Jernigan v. Wells et al

Filing 28

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 14 MOTION to Dismiss 1st Amended Complaint filed by Parker Texas City of. Signed by Magistrate Judge Don D. Bush on 8/3/2015. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MANDY JERNIGAN
Plaintiff,
VS.
CITY OF PARKER, TEXAS
Defendant.

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Case No. 4:14CV803

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant City of Parker’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Dkt. 14). As set forth below, the Court finds that the motion should be
GRANTED.
In this suit, Plaintiff Mandy R. Jernigan alleges that she was subjected to an unreasonable
search and seizure of her person, false imprisonment, and excessive force by the City of Parker
Police Department when she was temporarily detained for an involuntary mental health commitment
in December of 2012. Plaintiff’s amended complaint brings a claim under 42 U.S.C. § 1983 against
the City asserting that the City’s Police Department developed and maintained policies or customs
exhibiting deliberate indifference to the constitutional rights of City residents.1 Plaintiff further
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Plaintiff’s original complaint also named Officer Greg Wells and Police Chief Tony
Fragoso as Defendants (see Dkt. 1 at 2-3), but neither Wells nor Fragoso are separately named as
Defendants in the live complaint. See Dkt. 10 at ¶¶5-6 (“Parties”). Based on Plaintiff’s
voluntary amendment of her pleadings, Wells and Fragoso (incorrectly named as Tony Fregoso
in the original complaint) are no longer parties and should thus be terminated on the docket sheet
in this matter.

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argues that the City’s Police Department had a policy and/or custom of inadequate supervision and
training of its police officers.
In its motion to dismiss, Defendant the City of Parker argues that Plaintiff’s claims should
be dismissed because Plaintiff fails to allege sufficient facts to state a facially plausible claim for
municipal liability under Section 1983. Plaintiff has filed a response in opposition.
STANDARD
When reviewing a case under Rule 12(b)(6) of the Federal Rules of Civil Procedure to
determine whether a plaintiff has stated a claim, the Court must accept as true all well-pleaded facts
contained in the plaintiff’s complaint and view them in the light most favorable to the plaintiff.
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A claim will survive an attack under Rule
12(b)(6) if it “may be supported by showing any set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, 127 S. Ct. 1955, 1969, 167 L. Ed.2d
929 (2007). In other words, a claim may not be dismissed based solely on a court’s supposition that
the pleader is unlikely “to find evidentiary support for his allegations or prove his claim to the
satisfaction of the factfinder.” Id. at 563 n.8.
Although detailed factual allegations are not required, a plaintiff must provide the grounds
of his entitlement to relief beyond mere “labels and conclusions,” and “a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555. The complaint must be factually suggestive,
so as to “raise a right to relief above the speculative level” and into the “realm of plausible liability.”
Id. at 555, 557 n.5. “To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570,
127 S. Ct. 1955)). For a claim to have facial plausibility, a plaintiff must plead facts that allow the
court to draw the reasonable inference that the defendant is liable for the alleged misconduct.
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). Therefore, “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 shown – that the pleader is entitled to relief.” Id. (internal quotations
omitted).
ANALYSIS
Policy or Custom
In its motion, Defendant argues that Plaintiff has failed to allege sufficient facts regarding
its policies or customs to state a plausible claims for municipal liability under Section 1983. In her
amended complaint, Plaintiff claims that “[p]rior to December 15, 2012, the Parker Police
Department developed and maintained policies or customs exhibiting deliberate indifference to the
constitutional rights of persons in the City of Parker, which facts caused the violation of the
Plaintiff’s rights.” Dkt. 10 at ¶51. Defendant argues this is nothing more than a formulaic recitation
of the elements of a municipal liability claim.
The Fifth Circuit has explained liability for government agencies as follows:
Municipal policy for purposes of section 1983 liability may consist of
1.

A policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the municipality’s

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lawmaking officers or by an official to whom the lawmakers have
delegated policy-making 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.

Johnson v. Deep East Texas Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir.
2004) (internal citations and quotations omitted).
Defendant argues that Plaintiff does not identify a policy that directly caused any alleged
violation of her constitutional rights. The Court agrees that no policy has been identified.
Indeed, there is no question that Plaintiff here alleges that it was the lack of a written policy
addressing the detention of the mentally impaired that led to the violation of her constitutional rights.
Plaintiff attaches to her amended complaint the City of Parker Police Department’s Policies and
Procedures that were in effect on the date of her detention and alleges that “[n]othing therein
includes any mention of any policy or procedure related to or training for the detention of the
potentially mentally impaired.” Dkt. 10 at ¶ 43. In response to the motion to dismiss, Plaintiff
argues that, without a specific written policy regarding the detention of the mentally impaired, it was
thus “the policy of the City of Parker Police Department to treat encounters with all citizens the
same, regardless of mental capacity, and to detain people who are mentally impaired but not
necessarily demonstrating that they are an imminent threat of harm to themselves or others.”

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Dkt. 20 at 8.
Plaintiff has cited to no authority to show that the lack of a written policy is sufficient to state
a claim under the first prong of municipal liability. And, as argued by Defendant, Plaintiff has failed
to state facts to show how the alleged lack of policy - or, as Plaintiff characterizes it, the policy to
treat encounters with all citizens the same, regardless of mental capacity - caused the alleged
deprivation of her constitutional rights. For there to be municipal liability, “there must be a direct
causal link between the municipal policy and the constitutional deprivation.” Piotrowski v. City of
Houston, 237 F.3d 567, 580 (5th Cir. 2001).
Further, the Court notes that the Policies and Procedures attached to Plaintiff’s complaint do
address arrests, searches, the use of force, and the use of handcuffs. See Dkt. 10-5. Plaintiff has
stated no facts to show how such policies failed to adequately address concerns for the mentally ill
or how such policies led to the alleged violation of her constitutional rights.
The Court notes that Plaintiff alleges that, after her detention, Police Chief Rushing admitted
“that everything in the police department needed updating including the policies and training” and
eventually issued a directive to all police personnel regarding the detention of the mentally impaired,
demonstrating “the objective obviousness of the likelihood that the police would encounter and
potentially detain mentally impaired individuals.” Dkt. 10 at ¶¶ 45, 48; Dkt. 10-8. This also does
not state how the policies in existence at the time of her detention caused the alleged constitutional
violation and is of no relevance to the Court’s inquiry. Without any facts alleging a policy statement,
ordinance, regulation, or decision that is officially adopted and promulgated by the City of Parker

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and without facts stating how the lack of written policy specifically addressing the mentally impaired
was the “‘moving force’ behind the violation,” no claim has been stated under the first prong.
Piotrowski, 237 F.3d at 580.
As to the second prong of municipal liability, Plaintiff’s amended complaint fails to state any
facts alleging a persistent or widespread practice or custom of the Parker Police Department
regarding the detention of the mentally impaired. Plaintiff has merely alleged that “the Parker Police
Department developed and maintained policies or customs exhibiting deliberate indifference to the
constitutional rights of persons in the City of Parker” and that “[t]he polices and customs
demonstrate a deliberate indifference on the part of the City of Parker to the constitutional rights of
persons within the City of Parker and were the cause of the violations of the Plaintiff’s rights alleged
herein.” Dkt. 10 at ¶¶51, 53.2 This does not go beyond mere labels and conclusions and is
insufficient to state a claim of municipal liability based on a widespread custom.
In response to the motion to dismiss, Plaintiff argues that her amended complaint
“sufficiently alleges that it was the custom of the City of Parker Police Department to handle calls
and encounters involving mentally impaired people and when they should detain them in the same
manner as any other encounter with the general public.” Dkt. 20 at ¶13. The Court disagrees that
the amended complaint states facts that would show “pattern of abuses that transcends the error made
in a single case” required for a claim of municipal liability, and, even if it did, the Court again notes
2

As to Plaintiff’s specific allegation that “[i]t was the policy and/or custom of the Parker
Police Department to inadequately supervise and train its police officers, including Defendant
Wells ...” Dkt. 10 at ¶52, the Court finds that such goes to Plaintiff’s failure to train claim,
addressed below.

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that such facts do not state how such a custom caused the deprivation of Plaintiff’s constitutional
rights. Piotrowski, 237 F.3d at 582.
As to Plaintiff’s argument that she should “be afforded an opportunity to attempt to
forensically retrieve such information to further demonstrate, the policy, customs and other violation
of constitutional rights that have occurred within the City of Parker police department,” Dkt. 20 at
¶17, such is not required to state a claim.3 To survive a Rule 12(b)(6), she is only required to state
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009) (quoting Twombly,
550 U.S. at 570, 127 S. Ct. 1955)). She simply has not done so as to facts alleging a custom or
pattern of abuses by the City of Parker Police Department.
Plaintiff also has not alleged any facts that would show actual or constructive knowledge of
the police department, or a policymaker within the department, about officers’ conduct in detaining
those with suspected mental illness. Plaintiff’s amended complaint states that “these constitutional
violations were committed as a result of the policies and customs implemented by Police Chief Tony
Fragoso and the City of Parker, as well as the failure to properly train the police officers.” Dkt. 10
at ¶2. While “[a] single decision may create municipal liability if that decision were made by a final
policymaker responsible for that activity,” Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)
(quoting Brown v. Bryan County, Oklahoma, 67 F.3d 1174, 1183 (5th Cir.1995)), Plaintiff has failed

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The Court does note, however, that prior to filing suit, Plaintiff was required to make a
reasonable inquiry and state factual contentions that have evidentiary support or will likely have
evidentiary support. FED. R. CIV. P. 11(b)(3).

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to allege any facts regarding any decisions by a final policymaker. Plaintiff’s allegations regarding
Chief Fragoso’s (and his successor Chief Rushing’s) actions after her detention, including hiring a
consultant and issuing a new directive regarding the detention of those with mental impairments, are
not sufficient to state any claim as to Plaintiff’s detention. Even taking all of Plaintiff’s allegations
as true, they are not enough to state a widespread practice sufficient to state municipal liability. See,
e.g., Daniel v. Compass, 212 Fed. App’x 262, 2006 WL 3627141 (5th Cir. 2006) (holding that
neither city nor police officers in their official capacity were liable for allegedly improper arrest
warrant under § 1983, given evidence that arrest warrant resulted from the individual actions of one
police officer instead of a consistent policy or practice of the municipality). That claim should be
dismissed.
Failure to Train
The Court next turns to Plaintiff’s allegations regarding Defendant’s failure to train its
officers. Plaintiff asserts that “[i]t was the policy and/or custom of the Parker Police Department to
inadequately…train its police officers, including Defendant Wells, thereby failing to adequately
discourage further constitutional violations on the part of its police officers,” and that “[t]he policies
and customs demonstrate a deliberate indifference on the part of the City of Parker to the
constitutional rights of persons within the City of Parker and were the cause of the violations of
Plaintiff’s rights.” Dkt. 10 ¶¶ 52-53. Defendant argues that Plaintiff does not allege sufficient facts
to state a plausible claim of municipal liability for failure to train.

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“[I]t is well established that a municipality’s policy of failure to train its personnel can give
rise to liability under 42 U.S.C. § 1983.” Kitchen v. Dallas County, Tex., 759 F.3d 468, 484 (5th Cir.
2014) (internal citations omitted). To succeed on a claim arising from a municipality’s failure to
adopt an adequate training policy, “a plaintiff must demonstrate that: (1) [the municipality’s] training
policy procedures were inadequate, (2) [the municipality] was deliberately indifferent in adopting
its training policy, and (3) the inadequate training policy directly caused [the constitutional
violation].” Id. (internal citations omitted).
As to the first element, the Court finds that, taking all allegations as true and viewing them
in a light most favorable to Plaintiff, Plaintiff has pleaded sufficient facts alleging the inadequacy
of the police department’s policies regarding the detention of the mentally impaired. See, e.g., Dkt.
10 at ¶49a-h (listing actions that would have been taken with purportedly adequate training and
policies).4 However, the inquiry does not end there.
Even assuming the policies were found to be inadequate, however, as noted above, Plaintiff
has not stated any facts which, even if taken as true, would show that the lack of policies regarding
the detention of the mentally impaired directly caused the alleged constitutional violations.
Plaintiff’s allegations regarding causation are conclusory and do not “raise a right to relief above the
speculative level” and into the “realm of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5.
For this reason, her failure to train claim fails.
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The Court is cautious to note, however, that it makes no findings herein that the policies
or training at the time of Plaintiff’s detention were, in fact, inadequate. The Court merely finds
that Plaintiff has stated enough facts to allege inadequacy sufficient to survive dismissal on that
element.

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Moreover, Plaintiff has failed to allege any facts that would show the deliberate indifference
necessary to support any claim based on inadequate training. Brown v. Callahan, 623 F.3d 249, 255
(5th Cir. 2010) (“Proof of deliberate indifference normally requires a plaintiff to show a pattern of
violations and that the inadequate training or supervision is obvious and obviously likely to result
in a constitutional violation.”) (internal quotations omitted). Specifically, Plaintiff has not stated any
facts that the City of Parker or its police department “had notice of a pattern of similar violations,
which were fairly similar to what ultimately transpired when the plaintiffs own constitutional rights
were violated” nor has Plaintiff stated any facts to support the narrow single-incident exception
“where a constitutional violation would result as the highly predictable consequence of a particular
failure to train.” Kitchen, 759 F.3d at 484 (internal citations and alterations omitted).
As to deliberate indifference, Plaintiff’s allegations include:
•

“The City of Parker acted deliberately indifferent to the obvious need for training
their police officers in how to deal with and detain the mentally impaired. This
deliberate indifference is evidenced by the lack of any reference in their policies and
procedure manual. The City’s deliberate indifference was the moving force behind
Officer Wells’ warrantless entry into the Plaintiff’s home and his unlawful seizure
and detention of Plaintiff’s person.” Dkt. 10 at ¶ 46.

•

“The polices and customs demonstrate a deliberate indifference on the part of the
City of Parker to the constitutional rights of persons within the City of Parker and
were the cause of the violations of the Plaintiff’s rights alleged herein.” Dkt. 10 at
¶ 53.

The Court finds that Plaintiff’s allegations as to deliberate indifference do not go beyond
conclusory allegations, and Plaintiff has not stated how the issuance - after her detention - of a

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directive regarding the detention of those who are mentally impaired would have put the City on
notice. At the very least, Plaintiff must state facts to show other constitutional violations that were
“fairly similar to what ultimately transpired ” Sanders-Burns v. City of Plano, 594 F.3d 366, 381
(5th Cir. 2010) (internal citations omitted).

And without allegations regarding other incidents

involving the detention of those with suspected mental illness, Plaintiff has not stated any facts to
show a “pattern of constitutional violations bearing sufficient resemblance to the events
surrounding” her detention. Kitchen, 759 F.3d at 484 (finding that a plaintiff’s reliance on a report
regarding jail conditions did not indicate that the jail did not “appropriately assess and treat inmates
with mental illnesses” sufficient to show pattern of constitutional violations because none of the
instances cited in the report involved the extraction of mentally ill prisoners from jail cells or even
detention officers’ use of force in general).
As to the single-incident exception, “showing merely that additional training would have
been helpful in making difficult decisions does not establish municipal liability.” Id. at 485 (citing
Connick v. Thompson, _U.S. _, 131 S. Ct. 1350, 1363, 179 L. Ed.2d 417 (2011)). The risk must be
“so predictable that failing to train the [municipal personnel] amounted to conscious disregard ” for
Plaintiff’s rights. Connick, 131 S. Ct. at 1365. See also Porter v. Epps, 659 F.3d 440, 446 (5th Cir.
2011) (“A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely
consequences of not adopting a policy will be a deprivation of constitutional rights.”) (citing Rhyne
v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992)).

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Plaintiff has not stated any facts to show that the detention process for those who are
suspected of mental illness requires any specialized training or should be any different than the use
of force with any detainee. And, Plaintiff has not stated any facts to show “patently obvious” risks
of “recurring constitutional violations” that may occur without a directive specific to those with
suspected mental illness. Kitchen, 759 F.3d at 484 (citing Canton, Ohio v. Harris, 489 U.S. 378,
390, 109 S. Ct. 1197, 103 L. Ed.2d 412 (1989) and Connick, 131 S.Ct. at 1361–63). Her claims
based on the City’s failure to train should therefore be dismissed.
Failure to Supervise
In her amended complaint, Plaintiff alleges that “[i]t was the policy and/or custom of the
Parker Police Department to inadequately supervise ... its police officers ... thereby failing to
adequately discourage further constitutional violations on the part of its police officers.” Dkt. 10 at
¶52. In its motion, Defendant argues that Plaintiff has not sufficiently alleged a claim of failure to
supervise.
In making a claim of municipal liability for failure to supervise, a plaintiff must state facts
showing “(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal
link exists between the failure to train or supervise and the violation of the plaintiff’s rights; and (3)
the failure to train or supervise amounts to deliberate indifference.” Porter v. Epps, 659 F.3d 440,
446 (5th Cir. 2011) (internal citations and quotations omitted). As with any failure to train claim,
liability for failure to supervise thus requires that the defendant have acted with deliberate
indifference.

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As noted in Defendant’s reply briefing, Plaintiff has failed to respond to Defendant’s
argument that Plaintiff has not sufficiently stated this claim, and, to the extent not already waived,
the Court finds that Plaintiff has failed to state a failure to supervise. As discussed above,
insufficient facts are stated to show deliberate indifference and the other elements required of the
claim. This claim should be dismissed.
Finally, the Court notes that Plaintiff has not shown how, if granted leave to amend, she
could cure the deficiencies in her allegations. Plaintiff has already once amended her complaint, and
without specific argument from Plaintiff to the contrary, the Court finds that any future amendment
would be futile to the arguments raised by Defendant herein.
RECOMMENDATION
Defendant City of Parker’s Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. 14)
should be GRANTED and Plaintiff’s claims against the City of Parker should be dismissed with
prejudice for failure to state a claim.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made, and failure to timely file written
objections to any proposed findings, conclusions, and recommendations contained in this report shall
bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted

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by the district court, except on grounds of plain error, provided that the party has been served with
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notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
from ten to fourteen days).
SIGNED this 3rd day of August, 2015.
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____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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