Dallas Fire Prevails in Civil Rights Suit Brought by Homeless Man

A lawsuit filed by a homeless man who was assaulted by a Dallas firefighter in 2019, as been dismissed by a federal court. However, after explaining the complex allegations in depth, the court granted the man an opportunity to replead his case.

The suit was brought by Kyle Vess against the City of Dallas and firefighter Brad Cox. It was brought as a civil rights lawsuit under 42 USC § 1983. Here is earlier coverage of the case that resulted in Cox being terminated.

Here are the facts as explained in the decision:

  • In August 2019 Cox and other DFD personnel were called to extinguish a grass fire.
  • When Cox and other DFD personnel arrived, Vess, who is mentally ill, was walking near the fire.
  • Due to Vess’s proximity to the fire, Cox thought Vess was responsible for starting it.
  • Cox and other DFD personnel attempted to detain Vess.
  • Meanwhile, other DFD personnel called the Dallas Police Department for assistance.
  • To detain Vess, Cox confronted him.
  • Something provoked Vess, however, and he errantly swung at Cox, who swung back at Vess and hit him.
  • According to the first amended complaint, Cox then physically beat Vess “senselessly” and subdued him.
  • After Vess was subdued, Cox continued to beat him, kicking Vess six times while he was on the ground.
  • It was necessary for another firefighter to restrain Cox.
  • According to the amended complaint, however, Cox was not finished.
  • DPD officers eventually arrived and found Vess lying on his back on the ground.
  • These officers, along with Cox and a group of other firefighters, surrounded Vess as he continued to lie on the ground.
  • Cox taunted Vess and told him to “[g]et up again, get up again.”
  • When Vess lifted his head off the ground, Cox kicked him in the right side of his head with a steel-toed boot.
  • Vess was initially knocked to the ground, but then stood up in a “fight or flight” response to confront Cox.
  • But before Vess could do this, another officer incapacitated him with a taser. Vess suffered “a fractured orbital socket on his face, a fractured sinus, cracked teeth, and . . . facial paralysis on the right side of his face.”
  • He also suffered an exacerbation of a prior brain injury.
  • According to the amended complaint, although the City knows that DFD personnel will be placed in potentially “physical encounters,” it does not provide them de-escalation or use-of-force training.
  • Rather, DFD policies require that firefighters and paramedics do not respond immediately to violent calls, but instead wait for DPD officers to arrive first, and only then respond.
  • According to the amended complaint, the City attempted to avoid disciplining Cox for his encounter with Vess.
  • DFD did not conduct an internal affairs investigation, and the Dallas Public Integrity Unit cleared Cox of any wrongdoing.
  • Both entities “worked to ensure that no further or deeper investigation was done,” because both had a practice of concealing internal disciplinary measures from the public.
  • The office of the Dallas County District Attorney did not pursue an indictment of Cox; it later “indicated remorse” for not having done so; and it “admitted that a thorough investigation was not undertaken.”
  • Vess alleges that Cox’s physical encounter with him was not an isolated incident.
  • According to the amended complaint, Cox was arrested in 2002 for suspected assault at a birthday party; was reprimanded three times for refusing to provide medical treatment to patients; was counseled in writing in 2011 for “unacceptable conduct” related to a patient; pleaded guilty to falsifying a government report; and is currently being sued in a case where he allegedly laughed at, and refused to provide care to, a homeless man, who ultimately died.
  • After Vess filed his complaint, the City moved to dismiss.

At the center of Vess’ 42 USC § 1983 allegations is that the city is liable because it was “deliberate indifferent” to Cox’s violent behavior that led to the civil rights violation. The city countered is that deliberate indifference must be in relation to a city policy, not a random act of a city employee that itself violates city policy. The court agreed with the city, reasoning as follows:

  • The City contends that Vess has failed to plausibly plead the first element of a municipal liability claim because he has not plausibly alleged either an unconstitutional written policy or an unconstitutional custom.
  • The City posits that, to the contrary, Vess alleges that Cox broke City policy.
  • Moreover, the City maintains that, so far as Vess alleges a failure-to-train theory, he has failed to plausibly plead deliberate indifference through either “proof-by-pattern” or evidence that the risk of a constitutional violation was “so obvious.”
  • Vess responds that he has plausibly alleged a variety of policies and customs and that the City’s motion to dismiss only reasonably challenges his failure-to-train theory.
  • Vess contends that his allegations establish that the City’s policies were the “moving force” behind his injuries.
  • Although a municipality cannot be held liable [for a civil rights violation] simply on a theory of respondeat superior, it can be held liable if a deprivation of a constitutional right is inflicted pursuant to an official policy or custom.
  • The first policy element “includes the decisions of a government’s law-makers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”
  • Vess has failed to allege facts that enable the court to draw the reasonable inference that the City has a policy “of inaction and an attitude of indifference towards providing medical treatment for mentally ill persons and homeless people in order to get them off the streets.”
  • Vess does not appear to assert that the City has a “formal written policy or custom” of inaction or indifference toward medical care for the homeless or mentally ill; rather, he appears to assert that this policy is a custom or practice “so persistent and widespread as to practically have the force of law.”
  • But Vess has failed to plausibly plead a custom or practice that is “persistent and widespread.”
  • “A mere allegation that a custom or policy exists, without any factual assertions to support such a claim, is no more than a formulaic recitation of the elements of a § 1983 claim and is insufficient to state a claim for relief.”
  • Vess only alleges one isolated incident of any DFD or other City employee’s displaying inaction or indifference toward a mentally ill or homeless person.
  • He alleges that Cox refused to treat a homeless man.
  • This single allegation of misconduct—”in a city the size of Dallas,” over the course of what appears to be several years—is insufficient to enable the court to draw the reasonable inference that there was a custom or practice “so persistent and widespread as to practically have the force of law” that violated Vess’s constitutional rights.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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