United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50777

____________

Bernardo Acosta, 

Plaintiff—Appellant,

versus

Williamson County, Texas; Alyssa Hoffman, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:21-CV-615

______________________________

Before King, Stewart, and Higginson, Circuit Judges.

Per Curiam:*

On the evening of May 27, 2021, Plaintiff-Appellant Bernardo Acosta 

was booked at Williamson County Jail after being arrested on suspicion of

driving while intoxicated. He spent the night in jail and bonded out the next 

morning. Acosta claims that during his detention, Williamson County Jail 

Officer Alyssa Hoffman deliberately slammed a holding cell door on hisfinger 

around midnight. He further claims that Williamson County officers 

_____________________

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

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2024

Lyle W. Cayce

Clerk

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withheld his medications for post-traumatic stress disorder and failed to 

provide him with a CPAP machine for the evening. Acosta brought claims 

under 42 U.S.C. § 1983, the Americans with Disabilities Act, the 

Rehabilitation Act, and Texas tort law. The district court dismissed Acosta’s 

§ 1983 municipal liability claims against Williamson County and granted 

summary judgment for Defendants-Appellees Hoffman and Williamson 

County on all remaining claims. We AFFIRM. 

I.

A.

Plaintiff-Appellant Bernardo Acosta is an Air Force veteran who 

suffers from post-traumatic stress disorder (“PTSD”), for which he has 

been prescribed several medications. Acosta also has sleep apnea, and he 

sleeps with the assistance of a CPAP machine.1

At around 8:40 p.m. on May 27, 2021, Acosta was arrested in 

Williamson County, Texas, on suspicion of driving while intoxicated. Acosta 

was booked at Williamson County Jail for pretrial detention. At around 9:39 

p.m., Acosta completed a medical intake with Medical Sergeant Ariel 

Gibson. During the intake, Acosta informed Gibson that he suffers from 

mental illness, including PTSD, and that he takes prescription medications. 

However, in their depositions, neither Acosta nor Gibson could recall Acosta 

informing Gibson that he would need any of those medications immediately. 

Furthermore, according to Gibson, Acosta appeared upset about being 

arrested, but he was not exhibiting signs of a mental health crisis at that time.

_____________________

1 A CPAP (continuous positive airway pressure) machine delivers air through the 

user’s mouth and/or nose during sleep.

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At some point following his booking, Acosta was placed in a holding 

cell, along with several other detainees. Around midnight, County Jail Officer

Alyssa Hoffman approached the holding cell to give a blanket to a detainee. 

Acosta and Hoffman have differing accounts of the events that transpired. 

Each party’s version of the events is described below: 

Acosta recalls “pleading” with Hoffman that he needed his 

medications and CPAP machine. He also requested a phone call. According 

to Acosta, Hoffman replied that Acosta could use the phone inside the 

holding cell to request that someone bring his medications to the jail. But

because he “wasn’t comfortable” with using the phone in the holding cell, 

Acosta continued to request to use the phone in the booking area. Hoffman 

repeatedly denied these requests and began to close the cell door. Hoffman 

shut the cell door while Acosta’s left hand was in the door jamb, resulting in 

an injury to Acosta’s left ring finger. Acosta speculates that Hoffman clearly 

could have seen that his hand was in the door jamb, though he does not recall 

Hoffman expressly indicating thatshe knowingly closed the door on his hand. 

Acosta denies providing any resistance to Hoffman closing the door.

Hoffman, in her deposition, admitted that Acosta told her that he 

needed his medications and CPAP machine. Hoffman responded that the 

jail did not have his medications, but that Acosta could call someone to have 

his belongings brought to the jail. According to Hoffman, Acosta replied that 

“he did not want to call his wife and make her wake up his kids just to bring 

him medication.” Hoffman then told Acosta that she was not “going to keep 

giving [him] the same information,” and she informed him that she was going 

to close the door. Acosta purportedly responded by placing his right hand and 

right foot on the door to block it from shutting. Because Acosta was providing 

this resistance, Hoffman pushed her hip and shoulder against the door to 

ensure that it closed. Hoffman claims that she did not see Acosta’s left hand 

in the door jamb.

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The record contains a video of the incident between Acosta and 

Hoffman. The camera is located in a common area, across the room from the 

holding cell, and the footage only shows the outside of the door (i.e., 

Hoffman’s side). At around 12:05 a.m., Hoffman approaches the door with a 

blanket. After initially walking away, Hoffman circles back to the cell. She

appears engaged in conversation, presumably with Acosta, for about two 

minutes. During the conversation, Hoffman stands totally still and holds the 

door open; nothing in her body language indicates that she is acting in a 

combative manner. Hoffman then closes the door slowly for two seconds. 

Once the door appears closed or nearly closed, Hoffman secures the door by 

keeping her left hand on the door, and then pushing the door with her left hip 

and left shoulder. Hoffman takes approximately three seconds to secure the 

door in this manner. After securing the door, Hoffman walks away from the 

holding cell without taking any further notice of Acosta.

About nine seconds after Hoffman walks away, Acosta raises his left 

hand near the holding cell window. For the next three minutes, Acosta 

unsuccessfully attempts to get officers’ attention. Acosta wipes blood on the 

holding cell window to alert nearby correctional officers, and he claimed in 

his deposition that a few officers saw him and were “chuckling.”2 However, 

in the video recording, it is not clear that any officers took notice of Acosta. 

Finally, after about three minutes, a correctional officer walks by the holding 

cell and notices that Acosta needs medical attention.

About four minutes later, several officers, including Medical Sergeant 

Gibson and Medical Officer Jose Garza, arrive at the holding cell to tend to 

Acosta’s injury. Acosta clearly appears agitated, but the situation appears to 

_____________________

2 The blood is not visible in the video recording, but it is undisputed that Acosta 

smeared his blood on the window around this time.

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be under control, and Acosta sits down outside the holding cell to receive 

treatment for his finger. For the next four minutes, Garza examines, cleans, 

and bandages Acosta’s finger. Acosta receives treatment without resistance, 

though during this period he appears to speak in a frustrated manner with the 

correctional officers at the scene.

The accounts in the record of the extent of Acosta’s injury and the 

treatment provided to his finger are consistent. Gibson testified that Acosta’s 

finger “wasn’t bleeding profusely,” and that it had a small laceration that did 

not require stitches. There were no bones protruding, and Acosta “still had 

full range of motion in his hand and his fingers.”3 Garza treated Acosta’s 

finger by cleaning the wound and applying gauze to stop the bleeding.

After receiving treatment for his finger, Acosta called his wife using 

the phone in the booking area. During this call, Acosta asked his wife to bring 

his medications and CPAP machine to the jail. Acosta’s wife delivered his 

medications to the jail sometime after 2:00 a.m., but she did not bring his 

CPAP machine. However, according to the jail’s medical staff, Acosta was 

not provided his medications after delivery because Acosta’s medications are 

not considered “life sustaining,” (i.e., prescribed for chronic disabilities or 

conditions such as seizures, hypertension, or diabetes). Instead, as Medical 

Lieutenant Douglas Wheless explained in his deposition, Acosta would have

to wait until jail staff could verify his prescriptions with an outside physician 

or pharmacist, which could not feasibly occur until normal business hours 

_____________________

3 With the benefit of hindsight, we know that Acosta appears to have suffered a 

fracture at the tip of his ring finger. But the record does not contain indication that any 

officers knew, or should have known, that the tip of Acosta’s finger was fractured. 

Regardless, the video clearly indicates that Acosta received prompt medical care and was 

attended to by several officers, which plainly contradicts the operative complaint’s 

allegations that Acosta “pleaded for help and received none for an extended period of 

time,” and that he was “denied basic medical care.”

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(i.e., the next morning), unless he were to experience a medical emergency 

requiring hospitalization. This explanation is consistent with Williamson 

County’s written policies, which state that jail staff is to “[c]all the 

[prescribing] physician and verify the medication, dosage, and patient 

information” before distributing medications that are brought to the jail by 

an outside source.

After Acosta called his wife in the booking area, he was taken to a 

single cell for one detainee. At around 9:00 a.m. the next morning, Acosta 

met with Lieutenant Wheless for a follow-up evaluation. According to 

Wheless’s deposition testimony, Acosta’s finger did not appear to be visibly 

injured, but Wheless offered Acosta a saline solution and hydrogen peroxide. 

Wheless claims that Acosta declined this treatment, since he was “fixing to 

bond out.” Acosta ultimately never received his medications or a CPAP

machine, but he purportedly bonded out of jail shortly after speaking with 

Wheless in the morning.

After leaving the jail, Acosta received an x-ray showing that his bone 

was fractured at the tip of his finger. During his deposition, Acosta reported 

that he continues to feel numbness and discomfort in his injured finger.

B.

Acosta filed a lawsuit against Williamson County and several 

“Unknown Jailers” in federal court on July 12, 2021. In his operative second 

amended complaint, Acosta raised municipal liability claims against 

Williamson County under 42 U.S.C. § 1983, alleging that the County’s 

policies and/or practices resulted in violations of Acosta’s constitutional 

rights under the Fourth, Eighth, and Fourteenth Amendments. Acosta 

further alleged that Williamson County violated his rights under the 

Americans with Disabilities Act (“ADA”) and Rehabilitation Act by failing 

to accommodate his disabilities during his detention. Acosta asserted claims 

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of negligence and gross negligence against Williamson County and individual 

officers Alyssa Hoffman, Jose Garza, Ariel Gibson, Ruben Vela, and 

Fernando Morales for injuring Acosta’s finger and then failing to provide him 

with adequate care. Finally, Acosta asserted against Hoffman claims of 

excessive force, assault, and battery.

After multiple defendants filed motions to dismiss, the district court 

dismissed several of Acosta’s claims, including his § 1983 municipal liability 

claims against Williamson County. Following these dismissals, the claims 

that remained before the court were: (1) Acosta’s ADA, Rehabilitation Act, 

and negligence claims against Williamson County; and (2) Acosta’s excessive 

force, assault, and battery claims against Hoffman.

On May 10, 2023, Williamson County and Hoffman jointly moved for 

summary judgment on all remaining claims. On August 21, 2023, the 

magistrate judge recommended granting the motion for summary judgment 

in full. On September 1, 2023, Acosta filed objections to the magistrate 

judge’s report and recommendations. Notwithstanding these objections, the 

district court adopted the magistrate judge’s report and recommendations. 

The district court closed the case on October 10, 2023, and a notice of appeal 

followed.

II.

We review grants of summary judgment de novo. Moore v. LaSalle 

Mgmt. Co., 41 F.4th 493, 502 (5th Cir. 2022). 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 dispute regarding a material fact is “genuine” if 

“the evidence is such that a reasonable jury could return a verdict in favor of 

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). We view all evidence and draw all justifiable inferences in favor of the 

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nonmovant. Moore, 41 F.4th at 502. That said, “a party cannot defeat 

summary judgment with conclusory allegations, unsubstantiated assertions, 

or ‘only a scintilla of evidence.’” Delta & Pine Land Co. v. Nationwide 

Agribusiness Ins., 530 F.3d 395, 399 (5th Cir. 2008) (quoting Little v. Liquid 

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

“When opposing parties tell two different stories, one of which is 

blatantly contradicted” by video evidence, courts are to “view[] the facts in 

the light depicted by the videotape.” See Scott v. Harris, 550 U.S. 372, 380–

81 (2007). But this standard “is a demanding one: a court should not discount 

the nonmoving party’s story unless the video evidence provides so much 

clarity that a reasonable jury could not believe his account.” Darden v. City 

of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018). 

Defendant-Appellee Hoffman has asserted the defense of qualified 

immunity.4 “A qualified immunity defense alters the usual summary 

judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 

2010). “Once an official pleads the defense, the burden then shifts to the 

plaintiff, who must rebut the defense by establishing a genuine fact issue as 

to whether the official’s allegedly wrongful conduct violated clearly 

established law.” Id. To overcome the defense of qualified immunity, a 

plaintiff must establish that: (1) the official violated the plaintiff’s statutory 

or constitutional right; and (2) the right was clearly established at the time of 

the violation. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For a right to be 

clearly established, “the contours of the right must be sufficiently clear that 

a reasonable official would understand that what he is doing violates that 

_____________________

4 Acosta argues that the doctrine of qualified immunity should be abolished. 

However, “‘[a]s middle-management circuit judges,’ we cannot overrule the Supreme 

Court.” See Rogers v. Jarrett, 63 F.4th 971, 981 (5th Cir. 2023) (Willett, J., concurring) 

(quoting Sims v. Griffin, 35 F.4th 945, 951 n.17 (5th Cir. 2022)).

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right.” Brown, 623 F.3d at 253. 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, 563 U.S. at 

741.

III.

We begin with Acosta’s excessive force claim against Officer Hoffman

brought pursuant to § 1983. Acosta claims that “Hoffman knowingly and 

intentionally used her entire body weight, with force, in slamming the door, 

to which she had full control of, on [Acosta’s] hand, causing him serious 

bodily injury.” Hoffman, on the other hand, insists that she did not intend to 

close the cell door on the tip of Acosta’s finger.

“Pretrial detainees are protected by the Due Process Clause of the 

Fourteenth Amendment.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 

415, 419 (5th Cir. 2017). In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the 

Supreme Court outlined the proper analytical framework for adjudicating a 

pretrial detainee’s excessive force claim. The Court noted that a Fourteenth 

Amendment excessive force claim contains “two separate state-of-mind 

questions.” Id. at 395. “The first concerns the defendant’s state of mind with 

respect to his physical acts—i.e., his state of mind with respect to the bringing 

about of certain physical consequences in the world.” Id. “The second 

question concerns the defendant’s state of mind with respect to whether his

use of force was ‘excessive.’” Id. 

Addressing this first question, the Court held that “the defendant 

must possess a purposeful, a knowing, or possibly a reckless state of mind” 

for a plaintiff to establish a viable excessive force claim under the Fourteenth 

Amendment. Id. at 396. As the Court explained, “liability for negligently

inflicted harm is categorically beneath the threshold of constitutional due 

process.” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 

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(1998)); see also Daniels v. Williams, 474 U.S. 327, 331 (1986) (“Historically, 

this guarantee of due process has been applied to deliberate decisions of 

government officials to deprive a person of life, liberty, or property.”). 

Therefore, a pretrial detainee can succeed on an excessive force claim where 

the defendant’s “use of force is deliberate—i.e., purposeful or knowing.” 

Kingsley, 576 U.S. at 396.

Addressing the second question, the Court held that “[i]n deciding 

whether the force deliberately used is, constitutionally speaking, 

‘excessive,’” courts should apply an objective reasonableness standard. Id. 

at 396–97. This determination of objective reasonableness must be made 

“from the perspective of a reasonable officer on the scene, including what 

the officer knew at the time, not with the 20/20 vision of hindsight.” Id. at 

397. While the Court noted that objective reasonableness turns on the facts 

and circumstances of each particular case, it provided a few relevant 

considerations:

[T]he relationship between the need for the use of force and 

the amount of force used; the extent of the plaintiff’s injury; 

any effort made by the officer to temper or to limit the amount 

of force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff 

was actively resisting.

Id. at 397. 

In sum, a Fourteenth Amendment excessive force inquiry under 

Kingsley has two steps. At step one, courts must determine whether the 

defendant’s use of force was deliberate. If the use of force was deliberate, 

then at step two, courts must determine whether the defendant’s use of force 

was objectively reasonable, considering the specific circumstances of the 

case.

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Acosta’s case primarily hinges on Kingsley step one. If Acosta’s 

version of the facts is accepted as true, i.e., Hoffman deliberately slammed a

cell door on the hand of a non-resisting detainee, such a use of force would

have violated Acosta’s clearly established rights. We have held that a broken 

finger is a cognizable injury in an excessive force case, and noted that “as long 

as a plaintiff has suffered some injury, even relatively insignificant injuries . . . 

will prove cognizable when resulting from an officer’s unreasonably 

excessive force.” Scott v. White, 810 F. App’x 297, 299, 301 (5th Cir. 2020) 

(quoting Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018)). And, as Acosta 

notes, it was clearly established at the time of the incident that “violently 

slamming or striking” a non-resisting individual constitutes excessive force. 

See Darden, 880 F.3d at 733.

5

However, if Hoffman did not deliberately slam the cell door on 

Acosta’s finger, then Acosta’s excessive force claim fails at Kingsley step one. 

It is true, as Acosta notes repeatedly, that Hoffman did potentially admit to 

knowingly applying some force to Acosta; Hoffman consistently testified that 

Acosta had his right hand and right foot on the door while it closed. But a 

Fourteenth Amendment excessive force claim is analyzed under an objective 

reasonableness standard that takes into account “what the [defendant] knew 

at the time.” Kingsley, 576 U.S. at 397. And the Due Process Clause is not 

implicated by “an official causing unintended injury to life, liberty or 

property.” Davidson v. Cannon, 474 U.S. 344, 347 (1986). Therefore, we find 

that if Hoffman did not know that Acosta’s left hand was in the door jamb, 

_____________________

5 Though Darden, and the cases it cites, are excessive force cases finding violations 

of the Fourth Amendment, this court has held that constitutional principles articulated in 

Fourth Amendment excessive force cases (e.g., the unlawfulness of continuing to apply 

force to a restrained and subdued subject), can clearly establish the rights of pretrial 

detainees in Fourteenth Amendment excessive force cases. See Fairchild v. Coryell County, 

40 F.4th 359, 368 (5th Cir. 2022). 

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securing the cell door using her hip and shoulder would not be objectively 

unreasonable, nor would it constitute a clearly established violation of 

Acosta’s Fourteenth Amendment rights.6

In light of this analysis, Acosta’s case turns on whether Hoffman’s act

of closing the door on Acosta’s finger was deliberate or accidental. 

Therefore, we must determine whether there is sufficient evidence for a jury 

to conclude that Hoffman acted deliberately. 

There are essentially three sources of information in the record related 

to this incident: Acosta’s testimony, Hoffman’s testimony, and the video of 

the incident. The evidence from Acosta’s testimony that the act was 

deliberate is essentially speculative; Acosta testified that “[Hoffman] clearly 

could have seen [his] hand there [in the door jamb], cause . . . [his] hand is 

rather large.” Acosta’s testimony also indicates that Hoffman may have been 

frustrated with Acosta because of his repeated requests to use the phone in 

the booking area.

Hoffman, on the other hand, testified that she did not see Acosta’s left 

hand in the door jamb. Hoffman claims that Acosta pressed against the door 

with his right hand and right foot, which is why she used her body weight to 

secure the door.

The video of the incident, frankly, does not help Acosta’s case. It is 

difficult to find any details in the video that support Acosta’s claim that 

_____________________

6 If Hoffman did not know that Acosta’s left hand was in the door jamb, and, per 

Hoffman’s version of the facts, Acosta provided resistance by putting his right hand and 

right foot on the door, Hoffman’s brief use of force in securing the door to overcome this 

resistance would not be objectively unreasonable. If Hoffman did not know that Acosta’s 

left hand was in the door jamb, and, per Acosta’s version of the facts, Acosta did not provide 

any resistance against the door, then any force exerted on Acosta would have been entirely 

unintentional, and, accordingly, no constitutional violation would have occurred.

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Hoffman deliberately slammed the cell door on his finger. For instance, 

nothing in Hoffman’s body language during her two-minute conversation 

with Acosta indicates that Hoffman was preparing to engage in a deliberate 

strike; she remained totally still the entire time, and the interaction appeared

noncombative. Furthermore, if Hoffman deliberately shut the cell door on 

Acosta’s finger, one might expect the video to show Hoffman slamming the 

door quickly. But Hoffman closed the door—which was only partially open 

to begin with—quite slowly over the course of five seconds. And the 

“slamming” portion of the incident, in which Hoffman briefly placed her 

body weight against the door with her shoulder and hip, lasted three seconds. 

This incident failed to garner the attention of a detainee sitting in the 

common area, just a few meters away from the holding cell. And nothing in 

Hoffman’s body language after the incident, in which she casually walked 

back to the processing area without taking any further notice of Acosta, 

indicates an awareness that she had just injured Acosta’s finger.

This is not to say that Acosta’s version of events is “blatantly 

contradicted” by the video. Scott, 550 U.S. at 380. The video does show 

Hoffman securing the door with her body weight, and the camera is too far 

away from the incident to definitively determine whether Hoffman did, in 

fact, see Acosta’s hand in the door jamb. But even viewing the video in the 

light most favorable to Acosta, we cannot find in this footage any details that 

lend credence to Acosta’s claim that Hoffman “deliberately and callously” 

struck his finger.

In sum, viewing the evidence in Acosta’s favor, we must assume that: 

(1) Acosta was not providing resistance against the door; (2) Acosta and 

Hoffman had a somewhat contentious conversation regarding Acosta’s 

ability to use the phone in the booking area; and (3) Hoffman used her body 

weight to secure the door. For Acosta’s excessive force claim to survive 

summary judgment, we must be able to conclude, based on these premises, 

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that a reasonable jury could find by a preponderance of the evidence that 

Acosta is entitled to a verdict in his favor. See Anderson, 477 U.S. at 252. 

We cannot draw such a conclusion here—there is insufficient 

evidence to elevate Acosta’s claim of a deliberate attack beyond speculation. 

We have noted that “[s]ummary judgment is appropriate where critical 

evidence is so weak or tenuous on an essential fact that it could not support a 

judgment in favor of the nonmovant,” and this principle applies here. See

Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993); see also Anderson, 

477 U.S. at 249–50 (noting that summary judgment is appropriate where the 

evidence presented is “merely colorable” or “not significantly probative”).

We find that the summary judgment evidence, which notably includes a video 

showing Hoffman during the entire incident at issue, does not support a 

finding that Hoffman deliberately struck Acosta’s finger. Because there is 

insufficient evidence for a reasonable jury to conclude that Hoffman violated 

Acosta’s constitutional rights, we AFFIRM the district court’s grant of 

summary judgment for Hoffman on Acosta’s Fourteenth Amendment 

excessive force claim. 

IV.

We turn next to Acosta’s ADA/Rehabilitation Act claim. Acosta 

claims that there are genuine issues of material fact as to the lack of 

reasonable accommodations provided for him at Williamson County Jail, 

despite County officers’ knowledge of his disabilities and medical needs.

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.” 42 U.S.C. 

§ 12132. The Rehabilitation Act protects any “otherwise qualified individual 

with a disability in the United States” from being “excluded from the 

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participation in, be[ing] denied the benefits of, or be[ing] subjected to 

discrimination under any program or activity receiving Federal financial 

assistance,” including any instrumentality of a local government. 29 U.S.C. 

§ 794. “The remedies, procedures, and rights available under the 

Rehabilitation Act parallel those available under the ADA.” Cadena v. El 

Paso County, 946 F.3d 717, 723 (5th Cir. 2020). Thus, this court “equate[s] 

liability standards under [the Rehabilitation Act] and the ADA.” D.A. ex rel. 

Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010). 

To establish a prima facie case under either statute, a plaintiff must 

demonstrate: 

(1) that he is a qualified individual within the meaning of the 

ADA; (2) that he is being excluded from participation in, or 

being denied benefits of, services, programs, or activities for 

which the public entity is responsible, or is otherwise being 

discriminated against by the public entity; and (3) that such 

exclusion, denial of benefits, or discrimination is by reason of 

his disability.

Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).

“In addition to their respective prohibitions of disability-based 

discrimination, both the ADA and the Rehabilitation Act impose upon public 

entities an affirmative obligation to make reasonable accommodations for 

disabled individuals.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 

(5th Cir. 2005). A requested accommodation is reasonable if “it does not 

impose undue financial or administrative burdens or ‘fundamentally alter the 

nature of the service, program, or activity.’” Cadena, 946 F.3d at 724 

(quoting 28 C.F.R. § 35.130(b)(7)). “To succeed on a failure-toaccommodate 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 

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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 accommodation in this manner, he can only prevail 

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

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

agents.” Windham v. Harris County, 875 F.3d 229, 237 (5th Cir. 2017) 

(quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996)). 

For a plaintiff to recover compensatory damages for an ADA claim, 

he must also prove that he was subjected to intentional discrimination. 

Cadena, 946 F.3d at 724. “This court has hesitated to delineate the precise 

contours of the standard for showing intentionality, . . . [b]ut the cases to 

have touched on the issue require something more than deliberate 

indifference, despite most other circuits defining the requirement as 

equivalent to deliberate indifference.” Id. (internal quotations omitted). “If 

a defendant attempts to accommodate a disability, then intentional 

discrimination requires knowledge ‘that further accommodation was 

necessary.’” Smith, 956 F.3d at 319 (quoting Cadena, 946 F.3d at 726).

Acosta’s ADA/Rehabilitation Act claim has two components. First, 

Acosta claims that Williamson County violated the ADA/Rehabilitation Act 

by failing to provide him with his prescription medications for PTSD.

Second, he claims that Williamson County violated the ADA/Rehabilitation 

Act by failing to provide him access to a CPAP machine during his night at 

the jail.

Even assuming that Acosta was a qualified individual with a disability 

and that Williamson County officers knew of Acosta’s disability and related

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limitations, Acosta’s ADA/Rehabilitation Act claim fails because the 

summary judgment evidence does not indicate that officers at Williamson 

County Jail failed to make reasonable accommodations for Acosta. Instead, 

the record indicates that the officers undertook the practical steps they could 

achieve—given the circumstances—to ensure that Acosta’s needs would be 

accommodated.

For instance, with respect to Acosta’s request for his prescription 

medications, it is undisputed that Acosta was told that he could call an 

outside individual to have his medications brought to the jail. Acosta called 

his wife, who arrived at the jail with his medicationssometime after 2:00 a.m. 

However, because Acosta’s medications were not considered “life

sustaining” (a description he does not dispute), medical staff followed a 

seemingly sensible policy of holding off on distributing these medications 

until the prescriptions could be verified by a physician or pharmacist. And, 

because it was the middle of the night, verifying Acosta’s medications would 

have to wait until the morning, when his physician or pharmacist could 

feasibly be reached.7

Acosta also claims that Williamson County officers should have 

administered emergency treatment, since Acosta was experiencing a “manic 

or [PTSD] episode.” While Acosta testified that he may have been 

_____________________

7 Acosta speculates that there may have been a way for medical staff to provide him 

with his medications immediately. For instance, he notes that physicians are available 

telephonically 24 hours a day, but that this service was not utilized to verify his

prescriptions. But while Lieutenant Wheless testified, in the context of discussing the 

treatment of Acosta’s finger, that physicians are available telephonically 24 hours a day, he 

did not testify that a physician is available 24 hours a day to swiftly verify any prescription 

for any detainee. Acosta also points to a jail policy indicating that, in some instances, certain 

inmates may be permitted to self-administer medication. However, in context, it seems 

relatively clear that this policy is intended to apply only after those medications are verified 

by a physician or pharmacist.

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experiencing a PTSD episode when speaking with Hoffman in the holding 

cell, the district court appears correct in its conclusion that “nothing [else] 

in the record suggests that Acosta experienced a medical emergency 

requiring life-sustaining medication” or hospitalization. Even if Acosta was 

experiencing an emergency PTSD episode, the record does not indicate that 

Williamson County officers knew or should have known that such an episode 

was occurring. The officers involved consistently report that Acosta was 

clearly agitated after his finger was slammed in the cell door, but that he 

remained lucid and was treated without issue. In other words, there is 

insufficient evidence to conclude that Acosta requested emergency 

treatment, or that his need for emergency accommodations was “‘open, 

obvious, and apparent’ to the entity’s relevant agents.” See Smith, 956 F.3d 

at 318 (quoting Windham, 875 F.3d at 237).

In sum, even viewing the record in the light most favorable to Acosta,

the summary judgment evidence does not indicate that Williamson County 

officers failed to make a reasonable accommodation for Acosta by failing to 

administer his medications during the middle of the night. Even if Acosta 

requested for his medications to be provided immediately, the County was 

“not required to acquiesce to [Acosta’s] choice of accommodations merely 

because [he] requested them.” See Cadena, 946 F.3d at 725; see also Wells v. 

Thaler, 460 F. App’x 303, 313 (5th Cir. 2012) (“[W]e accord the officials at 

the [jail] deference in their determination of an appropriate 

accommodation.”). And, even if the Williamson County officers were not as 

prompt as Acosta desired, under the relevant circumstances—i.e., a request 

for non-life-sustaining prescription medications in the middle of the night 

from a detainee who had just been booked—we fail to see how the officers’ 

failure to immediately provide these medications constituted an 

ADA/Rehabilitation Act violation.

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Acosta’s claim that Williamson County violated the ADA by failing 

to provide him with a CPAP machine fares similarly. The issue with this 

claim, again, is that Williamson County officers seemingly took practical 

steps to provide Acosta with this accommodation, given the circumstances. 

They allowed Acosta to call his wife in the booking area, and Acosta 

requested that she bring his CPAP machine to the jail. While hindsight tells 

us that Acosta’s wife ultimately did not bring the CPAP machine when she 

dropped off his medications, the jail officers had no reason to believe that this 

accommodation would be inadequate. See Smith, 956 F.3d at 319.

At bottom, the record indicates that Williamson County officers took 

practical steps to ensure that Acosta’s medical needs would be 

accommodated. Granted, Acosta’s needs were not actually accommodated. 

However, this result is more reflective of the brief length of Acosta’s 

detention—one night—and factors beyond the jail officers’ control, rather 

than the officers’failings. Of course, had Acosta not bonded out the following 

morning, the jail officers would have had a duty to administer his medications 

as soon as reasonably possible, and to follow up on the CPAP machine issue 

from the prior night. Under the circumstances presented here, however, we 

cannot conclude that Williamson County failed to provide reasonable 

accommodations, much less intentionally discriminated against Acosta. 

Accordingly, we AFFIRM the district court’s grant of summary judgment 

for Williamson County on Acosta’s ADA/Rehabilitation Act claim.

V.

We next address Acosta’s tort claims. The district court’s reasoning 

in granting summary judgment for Hoffman and Williamson County on 

Acosta’s tort claims is straightforward and amply supported by authority, 

and Acosta’s appellate brief does not clearly articulate how the district court 

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erred. In our own de novo review, we find no error in the district court’s

holdings, which we review briefly. 

Acosta brought assault and battery claims against Hoffman, but these 

claims are squarely foreclosed by statutory immunity. Namely, the Texas 

Tort Claims Act (“TTCA”) “bars tort claims against government 

employees when (1) the alleged tort occurred ‘within the general scope of 

that employee’s employment’ and (2) ‘it could have been brought under [the 

TTCA] against the governmental unit.’” Espinal v. City of Houston, 96 F.4th 

741, 749 (5th Cir. 2024) (quoting Tex. Civ. Prac. & Rem. Code

§ 101.106(f)). Here, it is undisputed that this first requirement for immunity

is met; Acosta claims that Hoffman “acted in her scope of employment by 

intentionally, knowingly and recklessly slamming the door on [his] finger out 

of spite.” The second requirement for immunity is also met; although the 

TTCA does not waive governmental immunity for claims arising out of 

intentional torts such as assault and battery, see Tex. Civ. Prac. & Rem. 

Code § 101.057(2), the Texas Supreme Court has held that “any tort 

claim . . . ‘could have been brought’ under the [TTCA] against the 

government regardless of whether the [TTCA] waives immunity” with 

respect to it, Espinal, 96 F.4th at 749 (quoting Franka v. Velasquez, 332 

S.W.3d 367, 375, 385 (Tex. 2011)). Therefore, as the district court concluded, 

Acosta’s tort claims against Hoffman are squarely foreclosed by Texas law.

Acosta also brought negligence claims against Williamson County. 

Because governmental units are immune from suit under Texas law, Acosta 

bearsthe burden of establishing that the County’s immunity has been waived. 

Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); see also

Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009) (noting that a 

county is a “governmental unit”). To establish waiver of immunity, Acosta 

notes that the TTCA provides that governmental units may be held liable 

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for injuries “caused by a condition or use of tangible personal or real 

property.” Tex. Civ. Prac. & Rem. Code § 101.021(2).

Acosta’s attempts to circumvent the County’s immunity fail as a 

matter of law. First, any claim of negligence arising out of Hoffman’s alleged 

use of excessive force is foreclosed. As noted above, governmental units do 

not waive immunity for claims arising out of intentional torts. Tex. Civ. 

Prac. & Rem. Code § 101.057(2). And, as the district court noted, “[a] 

plaintiff cannot avoid a governmental unit’s sovereign immunity by pleading 

an intentional tort claim as a negligence claim.” See Aguirre v. City of San 

Antonio, 995 F.3d 395, 422 (5th Cir. 2021) (“[I]ntentional conduct, no matter 

how it is pled, falls under the TTCA’s sovereign immunity waiver 

exception.” (internal quotation omitted)); id. (“Texas courts have 

repeatedly rejected the argument that intentional conduct . . . that also forms 

the basis of excessive force claims . . . can give rise to cognizable claims under 

the [TTCA].”).

We agree with the district court that Acosta’s excessive force claim

sounds in intentional tort. Acosta characterizes Hoffman’s use of force as 

intentional, both in his second amended complaint and in his appellate brief. 

Because Acosta alleges that Hoffman used excessive force, “a claim that 

arises out of a battery, his pleadings do not state a claim for which 

governmental immunity has been waived under the [TTCA].” City of 

Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014).

Acosta’s other attempts to establish waiver of the County’s liability 

via § 101.021(2), which requires an injury “caused by a condition or use of 

tangible personal or real property,” are also unsuccessful. For instance, 

Acosta claims that Williamson County negligently failed to train and 

discipline Hoffman. In Texas Department of Criminal Justice-Community 

Justice Assistance Division v. Campos, 384 S.W.3d 810, 815 (Tex. 2012), the 

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Supreme Court of Texas addressed a group of plaintiffs’ claims that the 

defendant government entity “failed to discipline prior inappropriate 

conduct by . . . employees, failed to properly hire, train, and supervise 

[officers], and failed to screen, educate, train, supervise, investigate, or 

otherwise direct employees.” The court held that the defendant’s immunity 

was not waived, since the plaintiffs had not alleged that a use of tangible 

property was involved in any of these alleged failures. Id.; see also Goodman, 

571 F.3d at 394 (“The TTCA is . . . not the appropriate vehicle for claims of 

negligent failure to train or supervise.”).

The same conclusion is warranted in Acosta’s case. Acosta repeatedly 

references the cell door as the tangible property utilized in the County’s 

negligent conduct. But the use of the cell door is only salient with respect to 

Acosta’s excessive force claim; Acosta has not explained how the County’s

alleged negligence in failing to train or discipline Hoffman involved a use of 

tangible property. See Campos, 384 S.W.3d at 815; Tex. Dep’t of Pub. Safety v. 

Petta, 44 S.W.3d 575, 581 (Tex. 2001) (holding that claims against a 

government entity pertaining to the “misuse or non-use of information” are 

barred by immunity). Similarly, Acosta’s claim that the County was negligent 

for providing inadequate medical care is also foreclosed, since the Supreme 

Court of Texas has held that a claim of inadequate medical care does not

involve the use of tangible property under the TTCA. See Tex. Dep’t of Corr. 

v. Herring, 513 S.W.2d 6, 9 (Tex. 1974).

As noted above, Acosta has not provided any compelling arguments 

to counter the district court’s comprehensive, well-supported conclusions of 

law on this issue. We therefore AFFIRM the district court’s grant of 

summary judgment for Defendants-Appellees Hoffman and Williamson 

County on Acosta’s state tort claims.

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VI.

Finally, we address the district court’s dismissal of Acosta’s § 1983 

municipal liability claims against Williamson County, which occurred before 

the summary judgment stage. This court reviews de novo the grant of a Rule 

12(b)(6) motion to dismiss. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 

2011). However, when a magistrate judge first issues a report and 

recommendations, a party is entitled to de novo review of proposed findings

accepted by the district court only if the party filed timely objections to the 

report and recommendations. Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir. 

2017); Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012). If the magistrate judge 

specifically advises the parties that objections must be so filed, and the parties 

then fail to file objections, we review only for plain error. Quinn, 863 F.3d at 

358.

Here, the magistrate judge issued a report and recommendations 

advising the district court to grant Williamson County’s partial motion to 

dismiss. At the end of this report, the magistrate judge warned the parties of 

the consequences of failing to file written objections. No objections were 

filed. We therefore review for plain error. To succeed under plain error 

review, Acosta must show: “(1) an error; (2) that is plain or obvious; (3) that 

affects his substantial rights.” Id. at 358. If these three elements are satisfied, 

this court has discretion to correct the error if it “seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Id. (quoting 

Puckett v. United States, 556 U.S. 129, 135 (2009)).

But regardless of the standard of review, we find no error on this issue. 

The only argument raised in the section of Acosta’s opening brief addressing 

municipal liability is Acosta’s contention that Williamson County failed to 

reprimand or discharge Hoffman after the alleged incident of excessive force.

Since we hold that Acosta has proffered insufficient evidence for a reasonable 

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jury to conclude that Hoffman committed a constitutional violation, we can 

summarily affirm the dismissal of Acosta’s policy-based claims related to 

excessive force, since the County cannot be held liable for a policy failure if 

the plaintiff has not proved an underlying constitutional violation. See Brown 

v. Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001).

Plus, Acosta appears to press on appeal a ratification theory of 

municipal liability, which generally provides that 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.” Sligh v. City of 

Conroe, 87 F.4th 290, 303 (5th Cir. 2023) (quoting World Wide Street 

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

This court has consistently held that a municipality failing to investigate an 

incident or failing to discipline an officer, absent additional allegations 

indicating that superiors approved of the conduct at issue or deemed the 

officer’s actions consistent with municipal policy, does not adequately 

establish a ratification claim. See, e.g., Peterson v. City of Fort Worth, 588 F.3d 

838, 848 & n.2 (5th Cir. 2009); Milam v. City of San Antonio, 113 F. App’x 

622, 628 (5th Cir. 2004).

Additionally, Acosta claims that Williamson County “acted with 

deliberate indifference to his serious medical needs,” referencing this court’s 

standard for adjudicating a pretrial detainee’s claim of inadequate medical 

care under the Fourteenth Amendment. See Cope v. Cogdill, 3 F.4th 198, 206–

07 (5th Cir. 2021). Acosta did raise a Fourteenth Amendment claim against 

Williamson County alleging that the County failed to provide adequate 

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medical care, but the district court dismissed this claim per the magistrate 

judge’s recommendation.8 We find no error in the district court’s decision. 

“To establish municipal liability under 42 U.S.C. § 1983, a plaintiff 

must show: ‘(1) an official policy (or custom), of which (2) a policy maker can 

be charged with actual or constructive knowledge, and (3) a constitutional 

violation whose ‘moving force’ is that policy (or custom).’” Ford v. Anderson 

County, 102 F.4th 292, 319 (5th Cir. 2024) (quoting Newbury v. City of 

Windcrest, 991 F.3d 672, 680 (5th Cir. 2021)). “Generally, a plaintiff must 

show that the policy was implemented with ‘deliberate indifference’ to the 

‘known or obvious consequences’ that a constitutional violation would 

result.” Id. (quoting Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir. 

2018)). “Proving deliberate indifference in a municipal liability action 

generally requires showing that a policy caused a pattern of constitutional 

violations, and proving deliberate indifference based on a single incident 

requires showing that the injury suffered was a ‘highly predictable’ 

consequence of the policy.” Id. at 320 (quoting Valle v. City of Houston, 613 

F.3d 536, 547, 549 (5th Cir. 2010)). “In order to find a municipality liable for 

a policy based on a pattern, that pattern ‘must have occurred for so long or 

so frequently that the course of conduct warrants the attribution to the 

governing body of knowledge that the objectionable conduct is the expected, 

accepted practice of city employees.’” Davidson v. City of Stafford, 848 F.3d 

384, 396 (5th Cir. 2017) (quoting Peterson, 588 F.3d at 850). “A pattern 

requires similarity, specificity, and sufficiently numerous prior incidents.” 

Id.

_____________________

8 Acosta’s appellate brief also appears to allege that Hoffman exhibited deliberate 

indifference by “ignoring [his] requests for his prescribed medicines and CPAP machine,” 

but Acosta never brought a Fourteenth Amendment claim against Hoffman alleging a 

failure to provide adequate medical care.

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Acosta’s second amended complaint only notes one other instance of 

an individual receiving purportedly inadequate medical care at Williamson 

County Jail, which is insufficient to establish a pattern. Cf. Pineda v. City of 

Houston, 291 F.3d 325, 329 (5th Cir. 2002) (concluding that eleven instances 

of warrantless searches were insufficient evidence of a pattern). The 

complaint also fails to point to an obvious infirmity in Williamson County’s 

policies indicating that constitutional violations would be a “highly 

predictable consequence.” Acosta’s policy-based allegations related to 

medical care are highly generalized; he broadly speculates, inter alia, that 

Williamson County has inadequate funding for medical care and inadequate 

training/supervision. He has not pointed to any specific, official County 

policies that are obviously constitutionally infirm, nor has he provided any 

explanation as to how the County’s policies are obviously inadequate. These 

conclusory generalizations are insufficient to plead a municipal liability claim 

under § 1983. See Sligh, 87 F.4th at 303; Calhoun v. City of Hous. Police Dep’t, 

855 F. App’x 917, 922 (5th Cir. 2021). Thus, Acosta’s complaint fails to 

adequately allege that a Williamson County policy was a “moving force” 

behind any constitutionally inadequate medical care he may have received. 

Acosta’s other arguments related to municipal liability, which were 

raised for the first time in his reply brief, have been forfeited. See Guillot ex 

rel. T.A.G. v. Russell, 59 F.4th 743, 751 (5th Cir. 2023). Regardless, we find 

these additional arguments to be meritless. These arguments primarily 

pertain to policies that were purportedly a “moving force” behind 

Hoffman’s use of excessive force. We find these arguments unpersuasive, 

because: (1) as noted above, Acosta has failed to establish that Hoffman 

utilized excessive force; (2) Acosta failed to allege a pattern of similar 

incidents of excessive force; and (3) Acosta’s policy-based claims related to 

excessive force consist entirely of conclusory generalizations, and Acosta 

does not point to any obvious infirmities in Williamson County’s policies 

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indicating that constitutional violations would be a “highly predictable 

consequence.”9

We find no error in the district court’s thorough and well-reasoned 

holding on this issue, much less the plain error that Acosta is required to 

establish. We accordingly AFFIRM the dismissal of Acosta’s § 1983 

municipal liability claims.

VII.

Finding no reversible error in the district court’s proceedings, we 

AFFIRM the dismissal of Acosta’s § 1983 municipal liability claims against 

Williamson County, as well as the grant of summary judgment for 

Defendants-Appellees Hoffman and Williamson County on all remaining

claims.

_____________________

9 For example, Acosta alleges that Williamson County had policies of “[e]ngaging 

in use of excessive force on pre-trial detainees” and “[e]ncouraging escalation rather than 

de-escalation.” Obviously, these are not written County policies, but Acosta can establish 

that a custom exists by showing “a persistent, widespread practice of [County] officials or 

employees, which, although not authorized by officially adopted and promulgated policy, 

is so common and well-settled as to constitute a custom that fairly represents municipal 

policy.” Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster v. 

City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)). But Acosta has not sufficiently alleged 

a pattern to establish a “persistent, widespread practice.” Nor has he pointed to an official 

County policy that is so obviously infirm that it would provide notice to municipal 

policymakers that a constitutional violation would be a “highly predictable consequence.” 

Therefore, we find thatthese conclusory policy-based allegations are insufficient to support 

a § 1983 claim against Williamson County. 

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