UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

DAWNYALE SHANKS,

Plaintiff, 

v. No. 4:22-CV-00573-P

CITY OF ARLINGTON, ET AL.,

Defendants.

OPINION & ORDER 

Before the Court are Defendant City of Arlington’s, Defendant Police

Officer Jessica Burns’, and Defendant Police Officer Dylan Harmon’s 

motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)

(“Motions”). ECF Nos. 9 (Arlington), 29 (Burns), 30 (Harmon). For the 

reasons stated below, the Motions are GRANTED. 

INTRODUCTION 

General Douglas MacArthur once said, “[e]xpect only 5% of an 

intelligence report to be accurate.”1 As for Plaintiff’s briefing on these 

motions to dismiss, 5% accuracy might be an overestimation. Plaintiff’s 

counsel seeks to revive a notice pleading standard that has been dead 

for over fifteen years, relies on authority that has conclusively been 

overturned more than once, and actively avoids addressing issues 

validly raised by Defendants on multiple occasions despite having over 

seventy-five pages of briefing to do so. 

 The pleadings and papers before the Court and the controlling 

precedents require the Court to find that Plaintiff cannot maintain this 

case.

1

 GENERAL DOUGLAS MACARTHUR, REMINISCENCES 314 (1964). 

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FACTUAL & PROCEDURAL BACKGROUND

On March 17, 2022, Arlington Police received a 911 call about an 

aggravated assault with a deadly weapon at a gas station. ECF No. 8 at 

4. When officers with the Arlington Police Department arrived at the 

scene, the suspect—who was armed with a handgun—was at large in 

the area. Id. The officers—pursuant to a tip about the suspect’s 

whereabouts—went to a nearby Super 8 motel. Id. At the motel, the 

officers asked a staff member if they knew where the suspect was. Id. 

The staff member mistakenly pointed the officers to room 225—stating 

that this was where the suspect was staying. Id. at 4–5. The two officers

at the scene—Harmon and Burns—placed a phone call to the room and 

requested that the occupant step outside. Id. at 5. Plaintiff received the 

phone call and agreed to cooperate with the officers. Id. While Plaintiff 

exited the room that the officers believed was linked to the armed 

suspect, the officers pointed their guns at her until she dropped her 

belongings and was ruled out as a threat. Id. 

After this, the officers detained Plaintiff for questioning about the 

whereabouts of the suspect and her potential involvement. Id. at 5–6. 

Plaintiff was placed—unhandcuffed—into the back of a patrol car for 

“approximately and hour” while the officers questioned her. Id. Plaintiff 

was released after the officers dismissed their suspicion of her 

involvement with the gas station incident and the suspect at large. Id. 

Plaintiff subsequently sued the officers and the City of Arlington 

under 42 U.S.C. § 1983 and various state tort theories. See ECF No. 8. 

Defendants moved to dismiss (ECF Nos. 9; 29; 30), and Plaintiff timely 

responded (ECF Nos. 13; 36; 37). Thus, the motions are ripe for this 

Court’s review. 

LEGAL STANDARD

Though Plaintiff’s counsel seeks to transport this Court back to the 

time of notice pleading, a plaintiff’s complaint “must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While 

legal conclusions can provide the framework of a complaint, they must 

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be supported by factual allegations.” Id. at 679. But “a complaint [does 

not] suffice if it tenders naked assertion[s] devoid of further factual 

enhancement.” Id. (internal quotations omitted). The Court accepts all 

well-pleaded facts as true, viewing all facts in the light most favorable 

to and drawing inferences in favor of the nonmoving party. Club Retro, 

L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

ANALYSIS 

A. Claims Against Officers Burns and Harmon 

Qualified immunity “shield[s] [government officials] from liability for 

civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable 

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). When officers assert qualified immunity, the burden shifts to the 

plaintiff to show that (1) she alleged a violation of a constitutional right, 

and (2) the defendant’s conduct was objectively unreasonable according 

to clearly established law when the incident occurred. Waltman v. 

Payne, 535 F.3d 342, 346 (5th Cir. 2008). 

Though this test appears to be straightforward, its application in the 

Fifth Circuit is often a morass of unpredictability. Compare Crane v. 

City of Arlington, 50 F.4th 453, 458 (5th Cir. 2022) (relying in part on 

extra-record sources such as the New York Times and The Guardian in 

finding no qualified immunity for officer’s use of deadly force where 

suspect resisted arrest and ran over another officer with his vehicle)

with Ramirez v. Guadarrama, 844 F. App’x 710, 712–17 (5th Cir. 2021) 

(holding qualified immunity barred suit when officers found suspect 

doused in gasoline, knew their tasers would ignite him, and quickly 

tased him, “causing him to burst into flames”). This uneasy analysis has 

been called the “QI dance.” Carswell v. Camp, 54 F.4th 307, 311 (5th Cir. 

2022). But if any dancing is involved, it seems Cicero was correct when 

he said, “for no man, one may almost say, ever dances when sober, unless 

perhaps he be a madman.”2 Luckily, this case is rather simple—even 

2 Marcus Tullius Cicero, Pro L. Mvrena Oratorio 6.13 (63 B.C.). 

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under the perplexing Fifth Circuit precedents—and the Court will thus

refrain from dancing.

1. Excessive Force 

Plaintiff alleges that the officers pointing guns at her amounts to 

excessive force in violation of her Fourth Amendment rights. ECF No. 

8–10. To state a prima facie excessive force claim, a plaintiff must allege 

“(1) [an] injury (2) which resulted directly and only from a use of force 

that was clearly excessive, and (3) the excessiveness of which was clearly 

unreasonable.” Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007) 

(citations omitted). “The determination of whether a plaintiff’s alleged 

injury is sufficient to support an excessive force claim is contextdependent and is directly related to the amount of force that is 

constitutionally permissible under the circumstances.” Id. (quotation 

omitted). The Court thus considers “the facts and circumstances of each 

particular case.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016).

Under the first prong of qualified immunity, Plaintiff has failed to show 

a violation of a constitutional right. 

As to the first element, Plaintiff’s alleged injury is negligible 

considering the Fifth Circuit’s injury standards. “To state a claim for 

excessive use of force, the plaintiff’s asserted injury must be more 

than de minimis.” Freeman, 483 F.3d at 416. If there is an actual injury, 

the Court characterizes the extent of the injury using a sliding scale—

the greater the injury, the more likely the Court will find that the force 

was clearly excessive and unreasonable. See Solis v. Serrett, 31 F.4th 

975, 981 (5th Cir. 2022). Plaintiff alleges that because the officers briefly 

pointed guns at her, it caused her “embarrassment, humiliation, 

psychological harm, pain and suffering, and loss of enjoyment of life.”

ECF No. 8 at 9. Outside of this, Plaintiff does not allege that the officers 

ever touched her, handcuffed her, or exerted any physical force against 

her. Plaintiff’s alleged injury likely falls well below the standard 

required by the Fifth Circuit to make an excessive force claim. Even if 

this type of injury meets the standard, Plaintiff’s injuries are “minor,” 

considering that “[c]ourts have found similar or worse injuries to be 

minor.” Solis, 31 F.4th at 982 (citing Buehler v. Dear, 27 F.4th 969, 983 

(5th Cir. 2022); Westfall v. Luna, 903 F.3d 534, 549–50 (5th Cir. 2018)). 

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Because of this, “the limited extent of [her] injuries” detracts from the 

next two elements. Solis, 31 F.4th at 982.

As to the second element, the officers use of force was not clearly 

excessive. Use of force is “clearly excessive” if it is “grossly

disproportionate to the need for action under [the] circumstances.”

Hinojosa v. City of Terrell, 834 F.2d 1223, 1230–31 (5th Cir. 1988). The 

use of force here was not “clearly excessive” given the urgent

circumstances and the information reasonably available to the officers 

at the time. See ECF No 8 at 3–5. The officers were responding to an 

aggravated assault where an armed suspect was at large in the area. Id. 

This armed suspect posed a threat to both the safety of the officers and 

the community at large. After being directed to Plaintiff’s room by the 

hotel staff, the officers were well within their right to proceed with 

caution. Given the possibility of an armed suspect hiding or emerging 

from the room, the officers trained their guns and asked Plaintiff to come 

out of the room. This was reasonable considering the situation. Lastly, 

the limited nature of Plaintiff’s injury weighs against a finding of clearly 

excessive force. 

As to the third element, the officers’ use of force was not clearly 

unreasonable. Again, the officers were responding to an urgent

circumstance and—according to all Plaintiff’s factual allegations—did 

not exert any force outside of briefly training their weapons on Plaintiff

while diffusing the situation. See ECF No 8 at 3–5. This is not outside 

the realm of reasonable conduct, especially considering Fifth Circuit 

precedent. See Ramirez, 844 F. App’x at 712–17 (finding no excessive 

force where officers found suspect doused in gasoline, knew their tasers 

would ignite him, and tased him anyway which “caus[ed] him to burst 

into flames” and die from severe burn injuries).

After analyzing the excessive-force elements under the first prong, it 

is clear that no constitutional violation took place. But even if Plaintiff

were able to establish a prima facie excessive force claim, her counsel—

inexplicably—failed to point to any caselaw with similar facts to this 

case that clearly establishes a violation of Plaintiff’s constitutional 

rights. Thus, Plaintiff completely fails to overcome the second prong of 

qualified immunity. 

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In conclusion, Officers Burns, and Harmon both enjoy qualified 

immunity as to Plaintiff’s excessive force claim. 

2. False Arrest, Unlawful Imprisonment, and Wrongful 

Detention

The Court next addresses the two prongs of qualified immunity on

Plaintiff’s false arrest, unlawful imprisonment, and wrongful detention 

claims.

Under the Fourth Amendment, “a seizure occurs when, under the 

totality of the circumstances, a reasonable person would have thought 

he was not free to leave.” Kelson v. Clark, 1 F.4th 411, 417 (5th Cir. 2021) 

(citing Michigan v. Chesternut, 486 U.S. 567, 572, (1988)). Whether a 

seizure is a mere investigatory stop, or a full-blown arrest determines 

the constitutionality of an officer’s conduct. See Terry v. Ohio, 392 U.S. 

1, 9 (1968). An investigatory stop requires “reasonable suspicion” but if 

a stop exceeds the reasonable duration and scope required to dispel the 

reasonable suspicion of crime, it turns into an unlawful arrest. Florida 

v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). 

Plaintiff alleges that her hour-long questioning constituted an arrest. 

ECF No. 8 at 6. The Court disagrees. 

i. Investigatory Stop

If an officer has reasonable suspicion that a suspect is involved in

criminal activity, he may detain the suspect to confirm or dispel the 

suspicion. Terry, 392 U.S. at 9. Reasonable suspicion must be supported 

by specific and articulable facts, and rational inferences from those 

facts. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) (citing 

Terry, 392 U.S. at 9). That said, “[t]o be reasonable is not to be perfect, 

and so the Fourth Amendment allows for some mistakes on the part of 

government officials, giving them ‘fair leeway for enforcing the law in 

the community’s protection.’” Heien v. North Carolina, 574 U.S. 54, 60–

61 (2014) (citing Brinegar v. United States, 338 U.S. 160, 176 (1949)).

An officer’s mistake of fact or law may provide the basis for reasonable 

suspicion so long as the mistake is reasonable. Id.

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Here, the officers both had reasonable suspicion to believe that 

Plaintiff was engaged in criminal activity. In an urgent circumstance, 

both officers were informed that the armed suspect of an aggravated 

assault was inside a specific hotel room. See ECF No 8 at 3–5. Though 

Plaintiff did not match the description of the suspect it was reasonable 

for the officers to detain her as she may have known or been involved 

with the armed individual based on the information from the hotel clerk.

Id. That the clerk of the hotel mistakenly sent them to the wrong room 

is irrelevant to the analysis because—based on the facts before the 

officers—this was a reasonable mistake. See Heien, 574 U.S. at 60–61.

Given the facts known to the officers it was reasonable for them to 

think—at the very least—that there might have been an association 

between the two. Thus, there was reasonable suspicion supporting the 

initial detention of Plaintiff. 

An investigatory stop must be limited in duration and geographic 

scope, staying close to the original purpose of the stop, and no more 

intrusive than necessary to dispel the officer’s suspicion. Royer, 460 U.S. 

at 500. When officers exceed the scope of this authorized limit, the 

investigatory stop develops into an arrest—thus requiring a warrant or 

probable cause to be lawful. Id. When making this judgment, district 

courts “should take care to consider whether the police are acting in a 

swiftly developing situation, and in such cases the court should not 

indulge in unrealistic second-guessing.” United States v. Sharpe, 470 

U.S. 675, 686 (1985). As with most legal standards “a creative judge 

engaged in post hoc evaluation of police conduct can almost always 

imagine some alternative means by which the objectives of the police 

might have been accomplished.” Id. But “[t]he fact that the protection of 

the public might, in the abstract, have been accomplished by ‘less 

intrusive’ means does not, itself, render the [seizure] unreasonable.” Id.

at 686–87 (citing Cady v. Dombrowski, 413 U.S. 433, 447 (1973)).

Plaintiff claims she was detained in the back seat of a patrol car—

unhandcuffed—for one-hour while the officers questioned her and 

searched the hotel room along with the surrounding area. ECF No. 8 at 

6–8. Defendants in turn provided multiple examples of investigatory 

stops that exceeded the one-hour mark without becoming an arrest. ECF 

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Nos. 30 at 16–17; 41 at 8–9. Though none of these cases are exactly on 

point to the facts before the Court, they do display the incredibly context 

dependent nature of the reasonable time and scope analysis for 

investigatory stops. See Illinois v. McArthur, 531 U.S. 326, 332 (2001) 

(validating a two-hour stop to obtain a warrant); United States v. 

Montoya de Hernandez, 473 U.S. 531 (1985) (validating a 16-hour 

detention involving smuggler); United States v. Williams, 185 F. App’x 

866, 869–70 (11th Cir. 2006) (validating a one-hour stop of plaintiff

handcuffed in a police car to investigate a shooting). 

A one-hour investigatory stop in this urgent scenario is reasonable. 

But even if it were not, Plaintiff’s claim fails to rebut qualified immunity 

as—once again—her counsel failed to meet his burden of proving that 

the officers conduct was objectively unreasonable according to clearly 

established law when the incident occurred. See Waltman, 535 F.3d at 

346. Again, “[f]or qualified immunity to be surrendered, pre-existing law 

must dictate, that is, truly compel . . . the conclusion for every like 

situated, reasonable government agent that what the defendant is doing 

violates federal law in the circumstances.” Pasco v. Knoblauch, 566 F.3d 

572, 578–79 (5th Cir. 2009) (quoting Pierce v. Smith, 117 F.3d 866, 882 

(5th Cir. 1997)). 

Plaintiff’s counsel abandoned his post and actively avoided engaging 

with Defendants’ contention that the officers’ actions resulted in an 

investigatory detention and not an arrest. As a result, Plaintiff merely 

asserts that the officers “lacked probable cause to detain and arrest

Plaintiff.” See ECF No. 36 at 10–12. Plaintiff’s counsel—in effect—

completely missed the issue here despite having two twenty-five-page 

chances to address it. See ECF Nos. 36; 37. In fact, in fifty pages of 

briefing, Plaintiff never cited Terry, but cited multiple out-of-circuit 

cases discussing probable cause. ECF No. 36 at 11–12. Further, Plaintiff 

cited no cases discussing a reasonable or unreasonable time for a stop. 

See ECF Nos. 36 at 10–12; 37 at 10–12. And because Plaintiff’s counsel 

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fled from his burden, he and his client will get “neither glory nor any 

help” from this Court.3

The officers thus enjoy qualified immunity as to their investigatory 

detention of Plaintiff. Plaintiff’s claims against the officers related to her 

alleged arrest are thus DISMISSED. 

3. State Law Claims – IIED and Invasion of Privacy 

Under the Erie, federal courts exercising supplemental jurisdiction 

over state law claims must apply state substantive law and federal 

procedural law. Songcharoen v. Plastic & Hand Surgery Assocs., 

P.L.L.C., 561 F. App’x 327, 332 (5th Cir. 2014) (citing Erie R.R. Co. v. 

Tompkins, 304 U.S. 64, 78 (1938). The Court thus applies Texas 

substantive law to Plaintiff’s Intentional Infliction of Emotional Distress 

(“IIED”) and Invasion of Privacy claims. 

i. IIED 

Plaintiff brings an IIED claim against all three Defendants. ECF No. 

8 at 12–13. This claim is barred by Texas Civil Practice and Remedies 

Code Section § 101.106. 

Section 101.106 “requires a plaintiff to decide on a theory of tort

liability before suit is even filed.” Univ. of Tex. Health Sci. Ctr. at Hous. 

v. Rios, 542 S.W.3d 530, 536 (Tex. 2017). As a result, “a plaintiff must 

decide at the outset whether an employee acted independently and is 

thus solely liable or acted within the general scope of his or her 

employment such that the governmental unit is vicariously liable.” Id. 

(emphasis in original) (quotations omitted). So, “if a plaintiff brings 

virtually any state common law tort claim against both a governmental 

unit and its employees, § 101.106(e) will allow the employee defendants 

to be dismissed if the governmental unit so moves.” Bustos v. Martini 

Club Inc., 599 F.3d 458, 463 (5th Cir. 2010). 

Plaintiff argues that because her claims were not filed under the 

Texas Tort Claims Act, § 101.106(e) does not apply. ECF No. 13 at 15–

3 “Of men who have a sense of honor, more come through alive than are slain, but 

from those who flee comes neither glory nor any help.” HOMER, A. T. MURRAY &

WILLIAM F. WYATT, ILIAD (2003).

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16. Plaintiff’s counsel relies on a case that was overruled nearly 

seventeen years ago. Meroney v. City of Colleyville, No. 2-05-195-CV, 

2006 WL 1452103, at *5 (Tex. App.—Fort Worth 2006, pet. granted, 

judgment vacated and remanded by agreement). Though it is possible 

Plaintiff’s council made a mistake and was not making a bad-faith 

argument, a quick scan of Westlaw—which Plaintiff’s counsel links to—

makes this hard to believe:

Regardless, this line of reasoning has also been conclusively rejected by 

the Texas Supreme Court since 2008. See Mission Consol. Indep. Sch. 

Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008); see also Bustos, 599 

F.3d at 464 (“We defer to the Supreme Court of Texas and hold that the 

election of remedies provisions in § 101.106 apply to state law 

intentional tort claims against a governmental unit and its employees.”).

Defendant City of Arlington moves to dismiss the IIED claim against 

Officers Harmon and Burns. ECF No. 9 at 18. This is in line with 

§ 101.106 as both the city and the officers were sued under the same 

theory for the same conduct. ECF No. 8 at 12–13. Thus, “the employees 

shall immediately be dismissed.” § 101.106(e).

Plaintiff’s IIED claim is thus DISMISSED as to officers Burns and 

Harmon. 

ii. Invasion of Privacy

Plaintiff brings an Invasion of Privacy claim, but it is unclear 

whether it is brought under federal or state law. Under either theory,

however, this claim fails. In Texas, a claim for “invasion of privacy” can 

involve three torts: (1) intrusion upon a person’s right to be left alone in 

her own affairs; (2) publicity of private information about a person; and 

(3) appropriation of some element of the person’s identity for commercial 

use. Cain v. Hearst Corp., 878 S.W.2d 577, 578–79 (Tex. 1994).

Plaintiff’s complaint states: 

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Defendants intentionally intruded on Plaintiff’s solitude, 

seclusion, or private affairs when they purported to 

investigate Plaintiff for a matter in which she was not 

involved in . . . . Defendants’ intrusion would be highly 

offensive to a reasonable person, and it was highly 

offensive to Plaintiff. ECF No. 8 at 13.

Based on Plaintiff’s complaint, the only plausible claim for invasion 

of privacy is intrusion upon seclusion. The elements for Texas 

intrusion on seclusion are: “(1) the defendant intentionally intruded on 

the plaintiff’s solitude, seclusion, or private affairs; and 

(2) the intrusion would be highly offensive to a reasonable person.”

Martin v. Guevara, 464 F. App’x 407, 410 (5th Cir. 2012) (cleaned up). 

To state a valid claim, the intrusion must be “unreasonable, unjustified, 

or unwarranted.” Cherkaoui v. Santander Consumer USA, Inc., 32 F. 

Supp. 3d 811, 816 (S.D. Tex. 2014). 

Here, both officers were investigating an aggravated assault with an 

armed gunman on the loose when they encountered Plaintiff. ECF No. 

8. The officers were informed that the gunman was inside a hotel room 

and investigated the matter reasonably, given the urgent

circumstances. Id. The officers’ subsequent investigation of Plaintiff—

related to her presence in the room—was not an unreasonable intrusion 

upon Plaintiff’s privacy and was an ordinary exercise of their lawful 

duties. Id. Plaintiff’s state law privacy claim thus fails.

The Constitution protects individuals from required disclosure of 

highly personal matters to the government and preserves the freedom 

to make personal decisions without government interference. Ramie v. 

City of Hedwig Vill., 765 F.2d 490, 492 (5th Cir. 1985) (citing Whalen v. 

Roe, 429 U.S. 589, 598–602 (1977)). But this right is not unlimited. Id.

When officers engage in questioning suspects of criminal conduct, the 

governments interest generally outweighs a Plaintiff’s right to privacy. 

Id. at 493. To determine whether questioning violates a plaintiff’s right 

to privacy, courts must balance the alleged invasion of privacy with the 

government's legitimate interests. Id. at 492. 

Plaintiff alleges that she was questioned by the officers for an hour 

about an aggravated assault committed by an armed gunman in the 

area. ECF No. 8 at 8–9. Plaintiff does not allege that the officers’ line of 

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questioning was inappropriate or outside the scope of the governments 

valid interest in investigating a crime. Nor does Plaintiff allege that the 

government had no interest in questioning her. On the face of the facts 

alleged in the complaint, the government not only had a valid interest 

in investigating the crime and protecting the community at large, but 

also had an interest that outweighed any constitutional privacy interest 

alleged by Plaintiff. 

Plaintiff’s counsel—despite having fifty pages to do so—once again 

did not address any of Defendants’ briefing on Plaintiff’s privacy claim. 

ECF Nos. 36; 37. Despite this complete dereliction of duty, this claim 

still fails.

Plaintiff’s invasion of privacy claim is thus DISMISSED. 

B. Monell Claims - City of Arlington 

Municipal liability requires showing of: (1) an official policy or 

custom; (2) of which a policymaker can be charged with actual or 

constructive knowledge; and (3) a constitutional violation whose moving

force is that policy or custom. Pineda v. City of Hous., 291 F.3d 325, 328 

(5th Cir. 2002). A municipality is not subject to liability for merely 

employing a tortfeasor. Zarnow v. City of Wichita Falls, 614 F.3d 161, 

167 (5th Cir. 2010). Thus, municipal liability requires action

attributable to the municipality that is the direct cause of the 

constitutional violation. Id.

Plaintiff fails to meet the first element. “For a municipality to be 

liable on account of its policy, the plaintiff must show, among other 

things, either (1) that the policy itself violated federal law or authorized 

or directed the deprivation of federal rights; or (2) that the policy was 

adopted or maintained by the municipality’s policymakers “with 

‘deliberate indifference’ as to its known or obvious consequences . . . a

showing of simple or even heightened negligence will not suffice.”

Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 

293, 309 (5th Cir. 2004). Official policies are usually found in the form 

of written statements, ordinances, or regulations. Peterson v. City of Fort 

Worth, 588 F.3d 838, 847 (5th Cir. 2009). Where a plaintiff does not 

plead a written policy, ordinance, or regulation, she must show 

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widespread practices that are “so common and well-settled as to 

constitute a custom.” Id. (citing Piotrowski v. City of Hous., 237 F.3d 567, 

578 (5th Cir. 2001)).

Proving a “policy or custom” under a failure to train or supervise

claim is difficult standard to meet and requires a showing of “deliberate 

indifference to the rights of persons with whom the [untrained or 

unsupervised employees] come into contact.” Connick v. Thompson, 563 

U.S. 51, 61–62 (2011). This generally requires a showing of other 

repeated instances of the same conduct—enough to put the municipality 

on notice. See Jackson v. Texas, 959 F.3d 194 (5th Cir. 2020) (upholding 

dismissal when a plaintiff failed to identify an actual municipal policy 

and only alleged a single incident); see also Skyy v. City of Arlington, 712 

F. App’x 396, 401 (5th Cir. 2017) (“By relying on their single incident 

with APD officers . . . Appellants’ . . . Complaint fails to allege sufficient 

facts to demonstrate either deliberate indifference or a City custom.”).

But sometimes—under very rare circumstances—a single instance of 

misconduct is enough to warrant a failure to train. See Brown v. Bryan 

Cnty., 219 F.3d 450, 461 (5th Cir. 2000). This, however, requires the 

plaintiff to meet a very high standard. Specifically, “in order to find [a 

municipality] liable for a single decision of the policymaker, there must 

be evidence that would support a finding that it was obvious that the 

offending officer in question was ‘highly likely to inflict the particular 

injury suffered by the plaintiff.’” Brown, 219 F.3d at 461 (citing Bd. of 

Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 412 (1997)).

Plaintiff alleges no other instances of misconduct prior to the events 

giving rise to this suit. As established above, this is ordinarily

insufficient to establish notice of insufficient training or supervision

under most circumstances. Knowing this, Plaintiff argues that the

single instance of misconduct by the officers is enough. ECF. No 13 at 

15. Yet, Plaintiff provides no pleading—nor even a threadbare rule 

recitation—that would support or allege a finding that either officer was 

“highly likely to inflict the particular injury suffered by the plaintiff.”

Brown, 219 F.3d at 461 (citing Bd. of Cnty. Comm’rs of Bryan Cnty., 520

U.S. at 412). 

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As a result, Plaintiff has failed to allege a policy or custom under

Monell. Because the policy or custom is not present, the court need not 

address the knowledge or moving force elements. 

Thus, Plaintiff’s Monell claims against Defendant City of Arlington 

are DISMISSED. 

C. IIED Claim - City of Arlington 

Under Erie, federal courts exercising supplemental jurisdiction over 

state law claims must apply state substantive law and federal 

procedural law. Songcharoen, 561 F. App’x at 332. The Court thus 

applies Texas substantive law to Plaintiff’s IIED claim. 

Defendant City of Arlington contends the governmental immunity 

shields it from Plaintiff’s IIED claim. The Court agrees. Municipalities 

in Texas enjoy governmental immunity which shields governmental 

units from lawsuits unless immunity has been waived by the Texas 

Legislature. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 

2022). The Texas Tort Claims Act “waives immunity for the negligent 

acts of government employees in specific, narrow circumstances” and is 

construed narrowly. Id. The Texas Tort Claims Act explicitly states that 

it does not waive immunity for claims “arising out of assault, battery, 

false imprisonment, or any other intentional tort.” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.057(2). 

Plaintiff asserts a claim that arises out of an intentional tort: IIED.

ECF No. 8. Because immunity has not been explicitly waived by the 

Texas legislature for suits arising under this claim, Plaintiff is barred 

from bringing it against the City of Arlington. 

Plaintiff’s IIED claim against the City of Arlington is thus 

DISMISSED. 

CONCLUSION

Plaintiff’s pleadings are severely lacking and Plaintiff’s counsel—

instead of directly engaging with Defendants’ arguments—chose to

either retreat from valid arguments or obfuscate with bad law instead. 

Case 4:22-cv-00573-P Document 43 Filed 12/21/22 Page 14 of 15 PageID 337
15

As to Plaintiff’s claims against the officers, counsel failed to properly 

respond to many of the arguments raised in the briefing and completely 

failed to address the second prong of qualified immunity. Counsel 

further ignored all arguments made by the officers about his client’s tort 

claims. As to Plaintiff’s claims against the city, counsel made threadbare 

assertions and cited standards that have been conclusively overturned 

for over fifteen years. It is therefore ORDERED that this case is 

DISMISSED without prejudice. 

Plaintiff seeks leave to replead, which the Court is willing to grant. 

But before allowing this, it is ORDERED that Plaintiff’s counsel must 

present a copy of this opinion to Plaintiff. It is further ORDERED that 

Plaintiff must file an affidavit confirming that she has read the Court’s 

opinion within fourteen days of its entry. 

SO ORDERED on this 21st day of December 2022.

Case 4:22-cv-00573-P Document 43 Filed 12/21/22 Page 15 of 15 PageID 338