Bettina Littell v. Houston Independent Sch , 894 F.3d 616 ( 2018 )

Case: 16-20717 Document: 00514532013 Page: 1 Date Filed: 06/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 16-20717
June 27, 2018
Lyle W. Cayce
Clerk
BETTINA LITTELL, as parent and next friend of I.L., a minor; YVONNE
BENAVIDES, as parent and next friend of A.B., a minor,
Plaintiffs - Appellants
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
During a sixth-grade choir class, an assistant principal allegedly ordered
a mass, suspicionless strip search of the underwear of twenty-two preteen girls.
All agree the search violated the girls’ constitutional rights under Texas and
federal law. Even so, the district court dismissed the girls’ lawsuit against the
school district for failure to state a claim. We reverse.
I
A
For purposes of this appeal, we take as true the amended complaint’s
factual allegations. Those allegations describe how $50 went missing during a
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sixth-grade choir class at Houston’s public Lanier Middle School. Assistant
Principal Verlinda Higgins was brought in to investigate. When no money
turned up, the school police officer “suggested that girls like to hide things in
their bras and panties.” Higgins took all twenty-two girls in the choir class to
the female school nurse, who strip searched them, taking them one at a time
into a bathroom, where she “check[ed] around the waistband of [their] panties,”
loosened their bras, and checked “under their shirts.” The girls “were made to
lift their shirts so they were exposed from the shoulder to the waist.” No par-
ents were notified, despite the girls’ requests. No money was found.
B
The Houston Independent School District allegedly permits its school of-
ficials to conduct invasive searches of students’ persons—but provides no train-
ing as to how to do so legally. Instead, employees are left to rely on the school
district’s written search policy as set forth in three official school district doc-
uments attached to the amended complaint.
The first document, labeled “Legal Policy FNF,” states in abstract terms
the federal legal standard governing student searches. See Safford Unified
Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009); New Jersey v. T.L.O., 469
U.S. 325, 341 (1985). It instructs that searches must be “reasonable,” and that
“[a] search is reasonable if it meets both of the following criteria”:
1. The action is justified at the inception, i.e., the
school official has reasonable grounds for suspecting
that the search will uncover evidence of a rule viola-
tion or a criminal violation.
2. The scope of the search is reasonably related to the
circumstances that justified the search in the first
place, i.e., the measures adopted are reasonably re-
lated to the objectives of the search and are not exces-
sively intrusive in light of the age and sex of the stu-
dent and the nature of the infraction.
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Legal Policy FNF also provides citation to the Fourth Amendment of the U.S.
Constitution, New Jersey v. T.L.O., and a federal district court opinion from
1980 dealing with dog-sniff searches of cars. The document gives no further
explanation or detail, however, as to what its two criteria mean, or how teach-
ers and administrators can tell when they are met. 1
A second document, titled “Regulation FNF2,” sets forth certain imple-
menting procedures. This document provides a simpler—and broader—rule for
deciding when a search is proper:
Students and their personal effects are subject to be-
ing searched by school officials, if a school official has
reasonable cause to believe that the student is in pos-
session of contraband. . . . If a school official has rea-
sonable cause to believe that contraband is present, he
or she may institute a search.
Regulation FNF2 further defines “contraband” as “all substances or materials,
the presence of which are prohibited by Board policy or state law.” And it
briefly attempts to define the legal phrase “reasonable cause.” 2
1 Legal Policy FNF also states that “[s]chool officials may search a student’s outer
clothing, pockets, or property by establishing reasonable cause or securing the student’s vol-
untary consent.” Given the reference to “outer clothing,” this sentence could arguably be read
to prohibit all strip searches, regardless of context. The school district, however, emphatically
rejects that view. At oral argument, for example, the following exchange occurred:
THE COURT: In the policy, where it says “school officials may
search a student’s outer clothing, pockets, or property by estab-
lishing reasonable cause or securing consent,” why doesn’t that
policy explicitly tell these teachers they couldn’t go beyond cloth-
ing, especially if they didn’t have even reasonable cause?
THE SCHOOL DISTRICT: Well, unfortunately, in this day and
age, there needs to be some discretion by school administrators
that would allow those types of searches to maintain the safety
in our schools.
Oral Arg. at 35:44–36:15; see also, e.g., id. at 20:33–20:45 (school district stating its position
that the policy permits searches to go beyond outer clothing and pockets “under certain cir-
cumstances”). For purposes of this appeal, therefore, we do not construe Legal Policy FNF to
categorically prohibit searches of students’ underwear.
2 Regulation FNF2 defines “reasonable cause” as follows:
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The last relevant document is page four of the Student Code of Conduct.
This document purports to “brief[ly] descri[be]” the school district’s legal poli-
cies and regulations. Its summary of the student-search policy is further con-
densed:
School officials are empowered to conduct reasonable
searches of students and school property when there is
reasonable cause to believe that students may be in
possession of drugs, weapons, alcohol, or other materi-
als (“contraband”) in violation of school policy or state
law. Students who bring contraband onto school
grounds may be searched . . . .
Apart from inserting the quoted language into these three documents,
the school district allegedly does nothing to apprise its employees of the stand-
ards that govern whether, when, and how public officials may constitutionally
search a student’s person and/or underwear.
C
In the wake of the mass strip search in this case, the school’s principal
issued a memo admonishing Higgins for “[r]equesting a search of the students’
person[s] for items other than ‘contraband.’” It is unclear why the principal did
not consider stolen money to qualify as “contraband” under Regulation FNF2
and/or the Student Code of Conduct, given that theft is “prohibited by . . . state
law.” Regardless, the supposed lack of “contraband” appears to have been the
principal’s only concern; the memo never criticized the search for invading the
Reasonable cause is the standard for a search on school property
or at school-related events and is based on the school official’s
specific reasonable inferences which he or she is entitled to draw
from the facts in light of the school official’s experience. Specific
reasonable inferences may be drawn from instances including
but not limited to a tip from a reliable student, suspicious behav-
ior that suggests that contra-band is present, a smell indicating
the presence of contraband, or a bulge in a pocket, etc. Reasona-
ble cause should not be based on a mere hunch.
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underwear of twenty-two preteen girls, or for doing so without particularized
suspicion.
The memo likewise made no mention of Legal Policy FNF or Regulation
FNF2. Instead, it instructed Higgins to “follow [the school district’s] policy and
procedures in the Student Code of Conduct,” and to “revisit page 4 of [that
Code] for policy procedures concerning school officials and reasonable search
of students.” The memo further made clear that, at least in the principal’s
mind, such strip searches of students are not per se improper under school dis-
trict policy. Rather than forbidding all strip searches going forward, the memo
requested: “In the future, if you feel a student must have a search requiring a
strip search, please notify me before proceeding.”
D
Two of the girls’ mothers sued the Houston Independent School District
in federal district court on their daughters’ behalves. They asserted claims un-
der 42 U.S.C. § 1983 and the Texas Constitution. As relief, they sought com-
pensatory damages, as well as an injunction requiring the school district to
clarify its search policy and provide at least some Fourth Amendment training.
The school district moved to dismiss the complaint for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). While its motion was pending, the school
district responded to Plaintiffs’ first set of interrogatories, and in doing so pro-
vided copies of the documents described above. See Fed. R. Civ. P. 33(d). The
district court subsequently granted the school district’s motion and dismissed
the complaint without prejudice.
Plaintiffs promptly amended their complaint, this time attaching copies
of the school district’s interrogatory responses and the documents the school
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district had provided. 3 It was not enough. The district court granted the school
district’s renewed motion to dismiss the action under Rule 12(b)(6), while deny-
ing further leave to amend. This appeal followed.
II
We review a district court’s dismissal under Rule 12(b)(6) de novo, “ac-
cepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiffs.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc); see also Leatherman v. Tar-
rant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)
(no heightened pleading standard for municipal § 1983 liability). To survive a
motion to dismiss, a complaint need not contain “detailed factual allegations”;
rather, it need only allege facts sufficient to “state a claim for 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. 544, 555, 570 (2007)). “A claim has facial plau-
sibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct al-
leged.” Id. Significantly, a complaint may proceed even if “recovery is very re-
mote and unlikely,” so long as the alleged facts “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555–56.
III
The central issue on appeal is whether the amended complaint states a
claim for municipal liability against the school district under 42 U.S.C. § 1983.
3 Some of the school district’s interrogatory responses differ from the facts alleged in
the amended complaint. To the extent there are inconsistencies, our factual recitation above
credits the amended complaint. See, e.g., Peña v. City of Rio Grande, 879 F.3d 613, 620 & n.9
(5th Cir. 2018) (explaining that “on a motion to dismiss, [a plaintiff’s] well-pleaded factual
allegations enjoy a presumption of truth,” even if they conflict with factual assertions made
by other persons in documents attached to the amended complaint).
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That statute makes liable “[e]very person” who, under color of state law, vio-
lates federal constitutional rights. For this purpose, municipal entities like the
school district qualify as “persons.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978). But the school district “cannot be held liable under § 1983 on a
respondeat superior theory.” Id. Rather, the school district itself must have
caused the violation. Id.
Thus, to state a § 1983 claim against the school district, the amended
complaint must allege sufficient factual content to permit the reasonable in-
ference (1) that a constitutional violation occurred and (2) that an “official pol-
icy” attributable to the school district’s policymakers (3) “was the moving force”
behind it. See, e.g., Magee, 675 F.3d at 854, 866–67; see also, e.g., Peña v. City
of Rio Grande, 879 F.3d 613, 621 (5th Cir. 2018); Groden v. City of Dallas, 826
F.3d 280, 283–85 (5th Cir. 2016). We address each component in turn.
A
That the alleged facts demonstrate a constitutional violation is presently
undisputed. A brief discussion of why the alleged search was unconstitutional,
however, will nonetheless prove helpful.
To search a student’s person, school officials must generally have rea-
sonable suspicion that the search will reveal evidence of a violation of school
rules or the law. T.L.O., 469 U.S. at 341–42; accord Redding, 557 U.S. at 375;
2 Wayne R. LaFave et al., Criminal Procedure § 3.9(k) (4th ed. updated Dec.
2017). Reasonable suspicion has two dimensions. One is the “knowledge com-
ponent,” which measures the strength of the evidence indicating illicit activity.
Redding, 557 U.S. at 370–71. The second dimension, often called the “nexus”
component, 4 measures the strength of the evidence indicating “that the specific
E.g., United States v. Moore, 805 F.3d 590, 594 (5th Cir. 2015); United States v. Free-
4
man, 685 F.2d 942, 948–49 (5th Cir. 1982).
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‘things’ to be searched for and seized are located on the property [or, in this
context, the person] to which entry is sought.” Zurcher v. Stanford Daily, 436
U.S. 547, 556 (1978); accord Redding, 557 U.S. at 370. Together, these ele-
ments mean that searching a student’s person requires “a moderate chance of
finding evidence of wrongdoing” on the person of that specific student. Red-
ding, 557 U.S. at 371.
When the search is of the student’s underwear, moreover, additional re-
quirements apply. Underwear searches are “embarrassing, frightening, and
humiliating.” Id. at 374–75. “[B]oth subjective and reasonable societal expec-
tations of personal privacy support the treatment of such a search as categori-
cally distinct, requiring distinct elements of justification . . . .” Id. at 374; see
also Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 404 (5th
Cir. 2002) (“Strip searches implicate fundamental Fourth Amendment
rights.”). Thus, the Supreme Court has “ma[d]e it clear” that a search of a stu-
dent’s underwear is impermissibly intrusive unless the school officials reason-
ably suspect either that the object of the search is dangerous, or that it is ac-
tually likely to be hidden in the student’s underwear. Redding, 557 U.S. at 377;
see, e.g., id. at 368, 374–76 (search requiring thirteen-year-old student to “pull[]
her underwear away from her body” held impermissibly intrusive because no
evidence suggested that the “common pain relievers” sought were either dan-
gerous or likely to be found in the girl’s underwear).
Applied here, this clearly established law means that Higgins violated
the constitutional rights of the twenty-two girls unless Higgins reasonably sus-
pected that the missing $50 cash (1) would be found on that particular girl’s
person and either (2) would be found specifically in that girl’s underwear or (3)
would pose a dangerous threat to students. For what are perhaps obvious rea-
sons, the parties do not dispute that the alleged search failed all three condi-
tions. It was clearly unconstitutional.
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B
The parties’ real dispute concerns whether Plaintiffs adequately allege
an “official municipal policy” on which § 1983 liability may rest. See Monell,
436 U.S. at 691. To be clear, the argument is not that the school district’s writ-
ten search policies are facially unconstitutional or that they caused the alleged
constitutional violation by themselves. Rather, the “official municipal policy”
on which Plaintiffs attempt to hang Monell liability is the school district’s al-
leged policy of providing no training whatsoever regarding its employees’ legal
duties not to conduct unreasonable searches. In other words, as currently pre-
sented, this is a “failure to train” case.
1
The Supreme Court established the “failure to train” method of proving
municipal liability in City of Canton v. Harris, 489 U.S. 378, 386–92 (1989).
Under Canton, 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.” Id. at 388. To prove deliberate indifference at trial,
Plaintiffs must show that, “in light of the duties assigned to specific officers or
employees[,] the need for more or different training is so obvious, and the in-
adequacy so likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately indifferent
to the need.” Id. at 390.
Canton envisioned two means of proving deliberate indifference. Some-
times, Canton said, 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. at 390 n.10. This proof-by-pattern method is “ordinarily necessary.” Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997).
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But even absent proof of pattern, deliberate indifference can still be in-
ferred if the factfinder determines that the risk of constitutional violations was
or should have been an “obvious” or “highly predictable consequence” of the
alleged training inadequacy. Id. (construing Canton, 489 U.S. at 390 & n.10);
accord Brown v. Bryan Cty., 219 F.3d 450, 459–61 (5th Cir. 2000) (same); see
also, e.g., Burge v. St. Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003) (“[I]n
a limited set of cases, a plaintiff, unable to show a pattern of constitutional
violations, may establish deliberate indifference by ‘showing a single incident
with proof of the possibility of recurring situations that present an obvious po-
tential for violation of constitutional rights,’” such that “it should have been
apparent to the policymaker that a constitutional violation was the highly pre-
dictable consequence of a particular policy or failure to train.”); Drake v. City
of Haltom, 106 F. App’x 897, 900 (5th Cir. 2004) (reversing grant of motion to
dismiss because “[w]e [were] unwilling to say, at th[e pleading stage], that it is
not obvious that male jailers who receive no training and who are left virtually
unsupervised might abuse female detainees”). Such an inference is possible in
only very narrow circumstances: The municipal entity must have “fail[ed] to
train its employees concerning a clear constitutional duty implicated in recur-
rent situations that a particular employee is certain to face.” Canton, 489 U.S.
at 396 (O’Connor, J., concurring); accord Peña, 879 F.3d at 624 (suggesting
that, without proof of a pattern of constitutional violations, the failure to train
generally must be “complete,” rather than merely deficient in a particular nar-
row respect). 5
5 Because “virtually every” plaintiff alleging municipal liability can propose some
training reform that would have prevented “the particular injury-causing conduct,” Canton,
489 U.S. at 391–92, our caselaw has “generally reserved” the single-incident method of prov-
ing deliberate indifference for cases in which the policymaker provides “no training whatso-
ever” with respect to the relevant constitutional duty, Peña, 879 F.3d at 624, as opposed to
training that is inadequate only as to the particular conduct that gave rise to the plaintiff’s
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Thus, for example, if a city policymaker opts to provide no training what-
soever to police officers concerning the established and recurring constitutional
duty not to use excessive deadly force, a factfinder may reasonably infer that
the city acted with the requisite deliberate indifference. The Supreme Court
explained as much in Canton, by way of hypothetical:
[C]ity policymakers know to a moral certainty that
their police officers will be required to arrest fleeing
felons. The city has armed its officers with firearms, in
part to allow them to accomplish this task. Thus, the
need to train officers in the constitutional limitations
on the use of deadly force, see Tennessee v. Garner, 471
U.S. 1 (1985), can be said to be “so obvious[]” that fail-
ure to do so could properly be characterized as “delib-
erate indifference” to constitutional rights.
489 U.S. at 390 n.10 (majority opinion). “Under those circumstances there is
an obvious need for some form of training.” Connick v. Thompson, 563 U.S. 51,
64 (2011). Otherwise, the Supreme Court has said, there would be “no way for
novice officers to obtain the legal knowledge they require” to conform their be-
havior to their clear and recurring constitutional obligations. Id. at 63–64.
2
Here, the alleged facts, taken together and assumed to be true, permit
the reasonable inference—i.e., the claim has facial plausibility—that the risk
of public officials’ conducting unconstitutional searches was or should have
been a “highly predictable consequence” of the school district’s decision to pro-
vide its staff no training regarding the Constitution’s constraints on searches.
injury, see, e.g., Peterson v. City of Fort Worth, 588 F.3d 838, 849 (5th Cir. 2009) (granting
summary judgment because the city undisputedly provided “extensive training on the use of
force,” even if that training did not specifically address “the risk of injury from knee strikes”).
Accord Connick v. Thompson, 563 U.S. 51, 67 (2011) (rejecting failure-to-train liability based
on a single incident because the alleged training defect was too “nuance[d]”).
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Indeed, Plaintiffs’ allegations mirror Canton’s hypothetical in all material re-
spects.
As in Canton, “[t]he constitutional duty of the individual officer [not to
conduct unreasonable searches] is clear,” with ample “constitutional guide-
posts for municipalities.” 489 U.S. at 396–97 (O’Connor, J., concurring) (con-
struing id. at 390 & n.10 (majority opinion)). Although the Canton hypothetical
concerned the Fourth Amendment’s constraints on seizures, whereas this case
concerns its constraints on searches, “the precise nature” of both types of obli-
gations is sufficiently clear in the law. Id. at 397. Indeed, if anything, it is the
duties with respect to searches that are defined with greater specificity. Stu-
dent searches are governed by defined principles such as the need for individ-
ualized suspicion, the nexus requirement, and the limit on unduly intrusive
means. Excessive force, on the other hand, turns on a totality-of-the-evidence
balancing test that “requires careful attention to the facts and circumstances
of each particular case” and “is not capable of precise definition or mechanical
application.” Graham v. Connor, 490 U.S. 386, 396 (1989). Because excessive-
force law is sufficiently clear to ground failure-to-train liability—as Canton’s
hypothetical makes plain—we hold the same with respect to the law of unrea-
sonable student searches.
Also as in Canton, the constitutional duty not to conduct unreasonable
searches is plausibly alleged to arise “in recurrent situations that a particular
employee is certain to face.” 489 U.S. at 396 (O’Connor, J., concurring) (con-
struing id. at 390 & n.10 (majority opinion)). The alleged facts here fairly imply
that conducting a “search” within the meaning of the Fourth Amendment
(thereby triggering the constitutional duty) is among “the usual and recurring”
tasks that at least some school district employees “must perform.” Id. at 390–
91 (majority opinion). Most notably, the school district expressly vests search
authority in all its “school officials,” and notifies its students that their persons
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“may be searched.” See supra Part I–B. And with respect to Higgins herself,
the alleged fact that she “was brought in . . . to investigate,” supra Part I–A,
coupled with the disciplinary memo’s anticipation that she might order addi-
tional strip searches “[i]n the future,” see supra Part I–C, makes plausible that
the school district expected, or even intended, that Higgins would exercise her
authority to order students searched. These factual allegations must suffice at
the pleading stage to show that the school district knew or should have known
to a high degree of certainty that Higgins and other employees would be placed
in situations requiring knowledge of Fourth Amendment search law.
Like the city in Canton, moreover, the school district cannot rely on its
employees to come pre-equipped with legal knowledge. Just as “[t]here is no
reason to assume police academy applicants are familiar with the constitu-
tional constraints on the use of deadly force,” Connick, 563 U.S. at 64, there is
no reason to expect that school district employees automatically understand
the constitutional constraints on searching a student’s person. After all, public
school officials are generally no better equipped than police officers “to find,
interpret, and apply legal principles.” Id. at 70. To the extent the school district
disagrees with this assessment, of course, it is free to present contrary evidence
at summary judgment or at trial. But at the pleading stage, this unremarkable
conclusion finds adequate support in both “experience and common sense,” Iq-
bal, 556 U.S. at 679, and in the factual allegations that not one of Higgins, the
school police officer, or the nurse realized the search might be unconstitutional,
and that even the school’s principal—who was tasked with disciplining Higgins
for conducting an unlawful search—still failed to diagnose the search’s serious
constitutional defects, compare supra Part I–C, with supra Part III–A. The
amended complaint thus plausibly alleges that, “in the absence of training,
there is no way for [school officials] to obtain the legal knowledge they require.”
Connick, 563 U.S. at 64.
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In these circumstances, the Supreme Court has said, “there is an obvious
need for some form of training.” Id. (emphasis added). But, critically, the school
district here allegedly provides “no training whatsoever” as to how to conduct
a lawful search. Peña, 879 F.3d at 624. This straightforward factual allegation
carries straightforward doctrinal consequences. It means that, for purposes of
resolving the school district’s motion to dismiss, we must assume that this is
not a case in which “an otherwise sound [training] program has occasionally
been negligently administered,” or in which an officer received appropriate
training that she then failed properly to obey. See Canton, 489 U.S. at 391;
Burge, 336 F.3d at 373. Nor do Plaintiffs rely on only a “nuance[d]” flaw in an
existing training regime, or attempt to derive municipal liability from the mere
fact that “additional training would have been helpful.” Connick, 563 U.S. at
67–68; see supra note 5. Instead, we must credit Plaintiffs’ factual allegations
and proceed on the assumption that the school district has made the conscious
choice to take no affirmative steps to instruct any of its employees on the con-
stitutional rules governing student searches—even though at least some of
those employees are regularly called upon to conduct such searches. In short,
this case presents an alleged “complete failure to train” of the kind we have
found actionable. Peña, 879 F.3d at 624. Plaintiffs’ allegations of deliberate
indifference survive a motion to dismiss.
We emphasize, however, that our conclusion in no way ordains Plaintiffs’
ultimate success. Without a pattern of constitutional violations, deliberate in-
difference can be inferred only in narrow and extreme circumstances like those
of Canton’s hypothetical. And in the thirty years since Canton issued, actual
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cases reaching those extremes have proved fortunately rare. 6 Perhaps at sum-
mary judgment or at trial, the evidence in this case, too, will reveal the allega-
tions of deliberate indifference to have been unfounded. The evidence might
show, for example, that no one reasonably expects school officials to conduct
“searches” within the meaning of the Fourth Amendment. Or it might show
that, contrary to Plaintiffs’ allegations, the school district does provide legal
search training to employees who might reasonably be expected to need it.
But if Plaintiffs’ allegations prove true—that is, if the school district
knew or should have known that officials like Higgins would certainly be
placed in situations implicating Fourth Amendment search law; if the school
district knew or should have known that those officials would lack the legal
knowledge necessary to handle those situations; and if the school district none-
theless failed to provide those officials any legal training on the subject—then
the factfinder will be entitled (but not required) to infer that the school district
acted with deliberate indifference to its students’ Fourth Amendment rights.
In such a case, “[t]he likelihood that the situation will recur and the predicta-
bility that an officer lacking specific tools to handle that situation will violate
citizens’ rights c[an] justify a finding that policymakers’ decision not to train
the officer reflected ‘deliberate indifference’ to the obvious consequence of the
policymakers’ choice—namely, a violation of a specific constitutional or statu-
tory right.” Brown, 520 U.S. at 409 (construing Canton, 489 U.S. at 390 & n.10).
6 We count only one published “single incident” failure-to-train case in our circuit in
which the plaintiff prevailed. See Brown, 219 F.3d at 457–65 (upholding jury verdict). But
conversely, we have identified just two published Fifth Circuit decisions dismissing such a
claim on the pleadings. And those cases, unlike this one, did not involve allegations of a “com-
plete failure to train.” Peña, 879 F.3d at 624 (emphasis omitted); accord Culbertson v. Lykos,
790 F.3d 608, 625 (5th Cir. 2015); see also, e.g., Drake, 106 F. App’x at 900 (reversing grant
of motion to dismiss because “[w]e [were] unwilling to say, at th[e pleading stage], that it is
not obvious that male jailers who receive no training and who are left virtually unsupervised
might abuse female detainees”).
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Whether the evidence will bear that out, and whether that inference will prove
persuasive, are factual matters incapable of resolution on a motion to dismiss.
3
The contrary arguments presented to us fail to engage the applicable le-
gal framework. For example, the district court’s analysis turns on its erroneous
assumption that, without a pattern of unconstitutional searches, the school
district could not have been on notice of the need to provide at least some type
of Fourth Amendment training. 7 But in light of Canton, the Fifth Circuit rec-
ognizes an “exception” to the pattern method of proving deliberate indifference
for cases in which “a constitutional violation was the highly predictable conse-
quence” of the alleged failure to train. E.g., Burge, 336 F.3d at 373. The district
court never meaningfully evaluated whether that exception might apply here.
And we conclude above that Plaintiffs plausibly allege it might.
The school district, meanwhile, devotes wide swaths of its brief to assert-
ing the facial constitutionality of its written search policies. Because those pol-
icies correctly state the law, the school district says, unlawful searches could
not have been an “obvious” consequence of enacting them. The first difficulty
with this argument is its premise: in fact, the school district’s written search
7 The district court rejected the allegations of deliberate indifference because, in its
view:
Plaintiffs have failed to demonstrate that [school district] per-
sonnel are recurrently faced with situations so similar to the facts
of the instant case that the need for training would be obvious.
To be more specific, Plaintiffs did not provide the Court with any
prior instances when [school district] officials conducted a search
of this magnitude before the event of the instant case, nor do
they allege there is a pattern of complaints by other citizens. Alt-
hough the strip searches in this case may have been questiona-
ble under the Fourth Amendment, any impropriety of these
searches was not a product of [the written search] policy, and
Plaintiffs have failed to establish a pattern of unconstitutional
behavior that should have led [the school district] to begin train-
ing its employees. (emphases added).
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policies are at best incomplete guides to actual Fourth Amendment law, cap-
turing none of the alleged search’s constitutional defects. Compare supra Part
I–B, with supra Part III–A. Although the policies describe the “knowledge com-
ponent” of the reasonable suspicion standard (i.e., the requisite degree of cer-
tainty that contraband “[be] present”), they make no mention of the require-
ment that there be reasonable suspicion linking the contraband to a particular
student. See, e.g., supra note 2. And the policies are wholly silent with respect
to the additional requirements for strip searches, i.e., that there be reasonable
suspicion that the object of the search will be found specifically in the student’s
underwear or else be dangerous. If anything, the policies say the opposite: they
appear to condone the use of strip searches to locate any “contraband,” defined
as any item possessed in violation of the law or school policy.
But even accepting the school district’s incorrect premise, this argument
is still beside the point. The Supreme Court in Canton “reject[ed] [the] conten-
tion that only unconstitutional policies are actionable under [§ 1983].” 489 U.S.
at 387. Instead, Canton permits municipal liability when “a concededly valid
policy is unconstitutionally applied.” Id (emphases added). In such a case, the
“policy” that grounds municipal liability is the failure to train municipal em-
ployees regarding their constitutional duties, if that failure amounted to delib-
erate indifference and caused the plaintiff’s injury. Id. at 387–88. Plaintiffs
need not also demonstrate the invalidity of the written policies themselves. 8
8 The school district also places heavy reliance on the Eleventh Circuit’s opinion in
Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1173–75 (11th Cir. 2001), cert. granted,
judgment vacated, 536 U.S. 953 (2002), and opinion reinstated, 323 F.3d 950 (11th Cir. 2003).
But, tellingly, that case was decided not at the pleading stage but on a motion for summary
judgment, with an evidentiary record inconsistent with Plaintiffs’ factual allegations here.
See id. at 1162–63, 1173 (affirming grant of summary judgment because “the students have
failed to present sufficient evidence to demonstrate . . . that the District’s employees faced
clear questions of Fourth Amendment law on a recurring basis”); see also Drake, 106 F. App’x
at 900 (reversing the district court for relying on an out-of-circuit single-incident case that
“was decided on a motion for summary judgment, not a motion to dismiss”). In addition,
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Only two portions of the school district’s brief confront the Canton frame-
work. Those portions assert that the risk of unconstitutional searches could
not plausibly have been an “obvious consequence” of providing no Fourth
Amendment training because (1) the missing $50 unambiguously fell outside
the written policies’ definition of “contraband” and (2) Fourth Amendment
caselaw is not “void for vagueness.” The relevance of the first point is unclear,
but it is in any event incorrect. Because Texas law prohibits theft, see Tex.
Penal Code Ann. § 31.03, the reportedly stolen $50 constituted both “materi-
als . . . prohibited by . . . state law” within the meaning of Regulation FNF2,
and “evidence of . . . a criminal violation” within the meaning of Legal Policy
FNF. See supra Part I–B. And the school district’s second point is a non sequi-
tur. Nothing in Canton suggests that a legal doctrine must be “void for vague-
ness” before a municipality’s failure to train its staff to follow it can ground a
failure-to-train theory. Otherwise, there could be no Canton hypothetical. After
all, police officers can always conduct their own research into excessive-force
law, which (one assumes) is not void for vagueness either.
We hold that deliberate indifference is plausibly alleged.
C
Of course, deliberate indifference is not the whole story. Plaintiffs’ “fail-
ure to train” theory will also require proof of causation: “Would the injury have
been avoided had the employee been trained under a program that was not
deficient in the identified respect?” Canton, 489 U.S. at 391. Without stating
its reasoning, the district court held that, even if Plaintiffs adequately allege
deliberate indifference, they still fail to allege causation. We hold otherwise.
Thomas lacks persuasive value to the extent it conflates the “pattern” and “single incident”
methods of proving deliberate indifference. See 261 F.3d at 1173–74 (rejecting single-incident
liability because the plaintiffs failed to adduce evidence of a pattern of unconstitutional
searches). In the Fifth Circuit, we have explained, those two methods are distinct. See, e.g.,
Burge, 336 F.3d at 373.
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Given the relatively egregious nature of the alleged constitutional viola-
tion in this case, see supra Part III–A, we think it plausible that even a modi-
cum of Fourth Amendment training would have alerted Higgins that the
search she ordered was unconstitutional. We also think it plausible that Hig-
gins would not have undertaken the search had she known it was illegal. Thus,
to the extent the amended complaint plausibly alleges deliberate indifference,
it also plausibly alleges causation. We cannot affirm the district court’s alter-
native basis for dismissing Plaintiffs’ federal claims. The order dismissing
those federal claims must, accordingly, be reversed.
IV
In addition to asserting federal claims, Plaintiffs seek injunctive relief
under article 1, section 9 of the Texas Constitution (which prohibits unreason-
able searches). They ask the district court to order the school district to clarify
its search policy and provide minimally adequate search training.
The parties and the district court have implicitly assumed throughout
this litigation that Texas law recognizes an implied cause of action under
which plaintiffs can sue to enjoin municipal policies that cause constitutional
violations (e.g., a policy of failing to train), even if those policies are not them-
selves unconstitutional. Cf. City of Beaumont v. Bouillion, 896 S.W.2d 143,
148–49 (Tex. 1995). Without passing judgment on the matter, we adopt that
assumption for the limited purpose of this appeal. 9
9 Bouillion—the only Texas case cited by the parties or the district court—held that
“there is no implied private right of action for damages arising under the free speech and free
assembly sections of the Texas Constitution,” 896 S.W.2d at 147, but stated that “suits for
equitable remedies for violation of constitutional rights are not prohibited,” id. at 149. This
language does not obviously resolve whether the Texas Constitution contains an implied
right of action to enjoin an inadequate municipal training policy that is not itself unconstitu-
tional, as Plaintiffs seek to do here. (No one has argued that the alleged policy of providing
no training itself violates the Texas Constitution.) Nonetheless, because “appellate courts do
not sit as self-directed boards of legal inquiry and research,” NASA v. Nelson, 562 U.S. 134,
147 n.10 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)),
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Even with that assumption in place, however, the district court dis-
missed Plaintiffs’ Texas-law causes of action for failure to state a claim. It did
so for two independent reasons, both of which were error.
A
First, the district court dismissed the Texas-law claims based on its pre-
vious determination that, under the standards of causation applicable to
§ 1983 suits for municipal liability, “Plaintiffs fail to allege sufficient facts to
indicate that [the school district’s allegedly] deficient training of its employees
was the ‘moving force’ behind the constitutional violations.”
We have already rejected the district court’s conclusion on this point. In
fact, we have held, Plaintiffs do allege sufficient factual content to permit the
reasonable inference that, but for the alleged failure to train, the alleged con-
stitutional violations would not have occurred. See supra Part III–C. And, to
the extent the district court intended to rely on its conclusion that Plaintiffs
fail adequately to allege deliberate indifference, we have rejected that conclu-
sion, too. See supra Part III–B. This stated rationale from the district court
cannot justify dismissing Plaintiffs’ state-law claims.
B
Second, the district court dismissed the Texas-law claims because, in its
view, “what Plaintiffs appear to be asking for is an ‘obey-the-law’ injunction,”
which the district court thought “would be too vague . . . to give a reasonable
person notice” of what it would require. For support, the district court cited
Rule 65(d) of the Federal Rules of Civil Procedure, which defines the required
scope and content of district court injunctions. Under Rule 65(d), “[a] general
especially when it comes to delicate questions of state law, we decline to address in the first
instance this nonjurisdictional issue that neither party raises. We instead join the parties
and the district court and assume without deciding that a “failure to train” lawsuit is cog-
nizable under the implied private right of action to enforce the Texas Bill of Rights.
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injunction which in essence orders a defendant to obey the law is not permit-
ted.” Meyer v. Brown & Root Const. Co., 661 F.2d 369, 373 (5th Cir. 1981).
We reverse this determination. As an initial matter, it is far from clear
that Rule 65(d) can ever justify dismissing a cause of action at the pleading
stage. Rule 65(d) governs the scope and content of injunctions; it does not pur-
port to set a pleading standard. Neither the district court nor the school district
cites any case suggesting that a complaint’s failure to propose sufficiently spe-
cific injunction language is grounds for a Rule 12(b)(6) dismissal. 10
To the extent Rule 65(d) can theoretically justify a pleading-stage dis-
missal, moreover, we expect that it can do so only if there is no conceivable way
to frame the requested relief in adequately specific terms. That is not the case
10 We find opinions from numerous district courts that address this issue, the majority
of which agree that Rule 65(d) usually does not justify dismissal of a complaint. See SEC. v.
Couch, No. 3:14-CV-1747-D, 2014 WL 7404127, at *8 (N.D. Tex. Dec. 31, 2014) (refusing to
dismiss a request for injunctive relief “based only on the allegations of the complaint” just
because the request could be considered an “obey the law injunction” in “violat[ion] of Rule
65(d)(1)’s specificity requirements”); City of New York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D.
296, 353–54 (E.D.N.Y. 2007) (“[A] motion for failure to state a claim properly addresses the
cause of action alleged, not the remedy sought. It is the court that will craft any remedy. Only
when that remedy has been determined may defendants contest its application on grounds
of vagueness or some other violation of Rule 65(d) . . . .”); Goodman v. Donald, No. CIVA
CV699012, 2007 WL 2164535, at *9 (S.D. Ga. July 24, 2007) (“Defendants contend Plaintiff’s
requests for injunctive relief should be dismissed because they are vague based, in part, on
Rule 65(d) . . . . It is clear Rule 65(d) is not implicated at this point in the litigation. This
portion of Defendants’ Motion to Dismiss is denied.”); Dasrath v. Cont’l Airlines, Inc., 228 F.
Supp. 2d 531, 546 (D.N.J. 2002) (noting that while “an injunction might very well be imper-
missible under Rule 65(d)[,] . . . the specificity requirements of that rule are not applicable in
assessing an attack on the complaint” (citing 11A Wright & Miller, Federal Practice and Pro-
cedure 2d § 2955 (1995))); W. Colo. Fruit Growers Ass’n, Inc. v. Marshall, 473 F. Supp. 693,
699–700 (D. Colo. 1979) (agreeing that the requested injunction might violate Rule 65(d) but
explaining that “[t]he equitable nature of injunctive relief . . . renders such claims particu-
larly unsuited for disposition in a motion to dismiss”); U.S. ex rel. Clark v. Ga. Power Co., 301
F. Supp. 538, 543 (N.D. Ga. 1969) (“Rule 65(d), as indicated by its title, refers to the form of
an injunction or a restraining order, and is silent as to the specificity required in the com-
plaint’s request for injunction.”). But see In re Xerox Corp. ERISA Litig., No. CIV.
3:02CV01138 AWT, 2008 WL 918539, at *7 (D. Conn. Mar. 31, 2008); In re Xerox Corp. ERISA
Litig., 483 F. Supp. 2d 206, 221 (D. Conn. 2007).
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here. Far from merely requesting that the school district be enjoined from vio-
lating the Fourth Amendment, the amended complaint seeks, in its words,
injunctive relief . . . prohibiting the use of strip
searches of students at [Houston Independent School
District] schools unless and until:
(1) The [written] Student Search Policy is clearly de-
fined; including who can be searched, under what cir-
cumstances a student can be subjected to a search,
what can be searched for, when a search is reasonable,
and the procedures for implementing said search;
(2) A procedure for implementing a search of a stu-
dent’s person is clearly documented, including but not
limited to proper ways to obtain consent, who is to be
notified and when they are to be notified that a search
is occurring; and
(3) [The school district] implements a training pro-
gram for all employees so that student’s Constitu-
tional Rights are protected.
It is not difficult to imagine reforms to the school district’s allegedly nonexist-
ent Fourth Amendment training program that the district court could conceiv-
ably order without running afoul of Rule 65(d). To take some easy examples:
the district court might order that the written policy be modified to mention
the “nexus” requirement, see Zurcher, 436 U.S. at 556; supra Part III–A; or it
might order that some type of in-person training occur at least once for certain
classes of employees. The district court’s characterization of Plaintiffs’ re-
quested relief as a mere “obey-the-law” injunction is incorrect.
This is not to say that the language in the amended complaint would
pass muster if copied verbatim into an injunction. In the event that Plaintiffs
demonstrate their entitlement to such an order (presumably after a trial),
there will be opportunity for the parties and the court to resolve which partic-
ular requirements are justified by the established facts. But at the pleading
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stage, the rule that injunctions must do more than “order the defendant to obey
the law” cannot justify the dismissal the district court entered here.
V
The district court’s judgment is reversed. This case is remanded for fur-
ther proceedings consistent with this opinion.
23