Muhammad v. Newell et al

Filing 30

MEMORANDUM ORDER: Defendants' motion to dismiss is denied, but their request for a more definite statement and a Rule 7(a) reply is granted. [Doc. # 24 ]. Plaintiff shall file an amended complaint and a Rule 7(a) reply by November 14. 2008. Defendants' motion for protective order [Doc, # 26 ] is granted. All discovery is stayed pending further order of the court. (Ordered by Magistrate Judge Jeff Kaplan on 10/14/2008) (mfw)

IN THE LINITEDSTATES DISTRICT COURT NORTHERN DISTzuCT TEXAS OF D A L L A SDIVISION
HERBERTAMEEN MUHAMMED Plaintiff, VS. W . K . NEWELL, ET AL.
Defendants.

$ $ $ $ $ $ $ $ $

NO.3-08-CV-1426-M

M E M O R A N D U M ORDER Defendants City of Terrell,Texasand W.K. Newell havefiled a motion to dismissor, alternativelyfor a moredefinitestatement a Rule 7(a)reply in thispro seprisonercivil rights , and under42 U.S.C.$ 1983. In a separate a c t i o nbrought motion,defendants a protective seek order all s t a y i n g discovery until the issue qualified of immunityis resolved. plaintiffs complaintand interrogatory After screening answers, court determined the that summary dismissal was not proper. Implicit in that decision was a finding that plaintiff had articulated sufficientfactsto survivea motionto dismiss underRule l2(b)(6). See28 U.S.C.$ prisoner 1 9 1 5 A ( b X l )(courtmay summarily dismiss civil rightsactionfor failureto state claim a u p o nwhichreliefcanbegranted); Velav. Phillips,No.3-06-CV-1695-K, 2006WL 3703202 at*l ( N . D . Tex. Dec. 15, 2006) (denyingRule l2(b)(6) motion to dismisswherepro se prisoner c o m p l a i n tsurvivedsummary dismissal initial screening). on Without suggesting view of the a presented defendants another meritsof thearguments procedural by in context, suchasa motionfor judgment,the courtconcludes dismissal not properat the pleadingstage. summary that is

plaintiff shouldbe required pleadadditional factsto supporthis claim Nevertheless, to maybeheldliablefor thedeprivation ofrights guaranteed againstheCity of Tenell. A municipality t law b y the Constitution federal only if the deprivation the resultof an official policy. See or was M o n e l lv. Department SocialServices New York,436U.S.658, 694,98S.Ct.2018,2037,56 of of practice city officials L . E d . 2 d6l I (1978). Sucha policymayinclude"a persistent, widespread of policy,is so o r employees, not officiallyadopted promulgated and which,although authorizedby municipal policy." common and well settled as to constitutea custom that fairly represents v. C a m p b e lv. City of SanAntonio,43 F.3d 973,977 (5th Cir. 1995),quotingWebster City of l by H o u s t o n , 7 3 5 .2d838, 84I (5thCir. I 984). ThemerefactthatW.K. Newellwasemployed the F School C i t y doesnot give rise to a claim of municipalliability. SeeJett v. DallasIndependent (no superior 598 S.Ct. D i s t r i c t , 4 9 U.S.701,736,109 2702,2723,l05L.Ed.2d (1989) respondeat l that plaintiff mustdemonstrate an official policy or l i a b i l i t y under42 U.S.C.$ 1983). Rather, violationmade basis the the c u s t o m theCity of Tenellwasa movingforcebehind constitutional of o f this suit. of Newell'sdefense to Plaintiff alsoshouldbe required file a Rule 7(a) reply to overcome acts qualified immunity. Police officers,like Newell, are immunefrom suit for discretionary violates unless theirconduct of performed goodfaith while actingwithin thescope theirauthority, in person would have right[ ] of which a reasonable or statutory constitutional a "clearlyestablished 102 U.S.800,818, S.Ct.2727,2738,73L.8d.2d396(1982). k n o w n . "Harlowv.Fitzgerald,45T the of Whena public official raises affirmativedefense qualifiedimmunity,the courtmay require in the to factsnecessary overcome defense a replyunderFed.R. Civ. t h eplaintiffto pleadspecific (en 47 P . 7(a). SeeSchultea Wood, F.3d 1427 1433(5th Cir. 1995) banc). Sucha reply"must v. , Id. its immunityandfairly engage allegations." A plaintiff to of b etailored theassertion qualified

must I'support [ ] his claim with suffrcient precision and factual specificity to raise a genuine issue a s to the illegality of defendants' conductat the time of the allegedacts." Reyesv. Sazan,l68 F.3d 1 5 8 , l6l (5th Cir. 1999). Although plaintiff allegesthat he was arrested basedon falsereportsand fabricated evidence,there is nothing in his pleadingsto suggestthat Newell knew the evidencewas false or that a reasonablepolice offrcer would have acted differently. Finally, defendantsseekan order staying all discovery pending a determination of whether Newell is entitled to qualified immunity. Discovery is generallynot allowed in a civil rights action u n t i l the issue of qualified immunity is resolved. See thclcs v. MississippiState Emplayment (5th Cir.),cert.denied,l15 S.Ct.2555(1995);Jacquezv. Procunier, S e r v i c e s , 4 lF.3d 991,994-95 if 8 0 1 F.2d 789,791(5th Cir. 1986). However,a courtmay allow limited discovery it is unableto rule on the immunity defensewithout further clarification ofthe facts. SeeGeter v. Fortenbeny,S49 F . 2 d 1550, 1554(5th Cir. 1988);Lion Boulos v. Wilson,834F.2d 504, 507 (5th Cir. 1987). By separate order filed today, the court hasstayeddiscoveryuntil defendantsfile a motion for summary judgment, but has indicated that plaintiff may be permitted to conduct limited discovery before he with that order,the court will staydiscoveryin this case. r e s p o n d s the motion. Consistent to A c c o r d i n g l y , defendants' motion to dismissis denied,but their requestfor a more definite statementand a Rule 7(a) reply is granted. fDoc. #24]. Plaintiff shall file an amendedcomplaint and a Rule 7(a) reply by November 14. 2008. The amendedcomplaint must allege specificfacfs which s h o w that an official policy or custom of the City of Terrell was a moving force behind the c o n s t i t u t i o n a lviolation made the basis of this suit. The Rule 7(a) reply must allegespecffic facts w h i c h showthat the conductof W.K. Newell violateda clearlyestablished constitutional statutory or personwould haveknown. Stated r i g h t of which a reasonable differently,plaintiffmust specifically p l e a d how Newell's actions were objectively unreasonablein light of the legal rules clearly

established the time of the incidentin question.The failureto file an amended at complaintanda R u l e7(a)replymayresultin thedismissal this case of withoutfurthernotice. SeeFpo. Ctv. P. R. 4l(b). Defendants' motion for protective order lDoc, #261is granted. All discovery stayed is pendingfurtherorderof the court. S O ORDERED. 14. D A T E D : October 2008.

STATES MAGISTRATEJUDGH