Cunningham v. City of Balch Springs et al
Filing
33
MEMORANDUM OPINION AND ORDER granting 21 Motion to Dismiss for Failure to State a Claim. (Ordered by Judge Sam A Lindsay on 6/19/2015) (aaa)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHAEL CUNNINGHAM,
Plaintiff,
v.
CITY OF BALCH SPRINGS, JAMES
YOUNG, JONATHAN HABER,
WILLIAM MORRIS a/k/a Ed Morris,
and EDWARD ORTEGA,
Defendants.
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Civil Action No. 3:14-CV-59-L
MEMORANDUM OPINION AND ORDER
Before the court are Defendant City of Balch Springs’ 12(b)(6) Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 21); and Defendants Young, Haber & Morris’ 12(b)(6)
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 23), both filed October 30, 2014. After
careful review of the motions, responses, reply, record, and applicable law, the court grants
Defendant City of Balch Springs’ 12(b)(6) Motion to Dismiss; grants Defendants Young, Haber
& Morris’ 12(b)(6) Motion to Dismiss; and remands the state law claim against Defendant
Edward Ortega to the 14th Judicial District Court, Dallas County, Texas.
I.
Background
The factual background and procedural history in this case are set forth in Cunningham v.
City of Balch Springs, 2014 WL 4851576 (N.D. Tex. Sept. 30, 2014) (Lindsay, J.) (“Cunningham
I”), which the court incorporates by reference as if herein fully set forth. In Cunningham I, the
court dismissed Plaintiff’s § 1983 claims against the City and the Individual Defendants but
Memorandum Opinion and Order - 1
allowed Plaintiff an opportunity to replead these claims.1 See Cunningham I, 2014 WL 4851576
at *7. On October 21, 2014, Plaintiff Michael Cunningham (“Plaintiff” or “Cunningham”) filed
his First Amended Complaint asserting claims under 42 U.S.C. § 1983 against the City of Balch
Springs (“the City”), James Young (“Young”), Jonathan Haber (“Haber”), and William Morris,
a/k/a Ed Morris (“Morris”) (collectively, the “Individual Defendants”), as well as a state law claim
for assault against Edward Ortega (“Ortega”). See First Am. Compl. (Doc. 19).
As alleged in the First Amended Complaint, this § 1983 action arises from the December
2011 arrest of Plaintiff by City of Balch Springs police offers who, acting pursuant to a warrant,
arrested him at his home and charged him with making a false police report. Specifically, Plaintiff
alleges that on December 3, 2011, Defendant Ortega, a City employee, assaulted him outside a
One Stop convenience store. See First Am. Compl. ¶¶ 10-34. Plaintiff alleges that Ortega’s assault
was captured on surveillance videotape by a store camera (hereinafter, the “One Stop video”) and
shows Ortega approach Plaintiff with a lead or metal pipe, and raise the pipe as if he were about
to attack Plaintiff. Id. ¶ 11. Plaintiff alleges that out of fear for his safety, and believing he was
in imminent danger of severe bodily injury, he ducked and tried to protect himself from the attack.
Id. Plaintiff alleges he then contacted the City’s police department to make a complaint against
Ortega for assault. Id. ¶ 17. Plaintiff, also a City employee, alleges that after reporting the incident,
he went to work and his superiors told him to go to the City’s police station to give a statement,
1
In Cunningham I, the court also granted the City’s and Individual Defendants’ respective motions to dismiss
Plaintiff’s state law claims, with the exception of the malicious prosecution claim, and dismissed those claims with
prejudice. Cunningham I, 2014 WL 4851576 at *7-8. Although Plaintiff pleads a claim for malicious prosecution in
his First Amended Complaint, he has since abandoned this claim. See Pl.’s Opp’n to Defs.’ Mot. to Dis. ¶ 2 (Doc. 27)
(“Plaintiff does not object to the dismissal of the State law claim for malicious prosecution.”). Finally, the court did
not issue any ruling pertaining to Plaintiff’s state law assault claim against Defendant Ortega, noting that Ortega,
unlike the City and the Individual Defendants, did not file a dispositive motion.
Memorandum Opinion and Order - 2
even though he had already provided a statement to City police officer Sergeant Ramsey. Id. ¶ 21.
Plaintiff alleges that when he arrived at the police station he was placed in a small interrogation
room and confronted by Defendants Haber and Young, who questioned him about the incident,
showed him the One Stop video, accused him of having a selective memory and of not recounting
the incident exactly as it was captured on the One Stop video, and accused him of making a false
police report. Id. ¶¶ 21-28.
With regard to procurement of the arrest warrant, Plaintiff alleges that “upon further
investigation and discovery, evidence will show that Young and/or Haber and/or other police
officers with the City of Balch Springs Police Department knowingly filed a false affidavit to
secure an arrest warrant for [Plaintiff’s] arrest when the affiant(s) 1) knew it was false, or 2) would
have known it was false had the affiant not recklessly disregarded the truth.” Id. ¶ 29. Plaintiff
further alleges that even though the One Stop video corroborates his assault claim, “somehow, the
Balch Springs police secured an arrest warrant to have [Plaintiff] arrested for making a false
report” and “[p]resumably the warrant was obtained by sworn statements made by Balch Springs
police officers in an affidavit, claiming that [Plaintiff] made a false report to the police regarding
the assault by Ortega.” Id. ¶¶ 30-31. Plaintiff also alleges that, “upon further investigation and
discovery the evidence will show that the warrant for arrest was obtained by Young and/or Haber
and/or other City of Balch Springs police officers after they knowingly and intentionally, or with
reckless disregard for the truth, presented to a Judge an affidavit that contained misleading and/or
incorrect assertions of fact.” Id. ¶ 33. Plaintiff alleges that all charges against him were dropped
after the Dallas County Criminal District Attorney’s Office declined to pursue any criminal action
Memorandum Opinion and Order - 3
against him. Id. ¶ 34. Plaintiff alleges that the conduct of Defendants Haber and Young violated
his Fourth Amendment right to be free from unlawful seizure and arrest. Id. ¶ 36.
Plaintiff also alleges that after he reported the assault to Sergeant Ramsey, Ortega was
arrested based on the evidence in the One Stop video. Id. ¶ 47. Plaintiff alleges that Sergeant
Ramsey was then “disciplined and/or placed on leave from the Balch Springs Police Department
in connection with the assault investigation and subsequent arrest of Ortega.” Id. ¶ 48.
With regard to the City, Plaintiff alleges that his Fourth Amendment constitutional right to
be free from unlawful seizure was violated “with the knowledge, authority, and/or permission,
either express of implied, of Morris and [the City],” or was done “in accordance with policy,
practice, or custom of the police officers of the [City], acting under the direction, leadership and
authority of Morris, as Chief of Police and City Manager[.]” Id. ¶ 46. Plaintiff further alleges that
through Morris, the violations of Plaintiff’s constitutional rights were ratified. Id. ¶ 49. Plaintiff
alternatively argues that his constitutional rights were violated “due to a failure on the part of
Morris and/or [the City] to properly supervise and/or train [its] officers, and/or the acquiescence
of Morris and [the City] in unconstitutional behavior of subordinate officers.” Id. ¶ 46.
The City and Individual Defendants move anew to dismiss, and Plaintiff opposes the
motion. The court first sets forth the applicable legal standard for dismissal of a claim under
Federal Rule of Civil Procedure 12(b)(6).
II.
Rule 12(b)(6)—Failure to State a Claim
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.
Memorandum Opinion and Order - 4
Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,
180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). While a complaint need not contain detailed factual
allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The
“[f]actual allegations of [a complaint] must 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. (quotation marks, citations, and footnote omitted). When the allegations of the pleading
do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of
showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the
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plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a
plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court
in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.
Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a
complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences
favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted).
The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines
whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St.
Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court
deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in
the pleadings to determine whether they are adequate enough to state a claim upon which relief
can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro
Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th
Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a
plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)
challenge. Adams, 556 F.2d at 293.
Memorandum Opinion and Order - 6
III.
Analysis
The court now turns to whether Plaintiff’s amended § 1983 allegations are sufficient to
state a claim against the City and the Individual Defendants that is “plausible on its face.”
Twombly, 550 U.S. at 570. The court first considers the amended allegations against the City.
A. Plaintiff’s Amended § 1983 Claim Against City
In Cunningham I, the court granted the City’s motion to dismiss Plaintiff’s § 1983 claims,
finding Plaintiff’s allegations against the City to be “conclusory and general,” and “woefully
deficient.” Cunningham I, 2014 WL 4851576 at *6 (quoting Spiller v. City of Texas City, Police
Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citation omitted) (“The description of a policy or custom
and its relationship to the underlying violation . . . cannot be conclusory; it must contain specific
facts.”)). The City contends that the amended pleadings fail to cure the deficiencies set forth in
Cunningham I and that Plaintiff’s § 1983 claims against it should therefore be dismissed. See Def.
City’s Br. Supp. Mot. to Dis. (“City’s Br.”) (Doc. 22). In response, Plaintiff points the court to
paragraphs 46 through 49 of the First Amended Complaint and argues that the allegations are
sufficient to state a claim against the City. Pl.’s Resp. Br. ¶¶ 4, 16 (Doc. 28).
1. Applicable Law
It is well-settled law that a section 1983 lawsuit brought against a municipality for the
deprivation of a constitutional or federally protected right must be based upon an official policy or
custom of that municipality. Board of the Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403 (1997); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). Official
policy is defined as:
Memorandum Opinion and Order - 7
1.
A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the [city’s] 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 [city]
policy. Actual or constructive knowledge of such custom must be attributable to
the governing body of the [city] or to an official to whom that body had delegated
policy-making authority.
Id.
Liability must rest on official policy, meaning the governmental entity’s policy, and not
the policy of an individual official. Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984).
The official complained of must possess
[f]inal authority to establish [city] policy with respect to the action ordered. . . .
The official must also be responsible for establishing final government policy
respecting such activity before the [city] can be held liable. . . . [W]hether an
official had final policymaking authority is a question of state law.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986). An employee, agency, or board of a
governmental entity is not a policymaker unless the governmental entity, through its lawmakers,
has delegated exclusive policymaking authority to that employee, agency or board and cannot
review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
To support a constitutional or federal claim based on a policy or custom of a city, a plaintiff
must plead facts that show: “1) a policy or custom existed; 2) the governmental policy makers
actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the
custom or policy served as the moving force behind the violation.” Meadowbriar Home for
Children Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996) (citation omitted).
Memorandum Opinion and Order - 8
A failure to train allegation can be the basis for liability under 42 U.S.C. §1983 only if the
“failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). To establish this claim,
a plaintiff must plead facts that show that “(1) the training procedures were inadequate; (2) the
[City’s] policymaker was deliberately indifferent in adopting the training policy; and (3) the
inadequate training policy directly caused [his] injury.” Carnaby v. City of Houston, 636 F.3d
183, 189 (5th Cir. 2011) (citation omitted).
2. Discussion
In his First Amended Complaint, Plaintiff alleges that his constitutional right to be free
from arrest without probable cause was violated “with the knowledge, authority, and/or
permission, either express of implied, of Morris and [the City],” or was done “in accordance with
policy, practice, or custom of the police officers of the [City], acting under the direction, leadership
and authority of Morris, as Chief of Police and City Manager[.]” First Am. Compl. ¶ 46. Plaintiff
further alleges that through Morris, the violations of Plaintiff’s constitutional rights were ratified.
Id. ¶ 49. Plaintiff alternatively alleges that his constitutional rights were violated “due to a failure
on the part of Morris and/or [the City] to properly supervise and/or train [its] officers, and/or the
acquiescence of Morris and [the City] in unconstitutional behavior of subordinate officers.” Id. ¶
46.
Having reviewed these amended allegations, the court agrees with the City that Plaintiff’s
amended § 1983 allegations fail to cure the pleading deficiencies previously noted by the court in
Cunningham I. First, Plaintiff has failed to allege facts supporting the existence of an official
policy or custom. Even assuming the truth of Plaintiff’s allegations, he has only alleged one
Memorandum Opinion and Order - 9
episode in which the City of Balch Springs police officers allegedly engaged in such unlawful
conduct. Allegations of one incident are insufficient to allege a policy or custom that is so common
and well-settled as to constitute a custom that represents municipal policy. See generally Renfro
v. City of Kaufman, 27 F. Supp. 2d 715, 717 (N.D. Tex. 1998) (Fish, J.) (citing Worsham, 881 F.2d
at 1339-40)) (“A single incident unaccompanied by supporting history will likely be an inadequate
basis for inferring such a custom or usage unless the actor or actors involved had been given
official policy-making authority.”). Further, Plaintiff alleges no facts that show what training
police officers received or how that training is insufficient, let alone that a policymaker was
deliberately indifferent in adopting any training policy, or that any inadequate training policy
directly caused his injuries. See Carnaby, 636 F.3d at 189. Moreover, Plaintiff does not allege or
set forth any allegations that Morris has policymaking authority or that the City has delegated such
authority to him. In addition, Plaintiff fails to adequately allege that a final policymaker had actual
or constructive knowledge of any official policy or custom, or that the City’s final policymakers
were deliberately indifferent to a known or obvious risk that these customs would result in
deprivations of rights. See Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2011) (and cases
cited therein).
In reviewing Plaintiff’s factual allegations against the City as true and in the light most
favorable to him, the court determines that Plaintiff has merely set forth allegations that the City’s
alleged inaction constituted negligence or, possibly, gross negligence. The general and conclusory
allegations asserted by Plaintiff are well below what is necessary for the court to infer that he was
injured as a result of an unconstitutional policy or custom of the City. “Gross negligence” is not
the same as “deliberate indifference.” The terms “gross negligence” and “deliberate indifference”
Memorandum Opinion and Order - 10
are sometimes confused and interchanged; however, “deliberate indifference” is a stricter standard.
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994). “Gross negligence” is a
heightened degree of negligence, whereas “deliberate indifference” is a “lesser form of intent.” Id.
at n.7 (citation omitted). A showing of heightened negligence is insufficient to state a claim for
deliberate indifference. Bryan Cnty., 520 U.S. at 407.
“The deliberate indifference standard is a high one.” Doe v. Dallas Indep. Sch. Dist., 153
F.3d 211, 219 (5th Cir. 1998). Deliberate indifference “is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence of his action.” Bryan
Cnty., 520 U.S. at 410. The term is best summarized as follows:
To act with deliberate indifference, a state actor must know of and disregard an
excessive risk to the victim’s health or safety. The state actor’s actual knowledge
is critical to the inquiry—a failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, does not rise to the level
of deliberate indifference.
Whitely v. Hanna, 726 F.3d 631, 641 (5th Cir. 2013) (citations, internal quotation marks, and
brackets omitted).
In sum, without further allegations from which a court could reasonably infer that a policy
or custom exists, that a final policymaker actually or constructively knew of its existence, and that
the custom or policy served as the moving force behind the alleged constitutional violation, the
court cannot reasonably infer that the City is liable for the misconduct alleged and again concludes
that Plaintiff’s amended allegations fail to state a plausible § 1983 claim against the City.
Accordingly, the City’s motion to dismiss will be granted.2
2
To the extent the Individual Defendants are sued in their official capacity, the court dismisses these claims as
redundant of the claims against the City. See generally Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009)
(quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official capacity suit is, in all respects other than
Memorandum Opinion and Order - 11
B. Plaintiff’s Amended § 1983 Claims Against the Individual Defendants
In Cunningham I, the court granted the Individual Defendants’ motion to dismiss Plaintiff’s
§1983 claims, finding that “for the reasons set forth by the Individual Defendants[,]” the Complaint
was “lacking in specificity to overcome the qualified immunity defense asserted by them.”
Cunningham I, 2014 WL 4851576 at *7. The court held that “Plaintiff’s pleadings at best infer a
possibility of wrongdoing on the part of the Individual Defendants; however, pleadings fall short
of stating a claim upon which relief can be granted if the court can only infer the ‘mere possibility
of wrongdoing.’” Id. (quoting Iqbal, 556 U.S. at 679). Rather than direct Plaintiff to file a detailed
reply to address the plea of qualified immunity, see Schultea v. Wood, 47 F.3d 1427, 1433 (5th
Cir. 1995) (en banc), the court allowed Plaintiff an opportunity to replead his § 1983 claim against
the Individual Defendants.
The Individual Defendants contend that the amended pleadings fail to cure the deficiencies
noted in Cunningham I and are still insufficient to overcome their entitlement to qualified
immunity. Ind. Defs.’ Br. in Supp. of Mot. to Dis. (“Ind. Defs.’ Br.”) (Doc. 24). In response,
Plaintiff argues that the allegations are sufficient to state a claim against the Individual Defendants.
Pl.’s Resp. Br. ¶¶ 5-15 (Doc. 28).
1.
Qualified Immunity
Government officials who perform discretionary functions are entitled to the defense of
qualified immunity, which shields them from suit as well as liability for civil damages, if their
conduct does not violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
name, to be treated as against the entity. It is not against the official personally, for the real party in interest is the
entity.”)).
Memorandum Opinion and Order - 12
defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo,
446 U.S. 635, 640 (1980). Defendants Young, Haber, and Morris have pleaded this defense. See
Defs.’ Ans. to Pl.’s Am. Compl. ¶¶ 47-50 (Doc. 25).
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme
Court initially set forth a mandatory two-part inquiry for determining whether a government
official was entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under
Saucier, a court must determine first whether the facts alleged or shown are sufficient to make out
a violation of a constitutional or federal statutory right. If the record sets forth or establishes no
violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or
establishes that a violation could be made out, the court must determine whether the right at issue
was clearly established at the time of the government official’s alleged misconduct. Id. The Court
relaxed this mandatory sequence in Pearson v. Callahan, 555 U.S. 223 (2009), and stated,
“[W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded
as mandatory,” and judges “should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Id. at 236. The second prong of the test “is better
understood as two separate inquiries: whether the allegedly violated constitutional right[] [was]
clearly established at the time of the incident; and if so, whether the conduct of the defendant[]
[official] was objectively unreasonable in light of then clearly established law.” Tarver v. City of
Edna, 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted); see also
Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999); Hare v. City of Corinth, 135 F.3d 320, 326 (5th
Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).
Memorandum Opinion and Order - 13
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such
defense. In the context of qualified immunity, however, this burden varies from the norm. In this
circuit, the rule is as follows:
Where . . . [a] defendant pleads qualified immunity and shows he is a governmental
official whose position involves the exercise of discretion, the plaintiff then has the
burden to rebut this defense by establishing that the official’s allegedly wrongful
conduct violated clearly established law. We do not require that an official
demonstrate that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs.
Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted);
see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
A right is “clearly established” only when its contours are sufficiently clear that a
reasonable public official would have realized or understood that his conduct violated the right in
issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S.
635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right
must not only be clearly established in an abstract sense but in a more particularized sense so that
it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing
law. Anderson, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998);
Pierce, 117 F.3d at 871.
In Anderson, 483 U.S. at 641, the Court refined the qualified immunity standard and held
that the relevant question is whether a reasonable officer or public official could have believed that
his conduct was lawful in light of clearly established law and the information possessed by him.
If public officials or officers of “reasonable competence could disagree [on whether the conduct is
legal], immunity should be recognized.” Malley, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44
F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Qualified
Memorandum Opinion and Order - 14
immunity is designed to protect from civil liability “all but the plainly incompetent or those who
knowingly violate the law.” Malley, 475 U.S. at 341. Conversely, an official’s conduct is not
protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent
the conduct, when undertaken, would be a violation of the right at issue. Foster, 28 F.3d at 429.
To preclude qualified immunity, it is not necessary for a plaintiff to establish that “the [specific]
action in question has previously been held unlawful.” Anderson, 483 U.S. at 640. For an official,
however, to surrender qualified immunity, “pre-existing law must dictate, that is, truly compel (not
just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable
government agent that what the defendant is doing violates federal law in the circumstances.”
Pierce, 117 F.3d at 882; Stefanoff, 154 F.3d at 525. Stated differently, while the law does not
require a case directly on point, “existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (citations omitted).
2. Discussion
a. Claims Against Defendants Young and Haber
The court will first address whether immunity bars Plaintiff’s claims against Defendants
Young and Haber. As already noted, Defendants Young and Haber have asserted a qualified
immunity defense. See Defs.’ Ans. to Pl.’s Am. Compl. ¶¶ 49-50. Thus, it is Plaintiff’s burden
to rebut Defendants’ qualified immunity defense. See Pierce, 117 F.3d at 871-72. To rebut
Defendants’ qualified immunity defense, Plaintiff must allege a sufficient factual basis from which
a reasonable juror could find that “the official’s allegedly wrongful conduct violated clearly
established law.” Id. When the defense of qualified immunity is raised in a motion to dismiss, the
complaint is subject to a heightened pleading requirement, which requires “claims of specific
Memorandum Opinion and Order - 15
conduct and actions giving rise to a constitutional violation.” Baker, 75 F.3d at 195 (citing Shultea
v. Wood, 47 F.3d 1427, 1432, 1434 (5th Cir. 1995) (en banc)).
Plaintiff’s § 1983 claim against Defendants Young and Haber is premised on their alleged
roles in procuring the warrant with false information that led to his arrest, which Plaintiff contends
was without probable cause in violation of the Fourth Amendment. With regard to Young’s and
Haber’s role in procurement of the arrest warrant, Plaintiff alleges that “upon further investigation
and discovery, evidence will show that Young and/or Haber and/or other police officers with the
City of Balch Springs Police Department knowingly filed a false affidavit to secure an arrest
warrant for [Plaintiff’s] arrest when the affiant(s) 1) knew it was false, or 2) would have known it
was false had the affiant not recklessly disregarded the truth.” Pl.’s Am. Compl. ¶ 29. Plaintiff
further alleges that even though the One Stop video corroborates his assault claim, “somehow, the
Balch Springs police secured an arrest warrant to have [Plaintiff] arrested for making a false
report” and “[p]resumably the warrant was obtained by sworn statements made by Balch Springs
police officers in an affidavit, claiming that [Plaintiff] made a false report to the police regarding
the assault by Ortega.” Id. ¶¶ 30-31. Plaintiff also alleges that, “upon further investigation and
discovery the evidence will show that the warrant for arrest was obtained by Young and/or Haber
and/or other City of Balch Springs police officers after they knowingly and intentionally, or with
reckless disregard for the truth, presented to a Judge an affidavit that contained misleading and/or
incorrect assertions of fact.” Id. ¶ 33.
Even were the court to assume, arguendo, that the arrest warrant was based on false
statements or omissions, the Fifth Circuit has expressly declined to extend § 1983 liability “beyond
the affiant and person who actually prepared, or was fully responsible for the preparation of, the
Memorandum Opinion and Order - 16
warrant application . . . with knowledge that a warrant would be based solely on the [faulty
affidavit].” Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005) (discussing the extent of
liability under Malley v. Briggs, 475 U.S. 335 (1986)3 and finding that district court erred in
denying qualified immunity to officers on claims related to the procurement of a warrant, even
when officers participated in investigation leading up to issuance of the warrant); see also
Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 365 (5th Cir. 2007) (finding that district
court erred in denying qualified immunity to two officers on claims related to procurement of a
warrant, as plaintiff did not allege that either officer was the affiant officer or the officer who
actually prepared the warrant application with knowledge that the warrant would be based solely
on the document prepared); Jennings v. Patton, 644 F.3d 297, 301 (5th Cir. 2011) (finding that
district court erred in denying qualified immunity to county judge sued under § 1983 for alleged
procurement of a warrant based on false statements where county judge was not affiant or the
person who actually prepared the warrant application with knowledge that the warrant would be
based solely on the document prepared).
In light of this controlling precedent, the court finds that Plaintiff’s § 1983 claims against
Defendants Young and Haber should be dismissed based on the doctrine of qualified immunity.
First, Plaintiff has failed to allege that either Young or Haber was the affiant or that either Young
or Haber was responsible for the actual preparation of the allegedly false affidavit or had
knowledge that the warrant would be based solely on the purportedly false affidavit. Under these
circumstances, the allegations of the First Amended Complaint are simply too threadbare for the
3
In Malley, the Supreme Court held that an officer who obtained an arrest warrant based on an affidavit that failed to
establish probable cause could be held liable for the resulting unconstitutional arrest notwithstanding the issuing
judge’s approval of the application. Malley, 475 U.S at 343-46.
Memorandum Opinion and Order - 17
court to infer that Defendants Young and Haber are liable to Plaintiff, and the court concludes that
Defendants Young and Haber are shielded by immunity as to these allegations. See Michalik,
supra; Hampton, supra.
Further, to the extent Plaintiff seeks to rebut the qualified immunity defense by asserting
that Defendants Young and Haber are liable under Franks v. Delaware, the court similarly
concludes that Plaintiff has failed to allege specific conduct and actions by Young or Haber
sufficient to overcome their immunity. In Franks v. Delaware, the Supreme Court held that a
Fourth Amendment violation is established when an officer “knowingly and intentionally, or with
reckless disregard for the truth” makes a false statement that results in a warrant being issued
without probable cause. Franks, 438 U.S.154, 155-56 (1978). The Fifth Circuit has extended
Franks to an intentional or reckless omission of material facts from a warrant application that also
amounts to a Fourth Amendment violation. See Hale v. Fish, 899 F.2d 390, 400 n.3 (5th Cir.
1990).
With regard to Plaintiff’s Franks claim, as is evident from the amended allegations,
Plaintiff has failed to point to any specific false statement or omission attributable to either Young
or Haber that appeared in the arrest warrant or the arrest warrant application. Absent such
allegations, Plaintiff’s claim based on a violation of Franks fails as a matter of law. See Michalik,
422 F.3d at 261 (upholding portion of district court’s finding that officers were entitled to
immunity from Franks liability where “[plaintiffs] identified no false statement attributable to [the
officers] that appeared anywhere in the warrant application.”); White v. Wilder, 2007 WL 3357315,
at *4 (S.D. Miss. Nov. 7, 2007) (dismissing Franks claim where “plaintiffs [] failed to identify any
Memorandum Opinion and Order - 18
false statements made by [the officer] or any statements that were even included in the warrants
purportedly at [the officer’s] instigation.”).
In sum, the court concludes that, viewing all of Plaintiff’s well-pleaded facts as true, and
drawing all reasonable inferences in Plaintiff’s favor, Plaintiff has failed to allege facts with the
requisite specificity to overcome Defendant Young’s and Defendant Haber’s assertion of qualified
immunity. Accordingly, the Individual Defendants’ motion to dismiss will be granted as to
Plaintiff’s § 1983 claims against Defendants Young and Haber.
b. Defendant Morris
Based on the allegations in the First Amended Complaint, the court concludes that Plaintiff
is seeking to recover against Morris under a theory of supervisory liability. See First Am. Compl.
¶¶ 39-40, 46-50. “Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Thompson v. Upshur Cnty., 245 F.3d 447, 459
(5th Cir. 2001) (quoting Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987)). To establish
liability against a supervisory official, such as Morris, the plaintiff must show that: “(1) the
[supervisory official] 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.”4
Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (citation omitted). “Proof of more
than a single instance of the lack of training or supervision causing a violation of constitutional
4
The First Amended Complaint also alleges that Morris was the city manager of the City at the time of the incident
made the basis of this lawsuit. Pl.’s Am. Compl. ¶ 6. To the extent that Plaintiff contends that Morris was acting in
his capacity as a supervisory official as city manager over the City’s police department, the same standard applies as
that for a supervisory police chief. To the extent that Plaintiff intimates that Morris is a policymaker, his argument
fails for the reasons set forth in Section III(A) of this opinion.
Memorandum Opinion and Order - 19
rights is normally required before such a lack of training or supervision constitutes deliberate
indifference.” Thompson, 245 F.3d at 459 (citation omitted).
Defendant Morris has asserted a defense of qualified immunity to this lawsuit. See Defs.’
Ans. to Pl.’s Am. Compl. ¶ 48 (Doc. 25). Thus, Plaintiff has the “burden to rebut this defense by
establishing that [Morris’s] allegedly wrongful conduct violated clearly established law.” Pierce,
117 F.3d at 872 (citation omitted). Plaintiff has failed to meet this burden. Other than the
allegation that Morris was the “Police Chief” and “City Manager of the City of Balch Springs” at
all relevant times, see First Am. Compl. ¶ 6, the remaining allegations that mention Morris are far
too general and conclusory to state a § 1983 claim against him based on a theory of supervisory
liability. See id. ¶¶ 39-40, 46-50.
With regard to any failure to train or supervise by Morris,
Plaintiff fails to set forth allegations concerning more than this one instance. See id. ¶ 46. Further,
Plaintiff fails to make any factual allegations of deliberate indifference, or allege facts from which
the court can reasonably infer deliberate indifference to Plaintiff’s constitutionally protected rights.
See supra Sec. III.A.2. (setting forth standard for “deliberate indifference”).
For the foregoing reasons, the court concludes that Plaintiff has failed to state a § 1983
claim against Defendant Morris. Accordingly, the Individual Defendants’ motion to dismiss will
be granted as to Plaintiff’s § 1983 claim against Defendant Morris.
IV.
State Law Assault Claim Against Defendant Ortega
In Cunningham I, the court did not address Plaintiff’s state law assault claim against
Defendant Ortega, as Ortega, unlike the other Defendants, did not file a motion to dismiss. In the
First Amended Complaint, Plaintiff again pleads a state law claim for assault against Defendant
Memorandum Opinion and Order - 20
Ortega. Ortega has not filed any motion with regard to this claim. Accordingly, Plaintiff’s state
law assault claim against Defendant Ortega remains.
Although remand pursuant to 28 U.S.C. § 1447(c) is not available, the court concludes that
this case should not remain in federal court. As a result of the court’s decision dismissing
Plaintiff’s federal claims, only Plaintiff’s state law claim against Defendant Ortega remains. The
court has jurisdiction over the state law claim only through supplemental jurisdiction pursuant to
28 U.S.C. § 1367(a). Now that the federal claims have been dismissed, the court has discretion
whether to retain the remaining claim. 28 U.S.C. § 1367(c)(3); Rhyne v. Henderson Cnty., 973
F.2d 386, 395 (5th Cir. 1992). The relevant considerations are “judicial economy, convenience,
fairness and comity.” Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999). The
strongest consideration here is that the state courts are more familiar with, and better equipped to
address, the state law cause of action remaining. Further, this case is in its initial stages, and no
discovery has taken place. For these reasons, the court exercises its discretion and declines
supplemental jurisdiction over the remaining state law claim.
V.
Amendment of Pleadings
Plaintiff requested and was granted leave to amend his pleadings after Defendants moved
the first time to dismiss his claims. While the First Amended Complaint is longer than Plaintiff’s
Original Petition, the live pleading does not cure the deficiencies noted by the court in Cunningham
I and fails to state claims against the City and Individual Defendants upon which relief can be
granted. Plaintiff has not requested to further amend his pleadings; rather, he steadfastly maintains
in response to the motions to dismiss that his claims, as pleaded, are sufficient. The court,
therefore, concludes that Plaintiff has pleaded his “best case” and will not allow him an opportunity
Memorandum Opinion and Order - 21
to further amend his pleadings. See Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567 (5th
Cir.2003). Moreover, allowing Plaintiff to further amend will unnecessarily delay resolution of
this action.
VI.
Conclusion
For the reasons herein stated, the court grants Defendant City of Balch Springs’ 12(b)(6)
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 21), and grants Defendants Young,
Haber & Morris’ 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 23). Plaintiff’s
§ 1983 claims against the City and against Defendants Young, Haber, and Morris are hereby
dismissed with prejudice.5 Further, in light of Plaintiff’s abandonment of his state law malicious
prosecution claim, see supra note 1, Plaintiff’s malicious prosecution claim is dismissed with
prejudice. Remaining is Plaintiff’s state law assault claim against Defendant Ortega. For the
reasons previously stated, see supra Sec. IV, the court exercises its discretion and declines to
exercise supplemental jurisdiction over this state law claim. Accordingly, the court sua sponte
remands Plaintiff’s state law claim of assault to the 14th Judicial District Court of Dallas County,
Texas. The clerk of court is hereby directed to effect the remand in accordance with usual
procedure.
5
The City and the Individual Defendants include a request for attorney’s fees under 42 U.S.C. § 1988 in their
respective motions. In a suit to enforce § 1983, the court may, in its discretion, grant the prevailing party reasonable
attorney’s fees and related expenses. See 42 U.S.C. § 1988(b). While a prevailing plaintiff in a § 1983 action is
usually entitled to an award of fees under § 1988, “prevailing defendants cannot recover § 1988 fees without
demonstrating that the plaintiff’s underlying claim was frivolous, unreasonable or groundless.” Merced v. Kasson,
577 F.3d 578, 595 (5th Cir. 2009) (citation omitted). No such showing has been made at this juncture. If Defendants
believe they are entitled to attorney’s fees, they may file such a request postjudgment pursuant to Federal Rule of Civil
Procedure 54(d)(2).
Memorandum Opinion and Order - 22
It is so ordered this 19th day of June, 2015.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - 23
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