United States Court of Appeals 

for the Fifth Circuit ____________ No. 22-11210 ____________ Shandra Hodge, 

Individually and as the surviving mother of Schaston Hodge 

and as the administrator of the Estate of Schaston Hodge, 

PlaintiffAppellant, 

versus

Joshua Engleman; Robert Litvin, 

DefendantsAppellees. ______________________________ Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:21-CV-1916 ______________________________ Before Higginbotham, Smith, and Elrod, Circuit Judges. Jerry E. Smith, Circuit Judge: 

Officers Engleman and Litvin shot and killed Schaston Hodge after he 

refused to pull over his vehicle, led the officers on a brief chase back to his 

home, and exited his car with a gun in his hands. After reviewing the officers 

bodycam footage, the district court granted their motion to dismiss on the 

ground of qualified immunity (QI) even though Hodge did not include 

that footage in the pleadings. Treating the dismissal as an implicit conversion 

to summary judgment, we affirm. 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 16, 2024 

Lyle W. Cayce 

Clerk 

Case: 22-11210 Document: 00517033741 Page: 1 Date Filed: 01/16/2024
No. 22-11210 

2 

I. 

Driving home, Schaston Hodge stopped at a stop sign and turned left 

without signaling. Litvin and Engleman attempted to pull Hodge over. 

Despite the officers lights and sirens, Hodge continued driving for several 

minutes until he reached his house. As Hodge parked in his driveway, 

Engleman jumped out of the police car and sprinted toward Hodges car with 

his gun drawn, ordering Hodge to show his hands and step out of the car. 

Hodge exited the car with a gun in his hands and pointed it at Engleman. 

Engleman fired, shooting Hodge, and dropped to the ground.1

 Approaching 

behind Engleman and seeing him fall to the ground, Litvin also discharged 

his weapon. All told, Engleman fired eleven times and Litvin eight, hitting 

Hodge sixteen times. 

Hodges mother, individually and as the administrator of his estate, 

sued Engleman and Litvin under 42 U.S.C. § 1983 for excessive force and the 

Texas Department of Public Safety (TDPS) and the City of Dallas for 

failure to train and supervise.2 TDPS moved to dismiss, asserting Eleventh 

Amendment immunity. The City also moved to dismiss, averring the complaint lacked any factual basis for a claim of municipal liability. Finally, 

Engleman and Litvin moved to dismiss, claiming QI. The district court 

granted TDPSs and the Citys motions but delayed ruling on Engleman and 

Litvins motion.3 _____________________ 1

 Engleman seems to have dropped to the ground in an attempt to avoid being shot, 

not because he was shot. It is unclear from the footage whether Hodge ever actually fired 

his gun, and no party has made any claims either way. Because we resolve all genuine 

disputes in favor of the nonmoving party at this stage, see infra, we assume that Hodge did 

not fire. 

2

 Throughout this opinion, we refer to Schaston Hodge as the plaintiff. 

3

 The court gave Hodge leave to refile the complaint after granting TDPSs and the 

citys motions, mooting Engleman and Litvins first motion. After Hodge refiled, EngleCase: 22-11210 Document: 00517033741 Page: 2 Date Filed: 01/16/2024
No. 22-11210 

3 

In each of their three motions to dismiss, Engleman and Litvin 

attached body-camera footage. The district court relied on that video to dismiss because of QI. The court explicitly found that the blatantly contradict[ory] video meant Hodges complaint failed to meet the low bar necessary to survive a Federal Rule of Civil Procedure 12(b)(6) motion. 

636 F. Supp. 3d 727, 733 (N.D. Tex. 2022) (quoting Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021)). 

II. 

We review a Rule 12(b)(6) dismissal de novo. Allen v. Hays, 65 F.4th 

736, 743 (5th Cir. 2023). Rule 12(b)(6) motions are viewed with disfavor 

and rarely granted. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 

498 (5th Cir. 2000) (cleaned up). To survive a motion to dismiss, a 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)). 

Although we accept all well-pled facts as true, construing all reasonable 

inferences in the complaint in the light most favorable to the plaintiff, conclusory allegations, unwarranted factual inferences, or legal conclusions are not accepted as true. Allen, 65 F.4th at 743 (cleaned up). 

If, on a motion under Rule 12(b)(6), matters outside the pleadings 

are presented to and not excluded by the court, the motion must be treated 

as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d) 

(cleaned up). Even if a district court does not explicitly inform the parties 

that it was converting the motion to dismiss into a summary judgment _____________________ man and Litvin filed a second motion to dismiss that the court denied without prejudice on 

evidentiary grounds. Defendants then filed a third, which the court granted and is at issue 

here. 

Case: 22-11210 Document: 00517033741 Page: 3 Date Filed: 01/16/2024
No. 22-11210 

4 

motion, appellate courts may take the district courts consideration of matters outside the pleadings to trigger an implicit conversion. Trinity Marine 

Prods., Inc. v. United States, 812 F.3d 481, 487 (5th Cir. 2016) (quotation 

marks and citation omitted). On review, this error is reversible only if [the 

plaintiff] had no notice or opportunity to refute [the] allegations in the motion 

to dismiss. Bolen v. Dengel, 340 F.3d 300, 31213 (5th Cir. 2003) (citation 

omitted). Parties must have at least ten days notice before the courts ruling 

that the court could convert the Rule 12(b)(6) motion into a summary 

judgment. Holguin v. U.S. Dept of Army, 98 F.3d 1337, 1996 WL 556767, at 

*2 (5th Cir. 1996) (per curiam) (table) (unpublished) (citing Washington v. 

Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990)).4

We review a . . . summary judgment de novo, viewing all facts and 

drawing all inferences in a light most favorable to the non-moving party. 

Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citation omitted). Summary judgment is appropriate if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of 

material fact exists when the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party. Abdallah v. Mesa Air Grp., Inc., 

83 F.4th 1006, 1012 (5th Cir. 2023) (quotation marks and citation omitted). 

To overcome QI, a plaintiff must make two allegations, which we may 

address in either order: first, that an officer acted under color of state law and 

violated a constitutional right. That is a threshold inquiry. If no constitutional right would have been violated were the allegations established, there _____________________ 4 See also Clark v. Tarrant Cnty., 798 F.2d 736, 74546 (5th Cir. 1986) ([A]bout a 

year and a half of notice that the court might treat Tarrant Countys Rule 12(b)(6) 

motion as a motion for summary judgment since the court accepted evidence outside the 

pleadings is more than sufficient.). 

Case: 22-11210 Document: 00517033741 Page: 4 Date Filed: 01/16/2024
No. 22-11210 

5 

is no necessity for further inquiries concerning [QI]. Saucier v. Katz, 

533 U.S. 194, 201 (2001), limited by Pearson v. Callahan, 555 U.S. 223 (2009). 

Second, that the right was clearly established. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would 

be clear to a reasonable officer that his conduct was unlawful in the situation 

he confronted. Id. at 202 (citation omitted). 

III. 

We first address whether the district court properly granted the 

motion to dismiss. 

In its introduction, the court explained that it had reviewed the 

Motion, Plaintiffs Response to Defendants Third Motion to Dismiss, and 

the appended video evidence. 636 F. Supp. 3d at 731 (cleaned up). When 

reviewing a 12(b)(6) motion to dismiss, though, a court usually may rely on 

only the complaint and its proper attachments. Dorsey v. Portfolio Equities, 

Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). And the court must 

accept all well-pleaded facts as true. Allen, 65 F.4th at 743. Although the 

court may rely on documents that the pleadings incorporate by reference, 

Hodge did not attach the video evidence to the pleadings, nor did the pleadings refer to the videos sufficiently to incorporate them. See Dorsey, 540 F.3d 

at 338; Harmon, 16 F.4th at 116264. Therefore, by reviewing the appended 

video evidence, the district court moved beyond the pleadings and to the 

summary judgment stagethus implicitly converting the motion to dismiss 

into a motion for summary judgment per Rule 12(d). See Trinity Marine, 

812 F.3d at 487. By doing so, though, the court did not commit reversible 

error. 

A court need not advise either party of its intention to convert the 

motion. Holguin, 1996 WL 556767, at *2 (citation omitted). The only 

requirement is that the non-moving party have at least ten days in which to 

Case: 22-11210 Document: 00517033741 Page: 5 Date Filed: 01/16/2024
No. 22-11210 

6 

submit its own evidence. Id. That ten-day period begins running when 

the non-movant is first put on notice that, based on its acceptance of evidence 

outside the pleadings, the court could convert the Rule 12(b)(6) motion into 

a summary judgment. Id.

Defendants filed Englemans bodycam footage on January 7, 2022. 

Hodge filed a motion to strike that footage on January 24, claiming, in part, 

that the lack of Litvins bodycam footage made Englemans suspect. Defendants responded with Litvins bodycam footage on January 26. And, on February 9, the court entered a scheduling order permitting limited . . . 

discovery of facts necessary for this Court to rule on the assertion of [QI] by 

defendants. That same day, Hodge filed a reply brief in support of the 

motion to strike the videos, and everything else in this litigation happened 

afterwardsincluding (1) Hodges first amended complaint on April 4; 

(2) defendants second motion to dismiss on April 18; (3) Hodges response 

on May 9; (4) defendants third motion to dismiss on October 6; (5) Hodges 

response on October 10; and (6) the order granting dismissal on October 21. 

When the court entered that scheduling order, it implicitly placed 

Hodge on notice that the court had accepted evidence outside the pleadings.5 Thus, the ten-day period required by Holguin began running on February 9, 

2022. Hodge had well more than ten days, though. He had eight months 

worth of time, notice, and opportunity to consider the video, to take steps to 

cast doubt on it, and to submit contrary evidence. That is more than 

sufficient.6 _____________________ 5 See also In re Deepwater Horizon, 761 F. Appx 311, 31314 (5th Cir. 2019) (per 

curiam) (unpublished) (The courts request to submit the releases and BPs compliance 

with that request, therefore, put the plaintiffs on notice that the court was considering 

matters outside the pleadings and could treat the motion as one for summary judgment.). 

6

 Even if Hodge could plausibly claim there was insufficient notice, error in notice 

Case: 22-11210 Document: 00517033741 Page: 6 Date Filed: 01/16/2024
No. 22-11210 

7 

IV. 

We turn to whether summary judgment was proper. 

In Scott v. Harris, the Court clarified the process for reviewing evidence on a summary judgment motion. 550 U.S. 372 (2007). Recognizing 

that it was bound to resolve all genuine disputes in favor of the non-moving 

party, the Court explained that [w]hen opposing parties tell two different 

stories, one of which is blatantly contradicted by the record, so that no 

reasonable jury could believe it, a court should not adopt that version of the 

facts . . . . Id. at 380. And, it held, where a video in the record brooks no 

dispute, the court may view the facts in the light depicted by the 

videotape. Id. at 381. 

Our court has applied that standard many times. In Craig v. Martin, 

we reversed a denial of QI, reasoning that where there is video evidence that 

blatantly contradict[s] the plaintiffs allegations, the court should not adopt 

the plaintiffs version of the facts; instead, the court should view those facts 

in the light depicted by the videotape. 49 F.4th 404, 409 (5th Cir. 2022) 

(quoting Scott, 550 U.S. at 38081). In Harmon, we similarly relied on a video 

when we affirmed a dismissal of a § 1983 claim. 16 F.4th at 116265. And we 

followed a parallel approach to Harmon and Craig in Livingston v. Texas, 

No. 22-40719, 2023 WL 4931923 (5th Cir. Aug. 2, 2023) (per curiam) 

(unpublished). There, we affirmed the summary judgment dismissal of a 

false arrest and excessive force claim by relying on police dashcam footage _____________________ 

is harmless if the nonmoving party admits that he has no additional evidence anyway or if 

. . . the appellate court evaluates all of the nonmoving partys additional evidence and finds 

no genuine issue of material fact. Bolen, 340 F.3d at 313 (omission in the original) (quoting 

Powell v. United States, 849 F.2d 1576, 1582 (5th Cir. 1988)); see also Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986); Fed. R. Civ. P. 56(a). As discussed infra, any 

error would be harmless because Hodge has presented no evidence refuting or casting 

doubt on the videos, and we see no indication of such evidence on our independent review. 

Case: 22-11210 Document: 00517033741 Page: 7 Date Filed: 01/16/2024
No. 22-11210 

8 

that captured the entire incident. Id. at *2. The video contradicted the plaintiffs claim of a genuine dispute that his constitutional rights had been violated, entitling the defendants to QI. Id.

In sum, a court may rely on video evidence to resolve any claimed genuine disputes of material fact and rule on summary judgment. Englemans 

and Litvins bodycam footage is sufficiently clear and whole that there are no 

genuine disputes of material fact. The videos cover the entire event, from 

Englemans and Litvins pursuing Hodge after he made an illegal turn to 

their administering first aid after shooting him. Further, they show Hodge 

raising a gun and pointing it at Engleman, as well as the gun lying on the 

ground next to his hand after the officers had shot him. Thus, the videos 

blatantly contradict the allegations of the complaint that Hodge attempted to comply with Litvins [sic] command to show his hands[,] that 

Hodge turned towards the officer to comply[,] and that Hodge posed no 

threat of harm to Litvin and Engleman.7

V. 

Finally, having determined that no material facts are in dispute, we 

turn to whether the undisputed facts support defendants claim of QI. 

To overcome a defense of QI, the plaintiff must show that the defendant violated a constitutional right and that the constitutional right was 

clearly established. See Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 

740 (5th Cir. 2019) (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017)). We 

may begin with either prong of that analysis. Callahan, 555 U.S. at 236. 

Because Engleman and Litvin acted reasonably, they did not violate _____________________ 7

 As the motion to dismiss points out, the complaint switched up the officers, and 

the amended complaint does not fix that issue. Engleman was the one who first interacted 

with Hodge. 

Case: 22-11210 Document: 00517033741 Page: 8 Date Filed: 01/16/2024
No. 22-11210 

9 

Hodges Fourth Amendment rights. Thus, we address only that first prong. 

Hodge claims that the use of deadly force was excessive and therefore 

a violation of his Fourth Amendment rights. [T]here can be no question 

that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 

471 U.S. 1, 7 (1985). To establish an excessive force claim under the Fourth 

Amendment, Hodge must allege (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. Newman v. Guedry, 703 F.3d 757, 761 

(5th Cir. 2012) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 

2005)). There is no real dispute that the officers injured Hodge. So, the 

question is whether their use of force was clearly excessive and clearly 

unreasonable. Id. We evaluate reasonableness with a calculus that allows for the 

fact that police officers are often forced to make split-second judgmentsin 

circumstances that are tense, uncertain, and rapidly evolving . . . . Harmon, 

16 F.4th at 1163 (quoting Graham v. Connor, 490 U.S. 386, 39697 (1989)). 

The variables include the severity of the crime at issue, whether the suspect 

poses an immediate threat to the safety of officers or others, and whether he 

is actively resisting arrest or attempting to evade arrest by flight. Id.

(quoting Graham, 490 U.S. at 396). The solution this court has reached 

repeatedly is that an officer who reasonably believes that the suspect poses 

a threat of serious harm to the officer may use deadly force. Id. (quoting 

Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).8 _____________________ 8

 We evaluate these variables in the moment of the threat that resulted in the 

officers use of deadly force. So, the focus of the inquiry is on the act that led the officer to 

discharge his weapon. Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020) (cleaned up); 

see also Shepherd v. City of Shreveport, 920 F.3d 278, 283 (5th Cir. 2019) (quoting Harris v. 

Case: 22-11210 Document: 00517033741 Page: 9 Date Filed: 01/16/2024
No. 22-11210 

10 

Introducing the video footage to the equation, we solve for the answer 

that Engleman and Litvin used a reasonable amount of force. Despite his 

very minor traffic infraction, Hodge did not pull over when the officers first 

flashed their lights or when they sounded their siren; he continued driving to 

his house. Then, Hodge did not pull into a short driveway and slowly exit his 

car; he drove deep into a driveway and jumped out of his car. 

When Engleman approached him and shouted for Hodge to show 

Engleman his hands, Hodge pointed a gun at Engleman. When Engleman 

saw the gun and Litvin saw Engleman drop to the ground and fire, they each 

reasonably believed Hodge pose[d] a threat of serious harm to them and 

made split-second judgments in that moment to use deadly force against 

Hodge. Id. Whether we apply the standard of a reasonable officer on the 

scene or that of a math Ph.D.s thesis advisor, Engleman and Litvin acted 

reasonably. Id. (quoting Graham, 490 U.S. at 396); see also Saucier, 533 U.S. 

at 20405. 

Because Englemans and Litvins use of deadly force was reasonable, 

Hodges claim of a Fourth Amendment violation fails. Without a Fourth 

Amendment violation, Hodge cannot overcome QI. Therefore, the summary 

judgment is AFFIRMED. 

_____________________ Serpas, 745 F.3d 767, 772 (5th Cir. 2014)). 

Case: 22-11210 Document: 00517033741 Page: 10 Date Filed: 01/16/2024