Bivens et al v. Forrest County et al

Filing 300

ORDER denying the City of Hattiesburg's 264 Motion for Judgment on the Pleadings. Signed by District Judge Keith Starrett on March 3, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
PHILLIP BIVENS, et al.

PLAINTIFFS

V.

CIVIL ACTION NO. 2:13-CV-8-KS-MTP

FORREST COUNTY, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies the City of Hattiesburg’s Motion for
Judgment on the Pleadings [264].
I. BACKGROUND
The Court provided an extensive discussion of Plaintiffs’ allegations and the
factual background of this case in a previous order. See Bivens v. Forrest County, No.
2:13-CV-8-KS-MTP, 2015 U.S. Dist. LEXIS 40602, at *3-*9 (S.D. Miss. Mar. 30, 2015).
The City of Hattiesburg filed a Motion for Judgment on the Pleadings [264], which the
Court now addresses.
II. STANDARD OF REVIEW
A “motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d
413, 418 (5th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Great Lakes Dredge & Dock Co. LLC v. La. State,
624 F.3d 201, 210 (5th Cir. 2010) (punctuation omitted). “To be plausible, the
complaint’s factual allegations must be enough to raise a right to relief above the

speculative level.” Id. (punctuation omitted). The Court must “accept all well-pleaded
facts as true and construe the complaint in the light most favorable to the plaintiff.”
Id. But the Court will not accept as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id. Likewise, “a formulaic recitation of the elements
of a cause of action will not do.” PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615
F.3d 412, 417 (5th Cir. 2010) (punctuation omitted). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
III. DISCUSSION
Hattiesburg argues that Plaintiffs alleged insufficient facts to state Section 1983
claims for municipal liability and failure to train or supervise employees.
A.

Municipal Liability
The Fifth Circuit has provided the following summary of the law concerning

municipal liability under Section 1983:
A municipality is not liable under § 1983 on the theory of respondeat
superior, but only for acts that are directly attributable to it through
some official action or imprimatur. To hold a municipality liable under §
1983 for the misconduct of an employee, a plaintiff must show, in addition
to a constitutional violation, that an official policy promulgated by the
municipality’s policymaker was the moving force behind, or actual cause
of the constitutional injury. The official policy itself must be
unconstitutional or, if not, must have been adopted with deliberate
indifference to the known or obvious fact that such constitutional
violations would result.
Official policy can arise in various forms. It usually exists in the form of
written policy statements, ordinances, or regulations, but may also arise
in the form of a widespread practice that is so common and well-settled
as to constitute a custom that fairly represents municipal policy. A policy
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is official only when it results from the decision or acquiescence of the
municipal officer or body with final policymaking authority over the
subject matter of the offending policy.
Although an official policy can render a municipality culpable, there can
be no municipal liability unless it is the moving force behind the
constitutional violation. In other words, a plaintiff must show direct
causation, i.e., that there was a direct causal link between the policy and
the violation.
A plaintiff must show that, where the official policy itself is not facially
unconstitutional, it was adopted with deliberate indifference as to its
known or obvious consequences. Deliberate indifference is a degree of
culpability beyond mere negligence; it must amount to an intentional
choice, not merely an unintentionally negligent oversight.
James v. Harris County, 577 F.3d 612, 617-18 (5th Cir. 2009) (punctuation and
citations omitted).
However, “[w]hen a municipality’s final policy and decision maker in a single
action directly and intentionally deprives a person of a federal constitutional right, .
. . the person need not show that a policy or custom caused his injury in order to
recover. In such a case, the municipality’s action is deemed to be the direct cause or
moving force behind the deprivation of right and injury.” Coggin v. Longview Indep.
Sch. Dist., 289 F.3d 326, 333 (5th Cir. 2002) (citing Bd. of County Comm’ners v. Brown,
520 U.S. 397, 402-04, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “To prove liability
under the single-incident exception, a plaintiff must at least show (1) that the
defendant acted with deliberate indifference by disregarding a known or obvious
consequence of his action and (2) that there is a direct causal link between the
defendant’s action and the deprivation of federal rights.” Waltman v. Payne, 535 F.3d
342, 350 (5th Cir. 2008). Therefore, a single action by one who establishes
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governmental policy is sufficient to impose municipal liability in certain circumstances.
Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 89 L. Ed.
2d 452 (1997)).
Plaintiffs argue that the following paragraphs from the Second Amended
Complaint are sufficient to state a claim for municipal liability under Section 1983:
126.

Prior to and at the time of the unlawful investigation, prosecution,
conviction, and imprisonment of the Wrongfully Convicted
Plaintiffs, . . . the City of Hattiesburg and the Hattiesburg Police
Department, by and through their final policymakers, maintained
a policy, custom, or pattern and practice of promoting, facilitating,
and/or condoning improper, illegal, and unconstitutional
investigative techniques, including but not limited to the following:
(a) disregarding the Fifth Amendment rights of criminal suspects
and defendants; (b) coercing confessions from defendants through
physical attacks, threats, and other coercion; (c) fabricating
evidence; (d) failing to document and disclose material, exculpatory
and impeachment evidence to prosecutors, defense counsel, and
the court; (e) failing to investigate known exculpatory evidence and
otherwise failing to conduct constitutionally adequate
investigation; and/or (f) engaging in the affirmative and/or passive
concealment of this type of misconduct.
***

129.

The HPD[‘s] . . . policy, custom, or pattern and practice of
investigative misconduct . . . was also reflected in numerous prior
cases and investigations which, upon information and belief, were
known to the HPD . . . supervisors and policymakers prior to the
[subject] investigation. The misconduct committed in those cases
by HPD . . . officers, including investigators involved in the
[subject] case, was actually or constructively known to HPD . . .
supervisors and policymakers prior to the [subject] investigation
– including by means of their direct participation in the
investigations . . . .
***

256.

HPD . . . policies, customs, or patterns and practices of promoting,
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facilitating, or condoning improper, illegal, and unconstitutional
investigative techniques . . . were evidenced by, among other
actions, multiple constitutional violations and related acts of
misconduct committed by multiple investigators and supervisors
in the course of the investigation and prosecution of the Wrongfully
Convicted Plaintiffs, and in the course of prior and subsequent
cases.
***
259.

As a direct and proximate result of . . . the City of Hattiesburg’s
policies, customs, or patterns and practices, the Wrongfully
Convicted Plaintiffs were wrongly prosecuted, convicted, and
imprisoned for a combined eighty-two years and suffered the other
grievous and continuing injuries and damages as set forth above.

Second Amended Complaint, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. Sept. 16, 2013), ECF No. 61.
These allegations are sufficient to state a claim for municipal liability under
Section 1983. Defendant argues that Plaintiffs must allege more specific facts
concerning: the pattern, practice, or custom that caused their injuries; the
policymakers who knew of or were involved in the practices or customs that caused
their injuries; and the prior cases and investigations that establish said pattern,
practice, or custom. However, this treads dangerously close to the heightened pleading
standard applied to Section 1983 claims against public officials in the individual
capacities, which “requires allegations of fact focusing specifically on the conduct of the
individual who caused the plaintiff’s injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th
Cir. 1999). The Supreme Court specifically held that a heightened pleading standard
is inapplicable to Section 1983 claims against municipalities. Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160,
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122 L. Ed. 2d 517 (1993). In other words, the Court must apply the same pleading
standard to municipal liability claims under § 1983 that it applies to other claims not
governed by Rule 9.
“Rule 8(a)(2) requires a pleading to contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Wooten v. McDonald Transit
Assocs. 788 F.3d 490, 498 (5th Cir. 2015) (quoting FED. R. CIV. P. 8(a)(2)). As noted
above, “[t]he factual allegations in the complaint need only ‘be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Detailed factual
allegations are not required, but the pleading must present more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. (citing Iqbal, 556 U.S. at 678).
Plaintiffs may not have pleaded facts with the level of specificity or detail
preferred by Defendant, but the Court believes that Plaintiffs’ allegations are sufficient
to state a plausible claim of municipal liability, and to provide Defendant with enough
notice to respond to the claims and engage in discovery. Accordingly, Plaintiff pleaded
sufficient facts related to their municipal liability claim to survive Rule 12(c) scrutiny.
See Steverson v. Forrest County, No. 2:12-CV-169-KS-MTP, 2013 WL 2897914, at *5-*6
(S.D. Miss. June 13, 2013); Greenwood v. City of Yoakum, Civil Action No. V-07-78,
2008 WL 1858902, at *3 (S.D. Tex. Apr. 24, 2008); Jacobs v. Port Neches Police Dep’t,
No. 1:94-CV-767, 1996 WL 363023, at *13 (E.D. Tex. June 26, 1996).
B.

Failure to Train/Supervise
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“Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Roberts v. City of Shreveport, 397
F.3d 287, 292 (5th Cir. 2005). “To establish § 1983 liability against supervisors, the
plaintiff must show that: (1) the [supervisor] failed to supervise or train the officer; (2)
a causal connection existed between the failure to supervise or train and the violation
of the plaintiff’s rights; and (3) the failure to supervise or train amounted to deliberate
indifference to the plaintiff’s constitutional rights.” Id. “[T]he misconduct of a
subordinate must be conclusively linked to the action or inaction of the supervisor,”
and the deliberate indifference standard is a ‘stringent’ one, requiring that ‘the
supervisory actor disregarded a known consequence of his action.” Zarnow v. City of
Wichita Falls, TX, 614 F.3d 161, 169-70 (5th Cir. 2010).
Plaintiffs argue that the following paragraphs from the Second Amended
Complaint are sufficient to state a § 1983 claim for Defendant’s failure to
supervise/train its officers:

127.

Prior to and at the time of the unlawful investigation, prosecution,
and conviction of Larry Ruffin, Phillip Bivens, and Bobby Ray
Dixon, the HPD . . . , by and through final policymakers,
maintained a policy, custom, or pattern and practice of failing to
adequately train and supervise their officers regarding
fundamental investigative tasks implicating the constitutional
rights of witnesses and suspects, including but not limited to
conducting custodial interrogations and witness interviews and
documenting and disclosing exculpatory evidence.
***

129.

The HPD[‘s] . . . policy, custom, or pattern and practice of . . .
7

fail[ing] to supervise and train was also reflected in numerous
prior cases and investigations which, upon information and belief,
were known to the HPD . . . supervisors and policymakers prior to
the [subject] investigation. The misconduct committed in those
cases by HPD . . . officers, including investigators involved in the
[subject] case, was actually or constructively known to HPD . . .
supervisors and policymakers prior to the [subject] investigation
– including by means of their direct participation in the
investigations . . . .
***
256.

HPD . . . policies, customs, or patterns and practices of . . . failing
to train, supervise, and discipline investigators, were evidenced by,
among other actions, multiple constitutional violations and related
acts of misconduct committed by multiple investigators and
supervisors in the course of the investigation and prosecution of
the Wrongfully Convicted Plaintiffs, and in the course of prior and
subsequent cases.
***

259.

As a direct and proximate result of . . . the City of Hattiesburg’s
policies, customs, or patterns and practices, the Wrongfully
Convicted Plaintiffs were wrongly prosecuted, convicted, and
imprisoned for a combined eighty-two years and suffered the other
grievous and continuing injuries and damages as set forth above.

Second Amended Complaint, Bivens v. Forrest County, No. 2:13-CV-8-KS-MTP (S.D.
Miss. Sept. 16, 2013), ECF No. 61.
Plaintiffs’ allegations are more specific than those asserted in Mack v. City of
Abilene, 461 F.3d 547 (5th Cir. 2006). There, the plaintiff alleged “it is a policy and/or
custom of the City to inadequately supervise and train its police officers, including
those who were known to have engaged in police misconduct;” that “as a result of those
policies and/or customs, [he] believed their actions would not be properly monitored by
supervisory officials and that misconduct would not be investigated but would be
8

tolerated;” and that this custom or policy “gave rise to his injuries.” Id. at 556. The
Fifth Circuit deemed those allegations sufficient to satisfy Rule 8's notice-pleading
standard. Id. Accordingly, the Court deems Plaintiffs’ allegations of Defendant’s failure
to train or supervise its employees sufficient to pass Rule 12(c) scrutiny.
IV. CONCLUSION
For these reasons, the Court denies the City of Hattiesburg’s Motion for
Judgment on the Pleadings [264].
SO ORDERED AND ADJUDGED this 3rd day of March, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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