Arterra Apartments LLC et al v. City of Dallas

Filing 39

MEMORANDUM OPINION AND ORDER granting 31 Motion to Dismiss for Failure to State a Claim filed by City of Dallas. (Ordered by Judge Brantley Starr on 3/26/2024) (agc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARTERRA APARTMENTS, LLC AND §
PASEO APARTMENTS, LLC,
§
§
Plaintiff,
§
§ Civil Action No. 3:23-CV-0629-X
v.
§
§
THE CITY OF DALLAS,
§
§
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant City of Dallas’s (the “City”) Motion to
Dismiss First Amended Complaint.

(Doc. 31).

After reviewing the motion,

response, and applicable law, the Court GRANTS the City’s Motion. Additionally,
the Clerk of the Court is INSTRUCTED to close this case.
I. Factual Background
Plaintiffs’ Arterra Apartments and the Paseo Apartments parent company
owns and operates apartment complexes in South Dallas. 1 Two properties are at
issue in this case: the Arterra Apartments and the Paseo Apartments (collectively,
the “properties”). 2 The City contends that it has the authority to send city officials
onto the properties to perform code inspections of the properties without first
obtaining (1) the plaintiff’s consent or (2) an administrative warrant before the

1

Doc. 28 at 1.

2

Id.

1

search. 3

The plaintiffs contend the City’s code inspections taking place on the

properties are a violation of their Fourth Amendment right against unreasonable
searches and seek injunctive relief to prohibit the City from performing its
searches. 4
Presently, the City has filed a motion to dismiss arguing that the plaintiffs
haven not pled enough facts in their section 1983 claim to hurdle over the City’s
governmental immunity. The Court reviews this motion now.
II.

Legal Standard

Federal Rule of Civil Procedure 8 requires a pleading to state “a short and
plain statement of the claim showing that the pleader is entitled to relief.” 5 The
pleading standard does not require detailed factual allegations, but “[t]hreadbare
recitals of a cause of action, supported by mere conclusory statements, do not
suffice.” 6 For a complaint to survive a motion to dismiss under Rule 12(b)(6), it
must contain sufficient factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” 7 A claim is facially plausible when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. 8 For purposes of a motion to dismiss,
courts must accept all well-pleaded facts as true and construe the complaint in the
3

Id.

4

Id.

5

Fed. R. Civ. P. 8(a)(2).

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

7

Id.

8

Id.

2

light most favorable to the plaintiff. 9 “In other words, a motion to dismiss an action
for failure to state a claim admits the facts alleged in the complaint, but challenges
plaintiff’s rights to relief based upon those facts.” 10
III. Analysis
To plead municipal liability for a section 1983 claim, “a plaintiff must show
that (1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” 11 The parties dispute
all three elements. But the Court only needs to discuss the first element.
A. An Official Policy
In pleading the first step of municipal liability, a plaintiff must show the
existence of an official policy. 12 “For purposes of the first element, an official policy
includes the decisions of a government's law-makers, the acts of its policymaking
officials, and practices so persistent and widespread as to practically have the force
of law.” 13

From a pleading standpoint, a plaintiff pleading the existence of a

widespread practice must “do more than describe the incident that gave rise to his
injury.” 14 Instead, “[a] plaintiff's description of the challenged practice . . . must

Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep’t., 479 F.3d 377, 379 (5th
Cir. 2007).
9

10

Ramming v. U.S., 281 F.3d 158, 161–62 (5th Cir. 2001).

11

Hicks–Fields v. Harris Cty., 860 F.3d 803, 808 (5th Cir. 2017).

12

Id.

13

Johnson v. Harris Cnty., 83 F.4th 941, 946 (5th Cir. 2023).

14

Id.

3

contain specific facts” 15 of the other widespread instances. “And those specific facts
must be similar to the case at hand” because “[p]rior indications cannot simply be
for any and all ‘bad’ or unwise acts, but rather must point to the specific violation in
question.” 16
The parties dispute whether the plaintiffs have pled specific facts showing
that there is a widespread policy. The City argues that the plaintiffs have failed to
plead the existence of an official policy because the alleged widespread practice in
conducting unlawful searches “is limited to isolated incidents” and relies on
“anecdotal experiences, generalities, and concussions.” 17 In response, the plaintiffs
argue that 207 active City investigations deem it a widespread practice. 18

The

Court agrees with the City.
The underlying facts in the Fifth Circuit’s Johnson decision highlights the
point that a pleading need contain specific factual details of similar instances. 19 In
Johnson, the plaintiff sued Harris County under section 1983 asserting that her
Fourth Amendment rights were violated when three deputies arrested her. 20 The
district court granted dismissal of the plaintiff’s section 1983 claim and denied leave
to amend, which sought to add additional facts to section 1983 claim. 21 The Fifth
15

Id.

16

Id. at 946–47.

17

Doc. 32 at 6.

18

Doc. 35 at 9.

19

See e.g., Johnson, 83 F.4th at 946–47.

20

Id. at 944.

21

Id. at 947.

4

Circuit affirmed both decisions. 22 The Fifth Circuit’s explanation in affirming the
district court’s dismissal was rather short. 23 The Fifth Circuit explained that the
plaintiff’s description of the widespread pattern of conduct, which simply stated
that “officers . . . violate[d] the constitutional rights of individuals in a manner like
that alleged by Ms. Johnson[ ] on a regular basis,” 24 was “completely barren of
factual support and wholly conclusory.” 25

In short, more facts—or rather, any

facts—of similar past instances were needed.
Well, the plaintiff in Johnson sought leave to amend to add more facts to
their pleading by adding 23 instances of arrests by Harris County officers where
criminal charges were later dropped. 26 The district court denied that request. 27
And the Fifth Circuit affirmed. 28

In affirming, the Fifth Circuit held that 23

examples of arrests “that resulted in criminal chargers later dismissed for lack of
probable cause” conducted by the same precinct in Harris County were “of no use”
because these instances “lacked [enough] critical factual detail” to constitute a
widespread practice. 29
This case is like Johnson because the factual matter in the plaintiff’s asserted

22

Id.

23

Id. at 946–47.

24

Id. at 946 (citing complaint) (internal quotation marks omitted)

25

Id. at 946.

26

Id. at 947.

27

Id.

28

Id.

29

Id.

5

similar instances lacks detail. In pleading municipal liability, the plaintiffs offer a
three-pronged argument. First, the plaintiff’s use anecdotal evidence from their
experience with the City’s code inspections to speculate that code inspections follow
a three-step process:
a. The City, with deception or through some show of force or
authority, indicates that the property owner or manager must allow
the City to perform administrative searches of the property;
b. The City performs administrative searches of the property without
a warrant or the applicability of any other exception to the warrant
requirement, and the City provides no avenue by which the owner or
manager can refuse consent to, or challenge the City’s authority to,
search the property; and
c. The City threatens enforcement proceedings by notice or a demand
to correct alleged violations of City Code within a set period of time or
skip to commencement of enforcement proceedings, outright. 30
Second, the plaintiffs state that open records requests reveal that there are
207 active investigations of code violations occurring at properties within Dallas. 31
And third, in those 207 instances, “the City violated the constitutional rights of
those owners through use and deployment of the policy and/or custom outlined
above.” 32
But there’s a gap between step two and three. Sure, the City has evidence of
207 instances of current instances of code violations.

And, for purposes of

municipality liability, evidence of 207 instances is probably enough to constitute a
widespread practice if they are similar instances. But the plaintiffs don’t provide
30

Doc. 28 at 3 (emphasis added).

31

Id. at 8 ¶ 31.

32

Id.

6

enough—or any—factual detail in these 207 instances to show that these instances
are similar to what occurred in at plaintiff’s properties. 33

Perhaps in these

instances the property owners consented to a code search. Perhaps the City had
administrative warrants to perform a code search. Perhaps the City had a valid
exception to the warrant requirement.

Or perhaps the portion of these other

properties wasn’t “searched” because there is no reasonable expectation of privacy
where the alleged search occurred. Point being, the plaintiffs’ 207 instances in
their complaint lack the “specific facts . . . point[ing] to the specific violation in
question.”

34

Therefore, the Court dismisses plaintiffs’ section 1983 claim against

the City.
IV. Conclusion
For the reasons above, the Court GRANTS the City’s Motion.

(Doc. 31).

Additionally, the Clerk of the Court is INSTRUCTED to close this case.

33

Id.

34 Johnson, 83 F.4th at 946–47. To this end, the plaintiffs admit that discovery is needed to
show similarity. Doc. 28 at 9–10 (“Plaintiffs anticipate that, through witness interviews and
discovery, Plaintiffs will be able to show the City’s unconstitutional actions and resulting
Constitutional violations are the result of a written policy and/or custom of the City, which affects
property owners throughout Dallas.”). The Fifth Circuit requires similarity before discovery, not the
other way around. See id.; see also York v. Welch, No. 20-40580, 2024 WL 775179, at *4 (5th Cir.
Feb. 26, 2024) (“[T]he [plaintiffs] failed to obtain factual context and detail concerning the alleged
26% of incidents of police misconduct.”); see id. (“The [plaintiffs’] general statistics are likewise
devoid of factual development and context.”); Weisshaus v. Teichelman, No. 22-11099, 2024 WL
620372, at *6 (5th Cir. Feb. 14, 2024) (“[N]one of these examples provide the specific background
necessary for a court to determine, for example, the purpose of the stop, whether the persons were
guilty or not, any court rulings on the matter, any similarity between the occurrences, or number of
total stops in context.”).

7

IT IS SO ORDERED this 26th day of March, 2024.

___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

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