United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED January 16, 2024 No. 22-11210 Lyle W. Cayce ____________ Clerk

Shandra Hodge, Individually and as the surviving mother of Schaston Hodge and as the administrator of the Estate of Schaston Hodge,

Plaintiff—Appellant,

versus

Joshua Engleman; Robert Litvin,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:21-CV-1916 ______________________________

Before Higginbotham, Smith, and Elrod, Circuit Judges. Jerry E. Smith, Circuit Judge: Officers Engleman and Litvin shot and killed Schaston Hodge after he refused to pull over his vehicle, led the officers on a brief chase back to his home, and exited his car with a gun in his hands. After reviewing the officers’ bodycam footage, the district court granted their motion to dismiss on the ground of qualified immunity (“QI”) even though Hodge did not include that footage in the pleadings. Treating the dismissal as an implicit conversion to summary judgment, we affirm. Case: 22-11210 Document: 00517033741 Page: 2 Date Filed: 01/16/2024

No. 22-11210

I. Driving home, Schaston Hodge stopped at a stop sign and turned left without signaling. Litvin and Engleman attempted to pull Hodge over. Despite the officers’ lights and sirens, Hodge continued driving for several minutes until he reached his house. As Hodge parked in his driveway, Engleman jumped out of the police car and sprinted toward Hodge’s car with his gun drawn, ordering Hodge to show his hands and step out of the car. Hodge exited the car with a gun in his hands and pointed it at Engleman. Engleman fired, shooting Hodge, and dropped to the ground.1 Approaching behind Engleman and seeing him fall to the ground, Litvin also discharged his weapon. All told, Engleman fired eleven times and Litvin eight, hitting Hodge sixteen times. Hodge’s mother, individually and as the administrator of his estate, sued Engleman and Litvin under 42 U.S.C. § 1983 for excessive force and the Texas Department of Public Safety (“TDPS”) and the City of Dallas for failure to train and supervise.2 TDPS moved to dismiss, asserting Eleventh Amendment immunity. The City also moved to dismiss, averring the com- plaint lacked any factual basis for a claim of municipal liability. Finally, Engleman and Litvin moved to dismiss, claiming QI. The district court granted TDPS’s and the City’s motions but delayed ruling on Engleman and Litvin’s motion.3

_____________________ 1 Engleman seems to have dropped to the ground in an attempt to avoid being shot, not because he was shot. It is unclear from the footage whether Hodge ever actually fired his gun, and no party has made any claims either way. Because we resolve all genuine disputes in favor of the nonmoving party at this stage, see infra, we assume that Hodge did not fire. 2 Throughout this opinion, we refer to Schaston Hodge as the plaintiff. 3