Miller v. City of East Mountain et al

Filing 146

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 138 Report and Recommendations, 102 Motion to Dismiss filed by City of East Mountain,. Signed by District Judge Rodney Gilstrap on 3/21/2019. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
KENNETH CRAIG MILLER,
Plaintiff,
v.
CITY OF EAST MOUNTAIN ET AL,
Defendants.

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Case No. 2:17-cv-00496-JRG-RSP

ORDER
The Magistrate Judge previously filed his Report and Recommendation (Dkt. No.
143), recommending that Defendant City of East Mountain’s Motion to Dismiss (Dkt. No.
102) be granted in full. Plaintiff Kenneth Craig Miller now files an Objection (Dkt. No.
143) to that Report and Recommendation. The undersigned concludes that the objections
raised are without merit and therefore ADOPTS the Magistrate Judge’s Recommendation
and grants the motion to dismiss the City of East Mountain.
Miller argues that East Mountain ratified the acts of Charlson and Miller by failing
to meaningfully investigate and punish allegations of unconstitutional conduct and that the
city is therefore liable for those acts. (Dkt. No. 143 at 7–8.) Miller does not provide any
binding authority to suggest that the ratification theory applies, and the Fifth Circuit has
stated that the ratification theory applies in only “extreme factual circumstances.” Barkley
v. Dillard Dep't Stores, Inc., 277 F. App'x 406, 413 (5th Cir. 2008) (citing Snyder v.
Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)). In Snyder, the Fifth Circuit refused to apply
the ratification theory to hold a city liable under § 1983 when a city police officer shot a
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fleeing suspect in the back. 142 F.3d at 798. By contrast, in Grandstaff v. City of Borger,
the Fifth Circuit applied the ratification theory when “the entire night shift of the Borger
police department ‘poured’ gunfire into a slow-moving pick-up truck ‘without awaiting
any hostile act or sound. . . .’” Barkley v. Dillard Dep't Stores, Inc., 277 F. App'x 406, 413
(5th Cir. 2008) (citing Grandstaff v. City of Borger, 767 F.2d 161, 168, 171 (5th Cir. 1985)).
The Fifth Circuit characterized these events as an “incompetent and catastrophic
performance” and a gross misuse of deadly weapons. Id. (citing Grandstaff, 767 F.2d at
171). This case does not rise to the level of an “incompetent and catastrophic performance”
and instead appears much less exceptional than even Snyder, so the ratification theory is
inapplicable.
Miller argues that he has sufficiently pled that Charlson and Coulter were
policymakers for the City of East Mountain and that a municipality may be liable for
constitutional violations of its policymakers. However, even accepting that Charlson and
Coulter are in fact policymakers, Miller still has not provided well pleaded facts showing
that Charlson or Coulter committed a constitutional violation for (1) retaliatory conduct
under 42 U.S.C. § 3617; (2) an unlawful stop, arrest or use of force; (3) denial of equal
protection of the laws; or (4) conspiracy to subject Miller to a sham trial.
The Magistrate Judge reached the correct conclusion for the unlawful stop and arrest
claims. For the unlawful stop and arrest claims, Miller has not shown that Charlson
committed any violation as the Complaint acknowledges that Charlson arrived at the scene
after the initial stop. (Dkt. No. 87 at ¶ 59 (“Betty Davis was on the scene within five minutes
of Terry Davis’ detaining Miller.”).) An officer may be liable under § 1983 under a theory
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of bystander liability where the officer “(1) knows that a fellow officer is violating an
individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013); see also
Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018) (concluding that claims against two
officers for false-arrest under a bystander liability theory must fail as the officers arrived
after the suspect’s arrest and plaintiff did not otherwise show how the officers obtained
knowledge that the arrest was unlawful). Similarly here, Miller has not provided any facts
to show how Charlson had any knowledge that the arrest was unlawful, and the Complaint
states that Charlson arrived after the stop. Miller does not assert that Coulter was present
or involved with the stop or arrest. Accordingly, Miller has not shown that any policymaker
committed a constitutional violation. The Court therefore agrees with the conclusions made
within the Report related to the unlawful stop and arrest claims.
The Report also reaches the correct conclusion as to the use of force claim. Miller
claims that Charlson told Davis to tase Miller. (Dkt. No. 87 at ¶ 59.) Even taking this to be
true, this does not constitute an actionable excessive use of force claim. For an excessive
force claim, a plaintiff must show “(1) injury (2) which resulted directly and only from a
use of force that was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007) (citing Tarver v. City
of Edna, 410 F.3d 745, 751 (5th Cir. 2005)). Here, Miller has not alleged an injury from
that alleged action other than his fear of being tasered, and no use of force occurred as
Miller does not allege that he was in fact tasered. Miller also claims that Davis applied
handcuffs too tightly and that this was an excessive use of force. However, the Fifth Circuit
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has found that “handcuffing too tightly, without more, does not amount to excessive force.”
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). Even if Miller could have a claim
for the handcuffing, he still fails to show how the City of East Mountain can be held liable
for Terry Davis’ actions. For these reasons and the reasons stated within the Report, the
Court agrees that the use of force claim should be dismissed.
For the claim that East Mountain conspired to subject Miller to a sham trial, Miller
fails to provide any well pleaded facts that a conspiracy existed between the parties. “To
establish a cause of action based on conspiracy a plaintiff must show that the defendants
agreed to commit an illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)
(citing Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979)). Conspiracy allegations must
be more than conclusory statements as “more than a blanket of accusation is necessary to
support a § 1983 claim.” Id. at1024 (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977)). For the issue of whether a
conspiracy existed, Miller merely provides conclusory statements. Consequently, Miller
fails to state a claim for conspiracy even taking the facts in his Third Amended Complaint
to be true.
Miller argues that the Recommendation to dismiss all claims with prejudice is
“premature and unduly harsh.” (Dkt. No. 143 at 3.) The Court notes that Miller has already
filed a Third Amended Complaint. The Fifth Circuit held that a district court did not abuse
its discretion by dismissing a case and rejecting a plaintiff’s request for leave to amend
where plaintiffs have already twice amended their complaint. Herrmann Holdings Ltd. v.
Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002) (“[a]lthough plaintiffs should
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ordinarily be offered an opportunity to amend if it appears that a more carefully drafted
complaint might state claims upon which relief could be granted, that course need not be
followed here since plaintiffs have already twice amended their complaint.”); see also
Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (“At some point a court must
decide that a plaintiff has had fair opportunity to make his case; if, after that time, a cause
of action has not been established, the court should finally dismiss the suit.”).
.
Consequently, the Court agrees with the recommendation to dismiss the claims.
After review of the other arguments made within the objection, the Court agrees
with the remaining conclusions made within the Report. Accordingly, the Court also
ADOPTS the recommendations to DISMISS WITH PREJUDICE claims against East
Mountain for Denial for Equal Protection and its retaliation claim under 42 U.S.C. § 3617.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 21st day of March, 2019.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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