IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40121

KENNETH RATLIFF, 

 Plaintiff - Appellant

v.

ARANSAS COUNTY, TEXAS; COLBY SCUDDER, Individually; RAYMOND 

SHEFFIELD, Individually, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, SMITH, and COSTA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Kenneth Ratliff was shot five times when he refused to drop his weapon

during an armed confrontation with two sheriff’s deputies in Aransas County, 

Texas. He survived and was later acquitted of criminal assault. He proceeded 

to sue both deputies, as well as the county, under 42 U.S.C. § 1983, alleging 

that the deputies used unreasonable and excessive force in violation of the 

Fourth Amendment. The district court dismissed Ratliff’s “official custom” and 

“failure to train” claims against Aransas County, finding that Ratliff’s

pleadings failed plausibly to establish municipal liability under Monell v. Dep’t 

of Soc. Servs., 436 U.S. 658, 694 (1978). Later, the court awarded summary 

United States Court of Appeals

Fifth Circuit

FILED

January 15, 2020

Lyle W. Cayce

Clerk

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judgment to the deputies, holding that Ratliff had failed to rebut their qualified 

immunity defense. Ratliff appeals; we affirm.

I.

At approximately 3:00 a.m., on March 24, 2015, Aransas County sheriff’s 

deputies were dispatched to a residence in Rockport, Texas, where Kenneth 

Ratliff was living with Tanya Vannatter, his fiancée. The deputies, Colby 

Scudder and Raymond Sheffield, had been requested by Vannatter, who

reported in a 911 call that Ratliff had beaten her earlier in the evening.

When the deputies arrived, Vannatter explained that Ratliff had been 

drinking “all day and all night,” and that, when she caught him sending text 

messages to another woman, he went “ballistic.” More specifically, Vannatter

said that Ratliff had thrown her to the ground, punched her “everywhere,” and 

choked her with such force that she thought she would die. She was reluctant 

to press charges. But she did request that the deputies ask Ratliff to leave 

home voluntarily.

As Vannatter and the deputies walked toward Ratliff’s front porch, 

Ratliff began shouting, “Get the f*** off my property.” Ratliff was holding a 

loaded, semi-automatic pistol, but he had not chambered a round. The parties 

dispute whether the pistol was ever pointed at the deputies, but it is 

undisputed that the deputies issued five orders to disarm moments before the 

shooting. Ratliff responded, “shoot me . . . shoot me” and “hey, you’re on my

property.” Deputy Scudder fired nine shots, and Ratliff sustained five gunshot 

wounds. The whole encounter lasted about twenty-five seconds. The deputies 

called an ambulance immediately, and paramedics arrived in time to tend to 

Ratliff, who survived.

II.

Texas authorities charged Ratliff with aggravated assault on a police 

officer, but he was later acquitted by a jury. Ratliff then sued Deputy Scudder, 

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Deputy Sheffield, and Aransas County under 42 U.S.C. § 1983, alleging that 

Deputy Scudder violated clearly established law by using deadly force, that

Deputy Sheffield violated clearly established law by failing to prevent deadly 

force, and that Aransas County should be held responsible because the 

deputies’ actions reflect the county’s “customary practice[,] . . . policy or 

procedure.”1 The district court quickly dismissed Ratliff’s claim against the 

county, however, holding that Ratliff had failed to plead sufficiently specific 

facts in support of his “official custom” and “failure to train” theories of Monell

liability.

Then, on a motion for summary judgment, the district court also disposed 

of Ratliff’s excessive force claims against the deputies. The district court found 

that Deputy’s Scudder’s use of deadly force was not objectively unreasonable 

under the circumstances and that Ratliff could not therefore meet his burden 

to rebut the defense of qualified immunity. That finding was also fatal to 

Ratliff’s claim against Deputy Sheffield. Ratliff’s entire suit was dismissed 

with prejudice. This appeal followed.

III.

Ratliff raises three issues on appeal. He argues that the district court 

erred: (1) by granting defendants’ motion to dismiss the Monell claim against 

Aransas County, (2) by excluding testimony given by Ratliff in his earlier 

criminal trial from the summary judgment record in this civil action, and (3) 

by awarding summary judgment to the deputies on qualified immunity 

grounds. We will address each issue in turn.

 

1 Ratliff’s complaint also contained a “malicious prosecution” claim that the district 

court dismissed for failure to “tie [the allegedly malicious prosecution] to rights locatable in 

constitutional text.” Cf. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). 

Ratliff does not challenge the dismissal of that claim on appeal.

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A.

We first consider Ratliff’s challenge to the dismissal of his Monell claim. 

Ratliff argues that his pleadings satisfy both the familiar pleading standard 

established by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and a lowerthan-normal pleading standard that, according to Ratliff, applies in the Monell

context under Leatherman v. Tarrant County Narcotics Intelligence & 

Coordination Unit, 507 U.S. 163 (1993). He can prevail on neither count.

Initially, we note that the ordinary Twombly pleading standard applies. 

It is, of course, true that Leatherman, a pre-Twombly case, held that courts 

must not apply a “heightened” pleading standard to Monell claims. See id. at 

168. Although Ratliff argues otherwise, however, Leatherman did not require 

courts to accept “generic or boilerplate” pleadings in this case or in any other 

context. Indeed, our precedents make clear that the Twombly standard applies 

to municipal liability claims. See Peña v. City of Rio Grande City, 879 F.3d 

613, 621–22 (5th Cir. 2018); Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex 

rel. Keys, 675 F.3d 849, 866 n.10 (5th Cir. 2012) (en banc). “To survive a motion 

to dismiss,” Ratliff’s Monell pleadings “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) (quotation omitted).

Reviewing de novo, we find no error in the district court’s conclusion that 

Ratliff has failed to produce sufficient pleadings. To state a Monell claim 

against Aransas County, Ratliff was required to plead facts that plausibly 

establish: “a policymaker; an official policy; and a violation of constitutional 

rights whose ‘moving force’ is the policy or custom.” Piotrowski v. City of 

Houston, 237 F.3d 567, 578 (5th Cir. 2001). The district court held that Ratliff’s 

complaint fails to establish an official custom or policy of excessive force 

because “[t]he only facts [that Ratliff] allege[d] with any specificity . . . relate 

to his shooting.” This assessment is correct.

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“[P]lausibly to plead a practice ‘so persistent and widespread as to 

practically have the force of law,’ [Ratliff] must do more than describe the 

incident that gave rise to his injury.” Peña, 879 F.3d at 622. Ratliff’s complaint 

states that “the assault, beating, and severe injury to citizens, with little or no 

justification, is a persistent, widespread practice of County employees—

namely officers/deputies—that, although not authorized by officially adopted 

policy, is so common and well settled as to constitute a custom that fairly 

represents official county policy.” But this allegation does not contain any

specific facts. Instead, the complaint’s only specific facts appear in the section 

laying out the events that gave rise to this action. Thus, Ratliff’s complaint 

clearly does not satisfy Twombly or Iqbal with respect to the allegation that 

excessive force is an Aransas County “custom.”

In addition to this theory of widespread and customary police brutality, 

Ratliff also alleged that “Defendant County is liable for [the] inadequate 

training of police officers.” To prevail on a failure-to-train theory, Ratliff must

plead facts plausibly establishing “(1) that the municipality’s training 

procedures were inadequate, (2) that the municipality was deliberately 

indifferent in adopting its training policy, and (3) that the inadequate training 

policy directly caused the violations in question.” Zarnow v. City of Wichita 

Falls, 614 F.3d 161, 170 (5th Cir. 2010).

Ratliff has failed to carry this burden. Although the district court 

focused on the first two failure-to-train elements, “we may affirm a district 

court’s [Federal Rule of Civil Procedure] 12(b)(6) dismissal on any grounds 

raised below and supported by the record.” Cuvillier v. Taylor, 503 F.3d 397, 

401 (5th Cir. 2007). Before the district court, the defendants argued that 

Ratliff’s failure-to-train pleadings were insufficient with respect to the element 

of causation. It is clear that this argument is meritorious. Ratliff’s complaint 

states in conclusory fashion that a “deficiency in training actually caused 

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Defendants Scudder and Sheffield to violate Plaintiff’s constitutional rights.” 

But, absent specific allegations supporting a plausible causation inference, this 

legal conclusion does not state a claim for relief and warrants dismissal under 

Rule 12(b)(6).

In short, we hold that the district court did not err in dismissing Ratliff’s 

claim against Aransas County and, consequently, affirm its judgment 

dismissing the county from this case.

B.

We next examine Ratliff’s argument that the district court erred by 

excluding testimony that Ratliff gave in his earlier criminal trial. He offered 

the testimony because of a failing memory and to rebut the deputies’ qualified

immunity defense in this § 1983 case. This previous testimony was attached, 

as part of a forty-page exhibit, to Ratliff’s response to the defendants’ summary 

judgment motion. The exhibit also included the testimony of other trial 

witnesses, including Vannatter and Deputy Scudder. The defendants objected 

only to Ratliff’s testimony, arguing that such testimony was inadmissible 

hearsay to which no exception applied. The district court sustained the 

objection in a footnote but did not provide analysis or reasoning.

On appeal, Ratliff does not explain why any of the excluded testimony

would have been relevant to the issues raised at summary judgment. The

testimony could have evidenced only two plausibly-relevant facts: (1) that 

Ratliff did not know who was approaching his residence when he yelled, “Get 

the f*** off my property,” and (2) that Ratliff did not “raise [his] gun and point 

it” at anyone, instead holding it “in [his] right hand . . . down [at his] side” for 

the duration of his encounter with the deputies.

“[A]n appeal of a summary judgment presenting evidentiary issues 

raises two levels of inquiry.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 

(5th Cir. 1992) (quotation omitted). First, we review the district court’s 

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evidentiary rulings for abuse of discretion. Id. Then, once the summary 

judgment record is “define[d],” we review de novo whether summary judgment 

was appropriately granted. Id. Indeed, here, we cannot determine whether 

the district court’s summary judgment order was erroneous until we have 

“defined” the summary judgment record, i.e., until we have ruled on Ratliff’s 

challenge to the exclusion of his earlier criminal testimony. We thus address 

Ratliff’s evidentiary arguments first, before turning to the merits of the district 

court’s summary judgment order.

We first entertain the defendants’ argument that any error in excluding 

Ratliff’s prior testimony was harmless. If it were, we may assume that the 

exclusion was erroneous and affirm nevertheless. Saratoga Res., Inc. v. 

Lexington Ins. Co., 642 F. App’x 359, 363 n.10 (5th Cir. 2016) (citing Matador 

Petroleum Corp. v. St. Paul Surplus Lines Ins. Co., 174 F.3d 653 (5th Cir.

1999)). An error is harmless unless it affects “substantial rights.” Fed. R. Civ. 

P. 61. Ratliff, as the “party asserting . . . error,” bears the burden of proving 

such prejudice. Ball v. LeBlanc, 792 F.3d 584, 591 (5th Cir. 2015).

But no prejudice has been shown. As we have already said, Ratliff’s 

appellate brief does not even explain why the excluded testimony was relevant, 

let alone demonstrate that its exclusion affected his “substantial rights.” Fed. 

R. Civ. P. 61. On the contrary, none of the points, which we may assume from

the excluded testimony, was relevant to the district court’s decision to enter 

summary judgment. Ratliff’s testimony that he did not know who was 

approaching his home on the night of the shooting was irrelevant because, in 

the context of qualified immunity, the district court assessed the 

“reasonableness of [Deputy Scudder’s] use of force . . . from the perspective of 

a reasonable officer on the scene,” not from Ratliff’s perspective. Similarly,

“the direction of [Ratliff’s] gun” was immaterial to the district court’s analysis: 

the district court reasoned that, irrespective of the gun’s direction, Deputy 

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Scudder’s force was justified because “other facts [had] establish[ed] that the 

suspect was a threat to the officer[s],” which would include the fact that Ratliff 

had been accused of a violent crime, the fact that Ratliff was drunk and 

confrontational, and the fact that Ratliff had ignored five orders to drop his 

weapon.2

To sum up, we find that, even if the district court erred by excluding 

testimony from Ratliff’s criminal trial, such error was harmless and the

testimony’s exclusion thus furnishes no basis for reversal.

C.

Finally, we consider the substantive merits of Ratliff’s appeal: whether 

the district court erred by accepting the deputies’ qualified immunity defense 

and awarding them summary judgment. “We review a grant of summary 

judgment de novo, viewing all evidence in the light most favorable to the 

nonmoving party and drawing all reasonable inferences in that party’s favor.” 

Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016) (quotation omitted).

Typically, to prevail on a motion for summary judgment, the moving 

party must show “that there is no genuine dispute as to any material fact.” 

Fed. R. Civ. P. 56(a). However, “[a] good-faith assertion of qualified immunity 

alters the usual summary judgment burden of proof, shifting it to the plaintiff 

to show that the defense is not available.” Orr v. Copeland, 844 F.3d 484, 490 

(5th Cir. 2016) (quotation omitted).

So, here, Ratliff was required to adduce summary judgment evidence 

indicating that the deputies’ actions “violate[d] clearly established . . . 

constitutional rights of which a reasonable person would have known.” 

 

2 As we shall explain later, our cases support the district court’s conclusion that, 

because Ratliff ignored five orders to disarm and engaged in threatening behavior, Deputy 

Scudder’s force was not unreasonable even assuming that Ratliff never raised his gun. See 

Garza v. Briones, 943 F.3d 740, 747 (5th Cir. 2019).

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Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotation omitted). To determine 

whether he has done so, we will assume genuinely disputed facts in his favor 

and engage in a two-pronged inquiry. “The first [prong] asks whether the facts

. . . show [that] the officer’s conduct violated a [constitutional or statutory] 

right.” Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (brackets and ellipsis 

added). The second “asks whether the right in question was ‘clearly 

established’ at the time of the violation.” Id. at 656. For a right to be clearly 

established, “its contours must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right.” Hope v. Pelzer, 

536 U.S. 730, 739 (2002) (quotation omitted).

The district court focused exclusively on the first prong of the qualified 

immunity analysis, concluding that the right at issue here, Ratliff’s Fourth 

Amendment right to be free from unreasonable and excessive force, was not 

violated when Deputy Scudder opened fire. See Cleveland v. Bell, 938 F.3d 

672, 676 (5th Cir. 2019) (“If the plaintiff fails at either step, [a] federal court 

can grant qualified immunity by addressing either step or both of them.”). To 

establish a Fourth Amendment violation in this context, Ratliff must establish 

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

clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” 

Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007). Only the second and third 

of these elements are at issue. The question is whether Deputy Scudder’s 

resort to deadly force was unreasonable and excessive when the facts are 

viewed “from the perspective of a reasonable officer on the scene, rather than 

with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 

(1989).

Our recent opinion in Garza v. Briones speaks to this question. Prior to 

Garza, our cases had clearly established that deadly force is not unreasonable

when an armed suspect has ignored multiple orders to disarm and has either

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pointed his weapon at a person or used the weapon in such a manner as to 

make a threatening gesture. See, e.g., Ramirez v. Knoulton, 542 F.3d 124, 127–

31 (5th Cir. 2008) (officer’s use of deadly force was not a Fourth Amendment 

violation where an armed suspect failed to comply with an order to drop his 

weapon and then “brought his hands together in front of his waist” as if “in 

preparation to aim [his gun] at the officers”); see also Mace v. City of Palestine, 

333 F.3d 621, 624–25 (5th Cir. 2003) (deadly force was not objectively 

unreasonable when a suspect had “brandish[ed] an eighteen to twenty inch 

sword” and failed to “respond to commands to drop his sword or to stop moving 

toward [police] officers”); Ballard v. Burton, 444 F.3d 391, 402–03 (5th Cir. 

2006) (deadly force was not unreasonable when a suspect had “refused to put 

down his rifle, discharged the rifle into the air several times while near the 

officers, and pointed it in the general direction of [the] officers,” even though 

the suspect was not pointing his gun at anyone when he was shot).

Garza further adds to this line of cases. In Garza, police officers received

reports that a man was “sitting alone in front of [a] truck stop’s bar playing 

with a pistol and holding what appeared to be a wine bottle and a plastic bag.” 

943 F.3d at 743. When the officers arrived, they discovered a suspect holding 

a gun, later revealed to be a BB gun. Id. One of the officers ordered the suspect

to drop the weapon, but he “did not do so and instead continued to move the 

firearm around in different directions while making facial gestures.” Id. “At 

that time, [the suspect] did not have his finger on the trigger and was not 

pointing the gun at anyone.” Id. Nevertheless, the suspect was later shot and 

killed. Id. The administrator of the suspect’s estate sued the officers under 

§ 1983, alleging that the officers’ resort to deadly force was unreasonable, 

excessive, and a violation of the Fourth Amendment. Id. at 744.

We rejected those allegations. We held that, when “confronting an 

unpredictable man armed with a dangerous weapon,” law enforcement officers 

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“may use deadly force . . . without violating the Fourth Amendment.” Id. at 

745. The plaintiff in Garza argued, as Ratliff argues now, that “a reasonable 

jury could find that [the suspect] never pointed his gun at the officers.” Id. at 

746. In support of this argument, the plaintiff relied on an affidavit from one 

of the officer-defendants, which stated that the suspect “did not at any time

point the gun [at the] cops.” Id. at 747. Although we found that video evidence 

had conclusively contradicted the affiant’s statement, we explained that this 

fact was not essential to the outcome and further held that a “reasonable officer 

in any of the defendants’ shoes would have believed that [the suspect] posed a 

serious threat regardless of the direction [of his] gun.” Id. 

Thus, in Garza, we found that it is not unreasonable for law enforcement 

officers to use deadly force against an armed suspect, irrespective of the

pointed direction of that suspect’s weapon, when the suspect has ignored 

orders to drop the weapon and has displayed erratic or aggressive behavior 

indicating that he may pose an imminent threat. We can concede that, here,

unlike in Garza, the video evidence is inconclusive with respect to the direction

of Ratliff’s gun. Moreover, we are willing to accept that the gun’s direction is 

genuinely disputed. But we cannot agree that the pointed direction of Ratliff’s 

gun is material in the context of these facts. Once Ratliff had ignored repeated 

warnings to drop his weapon, the deputies here, like the officers in Garza, had 

ample reason to fear for their safety.3

 

3 The deputies had been told that Ratliff was drunk and that he had nearly killed a 

person earlier in the night. When they arrived on the scene, Ratliff dared the deputies to 

shoot him, cursed at the deputies to get off his property, and ignored the deputies’ lawful 

commands to disarm. Although we accept that it is genuinely disputed whether Ratliff knew 

that he was dealing with law enforcement, we again note that facts about Ratliff’s knowledge 

are beside the point. We examine the reasonableness of Deputy Scudder’s force “from the 

perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396. There is no 

genuine dispute about whether Deputy Scudder could reasonably have believed that Ratliff 

knew he was confronting the police. After all, the deputies were in uniform and, although it 

was dark, the area was illuminated by lights from Deputy Sheffield’s squad car.

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Thus, we concur in the district court’s conclusion that the deputies were 

entitled to qualified immunity. Ratliff simply has not met his burden to 

establish a Fourth Amendment violation in the form of unreasonable and 

excessive force, much less a violation that every reasonable officer in Deputy 

Scudder’s position would appreciate. See Hope, 536 U.S. at 739. The district 

court was correct to enter summary judgment in favor of both deputies.4

IV.

In sum, we hold that the district court committed no reversible error in 

its dismissal of Ratliff’s Monell claim against Aransas County, nor in its 

decision to exclude testimony given in Ratliff’s criminal trial, nor in its decision 

to award summary judgment to both deputies under the doctrine of qualified 

immunity. The district court’s judgment is therefore, in all respects,

AFFIRMED.

 

4 In his initial brief on appeal, Ratliff does not challenge the district court’s dismissal

of the claim against Deputy Sheffield, other than to generally assert that summary judgment 

should not have been awarded to “Appellees.” As such, he has waived on appeal any 

argument that the district court improperly dismissed this claim. McKay v. Novartis Pharm. 

Corp., 751 F.3d 694, 702 n.6 (5th Cir. 2014) (issues not raised and argued in an appellant’s 

initial brief are abandoned).

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