Clayton v. Columbia Casualty Company et al

Filing 25

ORDER AND REASONS granting in part, denying in part 9 MOTION to Dismiss for Failure to State a Claim Or in the Alternative, Motion for Rule 7 Reply filed by Columbia Casualty Company, Willie Graves, David Johnson. FURTHER ORDERED that plain tiffs' 1983 claims against Sheriff Graves are DISMISSED WITH PREJUDICE to the extent they rely on a theory of respondeat superior. FURTHER ORDERED that plaintiffs' 1983 claims against Sheriff Graves for denial of access to the courts are DI SMISSED WITH PREJUDICE. FURTHER ORDERED that plaintiffs will file a Rule 7 reply by Monday, 7/30/2012, tailored to Sheriff Graves' defense of qualified immunity with respect to the allegations that he acted with deliberate indifference when hiri ng, training, and supervising Deputy Johnson. FURTHER ORDERED that plaintiffs will file an amended complaint, if they can do so, with respect to their claims against Sheriff Graves in his official capacity by Tuesday, 7/24/2012. FURTHER ORDERED that plaintiffs' 1983 claims for punitive damages against Sheriff Graves in his official capacity are DISMISSED WITH PREJUDICE. FURTHER ORDERED that the motion to dismiss is DENIED in all other respects. Signed by Judge Lance M. Africk on 7/17/2012. (BLG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DEIDRA CLAYTON, ET AL.

CIVIL ACTION

VERSUS

No. 11-845

COLUMBIA CASUALTY COMPANY, ET
AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 to dismiss or, in the alternative, for a Rule 7 reply filed by
defendants, Columbia Casualty Company, David Johnson, and Willie Graves. Plaintiffs, Deidra
Clayton and Angela Burke, oppose the motion.2 For the following reasons, the motion to dismiss
is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs allege that a Livingston Parish sheriff’s deputy believed to be David Johnson
(“Deputy Johnson”) shot and killed Jonathan Clayton (“Clayton”) on April 4, 2011, without
justification while responding to a 9-1-1 phone call reporting a domestic dispute between
Clayton and his girlfriend.3 According to the complaint, Deputy Johnson arrived at the scene
and told Clayton to come out of his house.4 Clayton left his home and walked toward Deputy
Johnson.5 When Clayton did not get on the ground as ordered, Deputy Johnson shot and killed

1

R. Doc. No. 9.

2

R. Doc. No. 15.

3

R. Doc. No. 1.

4

Id. at ¶ 11.

5

Id. at ¶ 12.

1

him.6 Although Deputy Johnson later reported that Clayton had a knife, plaintiffs allege that
Clayton was unarmed when Deputy Johnson shot him.7

Plaintiffs allege that when they

attempted to learn the identity of the deputy involved, Sheriff Willie Graves (“Sheriff Graves”)
refused to release the name of the officer unless they agreed not to file a lawsuit.8
On December 20, 2011, plaintiffs filed this lawsuit asserting claims under 42 U.S.C. §
1983, et seq. for violations of the United States Constitution and Louisiana state law.9 Plaintiffs
allege that to the extent any use of force was justified in this case, Deputy Johnson acted
unreasonably, negligently, maliciously, and recklessly by killing Clayton without attempting to
use a non-lethal method of restraint, such as pepper spray, taser, pepperball, or another less-thanlethal instrument.10

Plaintiffs further allege that Johnson was neither equipped with such

instruments nor trained or qualified in their use.11 Plaintiffs claim that Sheriff Graves is liable
under the doctrine of respondeat superior for Johnson’s actions, for failing to perform an
adequate pre-employment screening and assessment of Deputy Johnson, and for failing to ensure
that Johnson was properly trained and equipped.12 Plaintiffs also claim that Sheriff Graves is
liable for intentional or negligent misrepresentation, impairment of a civil action, or other fault

6

Id. at ¶¶ 13-14.

7

Id. at ¶¶ 15-17.

8

Id. at ¶¶ 21-23.

9

Id. at ¶ 2.

10

Id. at ¶ 18.

11

Id. at ¶ 19.

12

Id. at ¶¶ 27-29.

2

encompassed by his failure to disclose and active concealment of Deputy Johnson’s identity
following the incident.13
Defendants contend that the complaint fails to adequately state a cause of action against
Deputy Johnson or Sheriff Graves and that plaintiffs have failed to meet their heightened
pleading requirement with respect to the defense of qualified immunity.14 Defendants contend
that if the complaint is not subject to dismissal, plaintiffs should be ordered to file a reply
tailored to their defense of qualified immunity pursuant to Rule 7(a) and that the Court limit
discovery to issues of qualified immunity only.15
STANDARD OF LAW
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon
which relief can be granted if the plaintiff has not set forth a factual allegation in support of his
claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964-65, 167 L. Ed. 2d 929 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).
As the Fifth Circuit explained in Gonzalez v. Kay:
“Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court recently
expounded upon the Twombly standard, explaining that “[t]o survive a
motion to dismiss, 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, --- U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955, 167 L.Ed.2d
929). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. It follows that “where
the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not
13

Id. at ¶ 30.

14

Id.

15

Id.

3

‘show[n]'-‘that the pleader is entitled to relief.’” Id. at 1950 (quoting
Fed.R.Civ.P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine
whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must
accept all well-pleaded facts as true and liberally construe all factual allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997). “Dismissal is appropriate when the complaint ‘on its face show[s] a bar
to relief.’” Cutrer v. McMillan, 308 Fed. Appx. 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
DISCUSSION
I. Individual Capacity Claims
A. Qualified Immunity
Defendants filed this motion to dismiss asserting the defense of qualified immunity
against plaintiffs’ § 1983 claims. In Harlow v. Fitzgerald, the United States Supreme Court
established the principle that “government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). “When a defendant invokes
qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of the
defense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing McClendon v.
City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)).

4

A claim of qualified immunity requires the Court to engage in the well-established twostep analysis developed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808, 172 L. Ed. 2d 565 (2009). See Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir.
2009). As stated by the Fifth Circuit in the context of a motion for summary judgment:
First, we determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant
violated the plaintiff's constitutional rights. See, e.g., Tarver v. City
of Edna, 410 F.3d 745, 750 (5th Cir. 2005); McClendon v. City of
Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002) (en banc); Glenn
v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). If not, our
analysis ends. If so, we next consider whether the defendant's
actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. See, e.g.,
Tarver, 410 F.3d at 750; Glenn, 242 F.3d at 312. To make this
determination, the court applies an objective standard based on the
viewpoint of a reasonable official in light of the information then
available to the defendant and the law that was clearly established
at the time of the defendant's actions. See Glenn, 242 F.3d at 312;
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000); see also Tarver, 410 F.3d at 750 (“If officers of reasonable
competence could disagree as to whether the plaintiff’s rights were
violated, the officer's qualified immunity remains intact.”).
Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007).
When the defense of qualified immunity issue is raised in a motion filed pursuant to Rule
12(b)(6), “it is the defendant’s conduct as alleged in the complaint that is scrutinized for
‘objective legal reasonableness.” McClendon, 305 F.3d at 323 (quoting Behrens v. Pelletier, 516
U.S. 299, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)) (emphasis in original). The plaintiff must
support his claim with “sufficient precision and factual specificity to raise a genuine issue as to
the illegality of defendant’s conduct at the time of the alleged acts.” Schultea v. Wood, 47 F.3d
1427, 1434 (5th Cir. 1995) (en banc). When greater detail is required to address the defense of
qualified immunity, the Court may insist that a plaintiff file a reply pursuant to Federal Rule of
5

Civil Procedure 7(a) tailored to an answer pleading the defense of qualified immunity. Id. at
1433-34. “The district court need not allow any discovery unless it finds that plaintiff has
supported his claim with sufficient precision and factual specificity to raise a genuine issue as to
the illegality of defendant’s conduct at the time of the alleged acts.” Id.
B. Deputy Johnson
Deputy Johnson contends that plaintiffs have failed to allege facts sufficient to overcome
his invocation of qualified immunity. Plaintiffs’ claims against Deputy Johnson stem from their
allegation that Deputy Johnson shot and killed Clayton unreasonably, without sufficient
justification, and without first attempting to use non-lethal force. Deputy Johnson contends that
plaintiffs have not provided enough specificity in their pleadings to show that Deputy Johnson
did not believe, or was unreasonable in believing, that Clayton posed a threat to himself or
others. Deputy Johnson argues that if such claims are not dismissed, plaintiffs should be ordered
to file a reply tailored to defendants’ pleading of qualified immunity and that the Court should
limit discovery to that issue alone.
The Court must “make two ‘overlapping objective reasonableness inquiries’ ” when
conducting the qualified immunity analysis in excessive force cases. Sanchez v. Fraley, No. 0950821, 2010 WL 1752123, at *2, (5th Cir. Apr. 30, 2010) (unpublished) (quoting Lytle, 560
F.3d at 410). As stated by the Fifth Circuit,
Allegations that an officer used excessive force in conducting a
seizure complicates the Saucier inquiry. This complexity stems
from having to make two “overlapping objective reasonableness
inquir[ies].” Id. at 210, 121 S. Ct. 2151 (Ginsburg, J., concurring in
the judgment). We must first answer the constitutional violation
question by determining whether the officer’s conduct met the
Fourth Amendment's reasonableness requirement, as discussed
below. If we find that the officer’s conduct was not reasonable
under the Fourth Amendment, we must then answer the qualified
immunity question by determining whether the law was
6

sufficiently clear that a reasonable officer would have known that
his conduct violated the constitution. In other words, at this second
step, we must ask the somewhat convoluted question of whether
the law lacked such clarity that it would be reasonable for an
officer to erroneously believe that his conduct was reasonable.
Despite any seeming similarity between these two questions, they
are distinct inquiries under Saucier, and we must conduct them
both.
Lytle, 560 F.3d at 410.
The Court must first determine whether plaintiffs have sufficiently alleged that Deputy
Johnson’s conduct violated the Fourth Amendment.

To state an excessive force claim, the

plaintiff must establish that he suffered “(1) an injury that (2) resulted directly and only from the
use of force that was excessive to the need and that (3) the force used was objectively
unreasonable.” Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (citing Flores v. City of
Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). “Assessing the reasonableness of a police officer’s
use of force involves ‘a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.’ ” Lytle, 560 F.3d at 411 (quoting Graham, 490 U.S. at 396) (internal quotation omitted).
Some of the factors the Court considers are “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Deville v. Marcantel, 567 F.3d
156, 167 (5th Cir. 2009) (quoting Graham, 490 U.S. at 396).
The Supreme Court has made clear that an officer’s actions are judged under an objective
standard that does not take into account an officer’s subjective intent. Graham, 490 U.S. at 397.
Government officers are also entitled to deference:
The “reasonableness” of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight . . . . The calculus of
7

reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about
the amount of force that is necessary in a particular situation.
Id. at 397. However, the “objective reasonableness” balancing test is “constrained” when an
officer uses deadly force. Sanchez, 2010 WL 1752123, at *2 (quoting Flores, 381 F.3d at 399).
“It is objectively unreasonable to use deadly force ‘unless it is necessary to prevent a suspect’s
escape and the officer has probable cause to believe that the suspect poses a significant threat of
death or serious physical injury to the officer or others.’ ” Id. (quoting Garner, 471 U.S. at 3)
(“Where the suspect poses no immediate threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the use of deadly force to do so . . . . A
police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”).
In this case, plaintiffs allege that Deputy Johnson arrived at Clayton’s home and ordered
him to come out of his house. Plaintiffs claim that Clayton left his home and walked toward
Deputy Johnson. When Clayton did not get on the ground as ordered, Deputy Johnson shot and
killed him. While Deputy Johnson argues that he is entitled to qualified immunity because he
believed Clayton had a knife, the allegations in the complaint provide facts that directly
contradict the facts Deputy Johnson relies upon for his defense. Taking the facts alleged in the
complaint as true, the allegation that Deputy Johnson shot an unarmed man for refusing to get on
the ground sufficiently states a claim that Deputy Johnson’s conduct was objectively
unreasonable under the first prong of the Saucier inquiry.
The Court must next consider whether a reasonable officer would have known that the
alleged conduct was unlawful in light of clearly established law. “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533
8

U.S. at 202. “[T]he central concept is that of fair warning: The law can be clearly established
despite notable factual distinctions between the precedents relied on and the cases then before the
Court, so long as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Lytle, 560 F.3d at 417 (quoting Kinney v. Weaver, 367 F.3d 337,
350 (5th Cir.2004) (en banc) (internal quotations omitted).

“Thus, while the right to be free

from excessive force is clearly established in a general sense, the right to be free from the degree
of force employed in a particular situation may not have been clear to a reasonable officer at the
scene.” Lytle, 560 F.3d at 417 (quoting Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
It is clearly established that use of deadly force is unreasonable unless an officer has
“probable cause to believe that the suspect pose[es] a threat of serious harm to the officer or to
others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). The
allegations in this case are that Deputy Johnson shot an unarmed man for refusing to get on the
ground. Because it is clearly established that use of deadly force is unreasonable unless Deputy
Johnson had probable cause to believe that Clayton posed a serious threat of harm, plaintiffs
have sufficiently alleged that Deputy Johnson’s conduct was objectively unreasonable in light of
clearly established law under the second prong of the Saucier inquiry. See, e.g., Lytle, 560 F.3d
at 410-18; Reyes v. Bridgwater, No. 09-10076, 2010 WL 271422, at *3-*5 (5th Cir. Jan 22,
2010) (unpublished); Flores, 381 F.3d at 397-402; Sanchez, 2010 WL 1752123, at *1-*4; Brown
v. Officer Doe, No. 98-99, 1999 WL 1243057, at *4 (E.D. La. Dec. 21, 1999) (Clement, J.).
Accordingly, the motion to dismiss plaintiffs’ § 1983 claims against Deputy Johnson fails.
C. Sheriff Graves
1. Vicarious Liability

9

Sheriff Graves argues that plaintiffs cannot maintain a claim against him on the basis of
respondeat superior and that all of plaintiffs’ claims based on vicarious liability must be
dismissed.

Paragraph 27 of the complaint states as follows:
Defendant Graves is liable unto Complainant Deidra Clayton,
individually and on behalf of her deceased son Jonathan Clayton,
under the doctrine of respondeat superior for Johnson’s (a)
excessive and unreasonable use of deadly force, (b) battery, (c)
assault, (d) intentional infliction of emotional distress, fright, and
outrage, (e) cruel treatment, (f) failing to provide adequate or
timely medical attention, (g) violation of the Constitution and other
laws of the United States and of the State of Louisiana, and (h)
deliberate indifference to the rights, safety, and dignity of Jonathan
Clayton.

Plaintiffs have recognized that Sheriff Graves may not be held liable under section 1983 for the
unconstitutional conduct of his subordinates under a theory of respondeat superior. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Although
vicarious liability may be actionable under Louisiana state law,16 to the extent plaintiffs have
attempted to make such a claim based on “violation[s] of the Constitution and other laws of the
United States,” the motion to dismiss has merit.
2. Inadequate Hiring, Training, and Supervision
Sheriff Graves also argues that plaintiffs failed to state a claim against him for the
inadequate hiring, training, and supervision of Deputy Johnson. Plaintiffs claim that Sheriff
Graves is liable for performing an inadequate and reckless pre-employment screening and
assessment of Deputy Johnson. After employing Deputy Johnson, plaintiffs allege that Sheriff
Graves failed to ensure that Deputy Johnson was properly trained and equipped. Plaintiffs allege
that Deputy Johnson was neither trained nor equipped with less-than-lethal equipment such as
pepper spray, tasers, pepper balls, or other methods of restraint. Plaintiffs contend that such
16

Defendants did not challenge plaintiffs’ state law claim in their motion to dismiss.

10

conduct amounts to deliberate indifference with respect to the hiring, training, and supervision of
Deputy Johnson.

Sheriff Graves responds that that the allegations are not sufficient to state a

claim upon which relief can be granted and cannot overcome his defense of qualified immunity.
The Fifth Circuit has held that “[a] sheriff not personally involved in the acts that
deprived the plaintiff of his constitutional rights is liable under section 1983 if: 1) the sheriff
failed to train or supervise the officers involved; 2) there is a causal connection between the
alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and 3) the
failure to train or supervise constituted deliberate indifference to the plaintiff’s constitutional
rights.” Thompson v. Upshur Cnty., TX, 245 F.3d 447, 459 (5th Cir. 2001); Estate of Davis v.
City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). With respect to the third prong, the
Fifth Circuit has explained,
Deliberate indifference is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious
consequence of his action. For an official to act with deliberate
indifference, the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.
Deliberate
indifference requires a showing of more than negligence or even
gross negligence. Actions and decisions by officials that are
merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference and do not divest officials of qualified
immunity. To satisfy the deliberate indifference prong, a plaintiff
usually must demonstrate a pattern of violations and that the
inadequacy of the training is obvious and obviously likely to result
in a constitutional violation. It may happen that in light of the
duties assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, a supervisor might
reasonably be found to be deliberately indifferent . . . .
We have stressed that a single incident is usually insufficient to
demonstrate deliberate indifference. In Cousin v. Small, for
example, we held that to succeed on his claim of failure to train or
supervise the plaintiff must demonstrate deliberate indifference,
which usually requires a plaintiff to demonstrate a pattern of
11

violations. Similarly, in Snyder v. Trepagnier, we held that “proof
of a single violent incident ordinarily is insufficient” for liability.
Rather, the plaintiff must demonstrate at least a pattern of similar
incidents in which the citizens were injured. Moreover, a showing
of deliberate indifference requires that the Plaintiffs show that the
failure to train reflects a “deliberate” or “conscious” choice to
endanger constitutional rights.
Prior indications cannot simply be for any and all “bad” or unwise
acts, but rather must point to the specific violation in question.
That is, notice of a pattern of similar violations is required. While
the specificity required should not be exaggerated, our cases
require that the prior acts be fairly similar to what ultimately
transpired and, in the case of excessive use of force, that the prior
act have involved injury to a third party.17
Estate of Davis, 406 F.3d 381-83 (quotations, footnotes, and citations omitted).
Plaintiffs have the burden of pleading their claims with sufficient precision and factual
specificity to raise a genuine issue as to the illegality of Sheriff Graves’ conduct at the time of
the alleged acts. While the Fifth Circuit has acknowledged that a plaintiff is not required to
“plead facts ‘peculiarly within the knowledge of defendants,’ ” Morgan v. Hubert, No. 0830388, 2009 WL 1884605, at *5 (5th Cir. July 1, 2009) (unpublished) (quoting Schultea, 47 F.3d
at 1432), it has cautioned that in order to permit discovery on a plaintiff’s claim against a
supervisory official, “the pleadings must have sufficient precision and factual detail to reveal that
more than guesswork is behind the allegation.” Floyd v. City of Kenner, No. 08-306378, 2009
WL 3490278, at *6-*9 (5th Cir. Oct 29, 2009) (unpublished) (citing Schultea, 47 F.3d at 1434)
17

“Claims of inadequate supervision and claims of inadequate training both generally require that the plaintiff
demonstrate a pattern.” Estate of Davis, 406 F.3d at 383 n.7. However, the Supreme Court has recognized that “in
some instances there might be a relevant distinction between cases involving inadequate hiring and cases involving
failure to supervise or train.” Id. (emphasis in original) (citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 410, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (cautioning against wholly importing the reasoning of
training cases into the hiring context and noting that “[u]nlike the risk from a particular glaring omission in a
training regimen, the risk from a single instance of inadequate screening of an applicant’s background is not
‘obvious’ in the abstract; rather it depends upon the background of the applicant”). The Supreme Court has held that
“[o]nly where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that
the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's
federally protected right can the official's failure to adequately scrutinize the applicant's background constitute
“deliberate indifference.” Brown, 520 U.S. at 411.

12

(distinguishing Morgan and holding that allegations amounting to nothing more than speculation
with respect to a supervisory official’s participation in a constitutional violation did not “fall[]
squarely within the kind of case justifying limited discovery . . . .”). As stated by the Fifth
Circuit:
There has to be more underlying a complaint than a hope that
events happened in a certain way. Instead, in the short and plain
claim against a public official, a plaintiff must at least chart a
factual path to the defeat of the defendant’s immunity, free of
conclusion. Once that path has been charted with something more
than conclusory statements, limited discovery might be allowed to
fill in the remaining detail necessary to comply with Schultea.
Floyd, 2009 WL 3490278, at *8 (internal citations and quotations omitted); see also Iqbal, 129
S. Ct. at 1950-51; Schultea, 47 F.3d at 1430.
In this case, plaintiffs have failed to set forth facts showing that Sheriff Graves was
deliberately indifferent with respect to the hiring, training or supervision of Deputy Johnson.
The complaint sets forth conclusory allegations of supervisory liability supported only by an
inference that Sheriff Graves might be responsible for Deputy Johnson’s actions. While the
Court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of
plaintiffs, the bare assertion that supervisory deficiencies caused Clayton’s death is not supported
by any factual assertions showing that such supervisory deficiencies existed. Plaintiffs have
noticeably failed to allege a pattern of similar incidents involving Sheriff Graves’ subordinates
establishing that his alleged failure to screen, train, and supervise Deputy Johnson reflected a
“deliberate” or “conscious” choice to endanger constitutional rights. Without factual allegations
“chart[ing] a factual path to the defeat of the defendant’s immunity,” plaintiffs are unable to
“nudge[] [their] claims . . . across the line from conceivable to plausible.” Floyd, 2009 WL
3490278, at *8 (quoting Schultea, 47 F.3d at 1430; Iqbal, 129 S. Ct. at 1950-51). Accordingly,

13

the Court finds that Sheriff Graves is entitled to a Rule 7 reply tailored to his invocation of
qualified immunity.
3. Concealment of Deputy Johnson’s Identity
Sheriff Graves contends that plaintiffs cannot overcome his invocation of qualified
immunity with respect to their allegations that he concealed Deputy Johnson’s identity.
Plaintiffs allege that they suffered severe emotional distress when Sheriff Greaves refused to
disclose Deputy Johnson’s identity after the shooting. They allege that Deidra Clayton, through
counsel, sought the identity of the officer responsible for the shooting, but were told that his
identity would be disclosed only if Ms. Clayton promised not to file a lawsuit. Plaintiffs contend
that such conduct violated their constitutional right of access to the courts. Sheriff Graves argues
that plaintiffs’ claim must be dismissed because they cannot show that his alleged conduct
amounted to a violation of their constitutional rights.
The Supreme Court has recognized two general categories of denial of access to the
courts claims. Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 2185, 153 L. Ed. 2d 413
(2002). The first category involves claims “that systematic official action frustrates a plaintiff or
plaintiff class in preparing and filing suits at the present time.” Id. The second category
involves claims “of specific cases that cannot now be tried” because of some official action, “no
matter what official action may be in the future.” Id. at 413-14. Cases in this second category
“do not look forward to a class of future litigation, but backward to a time when specific
litigation ended poorly, or could not have commenced, or could have produced a remedy
subsequently unobtainable.” Id. at 414 (footnotes omitted). The allegations in this lawsuit fall
within the second category of claims because plaintiffs seek damages based on past conduct that
allegedly impaired their ability to file this lawsuit.

14

The right of access to the courts that plaintiffs seek to vindicate “protects physical access
to the courts, i.e., the ability to actually file suit, as well as ‘adequate, effective, and meaningful’
access to the courts.” Ellis v. Magee & Devereux, No. 00-3145, 2001 WL 167744, at *2 (E.D.
La. Feb. 15, 2001) (Barbier, J.) (quoting Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1982));
cf. Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (limiting denial of access
claims to those cases involving interference with the initiation of a lawsuit). The Fifth Circuit
has characterized the right of access as “implicated where the ability to file suit was delayed, or
blocked altogether.” Smart v. Holder, No. 09-101, 2009 WL 2498213, at *6 (W.D. Tex. Aug.
12, 2009) (quoting Foster, 28 F.3d at 430); see, e.g., Ryland, 708 F.2d at 973 (holding that
covering up a murder and delaying the filing of a lawsuit could violate right of access to the
courts). However, the Fifth Circuit has declined to hold that the right of access is clearly
established beyond its existence as “a facilitative right to institute a suit without official
resistance, blocks, or delay to filing.” Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)
(holding that official retaliation for having filed and won a lawsuit does not implicate the right of
access to the courts); Foster, 28 F.3d at 43018 (holding that post-filing discovery abuses do not
implicate the right of access to the courts); Ellis, 2001 WL 167744, at *2 (holding that filing
false affidavits to defeat a breach of contract claim does not implicate the right of access to the
courts);
The allegations in this case fall short of stating a claim that Sheriff Graves violated
plaintiffs’ constitutional right of access to the courts. Even if Sheriff Graves refused to disclose
Deputy Johnson’s identity unless Deidra Clayton gave up her right to file a lawsuit over Jonathan
Clayton’s death, plaintiffs have not alleged that such conduct impaired or delayed their ability to
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Although the Fifth Circuit’s holding in Foster specifically related to the right of access as clearly established in
the years 1985-1988, the court noted that “[i]n cases decided after 1988, our court has continued to characterize the
right of access in terms of the right to institute suit.” Foster, 28 F.3d at 430 n.8.

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file this lawsuit. See Davis v. City of N. Richland Hills, No. 00-438, 2003 WL 22244694, at *19
(N.D. Tex. Sept. 30, 2003) (holding that an alleged conspiracy to conceal the nature of a
shooting did not implicate the right of access to the courts because it did not impede or prevent
plaintiffs from filing a lawsuit) rev’d on other grounds, 406 F.3d 375 (5th Cir. 2005); Smart,
2009 WL 2498213, at *6 (holding that preventing a plaintiff from using government resources to
sue the federal government did not implicate the right of access to the courts because the plaintiff
successfully instituted his lawsuit and his ability to do so was not blocked). Accordingly, the
motion to dismiss plaintiffs’ claims against Sheriff Graves for denial of access to the courts has
merit.
II. Official Capacity Claims
Defendants also contend that plaintiffs have failed to state a claim against Sheriff Graves
in his official capacity. As the U.S. Supreme Court explained in Kentucky v. Graham:
Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237–238, 94 S.Ct.
1683, 1686–1687, 40 L.Ed.2d 90 (1974). Official-capacity suits, in
contrast, “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55,
98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978). As long as the
government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity. [ Brandon v. Holt, 469 U.S. 464,
471–472, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985).] It is not a
suit against the official personally, for the real party in interest is
the entity. Thus, while an award of damages against an official in
his personal capacity can be executed only against the official's
personal assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government
entity itself.
473 U.S. 159, 165–66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985).

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A plaintiff asserting a § 1983 claim against a municipal official in his official capacity or
a § 1983 claim against a municipality, “must show that the municipality has a policy or custom
that caused his injury.” Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007). To establish an
“official policy,” a plaintiff must allege either of the following:
1. A policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the municipality’s
lawmaking officers or by an official to whom the lawmakers have
delegated the policymaking authority; or
2. A persistent, widespread practice of city officials or employees,
which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute
a custom that fairly represents municipal policy. Actual or
constructive knowledge of such custom must be attributable to the
governing body of the municipality or to an official to whom that
body had delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). Although “a single decision may
create municipal liability if that decision were made by a final policymaker responsible for that
activity,” Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir.1996) (internal quotations and citations
omitted) (emphasis in original), absent an official policy, actions of officers or employees of a
municipality do not render the municipality liable under § 1983. Id. A municipality cannot be
held liable under § 1983 for the tortious behavior of its employees under a theory of respondeat
superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). “Congress did not intend municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional tort.” Id.
The Supreme Court has held that municipal policies and practices amounting to
deliberate indifference with respect to training, supervision, and/or hiring may give rise to § 1983
liability. See City of Canton v. Harris, 489 U.S. 378, 380 (1989); Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 410-11, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). The Fifth Circuit has
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held that an official is liable under § 1983 for a failure to train or supervise only where the
plaintiff establishes that: “(1) the official failed to train or supervise the officers involved; (2)
there is a causal connection between the alleged failure to supervise or train and the alleged
violation of the plaintiff's rights; and (3) the failure to train or supervise constituted deliberate
indifference to the plaintiff's constitutional rights.” Burge v. St. Tammany Parish, 336 F.3d 363,
370 (5th Cir. 2003) (alteration omitted) (quoting Thompson v. Upshur Cnty., 245 F.3d 447, 459
(5th Cir. 2001)). A complaint must show that, “through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged.” Brown, 520 U.S. at 404. To state a claim,
plaintiffs “must plead facts showing that a policy or custom existed, and that such custom or
policy was the cause in fact or moving force behind a constitutional violation.” McClure v.
Biesenbach, No. 08-50854, 2009 WL 4666485, at *2 (5th Cir. Dec. 9, 2008) (unpublished)
(citing Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162 (5th Cir. 1997)).
However, the Supreme Court has expressly prohibited the application of a heightened
pleading standard to § 1983 claims against municipalities. Jones v. Bock, 549 U.S. 199, 212-13,
127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) (citing Leatherman v. Tarrant Cnty. Narcotics Intel. &
Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993)). Instead,
plaintiffs need only comply with notice pleading requirements by presenting a “short and plain
statement of the claims showing that the pleader is entitled to relief.” Id. Boilerplate allegations
of inadequate municipal policies or customs are generally sufficient. See, e.g., Mack v. City of
Abilene, 461 F.3d 547, 556 (5th Cir. 2006); Ortiz v. Geo Group, Inc., No. 07-645, 2008 WL
219564, at *2 (W.D. Tex. Jan. 25, 2008); Jacobs v. Port Neches Police Dept., No. 94-767, 1996
WL 363023, at *13-15 (E.D. Tex. June 26, 1996); DeFrancis v. Bush, 839 F. Supp. 13, 14 (E.D.
Tex. 1993). A complaint need only “give the defendant fair notice of what the plaintiff's claim is

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and the grounds upon which it rests.” Mack, 461 F.3d at 556 (quoting Leatherman, 507 U.S. at
168).
In this case, the claims against Sheriff Graves in his official capacity are not supported by
allegations showing that his conduct related to any official policies or customs that caused
Clayton’s death.

Although Sheriff Graves is alleged to be an official policymaker, the

allegations in the complaint fail to describe any “policy statement, ordinance, regulation, or
decision that was officially adopted and promulgated by the municipality’s lawmaking officers
or by an official to whom the lawmakers have delegated the policymaking authority.” See
Bennett, 735 F.2d at 862. Nor do the allegations in the complaint state that “[a] persistent,
widespread practice of city officials or employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well settled as to constitute a custom that
fairly represents municipal policy.” Id. Given the liberal pleading requirement with respect to §
1983 claims asserted against a municipality, the Court will grant plaintiffs leave to amend their
complaint, if they can do so, to include a short and plain statement that such a policy and/or
custom existed with respect to their claims of inadequate hiring, training, and supervision.
III. Punitive Damages
Defendants contend that plaintiffs claims for punitive damages under § 1983 must also be
dismissed. Section 1983 does not allow for recovery of punitive damages against a municipal
entity. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616
(1981).

To the extent plaintiffs seek punitive damages against defendants in their official

capacities, such claims must be dismissed. However, punitive damages are available from
individual defendants under § 1983. Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d
632 (1983). Under § 1983, punitive damages may be awarded only if the official conduct is

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“motivated by evil motive or intent” or demonstrates “reckless or callous indifference” to a
person’s constitutional rights. Id. Plaintiffs have alleged that Deputy Johnson maliciously and
recklessly shot and killed Clayton. Plaintiffs have also alleged that Sheriff Graves recklessly
failed to perform an adequate pre-employment assessment of Deputy Johnson and to ensure that
he was properly trained and equipped. Accordingly, the motion to dismiss plaintiffs’ claims for
punitive damages is meritorious to the extent they are asserted against Sheriff Graves in his
official capacity and without merit to the extent they are asserted against defendants in their
individual capacities.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion to dismiss or, in the alternative, for a Rule 7 reply is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that plaintiffs’ § 1983 claims against Sheriff Graves are
DISMISSED WITH PREJUDICE to the extent they rely on a theory of respondeat superior.
IT IS FURTHER ORDERED that plaintiffs’ § 1983 claims against Sheriff Graves for
denial of access to the courts are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that plaintiffs will file a Rule 7 reply by Monday, July
30, 2012, tailored to Sheriff Graves’ defense of qualified immunity with respect to the
allegations that he acted with deliberate indifference when hiring, training, and supervising
Deputy Johnson.
IT IS FURTHER ORDERED that plaintiffs will file an amended complaint, if they can
do so, with respect to their claims against Sheriff Graves in his official capacity by Tuesday,
July 24, 2012.

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IT IS FURTHER ORDERED that plaintiffs’ § 1983 claims for punitive damages
against Sheriff Graves in his official capacity are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion to dismiss is DENIED in all other
respects.

New Orleans, Louisiana, July 17, 2012.

__________________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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