United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-20281 

____________ 

Shanita Terrell, 

Plaintiff—Appellant, 

versus

Harris County; Michael Hines; Mark Cannon; Ed 

Gonzalez, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:22-CV-302 

______________________________ 

ON PETITION FOR REHEARING

Before Barksdale, Southwick, and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

*

As neither a member of this panel, nor judge in active service, 

requested that the court be polled on rehearing en banc, the petition for 

rehearing en banc is DENIED. Fed. R. App. P. 35 and 5th Cir. R. 35. 

We withdraw our previous opinion and substitute the following: 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 9, 2024 

Lyle W. Cayce 

Clerk 

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2 

Appellant Shanita Terrell alleged that two Harris County Sheriff’s 

Office (“HCSO”) deputies forced her into a patrol car. Later, she alleged, 

one of the deputies sexually assaulted her. The district court dismissed 

Terrell’s claims against the deputy who is not accused of sexual assault along 

with her claims against the county and its sheriff. We AFFIRM. 

I. BACKGROUND 

 At this stage, we accept the following allegations as true and construe 

them in the light most favorable to Terrell. Crane v. City of Arlington, 50 F.4th 

453, 461 (5th Cir. 2022). 

 Terrell spent the evening of February 23, 2020, at The Address, a bar 

in Houston where her cousin works. When she left, “there was visibly and 

audibly something wrong with her and she was not in her usual state of 

mind.” At some point, Terrell encountered off-duty HCSO Deputies 

Michael Hines and Mark Cannon. Hines and Cannon worked side jobs at The 

Address and were in HCSO uniforms. HCSO policy allows deputies to wear 

their uniforms and use HCSO equipment and patrol vehicles while working 

off-duty side jobs. 

 The deputies ordered Terrell into Hines’s patrol vehicle, telling her 

they were going to take her home. Terrell initially protested but ultimately 

got in, believing she was either under arrest or would be arrested if she 

continued to resist. The complaint contains no allegations as to what 

happened immediately afterward. 

 Terrell awoke the next morning at home and felt pain in her vaginal 

area. She went to the hospital, where a rape kit was administered. A DNA 

test revealed that semen in her underwear matched Hines. Terrell had no 

memory of having sex with him. She suspects that someone slipped 

Rohypnol, also known as “roofies,” into her drink at The Address. Roofies 

are known to be used by sexual predators to incapacitate their victims. 

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 In August 2021, eighteen months after the incident, Hines was 

charged with sexually assaulting Terrell. 

 Terrell sued Cannon, Hines, Harris County Sheriff Ed Gonzalez, and 

Harris County under 42 U.S.C. § 1983. Hines was served but never 

responded and Terrell later voluntarily dismissed her claims against him. 

 Terrell alleged that Cannon violated her constitutional rights by 

forcing her into Hines’s patrol vehicle. She alleged that Gonzalez was liable 

as the deputies’ supervisor and Harris County was liable for inadequately 

training them. 

 The district court dismissed Terrell’s second amended complaint 

with prejudice. This appeal followed.1

II. LEGAL STANDARD

Dismissal for failure to state a claim is reviewed de novo. Sw. Bell Tel., 

LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008). 

A person whose constitutional rights are violated by an officer acting 

under color of law may sue that officer for money damages. 42 U.S.C. § 1983. 

But “[q]ualified immunity shields federal and state officials from money 

damages unless a plaintiff pleads facts showing (1) that the official violated a 

. . . constitutional right, and (2) that the right was ‘clearly established’ at the 

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The plaintiff has the 

_____________________ 

1

 In addition to the issues we address, Terrell argues that qualified immunity 

“should no longer exist.” The law on qualified immunity is binding under decades of 

Supreme Court precedent. We leave to the Supreme Court “the prerogative of overruling 

its own decisions.” Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (citation 

omitted). 

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burden to show that her claim is not barred by qualified immunity. Cooper v. 

Brown, 844 F.3d 517, 522 (5th Cir. 2016). 

III. DISCUSSION 

a. Qualified immunity

We may affirm the district court on either qualified immunity prong. 

al-Kidd, 563 U.S. at 735. We start with Terrell’s prong-two argument that 

Cannon’s actions were clearly established as unconstitutional. 

To satisfy prong two, Terrell must point to legal precedent that puts 

the wrongfulness of Cannon’s actions “beyond debate.” Id. Principally, she 

points to Gomez v. Galman, 18 F.4th 769 (5th Cir. 2021). But Gomez was 

decided in November 2021 so it could not have clearly established the 

unconstitutionality of actions that allegedly occurred in February 2020. See 

Anderson v. Valdez, 845 F.3d 580, 607 (5th Cir. 2016). 

Alternatively, Terrell argues that Cannon’s actions were so obviously 

unlawful no precedent is required. The Supreme Court has denied qualified 

immunity in cases involving obvious violations, albeit rarely. See Hope v. 

Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas, 592 U.S. 7, 8–9 (2020). 

Terrell does not show that her allegations are within the scope of those cases. 

Because prong two is not met, Terrell’s claim against Cannon was 

correctly dismissed. 

b. Supervisory liability

Next, Terrell seeks to hold Gonzalez liable for Hines’s actions as his 

supervisor. To establish supervisory liability against an official, a plaintiff 

must allege that “the failure to supervise or train amounted to deliberate 

indifference to the plaintiff's constitutional rights.” Roberts v. City of 

Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). 

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Terrell alleged that Gonzalez was aware that Hines was arrested for 

sexually assaulting a child in 2018 and that Gonzalez “does not investigate 

and/or discipline officers alleged of crimes if they are no-billed2

 by a Grand 

Jury.” To show deliberate indifference, allegations generally must infer “a 

pattern of similar violations.” Id. Terrell alleged only one related incident. A 

single incident may show deliberate indifference only if “the highly 

predictable consequence of a failure to [supervise] would result in the specific 

injury suffered.” Id. at 295. To be “highly predictable,” a result must be “so

predictable that” the failure to supervise “amounted to conscious disregard

for” the plaintiff’s rights. Connick v. Thompson, 563 U.S. 51, 71 (2011) 

(emphasis in original). Terrell does not show that her allegations against 

Gonzalez satisfy that test. Her supervisory claim was correctly dismissed. 

c. Municipal liability 

Last, Terrell accuses Harris County of a policy of failure to adopt 

adequate training. To sustain that claim, she must allege, among other things, 

the existence of a policy, custom, or practice. Hutcheson v. Dallas County, 994 

F.3d 477, 482 (5th Cir. 2021). A custom or practice is a pattern “so persistent 

and widespread as to practically have the force of law.” Peña v. City of Rio 

Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quoting Connick, 563 U.S. at 

61). The plaintiff cannot rely solely on the incident that caused her injury to 

demonstrate such a pattern. Id. Here, however, Terrell relies only on the 

incident that allegedly caused her injury. Id. Her municipal liability claim was 

correctly dismissed. 

_____________________ 

2

 A Texas arrestee is “no-billed” when the grand jury votes against the 

presentment of an indictment. Tex. Code Crim. Proc. Ann. Art. 20A.301. 

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IV. CONCLUSION 

We AFFIRM. 

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