REVISED

United States Court of Appeals

for the Fifth Circuit

No. 20-10344

Valerie Jackson, 

Plaintiff—Appellant,

versus

Lupe Valdez; Marian Brown; Dallas County, Texas, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-2935

Before Barksdale, Southwick, and Graves, Circuit Judges.

Per Curiam:*

We withdraw our previous opinion, issued March 29, 2021, and issue 

this revised opinion in its place. Valerie Jackson is a transgender woman who 

sued Dallas County, Texas, and its employees for violating her constitutional 

rights related to her gender identity. Pursuant to Federal Rule of Procedure 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2021

Lyle W. Cayce

Clerk

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54(b), she appeals the district court’s denial of her motion for recusal and the

Rule 12(b)(6) dismissal of Dallas County and Sheriffs Lupe Valdez and 

Marian Brown in their official capacities. We AFFIRM.

I. Background

Because this is an appeal from a Rule 12(b)(6) dismissal, the following 

are allegations from the operative complaint. 

Valerie Jackson is a transgender woman. She was assigned the sex of 

male at birth and had her gender legally changed to female prior to the events 

alleged in the instant case. 

On or about November 4, 2016, Jackson was arrested for unlawful 

possession of a weapon and taken to the Dallas County jail. During booking, 

an officer asked her standard intake questions and gave her a wristband 

identifying her gender as female. She was taken to an enclosed corner and 

ordered to lift her shirt and bra to expose her bare breasts, to which she 

complied. She was then escorted to a nurse. 

The nurse asked Jackson medical questions that led her to reveal that 

she was a transgender woman. The nurse left the paperwork the way it was 

filled out and concluded the medical assessment. When Jackson returned to 

the waiting area with the other female detainees, an officer asked her in front

of the other detainees if she had “a sex change or something” and whether 

she “had everything done even down there.” She answered yes so that the 

humiliation would end. 

Jackson was taken to the same enclosed corner and instructed to pull 

down her pants and underwear. When she asked why, an officer stated: “We 

need to know if you’ve had a sex change or not. We need to see if you have a 

penis or vagina. We have to protect you. We can’t put you with men if you 

have a vagina.” Jackson said she was not going to pull down her pants, and

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the officer replied: “You are coming up in the system as male. It doesn’t 

matter what you do, it can never be changed.” Jackson stated again that she 

was not going to pull down her pants and that she should not have to prove 

anything to them if none of the other women had to prove anything. The 

officer continued: “Now our policy is we have to verify that you’ve had a sex 

change. If you have a penis, you’re going with the men. If you have a vagina, 

you’re going with the women.” 

Jackson continued to insist that she did not want to pull her pants 

down. An officer told her that if she refused, they would transfer her to 

Parkland Hospital where she would have to show her genitals, thus adding 

hours to her incarceration. An officer also said: “That’s our policy. You can 

talk to [Sheriff] Lupe Valdez about it when you get out.” The officer 

explained that the process could not move forward without Jackson revealing 

her genitals. Feeling she had no other choice, Jackson complied with the strip 

search. 

After the search, Jackson was eventually placed in her own cell. She 

was then taken in a line with male inmates to court, and when she returned 

to the jail, she was taken to the male locker room and instructed to strip down 

and shower because “it was something everyone had to do.” An officer 

intervened and took her to a holding cell, where Jackson received a new 

wristband that identified her gender as male. Jackson was moved multiple 

times while waiting for her paperwork to be processed, each time 

encountering new officers and inmates who misidentified her gender. 

After being released from custody, Jackson filed a formal complaint 

regarding her treatment in the Dallas County jail. On November 7, 2016, 

Captain Shelley Knight with the Dallas County Sheriff’s Office was 

contacted by a local newspaper regarding Jackson’s treatment. Knight 

informed the newspaper that there was an investigation on the incident and 

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that the intake video from November 4, 2016, was pulled. She also informed 

the newspaper that she could see where some of the policy was misconstrued 

and other parts were not followed. 

On April 19, 2017, Jackson was arrested for the second time and taken 

to the Dallas County jail, where she was classified male and held with the 

male inmates. She asked the officers to contact Knight, who could explain 

that Jackson should be classified and placed with female inmates, but they 

refused. She was later forced to shower with male inmates. 

On June 15, 2018, Jackson was arrested for the third time and taken to 

the Dallas County jail, where she was again classified male and held with the 

male inmates. She was again forced to shower with male inmates. 

In November 2018, Jackson sued Dallas County, Texas; former 

Sheriff Lupe Valdez and current Sheriff Marian Brown in their official and 

individual capacities; and Officer Lizyamma Samuel, Officer Samuel Joseph, 

and Unknown Dallas County Employee III in their individual capacities 

under 42 U.S.C. § 1983 for violations of her Fourth, Fifth, and Fourteenth 

Amendment rights. 

In September 2019, the case was transferred to Judge Brantley Starr. 

Jackson moved for recusal under 28 U.S.C. §§ 144 and 455(a), arguing that 

Judge Starr held a bias against members of the LGBTQ community. The 

motion was denied. On motion, the district court later dismissed Dallas 

County and Valdez and Brown in their official capacities under Rule 12(b)(6).

Jackson timely appealed. 

II. Motion to Recuse

A. Standard of Review

We review the denial of a motion to recuse for abuse of discretion. 

Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003). 

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B. Legal Analysis

Jackson argues that the district court erred in denying her motion to 

recuse because of his personal bias against members of the LGBTQ 

community. Specifically, in an affidavit attached to the motion, Jackson 

averred that prior to his appointment to the federal bench, Judge Starr 

advocated against equal rights for members of the LGBTQ community as a 

Deputy Attorney General for the State of Texas by challenging federal 

guidance that directed schools to permit transgender students to use 

bathrooms that align with their gender identity; defending the right of county 

clerks to refuse to issue marriage licenses to same-sex couples; and testifying

about state legislation that would protect adoption agencies that refuse to 

place children with same-sex couples. Further, Jackson stated that the judge 

“refused” to answer questions regarding the legal treatment of LGBTQ 

people during his judicial confirmation process, and that he supported the 

judicial nomination of Jeffrey Mateer, who, according to Jackson, allegedly 

said that “transgender children were part of “‘Satan’s plan.’” 

Section 144 aims exclusively at actual bias or prejudice. Patterson, 335 

F.3d at 483. It requires a judge to recuse if a party to the proceeding “makes 

and files a timely and sufficient affidavit that the judge before whom the 

matter is pending has a personal bias or prejudice either against him or in 

favor of any adverse party.” 28 U.S.C. § 144. The affidavit must “state the 

facts and the reasons for the belief that bias or prejudice exists” and “shall 

be accompanied by a certificate of counsel of record stating that it is made in 

good faith.” Id. The judge must pass on the sufficiency of the affidavit but 

may not pass on the truth of the affidavit’s allegations. Patterson, 335 F.3d at 

483. A legally sufficient affidavit must: (1) state material facts with 

particularity; (2) state facts that, if true, would convince a reasonable person 

that a bias exists; and (3) state facts that show the bias is personal, as opposed 

to judicial, in nature. Id.

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Section 455(a) deals not only with actual bias and other forms of 

partiality, but also with the appearance of partiality. It requires a judge to 

“disqualify himself in any proceeding in which his impartiality might 

reasonably be questioned.” 28 U.S.C. § 455(a). A party seeking such 

disqualification “must show that, if a reasonable man knew of all the 

circumstances, he would harbor doubts about the judge’s impartiality.” 

Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994) 

(internal quotation marks and citations omitted). The objective standard 

relies on the “well-informed, thoughtful and objective observer, rather than 

the hypersensitive, cynical, and suspicious person.” Andrade v. Chojnacki, 

338 F.3d 448, 455 (5th Cir. 2003) (internal quotation marks and citation 

omitted). “The review of a recusal order under § 455(a) is ‘extremely fact 

intensive and fact bound,’ thus a close recitation of the factual basis for the 

[party’s] recusal motion is necessary.” Republic of Panama v. Am. Tobacco Co., 

217 F.3d 343, 346 (5th Cir. 2000) (citation omitted).

We agree with Jackson that the district court improperly addressed 

the truth of her affidavit under section 144. In reviewing a section 144 motion, 

the district court must only pass on the sufficiency of the affidavit and not its 

truth. Patterson, 335 F.3d at 483. The district court, however, expressly 

addressed the truth of Jackson’s affidavit—claiming, inter alia, that Jackson 

“misconstrues the positions that this judge advocated on behalf of his 

client.” It then evaluated, contested, and corrected each section of Jackson’s 

affidavit. Instead, the district court should have stopped with this statement: 

“Instead of demonstrating personal bias, Jackson’s allegations are merely 

against the positions Texas advanced in litigation and state ‘no specific facts 

that would suggest that this judge would be anything but impartial in deciding 

the case before him.’” 

We nevertheless conclude that the district court properly denied the 

recusal motion under both statutory provisions. Jackson did not state facts in 

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her affidavit showing that the judge harbored an actual bias against Jackson

under section 144 nor did she demonstrate that the judge’s impartiality might 

reasonably be questioned under section 455(a). Jackson cited to examples of 

the judge’s past legal advocacy in the course and scope of his employment 

for the State of Texas, during which the judge made statements reflecting 

solely the legal positions of his client, not his personal views. A lawyer often 

takes legal positions on behalf of his client that he may or may not personally 

agree with, and the statements made by the district judge when he was a 

Deputy Attorney General only involved pertinent legal issues; that is, they 

were interpretations of statutes, caselaw, and administrative rules and 

reflected no personal animus against LGBTQ people.

If the instant case involved the judge’s former employer or the same 

exact issue, recusal could be warranted. See 28 U.S.C. § 455(b)(3) (requiring 

recusal where a judge previously served in governmental employment and 

expressed an opinion concerning the merits of the particular case in 

controversy); Panama, 217 F.3d at 347 (holding that the judge’s name listed 

on motion to file an amicus brief asserting allegations against tobacco 

companies similar to the ones made in the instant case against the defendant 

tobacco company may lead a reasonable person to doubt his impartiality). But 

the district judge’s prior participation in high-profile cases involving a group 

of people with which Jackson identifies, without more, is insufficient to 

support a finding of actual bias or an appearance of bias. See Higganbotham v. 

Oklahoma ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003) 

(“It is, of course, an inescapable part of our system of government that judges 

are drawn primarily from lawyers who have participated in public and 

political affairs.”) (internal quotation marks and citation omitted).

Additionally, the affidavit and exhibits submitted by Jackson indicate 

that the district judge answered, during the judicial confirmation process,

that he would set aside his personal beliefs and apply binding precedent when 

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asked about the legal treatment of LGBTQ individuals. His answers support 

the conclusion that he is committed to applying the law accordingly. Lastly, 

a judge’s previous support for another judicial nominee does not amount to 

a support of that nominee’s statements or beliefs. We cannot say that the 

district judge’s decision not to recuse himself pursuant to 28 U.S.C. §§ 144 

and 455(a) was an abuse of discretion. 

III. Motion to Dismiss

A. Standard of Review

We review de novo a motion to dismiss for failure to state a claim under 

Rule 12(b)(6). Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (5th Cir. 

2020). “The court accepts all well-pleaded facts as true, viewing them in the 

light most favorable to the plaintiff.” Id. (citation omitted). A plaintiff must 

plead specific facts, not merely conclusory allegations to state a claim for 

relief that is facially plausible. Id. “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. 

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The factual allegations 

need not be detailed, but they must be enough to raise a right to relief above 

the speculative level, assuming all the allegations are true.” Id. (citing Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).

B. Legal Analysis

On appeal, Jackson argues that the district court erred in dismissing 

her § 1983 claims of municipal liability against Dallas County and Sheriffs 

Valdez and Brown in their official capacities. 

To prevail against a municipality like Dallas County, a plaintiff must 

prove three elements: (1) Dallas County had a policy or custom, of which (2) 

a Dallas County policymaker can be charged with actual or constructive 

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knowledge, and (3) a constitutional violation whose “moving force” is the 

policy or custom. World Wide Street Preachers Fellowship v. Town of Columbia, 

591 F.3d 747, 753 (5th Cir. 2009); see also Monell v. Dep’t of Soc. Servs., 436 

U.S. 658, 694 (1978). To state a cognizable failure-to-train claim, a plaintiff 

must plead facts plausibly demonstrating that: (1) the municipality’s training 

procedures were inadequate; (2) the municipality was deliberately indifferent 

in adopting its training policy; and (3) the inadequate training policy directly 

caused the constitutional violations in question. World Wide, 591 F.3d at 756.

Jackson articulates two theories of municipal liability: (1) a policy of 

strip searching transgender detainees for the sole purpose of determining the 

detainee’s gender and classifying them solely on their biological sex, and (2) 

the failure to train and supervise employees to follow official policy 

prohibiting strip searches and the classification of transgender inmates solely 

on their sex assigned at birth. We address each theory in turn. 

i. Policy

A policy may be evidenced by “[a] policy statement, ordinance, 

regulation or decision that is officially adopted and promulgated by the 

municipality's lawmaking officers or by an official to whom the lawmakers 

have delegated policy-making authority;” or “a persistent, widespread 

practice of City 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.” Pineda v. City 

of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (quoting Webster v. City of 

Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)). “A customary policy 

consists of actions that have occurred for so long and with such frequency 

that the course of conduct demonstrates the governing body’s knowledge and 

acceptance of the disputed conduct.” Zarnow v. City of Wichita Falls, 614 

F.3d 161, 169 (5th Cir. 2010). To plausibly plead a practice “so persistent and 

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widespread as to practically have the force of law,” a plaintiff must do more 

than describe the incident that gave rise to his injury. Peña v. City of Rio 

Grande, 879 F.3d 613, 622 (5th Cir. 2018) (quoting Connick v. Thompson, 563 

U.S. 51, 61 (2011)). A pattern requires similarity and specificity, as well as 

“sufficiently numerous prior incidents” as opposed to “isolated instances.” 

Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (quoting 

McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)).

“[O]ccasional acts of untrained policemen are not otherwise attributed to 

city policy or custom.” Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th 

Cir. 1984).

Jackson alleged that she was forced to be examined in 2016 and was 

misclassified in 2016, 2017, and 2018; and that Dallas County officers forced 

another transgender female detainee named C.W. “to undress, spread her 

buttocks, show the bottom of her feet and then put on male jail attire” in 

2013. Jackson also alleged that the officers stated to her: “Now our policy is 

we have to verify that you’ve had a sex change. If you have a penis, you’re 

going with the men. If you have a vagina, you’re going with the women,” and 

“That’s our policy. You can talk to Lupe Valdez about it when you get out.” 

We recognize that Jackson is without the benefit of discovery, and that 

we have no rigid rule regarding numerosity to prove a widespread pattern of 

unconstitutional acts. Though it is a close call, for a Rule 12(b)(6) dismissal, 

we cannot conclude that allegations of two incidents of strip searches and 

four incidents of sex-based classifications of two transgender people in a span 

of five years support the reasonable inference that a practice of strip searches 

and classifications of transgender detainees solely on their biological sex is 

“so persistent and widespread as to practically have the force of law.” 

Connick, 563 U.S. at 61; see Prince v. Curry, 423 F. App’x 447, 451 (5th Cir. 

2011) (affirming dismissal of municipal liability claims where the alleged 

“existence of only one or, at most, two other similarly situated defendants” 

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or “of one or two prior incidents” do not “plausibly suggest that [defendant 

county] has a policy or custom of unconstitutionally subjecting sex offenders 

to enhanced sentences”). Such isolated violations “are not the persistent, 

often repeated, constant violations that constitute custom and policy.” 

Bennett, 729 F.2d at 768 n.3. We conclude that the district court properly 

dismissed Jackson’s municipal liability claim based upon her “policy” 

theory.

ii. Failure to Train or Supervise

When a municipal entity enacts a facially valid policy but fails to train 

its employees to implement it in a constitutional manner, that failure 

constitutes “official policy” that can support municipal liability if it 

“amounts to deliberate indifference.” Littell v. Houston Indep. Sch. Dist., 894 

F.3d 616, 624 (5th Cir. 2018) (quoting City of Canton v. Harris, 489 U.S. 378, 

388 (1989)). “‘Deliberate indifference’ is a stringent standard of fault, 

requiring proof that a municipal actor disregarded a known or obvious 

consequence of his action.” Connick, 563 U.S. at 61 (quoting Bd. of Cty. 

Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). Thus, when a 

municipality’s policymakers are on actual or constructive notice that a 

particular omission in their training program causes municipal employees to 

violate citizens’ constitutional rights, the municipality may be deemed 

deliberately indifferent if the policymakers choose to retain that program. Id.

Deliberate indifference may be proven in one of two ways. Littell, 894 

F.3d at 624. First, “municipal employees will violate constitutional rights ‘so 

often’ that the factfinder can infer from the pattern of violations that ‘the 

need for further training must have been plainly obvious to the . . . 

policymakers.’” Id. (quoting Canton, 489 U.S. at 390 n.10) (alteration in 

original). This proof-by-pattern method is “ordinarily necessary.” Id. 

(quoting Brown, 520 U.S. at 409). Absent proof of pattern, deliberate 

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indifference can still be inferred in a limited set of cases, where “evidence of 

a single violation of federal rights, accompanied by a showing that a 

municipality has failed to train its employees to handle recurring situations 

presenting an obvious potential for such a violation, [can] trigger municipal 

liability.” Brown, 520 U.S. at 409 (citing Canton, 489 U.S. at 390). This 

“single-incident” exception applies when “the risk of constitutional 

violations was or should have been an ‘obvious’ or ‘highly predictable 

consequence’ of the alleged training inadequacy.” Littell, 894 F.3d at 624 

(quoting Brown, 520 U.S. at 409).

Jackson attempts to establish deliberate indifference under the 

“pattern” theory, so we do not address the “single-incident” exception. See 

Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) 

(“Issues not raised or inadequately briefed on appeal are waived.”). Again, it 

cannot be said that Jackson sufficiently pleaded facts that Dallas County 

employees conducted strip searches and classified transgender detainees 

solely on the basis of biological sex “so often” as to give rise to a pattern. And 

without such a pattern, the need for training could not have been “plainly 

obvious” to Dallas County or its policymakers. Accordingly, the district 

court did not err in dismissing Jackson’s municipal liability claim based on its 

purported failure to supervise or train. 

IV. Conclusion

For the foregoing reasons, we AFFIRM the denial of the motion to 

recuse and the dismissal of Dallas County and Valdez and Brown in their 

official capacities.

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Leslie H. Southwick, Circuit Judge, dissenting in part. 

I agree with the majority’s holding and reasoning on the question of 

recusal. On the merits, my only disagreement is that we should not affirm 

dismissal of the municipal-policy claim. I will explain.

To begin, a point about an issue that neither of today’s opinions

resolves. There was no district court ruling for us to review on whether a 

municipal policy mandating the jail intake procedures described in the 

complaint would violate the plaintiff’s constitutional rights. Jackson argued 

that the policy violated her Fourth Amendment rights against unreasonable 

searches and seizures as well as her substantive-due-process and equalprotection rights. Dallas County did not brief the constitutionality of any 

policy but, like the district court, focused instead on the failure to allege a 

policy. Searches of inmates must be conducted in a reasonable manner, see, 

e.g., Bell v. Wolfish, 441 U.S. 520, 560 (1979), but the law on Jackson’s dueprocess and equal-protection claims is less settled. Jackson relies on cases 

about abortion and conscience-shocking actions by officials for support. E.g., 

Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992); Cnty. of 

Sacramento v. Lewis, 523 U.S. 833 (1998). She also cites to regulations under 

the Prison Rape Elimination Act that prohibit physical examinations of 

transgender inmates for the purpose of determining genital status. 28 C.F.R. 

§ 115.15(e). I will explain my conclusion that the complaint sufficiently 

assertsthe existence of a municipal policy, but I would remand for the district 

court to determine initially whether the policy violates Jackson’s 

constitutional rights. I assert no opinion on that question today. 

This appeal comes from the grant of a motion to dismiss for failure to 

state a claim. Fed. R. Civ. P. 12(b)(6). Though in part repeating what 

the majority opinion already has accurately stated, I discuss the pleading 

standard that is required to survive a motion to dismiss. We use the same 

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words for the pleading standard, but I interpret their application differently

than does the majority. 

We give de novo review to motions to dismiss for failure to state a 

claim. Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (5th Cir. 2020).

That means we accept the plaintiff’s plausibly pled facts as true and view 

them in the light most favorable to her. Id. The complaint does not need to 

provide “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007). Factual allegations are assumed to be true “even if doubtful 

in fact”; still, they must be enough to raise a right to relief above the 

“speculative level.” Id. The facts must state a claim “that is plausible on its 

face,” but need not rise to the level of being probable. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Id. Even where “recovery seems ‘very remote and unlikely,’” a 

complaint may survive a motion to dismiss. Innova Hosp. San Antonio, Ltd. 

P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th Cir. 2018) 

(quoting Twombly, 550 U.S. at 555–56). 

As the majority in this appeal states, a Monell claim requires proof of 

(1) a policymaker, (2) an official policy, (3) and “a violation of constitutional 

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

Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694–95 (1978)). There are two ways to prove a policy. One is 

to show that a policy has been “formally announced by an official 

policymaker.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th Cir. 

2010). The other is to prove “[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 

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custom that fairly represents municipal policy.” Webster v. City of Hous., 735 

F.2d 838, 841 (5th Cir. 1984) (en banc). 

The majority concludes that Jackson has failed to allege enough 

incidents to prove a policy through the existence of a custom. In my 

understanding, a plaintiff is not required pre-discovery to distinguish 

between a formal policy and a custom. The evidence creating a plausible 

claim of a policy before a suit is filed may not create clarity about the form in 

which the policy is expressed. We know that a complaint’s assertion of a 

customary policy can take the form of claiming a pattern of unconstitutional 

conduct by municipal actors or claiming a policymaker’s single 

unconstitutional action. Zarnow, 614 F.3d at 169. Thus, even if no relevant, 

formal policy exists, a plaintiff may offer evidence “demonstrat[ing] the 

governing body’s knowledge and acceptance of the disputed conduct.” Id. 

Municipal liability “attaches where — and only where — a deliberate choice 

to follow a course of action is made from among various alternatives by the 

official . . . responsible for establishing final policy with respect to the subject 

matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).

An “‘official policy’ often refers to formal rules or understandings — often 

but not always committed to writing.” Id. at 480. 

In my view of the complaint, Jackson has sufficiently pled a policy that 

may ultimately be proven under either theory. Some of the details are as 

follows. The complaint alleges that during intake at the jail, Jackson was 

given a wristband identifying her as a woman. She then was strip searched 

for the purpose of determining her genitalia to assure proper placement. To 

support her allegation that this was county policy, she alleges that a Dallas 

County employee, while instructing her to pull down her pants, stated:

“[O]ur policy is we have to verify that you’ve had a sex change. If you have 

a penis you’re going with the men. If you have a vagina you’re going with the 

women.” Further: “[T]hat’s our policy. You can talk to [Sheriff] Lupe 

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Valdez about it when you get out.” That same officer told her, “It’s not 

uncommon for men that look like women to be sitting in the men’s section 

and vice versa. You’ll probably see some like you over there. You aren’t the 

first and you won’t be the last.” After the search, she was placed with the 

men. An officer told her, “[Y]ou’re going with the men because that’s what 

you are. You’re a man.”

Jackson’s complaint sufficiently alleged a policy that existed in some 

form, as yet unknown. Counsel for Jackson restated the point in oral 

argument before this court:

You can show a policy either by a written policy or you can 

show it by a custom and practice, and here we have an actual 

statement from the individuals who were tasked with enforcing 

this practice, this custom, and this unwritten policy, and 

actually attributing it to the policymaker, Lupe Valdez, who 

was the Dallas Sheriff. So, this is not simply a situation where 

we need to show a pattern of abuse, we actually have a 

statement of the policy that genital searches were required to 

determine the biological sex of detainees.

Dallas County employees told Jackson that they had a policy. She 

must plead facts that plausibly allege that the policy existed. Jackson did. 

After discovery, her allegations about the policy her jailers were referencing

may become clearer, or, instead, discovery may reveal there is no policy in 

any form. 

It is too early at this stage to conclude that she cannot show a policy

simply because she has not yet discovered enough incidents. Jackson’s 

complaint alleged four instances of placing transgender detainees based on 

their anatomy and two strip searches for determining physical sex 

characteristics. As the majority correctly states, “we have no rigid rule 

regarding numerosity to prove a widespread pattern of unconstitutional 

acts.” The complaint also quotes jail personnel as saying, “It’s not 

Case: 20-10344 Document: 00515866902 Page: 16 Date Filed: 05/18/2021
No. 20-10344

17

uncommon for men that look like women to be sitting in the men’s section 

and vice versa. You’ll probably see some like you over there. You aren’t the 

first and you won’t be the last,” implying that Jackson was part of a larger 

and continuing collection of people subjected to this treatment. In other 

words, the quoted statement supports that the way Jackson was treated was 

the norm rather than the exception. 

In my view, Jackson has plausibly pled facts which, if true, support the 

existence of a county policy. See Iqbal, 556 U.S. at 678. Whether it exists as 

an official policy “formally announced by an official policymaker,” see 

Zarnow, 614 F.3d at 168, or a persistent, widespread custom “so common 

and well settled as to constitute a custom that fairly represents municipal 

policy,” see Webster, 735 F.2d at 841, is irrelevant at this stage. I would not 

charge Jackson with knowing what form the policy takes until she has had a 

chance to discover it. Respectfully, I dissent. 

Case: 20-10344 Document: 00515866902 Page: 17 Date Filed: 05/18/2021