Furlow v. BAKER et al

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 43 Report and Recommendations, 20 Motion to Dismiss filed by Smith County Texas, Smith County Texas terminated.. Signed by District Judge Robert W. Schroeder, III on 9/4/2018.. (saenz, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JOHN T FURLOW,
Plaintiff,
v.
JOEL BAKER, DENNIS MATHEWS,
SMITH COUNTY TEXAS, CITY OF
TYLER, TEXAS,

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CIVIL ACTION NO. 6:18-CV-00127-RWS

Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate
Judge John D. Love pursuant to 28 U.S.C. § 636. On June 28, 2018, the Magistrate Judge issued
a Report and Recommendation (“R&R”), recommending that Defendant Smith County, Texas’s
(“Smith County”) Motion to dismiss this case pursuant to Federal Rule of Civil Procedure
12(b)(6) be granted. Docket No. 43. Plaintiff John T. Furlow filed objections to the Magistrate
Judge’s R&R. Docket No. 45. Smith County has filed a response. Docket No. 46. Having
conducted a de novo review of Plaintiff’s written objections, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct and the objections are without
merit. 28 U.S.C. § 636 (b)(1).
Plaintiff first objects to the Magistrate Judge’s conclusion that Plaintiff failed to allege a
claim under the First Amendment. Docket No. 45 at 2–3. Specifically, Plaintiff contends that the
Magistrate Judge failed to consider all of the facts and erred in concluding Plaintiff’s single
sentence regarding the First Amendment was insufficient to state a claim. Id. at 3. In the R&R,

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the Magistrate Judge concluded that Plaintiff’s allegations as to a First Amendment violation
were insufficient and noted that Plaintiff’s only sentence with respect to the First Amendment
was “[t]he investigation, indictment, arrest and prosecution of Plaintiff were made without
probable cause, were substantially motivated against Plaintiff’s exercise of his First Amendment
right to speak on matters concerning election and candidacy for office against Defendant Baker,
and were in keeping with the policy, custom, practice and procedure of the government entity
defendants of protecting Defendants’ interests.” Docket No. 43 at 6, citing Docket No. 16 at ¶
80. Plaintiff contends that this sentence is sufficient to inform a First Amendment claim. Docket
No. 45 at 3. The Court agrees with the Magistrate Judge that this single sentence is insufficient.
While the factual allegations assert a violation of the First Amendment by Defendant Joel Baker,
the allegations fail to contain any facts that would support a violation of the First Amendment by
Smith County. See Docket No. 16, at ¶ 80. Plaintiff concedes his allegations are directed only
towards Defendant Baker, but asserts that a claim against Defendant Baker in his official
capacity is also a claim against Smith County. Docket No. 45 at 3. However, the Magistrate
Judge also found that Plaintiff’s allegations are insufficient to allege an official capacity suit
under Monell.
In this regard, Plaintiff objects to the Magistrate Judge’s conclusions for focusing on
certain statements with respect to Defendant Baker’s conduct and failing to find an official
policy was alleged. Docket No. 45 at 4. Here, contrary to Plaintiff’s objections, the Magistrate
Judge did not conclude that a policy must be written to satisfy the requirements of Monell.
Specifically, the Magistrate Judge noted that “[a]n ‘official policy’ for § 1983 purposes may be
either a written policy or ‘a persistent widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated policy, is so common and well

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settled as to constitute a custom that fairly represents municipal policy.’” Docket No. 43 at 10,
citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). As the Magistrate
Judge correctly pointed out, Plaintiff does not rely on a written policy but instead alleges a series
of actions of Defendant Baker’s as a custom or practice of Smith County to establish liability.
Docket No. 43 at 10, citing Docket No. 16 at ¶¶ 87, 88. Plaintiff quarrels with the Magistrate
Judge’s characterization of the allegations regarding policy, but Plaintiff does not offer any
specific policy or explain why the Magistrate Judge’s characterization of his allegations are
incorrect. For example, while Plaintiff focuses on the Magistrate Judge’s finding that Plaintiff
alleged a policy of allowing Defendant Baker to “run amok,” Plaintiff does not point to any
additional facts that should be construed in his favor on this point. Indeed, the Magistrate Judge
considered all of Plaintiff’s allegations regarding this conduct, including specifically paragraphs
87, 88, and 89 of Plaintiff’s Amended Complaint. See Docket No. 43 at 10–11.
As the Magistrate Judge correctly found, Plaintiff’s allegations relate only to one
incident—his alleged wrongful prosecution. See Docket No. 16 at ¶¶ 87–89. Based on these
allegations, the Court agrees there are simply not enough facts alleged to impute Smith County
under Monell. Again, Plaintiff additionally cites to Defendant Baker’s actions of “tak[ing]
pictures of a female neighbor at midnight through her window” and “sending pornographic
pictures” and similar conduct to suggest that Smith County should have known Baker was not
acting in accordance with the law—thereby creating an official policy. However, this conduct is
unrelated to Plaintiff’s alleged wrongful prosecution, which serves as the basis of his claims.
While Plaintiff cites to Brown v. Bryan County as evidence of a single incident sufficient
to support municipal liability, in that case there was ample evidence that the Sheriff had
knowingly failed to train a deputy and still had allowed him to make arrests. See 219 F.3d 450,

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458 (5th Cir. 2000) (noting the Sheriff was a policy maker who knew the deputy was young and
inexperienced, was related to the deputy, failed to comply with formal steps to enroll the deputy
in training, knew the deputy had not availed himself of other training alternatives, authorized a
wide latitude of conduct, was engaging in conduct with the potential for harm, and knew there
were not formal policies to limit his conduct). Plaintiff simply does not allege any facts of this
nature to suggest Smith County was aware of Defendant Baker’s alleged conduct and allowed
him to continue said conduct. Thus, Plaintiff’s allegations, even when taken as a whole in the
light most favorable to Plaintiff, do not form a basis for Monell liability as to Smith County.
Plaintiff further objects that the Magistrate Judge made a factual determination that the
allegations are not “extreme” which went beyond the allegations of the complaint. Docket No. 45
at 5. This characterization of the Magistrate Judge’s recommendation is incorrect. The
Magistrate Judge did not make a factual determination on the allegations, but rather concluded
that Plaintiff had “not alleged any such extreme facts to warrant ratification such as that in
Grandstaff.” Docket No. 43 at 11. Further, the Magistrate Judge found that “Plaintiff has not
alleged repeated abuse of the felony investigation process by Defendant Baker and his
allegations focus only on the actions of Baker, not an entire department as was the case in
Grandstaff.” Id. Thus, the Magistrate Judge did not make a factual determination as Plaintiff
contends, but rather found Plaintiff’s factual allegations were insufficient to support a theory of
Grandstaff liability as set forth in his amended complaint.
Finally, Plaintiff objects to the Magistrate Judge’s conclusion that allowing an
amendment would be futile. Docket No. 45 at 5. On this point, the Magistrate Judge concluded
that “any further amendment on a First Amendment claim would be futile because none of the
allegations in the amended complaint go to the conduct of the County. As discussed herein,

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Plaintiff’s allegations are based on the conduct of Defendant Joel Baker. These allegations
simply do not implicate the County because, as discussed below, Plaintiff has failed to allege an
official policy of the County with respect to these allegations.” Docket No. 43 at 6–7. The Court
agrees that the facts alleged with respect to the First Amendment are insufficient and Plaintiff
does not now offer additional facts to support a further amendment. Moreover, as discussed
herein, the Court agrees that the allegations are insufficient under Monell. Having already had an
.
opportunity to amend his complaint in this matter, the Court agrees that further amendment is not
warranted.
CONCLUSION
For the reasons set forth herein, the Court ADOPTS the findings and conclusions of the
Magistrate Judge as the findings and conclusions of this Court and OVERRULES Plaintiff’s
objections. Defendant Smith County’s Motion to Dismiss (Docket No. 20) is GRANTED and
the claims against Smith County are DISMISSED with prejudice.
SIGNED this 4th day of September, 2018.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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