United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40518

____________

Olivia Sligh, 

Plaintiff—Appellant, 

versus

City of Conroe, Texas; Tyson Sutton; Alexis Alias 

Montes; Montgomery County, Texas, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:20-CV-1417 

______________________________

Before King, Smith, and Elrod, Circuit Judges.

Per Curiam: 

Olivia Sligh appeals the dismissal of (1) an excessive force claim under 

42 U.S.C. § 1983; (2) a § 1983 failure-to-intervene/bystander liability claim; 

(3) a § 1983 municipal liability claim; and (4) various failure-to-accommodate 

claims under Title II of the ADA and § 504 of the Rehabilitation Act. We 

AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

November 21, 2023

Lyle W. Cayce

Clerk
No. 22-40518

2

I.

This case involves a plaintiff who was bitten and injured by a police 

dog. The below facts are mainly taken from the operative complaint. At 1:39

a.m. on July 5, 2018, Plaintiff-Appellant Olivia Sligh’s partner called 911 to 

report that Sligh was suicidal, had hurt herself, and had left her house on foot.

Sligh’s partner requested an ambulance, and he indicated that Sligh was 

unarmed and not a violent person. The Montgomery County Sheriff’s Office 

notified the City of Conroe of the emergency medical call and requested a 

canine officer if available. Tyson Sutton, a police officer employed by the City 

of Conroe, and Alexis Alias Montes, a deputy employed by the Montgomery 

County Sheriff’s Office, responded to the call. Sutton brought along Thor, a 

trained K9 police dog. These two officers, the City of Conroe, and 

Montgomery County are the Defendants-Appellees in this action.

The complaint alleges that when the officers located Sligh, Sutton 

shined a flashlight in Sligh’s face as Thor barked and lunged at her. Montes 

grabbed Sligh, who pulled away. Sutton then sicced Thor on Sligh, and Thor 

initially bit Sligh in the upper thigh. Sligh sat down, and Sutton continued to 

direct Thor to bite Sligh on the rear of her upper leg and her ankle. Sligh 

alleges that “Sutton used the dog to purposively attack and bite” her; that 

“Montes did not intervene in the multiple dog bites by words or actions even 

though the attack lasted one minute and some seconds”; and that she never 

resisted seizure, tried to escape, or assaulted Montes. 

Sligh’s complaint is not the only account of what happened that night. 

Sligh’s complaint also repeatedly references Sutton’s bodycam footage (the 

“Video”), which was attached to Montgomery County and Montes’s motion 

to dismiss. In the Video, Sutton encounters Sligh and shines a flashlight at 

her. Sligh begins to approach Sutton, who loudly says: “Wait, wait, wait, 

don’t! Do not walk towards me! Do not walk towards me! The dog will bite 
No. 22-40518

3

you!” Sligh acknowledges Sutton before shouting a profanity at the officers. 

Montes commands Sligh to place her hands behind her back. Sligh responds 

with more profanities and, contrary to the complaint’s assertions that she 

never resisted, slaps at Montes’s arms while attempting to pull away. Sligh 

and Montes physically struggle for about 11 seconds, at which point Sligh 

breaks free from Montes’s grip. Sutton then releases Thor with a bite 

command, and Thor bites Sligh as Sutton commands her to get on the 

ground. Sligh falls to a seated position on the ground and cries out in pain. 

Beginning eight seconds after the bite command, Sutton repeatedly 

commands Thor to release Sligh, but Thor does not immediately comply. 

Sligh begins lying on her side. 36 seconds after giving the first bite command, 

Sutton grabs and pulls Thor’s collar. Thor releases Sligh around 64 seconds 

following the first bite command.1 While Thor was biting Sligh, Montes 

reaches to control Sligh’s hands and commands her to put her hands behind 

her back. Montes handcuffs Sligh after Thor’s release. 

On April 21, 2020, Sligh filed a complaint against the City of Conroe 

and John Doe Conroe Police Officers alleging various constitutional, 

Americans with Disabilities Act (“ADA”), and Rehabilitation Act claims. 

Sligh subsequently amended her complaint three times and added the present 

Defendants-Appellees. In the operative third amended complaint filed on 

June 23, 2021, Sligh asserted various claims against Sutton and Montes in 

their individual capacities as well as claims against the City of Conroe and 

Montgomery County. Specifically, as relevant to this appeal, she asserted 

(1) a 42 U.S.C. § 1983 excessive force claim against Sutton; (2) a § 1983

failure-to-intervene/bystander liability claim against Montes; (3) a § 1983 

_____________________

1 The time of the release is unclear from the footage. But given that Thor began and 

continued barking from this point, we can infer that the attack lasted 64 seconds at most 

from first bite to release.
No. 22-40518

4

municipal/Monell liability claim against the City of Conroe; and (4) various 

failure-to-accommodate claims under Title II of the ADA and § 504 of the 

Rehabilitation Act against both the City of Conroe and Montgomery County. 

Montgomery County and Montes jointly moved to dismiss the 

complaint for failure to state a claim, raising, inter alia, a qualified immunity 

defense as to Montes. The City of Conroe and Sutton also moved to dismiss, 

with Sutton raising a qualified immunity defense. The district court granted 

all three motions. It held that (1) Sutton was entitled to qualified immunity 

on Sligh’s excessive force claim; (2) Montes was entitled to qualified 

immunity on Sligh’s failure-to-intervene/bystander liability claim; (3) Sligh 

had failed to state a § 1983 municipal liability claim against the City of 

Conroe; and that (4) Sligh’s ADA and Rehabilitation Act claims against the 

City of Conroe and Montgomery County failed because they fell into the 

exigent circumstances exception to the ADA. Sligh timely appealed.

II.

This court reviews de novo a district court’s grant of a motion to 

dismiss. Whitley v. BP, P.L.C., 838 F.3d 523, 526 (5th Cir. 2016). In 

considering a motion to dismiss, we may “also consider ‘[d]ocuments that a 

defendant attaches to a motion to dismiss . . . if they are referred to in the 

plaintiff’s complaint and are central to her claim.’” Villarreal v. Wells Fargo 

Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016) (alteration in original) (quoting 

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). 

If an allegation is qualified by the contents of an exhibit attached to the 

pleadings, but the exhibit instead contradicts the allegation, “the exhibit and 

not the allegation controls.” United States ex rel. Riley v. St. Luke’s Episcopal 

Hosp., 355 F.3d 370, 377 (5th Cir. 2004). Here, the Video was attached to 

Montgomery County and Montes’s joint motion to dismiss and referenced 
No. 22-40518

5

by Sligh in her operative complaint. Accordingly, to the extent that the Video 

contradicts Sligh’s allegations, the Video controls.

III.

A. Excessive Force Claim

We begin with Sligh’s excessive force claim against Officer Sutton. To 

overcome Sutton’s qualified immunity defense, Sligh must show (1) that 

Sutton violated a constitutional right; and (2) that the right at issue was 

“clearly established” at the time of the alleged misconduct. See Pearson v.

Callahan, 555 U.S. 223, 232 (2009). We can address these inquiries in any 

order. See id. at 236. 

To succeed on a Fourth Amendment excessive force claim, Sligh must 

demonstrate an “(1) 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.” See Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 

2017) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). “In 

excessive-force claims, the reasonableness of an officer’s conduct depends 

on the ‘facts and circumstances of each particular case . . . .’” Cooper v.

Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Graham v. Connor, 490 

U.S. 386, 396 (1989)). Such a determination is based on “the perspective of 

a reasonable officer on the scene.” Id. (quoting Graham, 490 U.S. at 396).

The Supreme Court in Graham v. Connor outlined three factors that inform 

the reasonableness of an officer’s use of force: “(1) the severity of the crime 

at issue, (2) whether the suspect posed an immediate threat to the safety of 

officers or others, and (3) whether the suspect was actively resisting arrest or 

attempting to evade arrest by flight.” See Joseph ex rel. Est. of Joseph v. 

Bartlett, 981 F.3d 319, 332 (5th Cir. 2020) (citing Graham, 490 U.S. at 396).
No. 22-40518

6

The first Graham factor, the severity of the crime, weighs in Sligh’s 

favor. The officers were called based on concerns about Sligh’s mental 

health, not a crime she was suspected of committing. 

The second Graham factor, whether the suspect posed an immediate 

threat to the safety of officers or others, also weighs in Sligh’s favor. Sligh 

may have posed a safety threat to herself, as she had cut herself and was 

potentially suicidal, but the officers received no indication that Sligh was 

violent, armed, or otherwise posed a threat to others. Defendants-Appellees’ 

contention that the employment of a dog bite was justified due to Sligh’s 

immediate safety threat to herself is unpersuasive in this case. Sligh did not 

appear to be engaging in self-harm during her interactions with the officers, 

which undermines Defendants-Appellees’ argument that Sligh posed an 

“immediate” safety threat to herself that warranted such a dangerous use of 

force. It is also difficult to see how Sligh’s self-harm justifies the employment 

of a dog bite, which will inevitably lead to more punctures or lacerations. 

Defendants-Appellees contend that Sutton could not determine 

whether Sligh had a weapon in her clothing, which weighs in favor of 

employing the dog bite. But it is difficult to imagine that Sutton would have 

believed that Sligh, who was wearing a tank top and women’s athletic shorts, 

was armed when no weapon was produced during the physical struggle 

between Sligh and Montes. Furthermore, because the officers did not suspect 

that Sligh was violent or had committed a crime, the fact that she was 

unsearched is not enough to permit a reasonable officer to assume that she 

posed an immediate threat. See Cooper, 844 F.3d at 523 n.2.

The third Graham factor, whether the suspect was actively resisting 

arrest or attempting to evade arrest by flight, appears to weigh against Sligh. 

The Video shows that Sligh actively resisted seizure, did not follow verbal 

commands, and engaged in a physical struggle with Montes. Once Sligh 
No. 22-40518

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broke free from Montes’s efforts to physically apprehend her, a reasonable 

officer could conclude that a heightened use of force would be necessary to 

detain her for her own safety. However, even where force is authorized, 

officers must employ an appropriate degree of force to stay within 

constitutional bounds. An officer must use force “with measured and 

ascending actions that correspond[] to [a suspect’s] escalating verbal and 

physical resistance.” Joseph, 981 F.3d at 332–33 (alterations in original) 

(quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).

We find that under these circumstances, the decision to sic Thor on 

Sligh constituted an excessive use of force in violation of the Fourth 

Amendment. When Sligh slipped free from Montes’s attempt to seize her, 

there was a break in the action. At that point, the officers could have 

attempted to escalate their use of physical force in a more measured manner, 

or they could have provided a clear warning that they would employ a dog 

bite if Sligh did not comply. Instead, Sutton sicced Thor on Sligh without 

warning. 

Without any further attempts to subdue Sligh without the use of a dog 

bite, and without providing Sligh any warning that she may be subjected to a 

dog bite if she did not comply, Sutton sicced a dog on a woman who (1) was 

not suspected of any crime; (2) did not pose an immediate safety threat to 

officers or others; and (3) was in need of emergency medical intervention due 

to self-harm. Furthermore, Sligh—surrounded by a fence and thick foliage—

was not attempting to flee the officers. Employing a dog bite under these 

circumstances arguably constituted an unreasonable seizure in violation of 

Sligh’s Fourth Amendment rights.

2

_____________________

2 We need not and do not address the issue of whether the prolonged duration of 

Thor’s bite also constituted excessive force. Because Thor disobeyed Sutton’s commands

to release Sligh, the extension of the application of force in this case was arguably 
No. 22-40518

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Because we find that Sligh has alleged a violation of a constitutional 

right, we turn to the question of whether that right was clearly established at 

the time of the violation. “To answer that question in the affirmative, we 

must be able to point to controlling authority—or a robust consensus of 

persuasive authority—that defines the contours of the right in question with 

a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th 

Cir. 2011) (en banc) (internal quotation marks and citation omitted). 

Although this does not mean that “a case directly on point” is required, 

“existing precedent must have placed the statutory or constitutional 

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

“‘[I]n an obvious case,’ the Graham excessive-force factors 

themselves ‘can clearly establish’” the law without a body of relevant 

precedent. Cooper, 844 F.3d at 524 (quoting Newman v. Guedry, 703 F.3d 757, 

764 (5th Cir. 2012)). We find that the facts here do not present such an 

“obvious case.” Because Sligh actively resisted seizure, the third Graham 

factor weighs against her and justified a use of heightened force. While the 

method of heightened force employed may have been unconstitutionally 

excessive, the Graham analysis in this case is not so obvious as to clearly 

establish the law without a body of relevant authority. Sligh therefore bears 

the burden of identifying precedent that clearly establishes her constitutional 

right. 

_____________________

unintentional. Sligh has offered no evidence that Thor, nor police dogs more generally,

frequently ignore such commands to release. Neither has she offered any clearly established 

law indicating that an officer violates the Fourth Amendment when he or she loses control 

of a canine engaged in a dog bite. We therefore find that the unintended use of canine force 

that occurred after Sutton ordered Thor to release did not violate Sligh’s clearly established 

right. Because we find that there was not a clearly established violation of a constitutional 

right, we need not address “whether in fact there is such a right.” See Pearson, 555 U.S. at 

236–37.
No. 22-40518

9

In arguing that Officer Sutton violated her clearly established right, 

Sligh relies primarily on the case Cooper v. Brown, 844 F.3d 517 (5th Cir.

2016). In Cooper, the namesake plaintiff fled on foot after being pulled over 

on suspicion of driving under the influence (“DUI”). Id. at 521. An officer 

radioed for backup and explained that Cooper was a DUI suspect. Id.

Defendant Officer Brown answered the call with his police dog, Sunny, who 

discovered Cooper in a small wood-fenced “cubbyhole.” Id. The parties 

disputed whether Sunny initiated the attack or if Brown ordered it, but they 

agreed on the following sequence of events following the initial bite: 

Sunny continued biting Cooper for one to two minutes. During 

that time, Cooper did not attempt to flee or to strike Sunny. 

Brown instructed Cooper to show his hands and to submit to 

him. At the time of that order, Cooper’s hands were on 

Sunny’s head. Brown testified that he could see Cooper’s 

hands and could appreciate that he had no weapon. Brown then 

ordered Cooper to roll onto his stomach. He complied, and 

Brown handcuffed him. But he did not order Sunny to release 

the bite until after he had finished handcuffing Cooper. 

Id. This court affirmed the district court’s denial of Brown’s motion for 

summary judgment based on qualified immunity. Id. at 524–26. On the 

question of whether there was a constitutional violation, we held that all the 

Graham factors except for the severity of the crime “push[ed] heavily for 

Cooper.” Id. at 522. Cooper did not pose an immediate threat because he was 

not suspected of committing a violent offense, Brown had not been warned 

that Cooper may be violent, and Brown could see that Cooper was unarmed. 

Id. at 522–23. Furthermore, Cooper was “not actively resisting arrest or 

attempting to flee or to strike Sunny.” Id. at 523. The only act of resistance 

Brown identified was Cooper’s understandable failure to raise his hands 

while being bit by Sunny. Id. And, in any case, Cooper complied with 

Brown’s order to roll onto his stomach. Id. Also relevant to our analysis was 
No. 22-40518

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Brown’s failure to immediately command Sunny to release the bite; instead, 

he waited until after Cooper had been handcuffed. Id. at 521, 523. In sum, 

while explicitly noting that we were not creating a per se rule on 

reasonableness, we concluded that “[u]nder the facts in this record, 

permitting a dog to continue biting a compliant and non-threatening arrestee 

is objectively unreasonable.” Id. at 524.

The present case is distinguishable from Cooperin at least two material 

aspects. First, Sligh actively resisted seizure. See id. (“Our caselaw makes 

certain that once an arrestee stops resisting, the degree of force an officer can 

employ is reduced.” (emphasis added)). Second, Cooper involved a dog bite 

that was intentionally prolonged. Sunny bit Cooper for one to two minutes 

before the officer finally ordered Sunny to release. Id. at 521. Here, Sutton 

repeatedly ordered Thor to release Sligh beginning about eight seconds after 

the initial bite command. And when Thor failed to obey his repeated 

commands, Sutton made affirmative efforts to release Thor by pulling his 

collar about 36 seconds following the first release command. Such conduct 

on Sutton’s part suggests that the amount of force intentionally used here 

differs from Cooper, where the dog bit the plaintiff for one to two minutes and 

the officer did not order the dog to release the plaintiff until after the suspect 

was handcuffed. See id. at 524 (noting that “permitting a dog to continue 

biting a compliant and non-threatening arrestee is objectively unreasonable” 

(emphasis added)).

We find that Cooper’s precedent does not sufficiently “place[] the . . .

constitutional question beyond debate.” See Ashcroft, 563 U.S. at 741. Cooper 

involved a nonresisting plaintiff and an intentionally prolonged application of 

force. Because the present case involves an application of unintentionally

prolonged force against an actively resisting plaintiff, we do not find that 

Sutton’s violation of Sligh’s constitutional right was clearly established. 

Sutton is therefore entitled to qualified immunity. 
No. 22-40518

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B. Bystander Liability Claim

We next consider Sligh’s failure-to-intervene/bystander liability 

claim against Montes. To overcome Montes’s qualified immunity defense, 

Sligh must identify law clearly establishing that Montes’s actions violated her 

constitutional rights, i.e., she must show that “any reasonable officer would 

have known that the Constitution required them to intervene.” Joseph, 981 

F.3d at 345. She has not done so. We accordingly need not and do not reach 

the question of whether Montes violated Sligh’s constitutional rights. See 

Pearson, 555 U.S. at 236–37.

Sligh relies entirely on Cooper as clearly establishing the law relating 

to Montes’s actions. But this reliance on Cooper is misplaced because Cooper

is wholly inapplicable to a bystander liability theory. The facts and analysis in 

Cooper concerned only the conduct of the specific officer who controlled the 

dog. There was consequently no discussion in Cooper of whether another 

officer on site would be required to intervene as a bystander. Thus, Cooper

cannot clearly establish that Montes—a bystander—violated Sligh’s 

constitutional rights by failing to intervene. Sligh points to no other case 

clearly establishing the law on this issue. Accordingly, Montes is entitled to 

qualified immunity on Sligh’s bystander liability claim.

C. Municipal Liability Claim

We next consider Sligh’s municipal liability claim against the City of 

Conroe. For such a claim, Sligh must identify “(1) an official policy (or 

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

constructive knowledge, and (3) a constitutional violation whose ‘moving 

force’ is that policy or custom.” See Valle v. City of Houston, 613 F.3d 536, 

541–42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 

(5th Cir. 2002)).
No. 22-40518

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Sligh asserts three separate theories of municipal liability. First, Sligh 

argues that the City of Conroe had inadequate written policies concerning 

police dogs. Second, Sligh contends that the City of Conroe failed to 

adequately train Officer Sutton on the use of his police dog. Third, Sligh

asserts that the City of Conroe ratified Sutton’s actions by failing to punish 

him or change their policies. We address each theory of municipal liability in 

turn.

1. Inadequate Policies Claim

For an inadequate policies claim, “[a] plaintiff must show that (1) an 

official policy (2) promulgated by the municipal policymaker (3) was the 

moving force behind the violation of a constitutional right.” Peña v. City of 

Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (quoting Hicks-Fields v. 

Harris County, 860 F.3d 803, 808 (5th Cir. 2017)). A plaintiff must also show 

that the policy was implemented with “deliberate indifference” to the 

“known or obvious consequences” that constitutional violations would 

result. Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir. 2018)

(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 

(1997)). Usually, a plaintiff must show “a pattern of similar violations” to 

establish deliberate indifference. Valle, 613 F.3d at 547. “To show deliberate 

indifference based on a single incident, there must be evidence that shows 

that it should have been apparent or obvious to the policymaker that a 

constitutional violation was the ‘highly predictable consequence’ of the 

particular policy.” Alvarez, 904 F.3d at 391 (quoting Burge v. St. Tammany 

Parish, 336 F.3d 363, 373 (5th Cir. 2003)).

Sligh’s policy-based claim fails because she has not adequately alleged 

that an official policy was a moving force behind Officer Sutton’s violation of 

her constitutional right. Sligh alleges that “the only policy that the City has 

on the use of attack dogs is that they may be used on anyone: evading arrest; 
No. 22-40518

13

known to be armed; that has demonstrated violence; that has the potential 

for violence; or has committed a felony.” Sligh mischaracterizes the policy

in question. Her quotations are misrepresentations of the relevant policy 

language, which states that police dogs can be “released off leash to 

apprehend any suspect evading arrest that is known to be armed, has 

demonstrated violence, or the potential for violence, or has committed a 

felony offense.” 

Sligh cannot establish a “moving force” causal relationship between 

this policy and Officer Sutton’s constitutional violation. The policy limits the 

offensive employment of canines to a subset of suspects evading arrest, which 

does not apply to Sligh. Because Sutton was not following this policy when 

he sicced Thor on Sligh, we find that the policy cited by Sligh was not a 

moving force behind Sutton’s constitutional violation. 

Sligh also fails to adequately allege that the City’s canine policies were 

deficient. She relies on Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994), an 

out-of-circuit authority, to support her proposition that a failure to adopt a 

departmental policy governing the use of police dogs constitutes deliberate 

indifference. But in Chew, the court held that municipal liability could be 

found “[w]here the city equips its police officers with potentially dangerous 

animals, and evidence is adduced that those animals inflict injury in a 

significant percentage of the cases in which they are used,” provided that the 

city “fail[s] to engage in any oversight whatsoever of an important 

departmental practice involving the use of force.” Id. 

Sligh’s reference to the City’s policy, which limits the offensive use 

of canines to apprehending a subset of suspects evading arrest, undermines

her assertion that the City’s canine policies were deficient. Additionally, 

unlike the plaintiff in Chew, Sligh fails to allege a widespread pattern of 

canine-related injury that would provide the City with “[a]ctual or 
No. 22-40518

14

constructive knowledge” that its canine policies were constitutionally 

inadequate. See Burge, 336 F.3d at 370 (alteration in original) (quoting Bennett 

v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)). She does not convincingly 

argue why she need not show a pattern of violations here, arguing only that 

this court should “infer” that such problems were “reoccurring.” Sligh’s 

speculation is insufficient to establish deliberate indifference as necessary for 

an inadequate policies claim. 

Because the City’s actual canine policy was not a “moving force” 

behind Officer Sutton’s constitutional violation, and because Sligh has not 

alleged facts indicating that the City was deliberately indifferent to a known 

or obvious risk that its canine policies would result in constitutional 

violations, we find that the district court did not err in holding that Sligh 

failed to adequately allege an inadequate policies claim against the City of 

Conroe. 

2. Failure-to-Train Claim

A failure-to-train theory of municipal liability requires Sligh to show 

that “1) the [city] failed to train or supervise the officers involved; 2) there is 

a causal connection between the alleged failure to supervise or train and the 

alleged violation of the plaintiff’s rights; and 3) the failure to train or 

supervise constituted deliberate indifference to the plaintiff’s constitutional 

rights.” See Peña, 879 F.3d at 623 (alteration in original) (quoting Thompson 

v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001)).

Sligh’s failure-to-train claim fails because, as described above, she 

cannot show deliberate indifference on the City of Conroe’s part. Sligh 

argues that the need for more or different training here is so obvious that the 

policymakers can reasonably be said to be deliberately indifferent. But she 

rests the entirety of her conclusory argument on the single present incident 

and pleads no pattern of prior incidents sufficient to place the City of Conroe 
No. 22-40518

15

on “actual or constructive notice that a particular omission in their training 

program causes city employees to violate citizens’ constitutional rights.” 

Connick v. Thompson, 563 U.S. 51, 61 (2011); cf. id. at 62 (“A pattern of similar 

constitutional violations by untrained employees is ‘ordinarily necessary’ to 

demonstrate deliberate indifference for purposes of failure to train.” (quoting 

Brown, 520 U.S. at 409)). Because Sligh has failed to allege specific and nonconclusory facts that would show that the City was deliberately indifferent in 

adopting its training policy, we find that the district court did not err in 

dismissing Sligh’s failure-to-train claim against the City of Conroe. 

3. Ratification Claim

Concerning ratification, if “authorized policymakers approve a 

subordinate’s decision and the basis for it, their ratification [is] chargeable to 

the municipality because their decision is final.” World Wide Street Preachers 

Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009) (quoting 

City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). “The theory of 

ratification, however, has been limited to ‘extreme factual situations.’” Id.

(quoting Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009)).

“Therefore, unless the subordinate’s actions are sufficiently extreme—for 

instance, an obvious violation of clearly established law—a policymaker’s 

ratification or defense of his subordinate’s actions is insufficient to establish 

an official policy or custom.” Id.

Sligh’s ratification theory fares no better than her other theories of 

municipal liability. Ratification is a limited theory of liability, and, for the 

reasons stated above, the present circumstances are neither an obvious 

violation of clearly established law nor an extreme factual circumstance 

sufficient to support a municipal liability claim. Thus, Sligh’s ratification 

theory fails.
No. 22-40518

16

D. ADA and Rehabilitation Act Claims

Finally, we consider Sligh’s ADA and Rehabilitation Act claims 

against the municipalities.3 “Title II of the ADA provides that ‘no qualified 

individual with a disability shall, by reason of such disability, be excluded 

from participation in or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination by any such 

entity.’” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42 

U.S.C. § 12132). Although her briefing is not particularly clear, Sligh appears 

to be pursuing a failure-to-accommodate claim.

4

“To succeed on a failure-to-accommodate claim, a plaintiff must 

prove: (1) he is a qualified individual with a disability; (2) the disability and 

its consequential limitations were known by the covered entity; and (3) the 

entity failed to make reasonable accommodations.” Ball v. LeBlanc, 792 F.3d 

584, 596 n.9 (5th Cir. 2015). “Plaintiffs ordinarily satisfy the knowledge 

element by showing that they identified their disabilities as well as the 

resulting limitations to a public entity or its employees and requested an 

accommodation in direct and specific terms.” Smith v. Harris County, 956 

F.3d 311, 317 (5th Cir. 2020). “When a plaintiff fails to request an 

_____________________

3 We adjudicate and refer to the ADA and Rehabilitation Act claims collectively as 

the “ADA claims” below. See D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 

450, 453 (5th Cir. 2010) (“Because this court has equated liability standards under § 504 

[of the Rehabilitation Act] and the ADA, we evaluate [Plaintiff’s] claims under the statutes 

together.”).

4 Specifically, Sligh argues that the municipal Defendants-Appellees failed to 

accommodate her mental disabilities by (1) using a police attack dog; (2) not educating and 

training officers in caring for mentally disabled persons; (3) not using verbal de-escalation 

techniques; (4) not protecting Sligh from further harm; (5) not allowing Sligh an 

opportunity to account for her being surrounded; (6) not adopting a policy to protect the 

mentally disabled; (7) not conducting self-evaluation plans under the ADA or 

Rehabilitation Act; and (8) not modifying their programs and services to accommodate the 

mentally disabled.
No. 22-40518

17

accommodation in this manner, he can prevail only by showing that ‘the 

disability, resulting limitation, and necessary reasonable accommodation’ 

were ‘open, obvious, and apparent’ to the entity’s relevant agents.” Id. at 

317–18 (quoting Windham v. Harris County, 875 F.3d 229, 237 (5th Cir. 

2017)). 

Sligh does not meet this standard. Assuming arguendo that she is a 

qualified individual with a disability under the ADA, Sligh pleads no facts 

showing that she requested an accommodation or that her disability and 

limitations were known by the covered entity. At this stage, we must take as

true her allegations that “Officer Sutton and Deputy Montes learned that 

Olivia had cut herself, was suicidal, [and] that she was a mental health 

patient.” But Sligh does not allege that she identified her disabilities or 

resulting limitations; nor does she allege that she requested any of her 

accommodations “in direct and specific terms” to the officers. See id. at 317. 

The Video further corroboratesthat she did not request the accommodations 

that she now alleges were denied. 

Having failed to make such requests, Sligh can “prevail only by 

showing that ‘the disability, resulting limitation, and necessary reasonable 

accommodation’ were ‘open, obvious, and apparent’ to the entity’s relevant 

agents.” See id. at 317–18 (quoting Windham, 875 F.3d at 237). But she does 

not attempt to make this showing. Nor could she. Neither her limitations nor 

her highly specific desired accommodations were open, obvious, and 

apparent under the given facts, where a police dog was used to track a missing 

person who then immediately began physically struggling with one of the 

officers. Because Sligh has not shown that her disability and limitations were 

known by the municipalities, her failure-to-accommodate claims under the 
No. 22-40518

18

ADA and Rehabilitation Act are inadequate and were appropriately 

dismissed.

5

IV.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

_____________________

5 Because we can “affirm on any ground supported by the record, including one 

not reached by the district court,” we do not and need not consider the district court’s 

invocation of the exigency exception to the ADA. See Ballew v. Cont’l Airlines, Inc., 668 

F.3d 777, 781 (5th Cir. 2012).