Supervisor, county, and other deputy on scene not liable for sexual assault committed by deputy

Facts

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Shanita Terrell spent the evening of February 23, 2020, at The Address, a bar in Houston where her cousin works. When she left, there was visibly and audibly something wrong with her and she was not in her usual state of mind. At some point, Terrell encountered off-duty HCSO Deputies Michael Hines and Mark Cannon. Hines and Cannon worked side jobs at The Address and were in HCSO uniforms. HCSO policy allows deputies to wear their uniforms and use HCSO equipment and patrol vehicles while working off-duty side jobs.

The deputies ordered Terrell into Hines’s patrol vehicle, telling her they were going to take her home. Terrell initially protested but ultimately got in, believing she was either under arrest or would be arrested if she continued to resist. The complaint contains no allegations as to what happened immediately afterward.

Terrell awoke the next morning at home and felt pain in her vaginal area. She went to the hospital, where a rape kit was administered. A DNA test revealed that semen in her underwear matched Hines. Terrell had no memory of having sex with him. She suspects that someone slipped Rohypnol, also known as “roofies,” into her drink at The Address. Roofies are known to be used by sexual predators to incapacitate their victims. In August 2021, eighteen months after the incident, Hines was charged with sexually assaulting Terrell.

Terrell sued Cannon, Hines, Harris County Sheriff Ed Gonzalez, and Harris County under 42 U.S.C. § 1983. Hines was served but never responded and Terrell later voluntarily dismissed her claims against him. Terrell alleged that Cannon violated her constitutional rights by forcing her into Hines’s patrol vehicle. She alleged that Gonzalez was liable as the deputies’ supervisor and Harris County was liable for inadequately training them. The district court granted summary judgement to all remaining parties. The 5th affirmed.

Analysis

A. Cannon

We may affirm the district court on either qualified immunity prong (constitutional violation or clearly established). We start with Terrell’s prong-two argument that Cannon’s actions were clearly established as unconstitutional.

To satisfy prong two, Terrell must point to legal precedent that puts the wrongfulness of Cannon’s actions beyond debate. Principally, she points to Gomez. But Gomez was decided in November 2021 so it could not have clearly established the unconstitutionality of actions that allegedly occurred in February 2020.

Alternatively, Terrell argues that Cannon’s actions were so obviously unlawful no precedent is required. The Supreme Court has denied qualified immunity in cases involving obvious violations, albeit rarely. See SCOTUS Hope v. Pelzer, 536 U.S. 730 (2002) and Taylor v. Riojas, 592 U.S. 7 (2020). Terrell does not show that her allegations are within the scope of those cases. Because prong two is not met, Terrell’s claim against Cannon was correctly dismissed.

B. Supervisory liability

Next, Terrell seeks to hold Gonzalez liable for Hines’s actions as his supervisor. To establish supervisory liability against an official, a plaintiff must allege that the failure to supervise or train amounted to deliberate indifference to the plaintiff’s constitutional rights.

Terrell alleged that Gonzalez was aware that Hines was arrested for sexually assaulting a child in 2018 and that Gonzalez does not investigate and/or discipline officers alleged of crimes if they are no-billed by a Grand Jury. To show deliberate indifference, allegations generally must infer a pattern of similar violations. Terrell alleged only one related incident. A single incident may show deliberate indifference only if the highly predictable consequence of a failure to supervise would result in the specific injury suffered. To be “highly predictable,” a result must be “so predictable that” the failure to supervise “amounted to conscious disregard for” the plaintiff’s rights. Terrell does not show that her allegations against Gonzalez satisfy that test. Her supervisory claim was correctly dismissed.

C. Municipal liability

Last, Terrell accuses Harris County of a policy of failure to adopt adequate training. To sustain that claim, she must allege, among other things, the existence of a policy, custom, or practice. A custom or practice is a pattern so persistent and widespread as to practically have the force of law. The plaintiff cannot rely solely on the incident that caused her injury to demonstrate such a pattern. Here, however, Terrell relies only on the incident that allegedly caused her injury. Her municipal liability claim was correctly dismissed.