the 

Officers here and approves of the basis for the Officers’ misconduct—an approval evident from 

the City’s contention in its Response that the “[O]fficers did nothing for which they should have 

been disciplined.” (Doc. 31-2 at 2). Such post hoc ratification of the Officers’ conduct subjects the 

City to liability. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)

(“When a municipality approves a subordinate’s conduct and the basis for it, liability for that 

conduct is chargeable against the municipality because it has retained the authority to measure the 

official’s conduct for conformance with their policies.”).

Moreover, despite what the City claims, its decision to ask for a Ranger investigation based 

on Custance’s conduct does not mean that the other Officers’ conduct was proper. (Cf. Doc. 32-1 

at 2–3). Given that the grand jury was only confronted with charges against Custance, the fact that

he has faced consequences for his misconduct—when the grand jury was not presented with 

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charges against the other Officers at all—does not mean the other officers did not also engage in 

misconduct. It is equally possible that the City chose to charge only one of the officers involved, 

protecting the other Officers from liability, as well as protecting the City from liability for the 

policies the officers followed.

The City’s incorrect interpretation of the law and facts supporting Bright’s claims based 

on the City’s official policies further provides no basis for dismissing Bright’s claims.

B. The City incorrectly interprets the law and facts supporting Bright’s claims based on 

the City’s policies on excessive force.

First, the City misunderstands Bright as arguing that “in the alternative” to the alleged 

training failures, “if she has not alleged a policy, her allegations of a ‘persistent, widespread’ 

practice of officers following a ‘shoot first ask question later’ policy is sufficient to support liability 

against the City.” (Doc. 31-2 at 8). This theory of liability is not in the alternative to the City’s 

training failures. Rather, both the City’s policy of inadequately training its officers in the manners 

specified and the City’s de facto policy to “shoot first ask question later” are independent—not 

alternative—bases subjecting the City to municipal liability for the injuries Reed suffered as a 

result of both failures.

Second, unable to disagree that in Brown v. City of Houston, it was sufficient at the pleading 

stage to allege that the District Attorney’s office do whatever it takes” conviction culture was a 

policy subjecting the county to municipal liability, the City attempts to distinguish Brown by 

misrepresenting what the case says. (Doc. 31-2 at 9). The City notes that in Brown, it was 

noteworthy that the county had acknowledged what the plaintiff alleged: “a do whatever it takes 

culture” regarding obtaining convictions. (Id.) (citing Brown v. City of Hous., 297 F. Supp. 2d 748, 

767 (S.D. Tex. 2017)). Here, the City also does not deny that Bright alleges the same type of 

culture charging the City with a custom to “shoot first, ask questions later.” Instead, the City simply 

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sidesteps that acknowledgement and denies that such a culture exists. Thus, the City’s attempt at 

distinguishing Brown is misguided, and the custom Bright alleges subjects the City to liability.

Next, the City improperly claims that “the pleadings reflect that when there is a shooting 

incident, the City has the Texas Rangers perform an independent investigation and when 

wrongdoing by an officer is discovered, appropriate action is taken.” (Doc. 31-2 at 9). In fact, 

while Bright’s Complaint acknowledges that there was an investigation, it does not suggest that 

Killeen has the practice of doing so whenever a shooting incident happens. Furthermore, just 

because the City singled out Custance to charge does not mean the other officers committed no 

wrongdoing.

Therefore, the facts and law to which the City points do nothing to negate Bright’s claim 

that the City has a de facto policy of using unreasonable and unjustifiable force on suspects like 

Reed, without regard to the constitutional limits on excessive force. (Doc. 26 at 10–12).

C. Dismissing a non-existent conspiracy claim against the City is unwarranted.

Finally, as Bright clarified in her Response (Doc.26 at 9 n.11), she has not brought any 

conspiracy claim against the City. Thus, despite what the City contends, dismissal is improper. 

CONCLUSION & PRAYER

When the law the City mischaracterizes in its Reply is presented accurately, Bright’s 

allegations are sufficient to state claims against the City for the official policies that resulted in the 

Defendant Officers violating Reed’s Fourth Amendment. 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 the City of Killeen’s Motion to Dismiss (Doc. 21) in its entirety. 

Plaintiff further respectfully seeks all other relief to which she may be entitled.

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PLAINTIFF’S SUR-REPLY TO CITY OF KILLEEN’S MOTION TO DISMISS PAGE 5 OF 5

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 SERVICE

I hereby certify that on August 13, 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

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