Case: 22-20109 Document: 00516586193 Page: 1 Date Filed: 12/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 21, 2022
No. 22-20109
Lyle W. Cayce
Clerk
William Vardeman,
Plaintiff—Appellant,
versus
City of Houston; Rickey Dewayne Simpson,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-3242
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Leslie H. Southwick, Circuit Judge:
The plaintiff claims a law enforcement officer violated his Fourth
Amendment rights by punching him in the face, knocking him to the
pavement, then standing over him for a time. The reason for the blow? The
plaintiff had not move his vehicle quickly enough at an airport passenger
pickup area. The district court dismissed on the pleadings. We conclude,
though, the allegations in the complaint present a plausible claim that, viewed
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No. 22-20109
objectively, the excessive force used by the law enforcement officer was not
just to insist the vehicle be moved, but it constituted a seizure that would
prolong the encounter. On the other hand, the plaintiff does not sufficiently
allege a municipal policy to support a claim against the city defendant.
Accordingly, we REVERSE judgment for the officer, AFFIRM judgment
for the city, and REMAND for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
According to the complaint, in September 2018, William Vardeman
landed at Hobby Airport in Houston, Texas, for a business trip. His family
took a later flight, and he returned to the airport to pick them up. While he
awaited his family’s arrival, Vardeman made several loops around the
passenger pickup area and eventually parked his vehicle. As Vardeman
attempted to talk over the phone with his wife and daughter, a traffic officer
approached and ordered him to move his vehicle forward. Once Vardeman
began moving his vehicle approximately 30 yards forward, his wife called him
and told him the family was standing outside the baggage claim doors.
Vardeman got out of the vehicle and opened the tailgate to be ready to load
his family’s luggage. Meanwhile, another traffic officer approached and told
him to move his vehicle. He told the traffic officer that his wife and daughter
were on their way out. She again told him to move his vehicle, but as he was
beginning to pull away, he noticed his family walking up to the vehicle. He
got out of the vehicle to reopen the tailgate. As he was beginning to load his
family’s luggage, the traffic officer approached him again and said, “I told
you to move your f---ing car.” Vardeman explained to the officer that his
family was standing quite near, and he would move as soon as their bags were
loaded. The traffic officer responded, “I don’t give a f--- and you are going
to move that car.” The officer then called for assistance.
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As Vardeman finished loading his family’s bags and prepared to leave,
another traffic officer, defendant Rickey DeWayne Simpson, approached and
yelled into Vardeman’s face, “[y]ou need to move the f---ing car or I will
whip your bitch ass.” Vardeman’s adult daughter, who was holding her baby,
attempted to separate the two men by sticking her arm between them, but
Simpson “forcefully pushed” her. Vardeman then pushed Simpson away
from his daughter and grandchild. Simpson then “aggressively and violently
struck” Vardeman in the face with a closed fist, knocked him to the ground,
and “menacing[ly]” stood over him, as if he were about to strike again.
When Vardeman was able to get off the ground, he called the Houston Police
Department to report he “had just been verbally and physically assaulted by
an airport officer,” and then he returned to his vehicle.
Vardeman asserted claims against the City of Houston for Fourth and
Fourteenth Amendment violations, mental anguish, negligence, and
deliberately indifferent or negligent hiring and management. He asserted
state law claims against Simpson for assault and battery and for mental
anguish, and he asserted federal claims under 42 U.S.C. § 1983 against both
defendants. The state law claims against Simpson were dismissed, and there
is no issue raised here about those.
The district court granted the City of Houston’s motion to dismiss
under Rule 12(b)(1) and Rule 12(b)(6), finding the City immune from suit.
Further, the district court determined Vardeman’s Section 1983 claims
against the City of Houston failed because he did not show any municipal
policy that the officer was carrying out when striking Vardeman.
The Section 1983 claim against Simpson was resolved when the
district court granted judgment on the pleadings. The court concluded that,
even though the complaint clearly alleged Simpson applied force during the
encounter, the only possible inference from this encounter was that Simpson
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was insisting Vardeman leave, not that he was seizing him. Vardeman timely
appealed.
DISCUSSION
Vardeman seeks reversal here of the district court’s dismissal of his
excessive force claim against Simpson and his municipal liability claim
against the City of Houston. Both were dismissed at the pleadings stage. 1
Both a Rule 12(c) motion for judgment on the pleadings and a Rule
12(b)(6) motion to dismiss for failure to state a claim are reviewed de novo.
Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312,
313 n.8 (5th Cir. 2002). The Rule 12(c) standard is the same as that applied
to Rule 12(b)(6). Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). A
court may dismiss a complaint as a matter of law when the plaintiff fails “to
state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
To withstand a Rule 12(b)(6) motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). The court accepts well-
pled facts as true and “view[s] them in the light most favorable to the
1
Both Simpson’s and the City of Houston’s pleadings assert that Vardeman’s excessive
force claim against Simpson should fail because he is not a law enforcement officer. They
rely on a Ninth Circuit case, United States v. Attson, 900 F.2d 1427 (9th Cir. 1990), in
support of this argument. The district court, though, stated in its opinion that the logic of
Attson has been implicitly overruled by Soldal v. Cook Cnty., 506 U.S. 56, 68–69 (1992). We
considered a similar argument about an officer who handled a city’s ambulance permits but
acted outside the scope of his duties when detaining two ambulance drivers who did not
have permits. Sweetin v. City of Texas City, 48 F.4th 387, 390 (5th Cir. 2022). We held the
permit officer was subject to Section 1983 but had no qualified immunity because he was
acting beyond his authority. Id. at 392. Here, Officer Simpson was performing his assigned
functions, and he was a government official when performing those duties. The argument
that Simpson is not an official subject to Section 1983 is incorrect.
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plaintiff.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.
2019) (quotation marks and citation omitted). Dismissal is appropriate if the
facts pled are not enough to state a facially plausible claim for relief. Leal v.
McHugh, 731 F.3d 405, 410 (5th Cir. 2013). Plausibility is not akin to
probability, but instead, “it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Walker, 938 F.3d at 735 (quotation marks
and citation omitted). “All questions of fact and any ambiguities in the
current controlling substantive law must be resolved in the plaintiff’s
favor.” Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). We apply these
standards to the two issues raised here. We discuss the officer’s liability
claim first.
I. Excessive force claim against Officer Simpson
Relevant here, a seizure occurs within the meaning of the Fourth
Amendment when an officer applies “physical force to restrain movement,
even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S.
621, 626 (1991). “[T]he appropriate inquiry is whether the challenged
conduct objectively manifests an intent to restrain,” and “the amount of
force remains pertinent in assessing the objective intent.” Torres v. Madrid,
141 S. Ct. 989, 998 (2021) (emphasis omitted).
The district court rejected that a Fourth Amendment seizure had been
pled, finding the alleged facts “do not support a reasonable inference that
Simpson objectively manifested an intent to restrain Vardeman.” Instead,
the court concluded the complaint supports only that the officer “wanted
Vardeman to move along, not to remain, and that Simpson left before
Vardeman stood back up.” Guiding the district court’s analysis was the
Supreme Court’s 2021 decision in Torres v. Madrid, which became the
central authority in this case when it was released during the pendency of this
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litigation. Before deciding if we agree with the district court’s analysis of
Torres, though, we discuss some older precedents.
We start with considering how to label the encounter between officer
and citizen at the airport. The Supreme Court stated that “not all personal
intercourse between policemen and citizens involves ‘seizures’ of persons.
Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a
‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
Consequently, an arrest need not be the officer’s purpose in order for his or
her actions to be a seizure.
After Terry, the Supreme Court, in a plurality opinion, applied this
analysis to determine whether “a person ha[d] been ‘seized’ within the
meaning of the Fourth Amendment.” United States v. Mendenhall, 446 U.S.
544, 554 (1980). The Court determined a person has been seized if, given the
totality of the circumstances, “a reasonable person would have believed that
he was not free to leave.” Id. Examples of such a seizure include “the
threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer’s request might be
compelled.” Id.
Though the Mendenhall explanation gathered only a plurality, it was
“adopted by the Court in later cases.” Hodari D., 499 U.S. at 627 (citing,
e.g., Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). Therefore, when
deciding whether a seizure has occurred, “a court must consider all the
circumstances surrounding the encounter to determine whether the police
conduct would have communicated to a reasonable person that the person
was not free to decline the officers’ requests or otherwise terminate the
encounter. Florida v. Bostick, 501 U.S. 429, 439 (1991).
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As its wording shows, the test is objective for whether a seizure occurs
when law enforcement officers interact with individuals. “The test’s
objective standard — looking to the reasonable man’s interpretation of the
conduct in question — allows the police to determine in advance whether the
conduct contemplated will implicate the Fourth Amendment.” Chesternut,
486 U.S. at 574.
Applying those principles, we see the complaint asserts that officer
Simpson arrived after Vardeman finished loading the luggage and closed the
tailgate. The complaint identifies Simpson’s first words as threatening —
“You need to move the f---ing car or I will whip your bitch ass” — and alleges
they were expressed when Simpson was “within an inch of Vardeman’s
face.” Vardeman’s daughter reached between the two men with her arm to
create some separation between them. Simpson pushed the daughter, who
was holding her baby, and Vardeman pushed Simpson. Then came
Simpson’s blow to Vardeman’s face:
Simpson aggressively and violently struck Mr. Vardeman with
a closed fist, in the right side of his face with such force it
knocked him to the ground. Simpson then proceeded to walk
around and stand over Vardeman, in a menacing manner and
acting as if [he] was going to strike Vardeman again while he
was still on the ground. It was only when Vardeman’s wife got
in front of Simpson did he walk back to the sidewalk away from
Vardeman.
In summary, Vardeman alleged that the officer — after being shoved —
physically struck the target of his ire, then hovered over him menacingly.
The Supreme Court has emphasized that the application of force can
be quite brief and still be a seizure:
While a mere touch can be enough for a seizure, the amount of
force remains pertinent in assessing the objective intent to
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restrain . . . . Nor does the seizure depend on the subjective
perceptions of the seized person . . . . The rule we announce
today is narrow. In addition to the requirement of intent to
restrain, a seizure by force — absent submission — lasts only
as long as the application of force . . . . But brief seizures are
seizures all the same.
Torres, 141 S. Ct. at 998–99.
The Court reiterated its rule that a law enforcement “seizure is a
single act, and not a continuous fact.” Id. at 1002 (quoting Hodari D., 499
U.S. at 625). There can be a mere moment of seizure of a person — which is
often described in Supreme Court precedent as a “meaningful interference,
however brief, with an individual’s freedom of movement.” United States v.
Jacobsen, 466 U.S. 109, 113 n.5 (1984) (collecting cases). Vardeman alleges
such a meaningful interference here.
We conclude as follows. The allegations that Simpson punched
Vardeman in the face so hard that he fell to the ground, and then Simpson
hovered over him for a time in a menacing manner, would, if supported by
evidence, allow jurors to find that for some period of time at least, a
reasonable person would not believe he was free to leave. The Supreme
Court has not required a finding that the officer intended to arrest the person,
only that an objective person would perceive that at least briefly, there was
no freedom to go. Torres, 141 S. Ct. at 998–99.
Though the earlier alleged profane insistence by the officer was for
Vardeman to move his vehicle, we see a fact dispute as to whether the
encounter had become something of longer duration and for a different
purpose, such as at least for being issued a ticket. Respectfully, we conclude
the district court erred in holding the complaint did not set out sufficient facts
for a claim of excessive force in making a seizure.
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II. City of Houston’s liability for Simpson’s actions
To allege a plausible claim under Section 1983 against a municipality,
“a plaintiff must show that (1) an official policy (2) promulgated by the mu-
nicipal policymaker (3) was the moving force behind the violation of a consti-
tutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir.
2009).
There are three ways to establish a municipal policy for Section 1983
liability:
First, a plaintiff can show written policy statements, ordi-
nances, or regulations. Second, a plaintiff can show a wide-
spread practice that is so common and well-settled as to consti-
tute a custom that fairly represents municipal policy. Third,
even a single decision may constitute municipal policy in rare
circumstances when the official or entity possessing final poli-
cymaking authority for an action performs the specific act that
forms the basis of the Section 1983 claim.
Webb v. Town of Saint Joseph, 925 F.3d 209, 214–215 (5th Cir. 2019) (quota-
tion marks and citations omitted). Of relevance here, to establish a pattern,
“[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but
rather must point to the specific violation in question.” Estate of Davis ex rel.
McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).
In his complaint, Vardeman provides a list of alleged bad acts by City
of Houston employees, jailers, and police officers. None of these incidents,
however, are meaningfully related to Simpson’s actions at the airport. The
district court rejected the relevance of these alleged incidents, saying they
were a “hodge-podge of unrelated incidents of Houston police and correc-
tional officer violence”; further, they do not show a “custom, policy, prac-
tice, and procedure of using excessive force.” Moreover, the district court
concluded Vardeman did not adequately establish “a pattern or practice of
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assaulting [] people at the airport, that the incident was the product of a fail-
ure to train the employees, or that the City was deliberately indifferent to the
risk of the assault.”
The complaint does not adequately allege a pattern or practice, and
we generally reject Section 1983 claims against a municipality based on one
incident. See Sanchez v. Young Cnty., 866 F.3d 274, 280 (5th Cir. 2017). In
one opinion, we remarked on the fact that “the principal evidence of the al-
leged policy or custom arises from . . . this single case. To be unconstitu-
tional, however, a municipal entity’s policy that derives from custom or prac-
tice must be so common and well settled as to constitute a custom that fairly
represents municipal policy.” Id. (quotation marks and citation omitted).
We agree with the district court. The complaint does not contain suf-
ficient allegations to make plausible a claim for a pattern or practice of assault.
There was no error in dismissing the claim against the City of Houston.
We REVERSE the dismissal of the claims against officer Simpson,
AFFIRM judgment for the City of Houston, and REMAND for further
proceedings.
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Vardeman v. City of Houston
Combined Opinion