F ILED United States Court of

Appeals Tenth Circuit 

### A ug us t 5 , 2 0 1 9 Elisabeth A. Shum aker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY W ALLER,

Plaintif f - Appellant,
v. CITY AND COUNTY OF DENVER, a m unicipal corporation,

Def endant - Appellee, and BRADY LOVINGIER, individually and in his of f icial capacity ; GINA MCCALL, individually

and in her of

f icial capacity , Def endants. No. 17-1234

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 1:14-CV-02109-WYD-NYW)
Kenneth A. Padilla of

Padilla & Padilla, PLLC, Denver, Colorado, f or Plaintif

f

Appellant. David C. Cooperstein, Assistant City Attorney , Denver City Attorney ’s Of f i ce, Civil Litigation Section, Denver, Colorado, f or Def endant-Appellee.
Bef ore HOLMES , McKAY , and MORITZ , Circuit Judges.McKAY , Circuit Judge.

Plaintif f Anthony W aller appeals the district court’s Rule 12(b)(6) dism issal of his
m unicipal liability

claim against the City

and County

of D enver f

or a Denver deputy sherif f’s use of excessive f

orce against him
. I. On Septem

ber 11, 2012, while in pretrial detention, Mr. W aller was escorted in handcuf f s and other restraints to a courtroom located within the Denver City Jail f or a f irst advisem ent hearing. Mr. W aller rem ained “very respectf ul and calm

throughout the advisem ent.” (Appellant’s App. at 28.) Af ter the judge f

inished the advisem ent, Mr. W aller “politely

address[ e d] the Court in a norm a l and subdued voice,” stating that he thought the investigation should have com e bef ore his arrest. (

Id. ) The judge began to respond, but while she was speaking, Deputy Sherif f Brady Lovingier, who had been standing directly

behind Mr. W aller, suddenly and “without warning, justif ication[ ,] or provocation” grabbed Mr. W aller, spun him around, and threw him

f ace f irst into a nearby glass wall and m etal post, causing him to sustain “serious and perm a nent injuries.” ( Id. at 25, 29.) Deputy

Lovingier’s assault on Mr. W a ller was captured on video recorded by the courtroom

cam eras. Approxim ately

one y ear later, on Septem ber 24, 2013, Deputy

Lovingier received a thirty -day

suspension f

or his assault on Mr. W aller. The of f icial who issued the

-2-suspension order concluded that Deputy Lovingier had violated “DSD RR-300.22- Inappropriate Force; DSD RR-300.19.1-Disobedience of Rule: Departm ent Order 5011.1J-Use of

Force; Career Service Rule 16-60 f o r Neglect of

Duty , Carelessness in Perf orm ance of

Duties and Responsibilities, and Conduct Prejudicial to the Good Order and Ef f ectiveness of

the Departm ent or Conduct That Brings Disrepute on or Com prom ises the Integrity

of the City .” (

I d. at 32.) The of

f icial explained that Deputy Lovingier’s attack on Mr. W aller was “unprovoked,” “egregious and unprof essional,” and “breached several of the [ Sherif f Departm ent’s] Guiding principles,” as well as
com prom ising the ef

f iciency and reputation of

the Sherif

f Departm ent and the City and County of Denver. (

Id. at 32–33.) A hearing of f icer af f irm ed Deputy

Lovingier’s thirty

day suspension. Mr. W aller f

iled this f e deral lawsuit under 42 U.S.C. § 1983 in July 2014. His
com plaint included two claim s that are pertinent to this appeal: a claim of excessive f

orce against Deputy

Lovingier, and a claim

of m u nicipal liability

against Denver prem ised on Deputy Lovingier’s use of

f orce. The m

unicipal liability

claim alleged that Denver could be f ound liable f

or Deputy Lovingier’s unconstitutional use of f orce based on the
m unicipality ’s “f

a ilure to train and to appropriately supervise and discipline of f i cers of the [ Denver Sherif

f Departm ent].” (

I d. at 67.) Def

endants f iled separate m o tions to dism iss the com

plaint, and Mr. W aller then f iled a m o tion f

o r leave to am e nd. As pertinent here, Mr. W aller’s proposed am ended com plaint raised two new theories of

-3-m

unicipal liability

relating to Deputy

Lovingier’s use of

f orce, asserting that Denver could also be f

ound liable based the Sherif f Departm ent’s poor hiring decisions and inadequate investigation of excessive f

orce allegations. A m agistrate judge reviewed these m otions and recom m e n ded that the district court grant Def

endants’ m otions to dism iss but perm it Mr. W aller to am end his com plaint in part. Specif

ically , the m agistrate judge recom m ended that Mr. W aller be perm itted to
am end his original com

p laint to clarif

y the legal basis of

his excessive f

orce claim

against Deputy Lovingier. However, the m agistrate judge concluded that neither the original nor the proposed f

irst am e nded com

plaint contained suf

f icient f a c tual allegations to set f

orth a plausible claim

of m unicipal liability against Denver. The m agistrate judge theref ore
recom m ended that the district court deny as f utile Mr. W aller’s m otion f or leave to am end his claim against Denver and grant Denver’s m otion to dism iss. Mr. W aller objected to this recom m endation, but the district court ultim a tely adopted it. Mr. W aller then f

iled a second am ended com plaint and proceeded with his excessive f

orce claim

against Deputy

Lovingier. This claim

was tried bef

ore a jury , which f ound that Deputy

Lovingier had violated Mr. W aller’s right to be f ree f rom excessive f

orce. The jury

awarded Mr. W aller $50,000 in actual dam ages but rejected his request f or punitive dam ages. The district court entered f inal judgm ent consistent with this verdict and the earlier Rule 12(b)(6) dism issal, thus entering judgm e nt in f avor of Denver and against Deputy Lovingier. In addition to the $50,000 in dam a ges awarded by

-4-the jury , the district court also awarded Mr. W aller $176,226 in attorney ’s f e es under 42 U.S.C. § 1988(b). In this appeal, Mr. W aller challenges the Rule 12(b)(6) dism issal of his m unicipal liability claim against the City

and County

of Denver. Although he does not directly challenge the district court’s denial of his m otion f

or leave to am end his com plaint, his argum ents regarding the court’s Rule 12(b)(6) dism issal are based prim arily on the allegations in his proposed f irst am ended com

plaint. II. “W e review de novo a district court’s decision on a Rule 12(b)(6) m otion f or dism issal f

or f ailure to state a claim .” Alvarado v. KOB-TV, L.L.C. , 493 F.3d 1210, 1215 (10th Cir. 2007). Under this standard, we “m ust accept all the well-pleaded allegations of the com plaint as true and m

ust construe them in the light m ost f avorable to the plaintif

f .” Id. (internal quotation m arks om itted). However, “m e re ‘labels and conclusions’ and ‘a f orm ulaic recitation of

the elem ents of

a cause of

action’ will not suf

f ice.” Khalik v. United Air Lines , 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). “Accordingly , in exam ining a com plaint under Rule 12(b)(6), we will disregard conclusory statem ents and look only to whether the
rem aining, f

actual allegations plausibly suggest the def

endant is liable.” Id. Stated dif f erently , “[ a] claim

has f acial plausibility

when the plaintif

f pleads f actual content that

-5-allows the court to draw the reasonable inf erence that the def

endant is liable f

or the
m isconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “In reviewing a Rule 12(b)(6) m otion to dism iss, our f irst step is to review the f actual allegations that should have been considered by the district court.” Alvarado , 493 F.3d at 1215. As an initial m atter, we note a potential issue regarding which com plaint is the operative com

plaint f or us to consider in this appeal. Mr. W aller assum es that our review should be based on the allegations in his proposed f irst am ended com

plaint; however, his m otion f

or leave to am end the com plaint was denied, at least as it related to his m unicipal liability

claim , and Mr. W aller does not challenge that decision on appeal. Nevertheless, we need not resolve this potential issue because we agree with the
m agistrate judge and district court that neither com plaint states a plausible claim of
m unicipal liability , f

o r the reasons discussed below. Mr. W aller also contends that we m a y consider evidentiary m a terials outside his
com plaints. Specif

ically , his appellate brief

s ref er extensively

to two reports regarding the Denver Sherif

f Departm ent that were released in May 2015, af ter he had f

iled both his original com

plaint and his proposed f

irst am ended com

plaint. Mr. W aller attached these reports to his objection to the m agistrate judge’s report and recom m e ndation, and he argues both that the district court should have considered these reports below and that we should consider them

on appeal because they

“substantiate” his m

u nicipal liability

claim s against Denver. (Appellant’s Br. at 19.)

-6-The “usual rule” is “that a court should consider no evidence bey ond the pleadings

on a Rule 12(b)(6) m otion to dism iss.” Alvarado , 493 F.3d at 1215. W e have recognized a lim ited exception to this rule: “[ T]he district court m ay consider docum ents ref

erred to in the com

plaint if the docum ents are central to the plaintif f ’s claim and the parties do not dispute the docum ents’ authenticity .” Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 (10th Cir. 2002). Mr. W aller argues that the reports m ay be considered because they are central to his claim

of m unicipal liability . However, he ignores the clear language of our precedents, under which this exception applies only to “docum ents ref

erred to in the
com plaint.” Id. The reports are not ref erred to in either the original or the f irst am ended
com plaint, and thus we are not persuaded that this exception would have perm itted the district court to consider them in evaluating Mr. W aller’s Rule 12(b)(6) m otion to dism iss. Mr. W aller also contends that the district court was perm itted—and even
m andated—to consider the 2015 reports because Rule 72(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) both provide that district courts “m a y . . . receive f urther evidence” in conducting a de novo review of objected-to portions of

a
m agistrate judge’s report and recom m endation. W e are not persuaded that the district court’s general discretionary authority to receive f

urther evidence in reviewing a
m agistrate judge’s report and recom m endation—which could entail, f or instance, proposed f

indings m ade f

o llowing an evidentiary

hearing, see 28 U.S.C.

-7-§ 636(b)(1)(B)—trum ps our specif

ic holding in the Rule 12(b)(6) context that, with the lim ited exception of

docum ents both ref

erred to in the com

plaint and central to the plaintif f’s claim s, “a court should consider no evidence bey ond the pleadings,” Alvarado , 493 F.3d at 1215. Moreover, even assum i ng f or purposes of

argum ent that Rule 72 or § 636(b)(1) would perm it a district court to consider additional evidence in this context, this perm ission would still be discretionary , not m andatory , and it would extend, at best, only t o the district court. Thus, the district court did not err in excluding these reports f rom consideration below, and we are neither required nor perm itted to consider them in our review on appeal. W e accordingly turn to the prim ary question bef

o re us in this appeal—whether the f actual allegations in either or both of Mr. W a ller’s com

plaints were suf

f icient to state a plausible claim

of m unicipal liability against the City and County

of Denver. The Suprem e Court has m ade clear that “a local governm ent m ay not be sued under § 1983 f or an injury inf licted solely

by its em ploy ees or agents.” Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978). “[ I]n other words, a m u nicipality

cannot be held liable under § 1983 on a respondeat superior theory .” Id. at 691. Instead, “the governm ent as an entity ” m a y

only be held liable “when execution of a governm ent’s policy

or custom , whether m ade by

its lawm akers or by

those whose edicts or acts m ay f airly be said to represent of

f icial policy , inf

licts the injury .” I

d. at 694.

-8-Thus, to establish m unicipal liability , a plaintif f m ust f irst dem o nstrate a “m unicipal policy

or custom ,” which m ay

take one of

the f ollowing f

orm s : (1) a f orm al r e g u l ation or policy statem e nt; (2) an inf orm al custom am ounting to a w idespread practice that, although not authorized by written law or e x press m unicipal policy , i s so perm a nent and well settled as to constitute a custom o r usage with the f orce of law; (3) the decisions of em ploy ees with f

i nal policy m aking authority ; (4) the ratif ic a t ion b y s u ch f

i nal policy m akers of the decisions—and the basis f or them —of subordinates to whom

authority was delegated subject to these policy m akers’ r eview an d approval; or (5) the f ailure to adequately train o r supervise e m ploy ees, so long as that f

ailure results f rom deliberate indif

f erence to the inj u ries that m ay be caused. Bryson v. City of Okla. City , 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation m arks and brackets om itted). In addition to the f ailure to train and to supervise, other alleged supervisory

shortcom ings—f

or instance, f

a iling to adequately

screen job applicants—can also constitute an of

f icial policy

if the plaintif

f m eets the stringent “deliberate indif f erence” standard of

f ault. Bd. of Cty. Comm’rs v. Brown , 520 U.S. 397, 410–12 (1997); s ee also Dodds v. Richardson , 614 F. 3d 1185, 1212 (10th Cir. 2010) (Ty m kovich, J., concurring). Af ter establishing a m

unicipal policy

or custom , a plaintif

f m ust dem onstrate “a direct causal link between the policy or custom

and the injury

alleged.” Bryson , 627 F.3d at 788 (internal quotation m arks om itted). “W here a plaintif f claim s that the m

unicipality has not directly

inf licted an injury , but nonetheless has caused an em p loy ee to do so, rigorous standards of

culpability

and causation m

ust be applied to ensure that the
-9-m

unicipality

is not held liable solely f or the actions of

its em ploy ee.” Brown , 520 U.S. at 405. “The causation elem ent is applied with especial rigor when the m u nicipal policy o r practice is itself

not unconstitutional, f

or exam ple, when the m

unicipal liability

claim is based upon inadequate training, supervision, and def iciencies in hiring.” Schneider v. City of Grand Junction Police Dep’t , 717 F.3d 760, 770 (10th Cir. 2013) (internal quotation m arks om itted). Finally , at least f

or claim s of

inadequate hiring, training, or other supervisory practices, a plaintif

f “m ust dem onstrate that the m unicipal action was taken with ‘deliberate indif

f erence’ as to its known or obvious consequences.” Brown , 520 U.S. at 407. “‘Deliberate indif

f e rence is a stringent standard of f ault, requiring proof

that a
m unicipal actor disregarded a known or obvious consequence of his action,’” Connick v. Thompson , 563 U.S. 51, 61 (2011) (quoting Brown , 520 U.S. at 410) (internal quotation
m arks and brackets om itted), as “[ a] less stringent standard of f ault f or a f a ilure-to-train claim ‘would result in de facto respondeat superior liability on m unicipalities,’” i d. at 62 (quoting City of Canton v. Harris , 489 U.S. 378, 392 (1989)). “The deliberate indif f erence standard m a y be satisf ied when the m

unicipality

has actual or constructive notice that its action or f

ailure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of h arm . ” Barney v. Pulsipher , 143 F.3d 1299, 1307 (10th Cir. 1998). “In m ost instances, notice can be established by

proving the existence of

a pattern of

tortious conduct.” Id.

- 10-Deliberate indif f erence “m ay

be f ound absent a pattern of

unconstitutional behavior” only in “a ‘narrow range of

circum stances’” where “a violation of f ederal rights is a ‘highly predictable’ or ‘plainly

obvious’ consequence of a m u nicipality ’ s action or inaction.” Id. at 1307–08 (quoting B r own , 520 U.S. at 409). W i th this legal background in m i nd, we will separately consider each of Mr. W aller’s alleged theories of liability : (1) inadequacies in Denver’s hiring practices; (2) f ailure to train; (3) f

ailure to supervise; (4) f

ailure to investigate; and (5) f ailure to discipline. W e begin with Mr. W aller’s argum ent that Denver is responsible f or the injuries inf licted by Deputy Lovingier because Denver’s hiring practices were inadequate and im p roper. The original com plaint contains no allegations relating to Denver’s hiring practices, but the f

irst am ended com

plaint contains the f

ollowing allegations regarding Denver’s hiring practices: “The City of Denver f a i ls to perf

orm suf f icient background checks f or hiring of

deputies and hires deputies with crim inal records including persons with m isdem e anor and f

e lony convictions”; “The hiring of deputies by

the City of Denver is not based on a m erit sy stem but is inf luenced by the of

f i ce of the May or including executive staf

f , adm inistration[ ,] and m em bers of Denver City

Council”; and, “The hiring of deputies by

the City of Denver is achieved through nepotism . The Def endant Brady Lovingier is the son [ of

] Bill Lovingier who headed the Sherif f’s Departm ent f

rom 2006 to 2010.” (Appellant’s App. at 114–15.)

- 11-These allegations f ail to state a plausible claim f or relief
. As an initial m atter, we note that the f

irst am e nded com

plaint does not plausibly

allege “a direct causal link,” Brown , 520 U.S. at 404, between the violation of Mr. W aller’s constitutional rights and the hiring of

any deputies other than Deputy Lovingier. As f

or the hiring of

Deputy Lovingier, the com

plaint does not plausibly allege that Denver acted with deliberate indif f erence to a known or obvious risk. The Suprem e Court has m ade clear that the f ailure to conduct a suf

f icient background check on a job applicant is insuf f icient in itself to satisf y the deliberate indif

f erence elem ent. I

d. at 410–11. “The f

act that inadequate scrutiny o f

an applicant’s background would m ake a violation of r ights m ore l ikely cannot alone give rise to an inf

erence that a policy

m aker’s f ailure to scrutinize the record of a particular applicant produced a specif ic constitutional violation.” Id. “Only where adequate scrutiny

of an applicant’s background would lead a reasonable policy m aker to conclude that the plainly

obvious consequence of

the decision to hire the applicant would be the deprivation of

a third party ’s f

e derally protected right can the of f icial’s f ailure to adequately

scrutinize the applicant’s background constitute ‘deliberate indif f erence.’” I

d. at 411. Although the com plaint alleges that Denver has hired som e deputies with crim inal records, it does not allege that Deputy Lovingier is one of these deputies, nor does it otherwise include any

allegations that would plausibly suggest the individuals who hired him should have concluded that his “use of excessive f o rce would be a plainly

obvious consequence of

the hiring decision.” Id. at 412–13. W e theref ore af f irm the district

- 12-court’s holding that Mr. W aller did not set f orth a plausible m

unicipal liability c l aim based on Denver’s hiring practices. W e next consider Mr. W aller’s “f ailure to train” theory

of liability . In considering this theory , we are m indf

ul of the Suprem e Court’s warning that “[ a] m unicipality ’s culpability

f or a deprivation of

rights is at its m o st tenuous where a claim turns on a f ailure to train.” Connick , 563 U.S. at 61. To satisf y the stringent deliberate indif f erence standard, “[ a] pattern of sim ilar constitutional violations by untrained em

ploy ees is ‘ordinarily

necessary ’ ”: “W ithout notice that a course of training is def

icient in a particular respect, decisionm akers can hardly be said to have deliberately chosen a training program

that will cause violations of constitutional rights.” Id. at 62 (quoting Brown , 520 U.S. at 409). Evidence of “a pre-existing pattern of violations” is only unnecessary

“‘in a narrow range of

circum s t ances,’” “however rare,” in which “the unconstitutional consequences of a f ailure to train” are “‘highly predictable’” and “patently obvious.” Id. at 63–64 (quoting B rown , 520 U.S. at 409). Mr. W aller argues that he has shown the necessary pattern of

sim ilar constitutional violations to establish deliberate indif f erence here. However, we are not persuaded that the f actual allegations in either com plaint are suf

f icient to m ake this showing. First, we disregard the original com plaint’s allegations regarding Denver police of f icers, who are
em ploy e d by the Denver Police Departm ent rather than the separate Denver Sherif f Departm ent. These allegations were rem oved f rom the original com

p laint at Mr. W aller’s

- 13-request, and, even if they rem a ined in the com

plaint, they w ould not be relevant to the question bef

ore us in this appeal—whether Denver was deliberately indif f erent in Septem ber 2012 to a known or obvious risk that deputy sherif f s em ploy ed by the Denver Sherif f Departm ent would use excessive f orce against detainees such as Mr. W aller. Other allegations in the original and f irst am ended com

plaint are sim ilarly

irrelevant to this question because they allege only that certain inm ates died or were injured in custody , with no indication that these incidents were related in any way to a deputy

sherif f’s use of f orce. 1 W ithout a connection between these incidents and a deputy sherif f’s im proper use

1 In som e cases, it is in f

act clear that the alleged death or injury was not caused by a deputy sherif

f ’s use of f orce. For instance, Mr. W aller alleges that one inm ate sustained injuries because he was “deprived of m edical care while in the Denver City Jail,” not because f orce was used against him . (Appellant’s App. at 37, 116.) Other allegations are less clear. For instance, Mr. W aller alleges that Denver was sued f o r “the killing of

. . . a hom eless street preacher who was killed while he was incarcerated at the Denver Detention Facility .” (

Id. ) Neither com

plaint indicates whether this individual was killed by a deputy sherif f or by another inm ate, m uch less connects his death to a deputy sherif f’s use of excessive f

orce. “Although we m

ust accept as true all f

actual allegations asserted in the com

plaint, dism i ssal is appropriate where ‘the well-pleaded f acts do not perm it the court to inf

er m ore than the m ere possibility of m isconduct.’” Al-Owhali v. Holder , 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting Iqbal , 556 U.S. at 679). This vague allegation that an inm ate was killed in custody , which could “encom pass a wide swath of conduct,” Khalik , 671 F.3d at 1191 (internal quotation m arks om itted), m uch of which would not involve any wrongdoing on the part of the city , cannot support a reasonable inf

erence that Denver f

ailed to provide appropriate training to its deputy sherif f s on the use of

f orce against detainees. Nor can Mr. W aller rem edy this def iciency in his pleadings by

adding new allegations in his appellate brief . ( Compare Appellant’s Br. at 10 (adding parenthetical inf orm ation regarding date and cause of inm a te’s death to purported block quote of

am ended com

plaint) with Appellant’s App. at 116 (alleging no f acts regarding date or cause of death).) “The nature of

a Rule 12(b)(6) m o tion tests the suf f i ciency of the allegations within the f our corners of

the com plaint af ter taking those allegations as true,” M

obley v. McCormick , 40 F.3d 337, 340 (10th Cir. 1994), and we will not consider evidence or allegations outside the f our corners of

the com plaint in

- 14-of

f orce, these allegations f

ail to suggest any

def i ciency in Denver’s excessive-f

orce training f or deputy sherif f s . As f o r Mr. W aller’s allegations of a handf ul of excessive-f

orce incidents that allegedly occurred in the m onths and y ears af ter he was assaulted by

Deputy Lovingier, even if these allegations could arguably constitute circum stantial evidence that Denver’s training program

is def icient in som e way , they

f ail to show that Denver acted with deliberate indif

f erence in Septem

ber 2012 to a risk that was known or obvious to the city at that tim e. Incidents that occurred subsequent to the incident at issue in this case cannot have provided Denver with notice of a def i ciency in its training program

bef ore that incident, and thus they

cannot be used as evidence that, prior to Deputy Lovingier’s use of f orce against Mr. W aller, Denver “decisionm a kers . . . deliberately chose[ ] a training program that w[ ould] cause violations of constitutional rights.” Connick , 563 U.S. at 62; see also id. at 64 (noting that deliberate indif f erence generally

requires “proof

of a preexisting pattern of

violations” (em

phasis added)). 2 Likewise, Mr. W a l ler’s allegation that
reviewing the district court’s Rule 12(b)(6) dism issal, Alvarado , 493 F.3d at 1215.

2 W e note that both com

plaints f ail to indicate when certain alleged incidents occurred. For instance, each com plaint alleges that in July

2014 the City

of Denver announced that it had reached a large settlem ent in a case involving an excessive f orce claim against the Denver Sherif f Departm ent. However, the com plaints are silent as to when the incident(s) giving rise to this settlem ent occurred. Thus, Mr. W aller cannot rely on this allegation to show that Denver was on notice in Septem ber 2012 of

the need f

or training on the use of

f o rce against detainees in the custody of the Denver Sherif

f Departm ent. Again, we will not consider evidence outside the pleadings in evaluating the district court’s Rule 12(b)(6) dism issal of this claim
. See Alvarado , 493 F.3d at 1215.

- 15-Deputy

Lovingier was a trainer f or the Sherif

f Departm ent on the use of f orce when he assaulted Mr. W aller in Septem ber 2012 does not support the inf erence that Denver was on notice bef

o re this incident of

a risk of known or obvious constitutional harm
. The original and f

irst am ended com

plaint each contain only

two allegations of

a deputy sherif

f ’s pre-Septem

ber-2012 use of

excessive f

o rce. The f

irst of these allegations does not involve sim i lar conduct to the conduct at issue in this case. Specif ically , Mr. W aller alleges in both com plaints that a civilian protesting the Iraq W ar in public was thrown to the ground by

a Denver police of

f icer, whose beating of

the civilian was later joined by a Denver deputy sherif

f . W e are not persuaded that this civilian incident would have put Denver on notice of a need to train deputy sherif f s regarding their use of

f orce against detainees held in the custody of the Denver Sherif

f Departm ent. The com

plaints allege only

one prior incident involving a deputy sherif f’s alleged use of

excessive f

orce against an individual in the Sherif f Departm ent’s custody . In that incident, as here, a deputy sherif

f allegedly launched an unprovoked and unjustif ied attack on a restrained,
com pliant inm ate who was sim ply standing where he had been directed to stand—there, next to an elevator. Although Mr. W aller has thus alleged one sim ilar prior incident, we have f ound no cases suggesting that a single prior incident can constitute a “pattern” of conduct giving rise to an inf

erence of deliberate indif

f erence. To the contrary , we have expressly held that “[ o]ne prior incident, even if it was a constitutional violation suf f iciently sim ilar to

- 16-put of

f icials on notice of a problem , does not describe a pattern of violations.” Coffey v. McKinley Cty. , 504 F. App’x 715, 719 (10th Cir. 2012); see also Martin v. Malhoyt , 830 F.2d 237, 255 (D.C. Cir. 1987) (“One instance, however egregious, does not a pattern or practice m ake.”). In the analogous case of Schneider , which involved an alleged sexual assault by a police of f icer, the plaintif

f presented evidence both that the of f icer who raped her had been the subject of a prior sexual assault com plaint and that the police departm ent had received “one other report of non-consensual sexual m isconduct” involving a dif f erent of f icer. 717 F.3d at 774. W e held: “Although this report of police m isconduct along with the [ prior] com

plaint are troubling, they were not enough to m ake it obvious to [ the police departm ent] that of f icers were likely to engage in non-consensual sexual conduct” without training on this issue. Id. Our reasoning in S

c hneider weighs against any conclusion that the allegations in this case would f

all within the “‘narrow range of c i rcum stances’” in which deliberate indif f erence m ay

be f ound “without proof

of a pre-existing pattern of

violations.” Connick , 563 U.S. at 63–64 (quoting Brown , 520 U.S. at 409). In Schneider , we rejected the plaintif

f’ s m unicipal liability

claim based in part on our conclusion that “‘specif ic or extensive training hardly

seem s necessary f

or [ of f icers] to know that sexually assaulting [ individuals] is inappropriate behavior.’” 717 F.3d at 774 (quoting Barney , 143 F.3d at 1308). As we had previously held in Barney , even assum ing that a jail’s training course

- 17-on inm ates’ rights was inadequate, “we [ we]re not persuaded that a plainly obvious consequence of

a def icient training program

would be the sexual assault of inm ates.” 143 F.3d at 1308; see also Andrews v. Fowler , 98 F.3d 1069, 1077 (8th Cir. 1996) (“In light of the regular law enf

orcem e nt duties of

a police of

f icer, we cannot conclude that there was a patently obvious need f or the city to specif ically train of f icers not to rape y oung
wom en.”). W i th this reasoning in m ind, we note that the conduct at issue here, unlike in m any excessive f

orce cases, did not involve an of f icer m aking the wrong call regarding the level of f orce to em

ploy against an individual who posed a threat to the of f icer or other individuals or was actively resisting arrest. Cf. Connick , 563 U.S. at 63–64 (suggesting that police of

f i cers m ight need to be trained on the use of deadly f orce when they

are “arm [ ed] . . . with f

irearm s and deploy [ ed] . . . into the public to capture f leeing f elons,” as untrained novice of

f icers are unlikely

to be “f a m iliar with the constitutional constraints on the use of

deadly f orce”). Deputy

Lovingier’s use of

f orce was im

p roper not because of the am ount of

f orce he used, but because no f orce was warranted in the f irst place. Even an untrained law enf orcem ent of

f icer should have been well aware that any use of f orce in this situation—where a restrained detainee was sim p ly addressing a judge at a hearing in a polite, calm voice—was inappropriate. This case does not involve technical knowledge or am

biguous “gray

areas” in the law that would m ake it “highly predictable” that a deputy

sherif f in Deputy

Lovingier’s position would need “additional specif ied

- 18-training” to know how to handle the situation correctly
. Id. at 71 (internal quotation

m arks om itted); see also R.A. v. City of N.Y

. , 206 F. Supp. 3d 799, 803 (E.D.N.Y. 2016) (“To establish deliberate indif f erence, Plaintif

f s m ust show that Def

endant City

was on notice that it was highly

predictable that Def

endant Avalos would f

a ce ‘a dif f i cult choice of the sort that training or supervision will m a ke less dif f icult.’ The com

plaints against Def endant Avalos show a conscious decision by Def endant Avalos to com m it sexual assault, which does not present a ‘dif f icult choice’ [ that] f

urther training would prevent.” (quoting W

alker v. New Y

ork , 974 F.2d 293, 297 (2d Cir. 1992)) (citations om itted)). Rather, as in Schneider and Barney , “‘specif ic or extensive training hardly seem s necessary ,’” Schneider , 717 F.3d at 774 (quoting B a rney , 143 F.3d at 1308) (internal brackets om itted), to put deputy sherif f s on notice that they

m ay not violently

assault a restrained detainee who is not acting in a threatening m anner. Mr. W aller accordingly

has not shown either that there was a pattern of prior sim ilar m isconduct or that “‘the need f o r m o re or dif

f erent training [ was otherwise] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy

m akers of the city

can reasonably

be said to have been deliberately indif f erent to the need.’” Id. at 773 (quoting C a nton , 489 U.S. at 390). W e theref ore af f irm the district court’s dism issal of Mr. W aller’s f

ailure-to-train theory

of m unicipal liability
.

- 19-W e next consider Mr. W aller’s f ailure-to-supervise theory of liability . Although both com plaints allege in conclusory f ashion that Denver knew or should have known that its em ploy ees were inadequately supervised, neither com

plaint alleges any

f acts regarding any supposed supervisory

def i ciencies in the Denver Sherif f Departm e nt, m

uch less any f acts describing how Deputy Lovingier’s supervision was inadequate or how his purportedly

inadequate supervision caused Mr. W aller’s injury . Mr. W aller has accordingly

f a iled to “state a claim

to relief that is plausible on its f

ace,” T wombly , 550 U.S. at 570, on this theory of liability
. W e turn then to Mr. W aller’s f ailure-to-investigate theory of m unicipal liability
. Mr. W aller asserts that Denver has created an atm osphere in which excessive f orce is likely to occur by consistently

f ailing to investigate m isconduct by deputies in the Denver Sherif f Departm ent. The com

plaints contain the f

ollowing specif

ic allegations regarding Denver’s allegedly

inadequate investigation of deputy m isconduct: (1) in a 2013 report, the Of f ice of the Independent Monitor “f o und that inm ate grievances that allege serious deputy m i sconduct are of ten not ref

erred to or investigated by DSD internal af f airs, as required by

DSD policy ”; (2) “[ t]he OIM f ound that f

rom January 1, 2011[ , ] to June 30, 2013, only

6% of inm ate allegations of serious m isconduct were investigated by [ internal af f airs]”; (3) “[ t ]he OIM f

o und that DSD’s f

ailure to investigate allegations of serious
m isconduct ‘deviates f

r om both DSD policy

and national standards on law enf orcem ent accountability ’”; (4) “[ t]he OIM was concerned about the length of tim e that [ internal

- 20-af

f airs] investigations took. [ M r. W aller’s] Com plaint took over one y ear to investigate”; and (5) “[ t]he OIM f

ound that Denver’s policy of f ailing to investigate serious allegations of inappropriate f

o rce ‘deviates f

rom both DSD policy and national standards on law enf orcem ent accountability .’” (Appellant’s App. at 112–13; see also id. at 33–34.) These allegations are not suf f icient to state a plausible f a ilure-to-investigate claim
. The f irst f our allegations relate to deputy m isconduct generally , rather than to uses of f orce specif

i cally , and we are not convinced that they e s tablish the requisite “direct causal link between the m

unicipal action and the deprivation of f ederal rights,” Brown , 520 U.S. at 404. Moreover, all f

ive of these allegations describe f indings f rom an OIM report issued in 2013, the y ear af ter the assault at issue here, and, to the extent these allegations establish a tim e period f

or the underly ing f

i ndings, they

indicate that the OIM was reporting on the period between “January 1, 2011[ ,] to June 30, 2013.” (Appellant’s App. at 34, 113.) “[ B]asic princip[ le]s of linear tim e prevent us f

r om s eeing how conduct that
occurs after

the alleged violation could have som ehow caused that violation,” Cordova v. Aragon , 569 F.3d 1183, 1194 (10th Cir. 2009), and thus only investigation def

iciencies occurring prior to Septem ber 11, 2012, could help Mr. W aller dem o nstrate the requisite “direct causal link between the m unicipal action and the deprivation of f ederal rights,” Brown , 520 U.S. at 404. Mr. W aller’s allegations in this case are too general,
encom passing too “wide [ a] swath of conduct,” to “nudge[ his] claim s across the line f rom conceivable to plausible.” Khalik , 671 F.3d at 1191 (internal quotation m arks

- 21-om itted). W e accordingly af f i rm the dism issal of

this theory

of m unicipal liability

as well. The last theory

of m unicipal liability raised in the original and f irst am ended
com plaints is that Denver caused Mr. W aller’s injuries by f ailing to properly discipline prior acts of

excessive f

orce, thus giving rise to a custom or policy of excessive f

orce within the Sherif

f Departm ent. Mr. W aller alleges that Denver has not im posed “appropriate discipline f

o r the egregious use of

excessive f

orce by any of f icer of the DSD.” ( Id. at 33, 112.) Besides conclusory allegations such as this one, however, the original and f

irst am ended com

plaints are virtually

silent on the question of

discipline. To the extent Mr. W aller’s com plaints describe the discipline of deputy sherif f s besides Deputy Lovingier, the incidents he discusses either occurred af ter the conduct at issue in this case, or he does not allege that these incidents involved a deputy ’s use of excessive f orce. As discussed above, the com plaint alleges only

one prior incident of

sim ilar
m isconduct within the Denver Sherif f Departm ent, and the com plaint does not say whether or not this deputy sherif f was disciplined f

or his conduct, thus perm itting no conclusions as to the appropriateness of any discipline that m ay

have been im

posed. Moreover, to the extent Mr. W aller argues that Deputy Lovingier’s discipline was itself too lenient, we note that a subsequent f ailure to discipline cannot be the cause of a prior injury
. See Cordova , 569 F.3d at 1194. W e theref ore hold that Mr. W aller has not

- 22-plausibly

alleged that he was injured by any m unicipal f ailure to properly

discipline deputy sherif

f s f or excessive f

orce. On appeal, Mr. W aller also argues broadly that he can prevail because the allegations in his com

plaint in general establish “that Denver has a custom , policy , or practice of

tolerating and ratif

y ing the use of

excessive f

orce.” (Appellant’s Br. at 48.) Assum ing without deciding that this argum e nt was properly preserved below and supported on appeal, we see no error. As noted above, a mu nicipal policy or custom

m ay take the f orm of a f o rm al regulation or policy ; a widespread, perm anent, and well-settled custom ; a decision by

an em ploy ee with f

inal policy

m aking authority ; a f

i nal policy m aker’s ratif

ication of both an em

ploy ee’s unconstitutional actions and the basis f o r them ; or the deliberately

indif f erent f a ilure to appropriately

hire, train, supervise, or discipline em

p loy ees. See Bryson , 627 F.3d at 788. First, Mr. W aller does not allege that Denver has a f

orm al regulation or policy perm i tting the use of

excessive f

orce. Second, Mr. W aller’s allegations—describing only one sim i lar incident of e x cessive f orce prior to his own injuries—f

all f ar short of

plausibly alleging a “widespread practice” of excessive f orce, m uch less a practice “so perm a nent and well settled as to constitute a custom or usage with the f

orce of law.” Id. (internal quotation m arks om itted). W e are not persuaded by

Mr. W a ller’s argum ent that we can inf e r the existence of

such a custom

or practice because nothing else would explain why Deputy Lovingier would brazenly launch a wholly

unprovoked attack on a detainee in f ront of a judge—and m

ultiple

- 23-cam eras—in a courtroom . This argum ent assum es that Deputy Lovingier’s conduct involved a level of

deliberation and rational thought that the allegations of the com plaint do not support. Additionally , even assum i ng f or purposes of

argum ent that Deputy Lovingier only

assaulted Mr. W aller because he apparently perceived that such conduct would be accepted by

city of f icials, we would need to “stack inf erence upon inf

e rence,” In re Level 3 Commc’ns, Inc. Sec. Litig. , 667 F.3d 1331, 1345 (10th Cir. 2012), to conclude that this perception was accurate and ref lected a custom

or practice of

the Sherif f Departm ent. Indeed, rather than supporting such an inf erence, Mr. W aller’s allegations indicate that any such perception was wrong, as Deputy Lovingier was in f

act suspended f

or his behavior, which the suspending of f icial described as “egregious” and contrary to the Departm ent’s “[ g ] uiding principles.” (Appellant’s App. at 32–33.) Deputy Lovingier’s actions, no m atter how egregious, cannot in them selves give rise to an inf erence that the city

m ust have been at f

ault, “f o r the of f icer’s shortcom ings m ay

have resulted f rom f actors other than a f

aulty training program ” or other m unicipal def

iciency
. Canton , 489 U.S. at 390–91. “To adopt lesser standards of f ault and causation would open m unicipalities to unprecedented liability under § 1983.” I

d. at 391. As f o r the other potential f

orm s of m unicipal policy

that Mr. W a ller could be attem pting to invoke here, he does not allege that Deputy Lovingier was a m

unicipal policy m aker or that any

m unicipal policy

m aker m a de a f

inal decision that caused Mr. W aller’s injuries. Nor is there any indication that a f inal decisionm aker ratif

ied

- 24-Deputy

Lovingier’s use of

f orce; to the contrary , Mr. W aller alleges that Deputy Lovingier was criticized and suspended f or using f orce in violation of

Sherif f Departm ent policies. Finally , as discussed above, we are persuaded that Mr. W aller has not plausibly alleged a claim

of deliberately

indif f erent hiring, training, or other supervisory inadequacy
. Lastly , Mr. W a ller argues that because he alleged a plausible municipal liability claim , he should have been perm itted to conduct discovery . However, f o r the reasons discussed above, we are not persuaded that he has stated a plausible claimf or relief
. “Aside f rom conclusory

statem ents, no allegations in the com plaint give rise to an inf erence that the m

unicipality

itself established a deliberate policy or custom that caused [ Mr. W aller’s] injuries. Consequently , the com plaint ‘stops short of

the line between possibility

and plausibility of

entitlem ent to relief

.’” Mocek v. City of Albuquerque , 813 F.3d 912, 934 (10th Cir. 2015) (quoting Twombly , 550 U.S. at 557). W e theref ore see no error relating to discovery
. S e e Iqbal , 556 U.S. at 678–79; s ee also Roth v. W ilder , 420 F. App’x 804, 805 (10th Cir. 2011) (“As the Suprem e Court m ade clear in Twombly , . . . Rule 12(b)(6) does not allow a plaintif f to f ile a com plaint devoid of supporting f acts as a vehicle to com m ence discovery on the of f chance [ s]om e f

acts m i ght exist which could support a plausible claim .”). III. The district court’s decision is accordingly AFFIRMED
.

- 25-